Practicing the Future

Over the past several years, Davina Cooper has been writing about “everyday utopias,” intentionally created practices and spaces, which represent an effort to enact social change in everyday life. In Everyday Utopias: The Conceptual Life of Promising Spaces, Cooper brings together much of this work in a revised form and underpins it with an extensive theoretical discussion of how such practices can be understood as socially transformative.

The individual pieces previously published were always intriguing and highly stimulating—engaging as they did in great detail with a variety of otherwise marginal, and sometimes unstudied, cases. These include Speakers’ Corner in Hyde Park, the Toronto Women’s bath house, Local Exchange Trading Schemes, public nudism, an alternative school, and a state-run equality program. The synthesis of these case studies into one collection adds enormous value to her previous publications, as does the very significant theoretical work Cooper undertakes in framing, connecting, and conceptualizing these spaces. More than this, the book itself is “hopeful and inspired”—as Sara Ahmed says on the back cover—because it offers multiple instances of social transformation in action and an analysis of how shaping the present may influence the future, both in the cases discussed but also in general.

The core of Cooper’s theoretical work appears in chapters one and two and is, in brief, an impressive and thoughtful engagement with utopian political traditions and theory—with the creative conceptual potential of engaging with alternative practices. As Cooper explains in chapter one, her focus on the conceptual within everyday utopias is motivated by two factors. First, “everyday utopias can revitalize progressive and radical politics through their capacity to put everyday concepts, such as property, care, markets, work, and equality, into practice in counter-normative ways.” (P. 11.) Second, they are “hugely fruitful places from which to think differently and imaginatively about concepts.” (P. 11.) This practiced counter-normativity and the different thinking that it generates are fundamental to Cooper’s project and to her very original engagements with the case studies.

The key to Cooper’s discussion is the way she understands concepts within a context in which practice, imagining, and the observer all take an active part. For Cooper, concepts are not abstract things that are merely ideational but are rather dynamic expressions that take place between imagining a thing and actualizing it. Concepts are therefore materially engaged processes in which the imagination of the material has also played an essential role.

This understanding of the conceptual can be illustrated by Cooper’s discussion of contemporary utopian thought and practice. As she explains, utopia can no longer be understood as an ideal or abstract construction of the perfect society. Rather, scholars of utopia now see it in more practical terms—as an attempt to practice ideas, which also incorporates the struggles and frequently conflictual relationships, which go into developing and sustaining novel and counter-normative practices. Utopianism remains future-oriented, but the future is one that can be imagined and, more importantly, practiced, in the present. The “everyday utopia” is in part an experimental space where ideas are tested and where new ideas emerge. There is a vision and a common purpose, of course, but the “utopia” itself rests in its actualization. In this way, the concept is an imagined-practiced reality, not an abstraction. It is not static and its edges may not always be clear, rather it may be redrawn with changing experiences, relationships, and engagements. Concepts “oscillate,” says Cooper, between the imagined and the practiced worlds—an effort to perfect and improve concepts “pulls on what is actualized,” but, at the same time, practice constrains the imagination. (P. 37.) Moreover, concepts change in response to the desire for social change. Of particular interest to Cooper is the potential that some concepts carry for being imagined and practiced in ways that might help to reshape our social relations.

This last point is illustrated in many ways through the case studies, which form the practical substance of the book and which are based on a variety of empirical methods, primarily observations and interviews. Cooper has been very thorough in her approach to these cases, avoiding the temptation to over-analyse her utopian spaces in ways that would unduly limit them or tie them up in recognizably present- and past-oriented concepts. Most importantly, she does not evaluate them against progressive, or even their own, normative standards, and she is very careful to remain self-conscious about her own participation as a “visitor” in the process of gathering information from the different sites. (P. 18.) Thus, instead of engaging in a closed style of analysis, she traces future-oriented “conceptual lines,” which are basically the multiple meanings and possibilities emerging from innovative practices. Such lines may not have the stability of firm representations or bounded concepts but are the partially developed potentialities from which the future may be formed. They, therefore, have transformative capacity, though no actual large-scale transformation can be guaranteed.

The selection of these case studies is itself intriguingly eclectic, although there is nothing random about it. Cooper has not chosen to look at separately imagined and actualized spaces distinct from the mainstream. Rather, her everyday utopias are adjacent to, proximate to, or simply part of everyday and mainstream existence. They take a slice of everyday activity—education, economic exchange, sex, governance, undressing, and speech—and actualize it differently. This actualization may be directed at a particular community, such as lesbians and trans women in the bath house example, or designed to fulfill a particular purpose, such as engaging in public debate, in the speakers’ corner example. Compared to mainstream non-utopian spaces, the everyday utopia tends to be motivated by a political purpose, it is intentionally designed to be transformative and is always, nonetheless, problematized by the challenges of actualization. Cooper’s discussion of all of her cases draws these themes out in diverse and often open-ended ways.

To conclude, this book is really worth reading, in particular for its focus on everyday intentional communities and the role that they can play in social transformation and also (even more importantly in my view) because of its highly original and thoroughly embedded approach to the issue of conceptualization and its relationship to practice. It is a book where each chapter engages with a new and fascinating topic and where the theoretical engagement is always original, rich, and thought-provoking.

 
 

Dressed Up and Ready to Read

One of the most heated series of conversations I had with my colleagues in law school was about hair: color, style, length, and accoutrements. All of these choices apparently meant something. It was unclear to me what, precisely, my haircut at the time signalled—or didn’t—but it was clear to me that Hair Matters.

Thankfully, Ruthann Robson has authored Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from our Hairstyles to Our Shoes. The book is something of a relief for me. It clarifies how my hair (and clothes, and shoe) choices are constrained by the regulatory framework of the American Constitution. I feel less responsible for my Hair and Clothing Mistakes, since it is clear that my choices are subject to constitutional limits. And it has advanced my understanding of what Dressing Means.

The book is fantastic. I spent most of my time marvelling at the work that it must have taken to produce. Each chapter is thickly layered with individual stories, historical moments, and case reviews. The connections between and amongst the identified parts are beautifully drawn. The writing is lucid and mature. The book is Robson at her best.

The premise of the book is straightforward: constitutional considerations constrain, inform, and explain our clothing—or lack of clothing—choices. Robson drives the book through seven chapters that explore the premise in different contexts. In each chapter, she draws out the themes of hierarchy, sexuality, and democracy—themes that she argues “animate the constitutional concerns surrounding attire and appearance.” (P. 2). These themes are enhanced by attention to the ways in which clothing has influenced the design of the constitutional text, to the complexity of challenging dress through constitutional litigation, to the pervasiveness of deference to perceived common sense in judicial and legislative decision-making on dress, to concerns about whether dressing is trivial or fetishized, to the historical context in which all of these conversations are held.

Every reader will find a favorite chapter. Here I’ll only identify a highlight or two from the rich text in each. Dressing Historically (Ch. 1) will draw in those with a passion for historical constitution reflections from the Magna Carta to the Stamp Act. Dressing Barely (Ch. 2) is essential reading for those with a penchant for indecent exposure. Dressing Sexily (Ch. 3) transgresses from cross-dressing to sexual violence. Dressing Professionally (Ch. 4) zips up on dressing in the private work place and general uniformity. For those who look forward to burning and reading books, Dressing Disruptively (Ch. 5), which ranges over school discipline and other political statements, must be read first. Dressing Religiously (Ch. 6) covers body modification, prisons, and niqabs with sensitivity and rigor.

Let me spend a final moment on two of my favorite parts of the book. First, I loved Robson’s attention to “slovenly interpretations,” her label for the tendency of decision-makers to rely on their seemingly common sense understanding of the meaning of clothes in interpreting and applying constitutional principles and doctrines.

Second, in Dressing Economically (Ch. 7), Robson does again what I most love about her work: She teases out the class backdrop. Hierarchy is a repeated theme throughout the book, so the power and class context in which constitutionalism laces through dressing is always present. Dressing Economically, though, takes us through slavery and cotton; laissez-faire economics, laundries, and child labor; and leaves us examining free trade and fair trade.

The book is supported by a blog. I’m relieved because when I finished reading the book, I wanted more. Not because the book was wanting, but because the book was so stimulating; because the stories of the real people in the legal disputes under consideration were so fascinating. The blog allows the themes of the book to evolve over time, which is a marvellous idea. I wish more authors would embrace the potential that supplementary resources provided online provides.

At the end of the day, I am left with a thicker sense of the fabric of American (and in some limited ways, Canadian) constitutionalism and a richer sense of how dressing is intimately connected with the equality project. What a genius idea to provide all of this through the lens of dressing.

 
 

Generations of Activism and Queer Time

In their engaging, highly readable article, Jon Binnie and Christian Klesse explore the effects of intergenerationality within Polish transnational sexual solidarity movements. Specifically, the authors examine how chronological age and people’s histories and trajectories of political activism shape the interactions taking place between lesbian and gay activists from Poland and those from Western Europe.

The authors locate their discussion within queer conversations about time and futurity. According to Lee Edelman, whose blistering critique of heterosexual reproductive futurity proved very popular within certain quarters of queer studies, “The image of the Child invariably shapes the logic within which the political itself must be thought”; there is only one position to take when it comes to the Child and that is to be “for” it. Edelman argues instead for an “unthinkable” politics that refuses to be oriented to the future and its beneficiaries. But this is not the position Binnie and Klesse adopt. Rejecting Edelman’s account of queer, the authors draw instead on José Esteban Muñoz’s argument of queer time, where “Queerness is a structuring and educated mode of desiring that allows us to see and feel beyond . . . the present.” Thus, the authors indicate the possibility of a “queer child” as one who stands in for, and gestures to, a different future—where sexual diversity is a regular and accepted dimension of social life.

At the heart of Binnie and Klesse’s article is a discussion of trans-generational gay solidarity politics drawn from participant observation and interviews—carried out since 2004—with thirty-five activists involved in Polish LGBTQ political networks. One of the striking features of their discussion is the age difference between Polish activists and those acting in solidarity from elsewhere in Europe. While the Polish activists tend to be young lesbian women in their early to mid-twenties, the gay activists from elsewhere—who join their marches and offer alliance—are frequently older men. The article explores perceptions on both sides of these age and gender transactions, including of their benefits and tensions. The authors quote a young Polish woman who describes the lack of older lesbian and gay role models in Poland; to her, one value in having older activists from elsewhere participate in marches lies in the sense of continuity and future that is provided —with its hope that the rocky, often violent times of gay activism can be survived and, at a certain point, may perhaps be left behind. At the same time, the young Polish activist quoted alludes to the problem of outside assumptions of expertise: particularly when older men from Western Europe tell young, Polish feminists how to do politics.

Problems of patronage emerge strongly in this account, with Polish queer activists being seen, in a kind of racialising gesture, as the “poor children.” Binnie and Klesse allude to the familiar West European and North American paradigm in which sexual politics is approached through a linear narrative of development. From this perspective, East Europe, along with many other parts of the world, remains “behind” when it comes to sexuality equality or liberation—a timing problem that can and needs to be remedied through accelerated “catch up” measures. Yet, this version of political time is challenged by their Polish interviewees. It is also challenged by academic work that—anchored in the historical experience of Central and Eastern Europe—approaches time differently. There are the queer nostalgias emerging from regions such as the former Yugoslavia, and the forms of “knotted time” Robert Kulpa and Joanna Mizielińska discuss, which involve temporal disjunctions and time’s unsettled representation.

The confluence of different temporalities is important for thinking about the effects of generation on political identities, knowledge, and projects. Ken Plummer, whom the authors quote, makes the nice point that “all sexualities dangle from an age perspective.” How we live our sexual identities is shaped both by our age and by our generation’s distinctive experiences, including earlier, formative political moments. Binnie and Klesse quote a Dutch gay activist who suggests that because Polish queer organisations are more recently established, they can integrate the different strands of lesbian, gay, bisexual, and transgender politics in a far more foundational manner than much older gay organisations, such as the Dutch COC, where newer movements sit precariously upon a foundationally gay and lesbian base. The Dutch COC was founded in 1946; Polish LGBTQ politics became visible, the authors suggest, in 2001 with the first march for LGBTQ rights in Warsaw and then hit a “turning point” in 2004, with the March for Tolerance in Krakow. The violent far-right counter-demonstrations that met the Krakow march helped turn LGBTQ politics into a focus for Polish national debate.

There is a growing body of work on sexual dissidence and LGBT politics in Poland from academics such as Agnieszka Graff, Anna Gruszczynska, and Joanna Mizielińska, and Binnie and Klesse’s article on trans-generational activism is one of several pieces these authors have written on Polish LGBT activism and politics. While the interest and relevance of this particular piece certainly comes from its geopolitical context, it comes also from the importance of thinking about the power and resources age, generation, and gender differentially provide in relation to political activism. Binnie and Klesse are attuned to the ways inequalities intersect; the authors allude to the paradigm of intersectionality and, in other articles on Polish LGBT activism, have focused on different inequalities, including class.

However, for me, what emerges in this article more strongly than a sociological account of how age and gender shape political activism is the significance of life histories, generational cohorts, and the formative experience of “coming out” activism to how subjects understand and feel their politics. This is an important theme, salient to many contexts where cross-generational political differences give rise to conflict and strain. Sometimes tensions between activists (whose politics got forged through different eras of struggle) surface directly but often they emerge in other ways: in the anger that erupts when issues deemed burning for one generation seem to be disregarded by another; in the incomprehension expressed towards previously (or subsequently) taken-for-granted beliefs and premises; or in the political datedness or aesthetic response that greets terms and ways of thinking perceived as outmoded or overly avant-garde. In this context, Binnie and Klesse’s article evocatively demonstrates the value of a more attentive and sensitive awareness of the generational ways in which political knowledges are formed, and of the possibilities and challenges for connecting across these differences.

 
 

The Sublime Object of Race

Nancy Leong, Racial Capitalism, 126 Harv. L. Rev. 2151 (2013).

Nancy Leong provides the legal academy with a riveting account of the ways in which the logic of capital influences racial politics. Leong weaves together several topics of interest to legal scholars in her new article: criticisms of capital, diversity politics, and race as property. Her analysis revives the Marxian1 analysis conducted by early scholars of the critical legal studies movement at a time when questions of capital and race are as relevant as ever. I like it lots.

Leong’s work takes on the momentous task of breathing new life into Marxian legal theory. It also contributes to our substantive knowledge of the ideology of diversity and to our understanding of Marxian ideas and their relationship to law. Leong’s contribution is timely given the recent Supreme Court decisions in Fisher v. University of Texas and Shelby County v. Holder, both of which arise from historical legacies of race and racism. Her article does much to question the rhetoric of diversity, the linkages of capitalism and law, and the complexities of racial politics in a racialized world.

What, though, is racial capitalism? Leong writes that racial capitalism is “a process of deriving social or economic value from the racial identity of another person.” (P. 2153.) Her examples run the gamut of white people claiming black friends—such as the famous Seinfeld episode where George claims Karl, the exterminator, as his friend to impress Mr. Morgan—to universities Photoshopping black people into their admissions materials, to corporations hiring black applicants. In each of these instances, Leong argues, racial capitalism is at play because in each instance “a white individual or a predominantly white institution derives social or economic value from associating with individuals with nonwhite racial identities.” (P. 2154.) One might imagine any number of scenarios where racial capitalism is at play—for example, the corporate boardroom or the National Football League’s Rooney Rule.

It is important to consider the ways in which diversity is used as a justification. And, if there are negative consequences to diversity, these consequences deserve to be investigated in order to craft policies and practices that advance meaningful interactions between all persons. It may seem difficult to do anything about racial capitalism, although Leong ends her article on an optimistic note about our ability to dismantle racial capitalism. If Leong is correct, and she does make a compelling case, then what are scholars and practitioners to do? Her strategy is multi-stepped. She begins by suggesting that we “discourage racial capitalism and the racial commodification it requires and reinforces.” (P. 2221.) Where racial capitalism is present—and one might argue that there is no instance in which it is not, although Leong seems unwilling to make this argument—“First, we should respond by explicitly and publicly identifying instances of racial capitalism. Second, we should call attention to racial capitalism’s harms. Third, we should impose penalties on those who engage in racial capitalism. Fourth, those penalties should be directed to the project of furthering racial equality and reducing future commodification. And finally, the transaction should be explicitly structured to express condemnation of racial capitalism and to facilitate the overarching goal of productive discourse directed at ending racial capitalism.” (P. 2222.) These steps seem clear enough, but their application seems difficult. While Leong applies these steps to social, educational, and workplace instances, it is not clear that her steps to dismantling racial capitalism are at play in these instances. (Pp. 2222–23.) The compelling case she makes necessitates further attention to resistance strategies.

Leong nimbly explains and applies the writings of Karl Marx. (Pp. 2172–98.) Her clear prose and adept analysis help make Marx accessible to the uninitiated while still being refreshing and engaging to those already familiar with Marxian analysis. Leong explains Marxian standards—commodification, use value, and exchange value—clearly and concisely. At times she may sacrifice detail in the name of simplicity and readability, but this seems a minor quibble given the complexity of her project.

Leong raises important questions about the benefits of diversity, given capitalist linkages that hurt people of color, in practice as well as the ways in which policymakers and legal professionals talk about diversity. She also positions race and class as intersecting identity categories that demand attention together. If Leong’s analysis is correct, than critiquing racially discriminatory actions must be accompanied by attending to class politics as well. Richard Thompson Ford has argued that Leong may have taken an overly pessimistic view of racial capitalism and an overly optimistic view on the likelihood it can be ended in his thoughtful Harvard Law Review Forum piece responding to Leong’s article.2 Ford’s criticisms are well-reasoned. For example, Ford argues that even if the ethos of modern diversity initiatives produces the negative results Leong highlights, pursuing diversity remains a worthy goal. Although Leong argues as much (P. 2155), Ford rightly points out that Leong’s interpretation of the dangers of diversity might be “uncharitable.” (P. 253.) It is unclear what an acceptable diversity policy at a corporation would look like or how a college might draft a reasonable affirmative action policy in the wake of Leong’s analysis. In short, Ford is troubled by the application of Leong’s theories. (P. 257.) More troubling may be the charge of essentialism Ford levies at Leong. (Pp. 256–57.) The delicate balance between making generalizable identity claims and recognizing difference remains, of course, heavily debated. If racial capitalism is to be challenged effectively, and hopefully dismantled, then more nuanced discussions of both racial identities and capitalism, which have occurred in other disciplines, must be continued in the legal academy.

Although Ford raises significant criticisms, Leong’s work helps expand the ways that legal scholars think about race and capitalism. Far from committing some sort of essentialist evil, Leong has moved forward our understanding of complex phenomena. While she does not provide guidelines for drafting diversity policies sensitive to the influences of race and capitalism, which may rile a practitioner or two, that task remains entirely possible in Leong’s framework. Despite these criticisms, Racial Capitalism is a landmark work. Leong’s adroit synthesis of classical Marxian literature, legal theory, and current sociological texts mark her contribution to the field of critical race theory and critiques of capitalism as not only timely but also engaging. This will not be the last chapter in racial capitalism analysis. Scholars will likely find this article useful, applying Leong’s work to issues of administrative, sports, entertainment, and private associations law. We have Leong to thank for making this contribution, and for encouraging further study and debate.



  1. Leong uses the word “Marxian” instead of “Marxist.” While she does not explain this word choice, it is common to describe criticisms of capital as Marxian when they take the long view of Marx and his ideas. Marxian criticism denotes criticism not centered on Marx, but instead concerns the larger expanse of class-based theoretical analysis. []
  2. Richard Thompson Ford, Capitalize on Race and Invest in Justice, 126 Harv. L. Rev. F. 252 (2013). []
 
 

Scholarship in a Violent Time

Alexander Kondakov’s paper on the claims framed by gay and lesbian activists in Russia and the effects of official silence is brave and thought-provoking.

It is a fine example of socio-legal research, combining discourse analysis of sources gathered from empirical research with theoretical insights. Amongst other sources, Kondakov draws on Wendy Brown’s work on tolerance and Brenda Cossman’s study of how refusing legal recognition to same-sex marriage nevertheless inaugurates it into “speakability.” Methodologically, his discussion of the “sub-discourse under the articulated one” as part of the normative order, “shaping things that are supposed to be left unsaid,” might appropriately inspire other legal researchers, as much scholarship confines itself to that which is said.

The paper begins with an overview of the historical treatment of same-sex activities in Russia over several centuries, referring to a number of Russian-language sources. Kondakov sums up that “[w]hen homosexuality was decriminalized, it continued to be pathologized.” Kondakov then focuses on two discursive flows regarding homosexuality in Russia. One is proposed by the state in laws and policies. He addresses the state’s “discourse of silence,” delineating the treatment of homosexuality as unspeakable in official legal and medical texts.

The other concerns the advocacy strategies of Russian gay-rights organizations, and the paper’s heart is found here. Kondakov undertakes a discourse analysis of fifteen LGBT organizations’ online statements and survey responses by their heads about rights and claims for rights. To summarize a nuanced analysis crudely, the majority of those groups prioritize a rhetoric of tolerance, while a minority advance a rhetoric of equality in claiming rights. In turn, the tolerance rhetoric correlates with deference towards the authorities and a preference for civil partnerships as a means of relationship recognition. The equality rhetoric lines up with a resistant attitude towards the authorities and claims for same-sex marriage.

Kondakov plainly prefers the equality rhetoric over that of tolerance, saying of the “tolerance bargain” that it “forces lesbians and gay men in Russia to exist in the lacunas of silence and to get rid of the sexualized features of homosexuality.” Who needs LGBT activism “to make us invisible,” he asks, when the authorities successfully do that? At the same time, the strategy of equality challenges silencing and “provokes conservative political response or recognition.” The upshot is that what is said when the silence is broken “does not necessarily contribute to the recognition of LGBTs as empowered citizens.”

With the horrific images from YouTube videos of gay bashings in our mind, and the response from outside Russia, that statement appears to be a painful understatement. Indeed, this paper is both timely and already slightly dated. It provides valuable historical context and insight into the views of activists on the ground in Russia. Paying attention to such views is crucial, given the risks that heavy-handed condemnations of Russian homophobia may only intensify the will to differentiate that country from the West.

The paper is out of date insofar as when Kondakov finalized it, it was only regional governments that had adopted provisions stipulating fines for the “propagation” of homosexuality. In June 2013, the Duma adopted a federal law banning gay propaganda. To be sure, the paper’s ambition is not to report on the latest developments in Russia. Given that the paper’s historical survey begins in medieval times, a few months’ further changes are trivial. Still, the recent federal law alters the relevant dynamics in that Kondakov contrasted Russia’s acknowledgement of European human rights norms “at the level of the Criminal Code and state law” with “forms of backlash” at the local or regional level.

At a time when some are calling for Russia’s LGBT community to get dangerous, Kondakov’s paper may inspire reflection on legal scholarship’s place and value in a time of crisis. His careful scholarly attention to the dynamics of speech and silence on gay rights in Russia is itself a courageous act of resistance.

Copies of Foucault and Butler may provide little defense to a physical attack. Still, at a moment of fear and temptation to despair, the insights that Kondakov draws from them in the Russian context may provide grounds for hope, however frail. Continuing his paper’s central theme of silence and resistance, he closes by noting that the laws banning homosexual propaganda themselves speak aloud of homosexuality and “open up a public discussion on homosexuality in Russia to negotiate its status.” Moreover, the laws “employ a rich diversity of phrases to speak about homosexuality in law,” including neologisms. The discourse is not monolithic, then, but “unstable and diverse,” hinting at “room for negotiation.”

I don’t know if Kondakov would write the same thing in the prevailing conditions. I certainly hope so.

 
 

Help in Deconstructing the Zimmerman Acquittal: The Suspicion Heuristic

L. Song Richardson & Phillip Atiba Goff, Self-Defense and the Suspicion Heuristic, 98 Iowa L.R. 293 (2012).

I like the article Self-Defense and the Suspicion Heuristic; consistent with Jotwell’s tagline, I like it lots. The timing of this short review is apt. The Zimmerman verdict was recently rendered. It is still fresh in our minds, protests are taking place across the United States, President Obama has delivered a landmark speech on race in America, reflecting that, “Trayvon Martin could have been me . . . .” Self-Defense and the Suspicion Heuristic is an important work that lends insight into thought processes that could have led both to the killing of Travyon Martin and the verdict of acquittal.

This Iowa Law Review article, authored by a law professor (Richardson) and social psychologist (Goff), explores the subtle “mental processes [that] can conspire to produce racially discriminatory behaviors.” (P. 295.) In attempting to disabuse the reader of the assumption that Mr. Zimmerman must have been a bigot or a racist, meaning a conscious discriminator, Richardson and Goff elucidate predictable and pervasive unconscious racialized psychological processes that “warp the perceptions of even the most egalitarian of individuals.” (P. 295.) They call for “a new legal and theoretical framework that can account for these biases—one that does not rely upon the fiction of the objective decision-maker or the scapegoat of the consciously biased actor.” (P. 295.) Tapping the mind sciences to illuminate unconscious psychological processing that “can lead to systematic errors in judgment about criminality,” the authors introduce “the suspicion heuristic.” They employ this heuristic, which is defined as a “mental shortcut that often leads to systemic errors in determining who is and is not suspicious” (P. 297) to interrogate reasonableness determinations in self-defense doctrine.

The suspicion heuristic seeks to explain how even the perception of race, without animus, can “bias judgments of criminality.” (P. 296.) Providing an overview of the relevant mind sciences, Richardson and Goff explore the study of heuristics (“the human tendency to use decision-making shortcuts”) (P. 297) and biases, then implicit bias, which has been found to disadvantage marginalized groups, including women, people of color, and those individuals with lower socio-economic status. (P. 297.)

The authors start with the reality that, “given the social construction of crime as racially Black, people are more likely to both consciously and non-consciously associate Blacks with criminality.” (P. 312.) In doing so, they reject ways of thinking that are “mired in antiquated lay theories of human nature,” (P. 312) in favor of the suspicion heuristic which they posit as more “consistent with four decades of research into how humans think.” (P. 312.)

The authors reference numerous studies and mind-science research on point, including research indicating that police officers are not immune from biased thought-processes. For instance, they cite a study which concludes that “an officer’s implicit association of Blacks with apes was a significant predictor of [the] overestimation [of the age of a black child],” (P. 306) which in turn is assumed to lead to harsher treatment. In acknowledging this implicit dehumanization, however, the authors do not connect this to the long history of scientific racism, for instance that perpetrated under the pseudo-science of phrenology and craniology, which operated to privilege whiteness whilst simultaneously dehumanizing people of color.

Importantly, the authors describe how the heuristic recognizes that “Blacks serve as our mental prototype (i.e. stereotype) for the violent street criminal. Furthermore, the tendency for black suspects to be over-represented in media portrayals of violent street crime makes the Black-as-criminal stereotype readily available.” (P. 310.) The consequences of such racialized unconscious analysis are serious, “if the person being judged is non-White, individuals are more likely to make a mistaken judgment of criminality.” (P. 311.) In analyzing the way the doctrine of self-defense deals with the question of perceived threats, the authors link legal doctrine and research from the mind sciences to explain the ways in which an individual may rely upon racialized heuristics and be informed by implicit racial associations. “The suspicion heuristic thus explains how mere knowledge of ubiquitous criminal stereotypes can cause pernicious errors in judgment and perception, regardless of whether the individuals involved believe or subscribe to the stereotype.” (P. 314.) This conclusion validates and brings insight to the ongoing conversation around the killing of Trayon Martin, as well as concerns with the verdict acquitting George Zimmerman. Furthermore, the authors state, “people are more likely to recall evidence of Black criminality than instances when that stereotype was false.” (P. 312.)

What the article does not explain, perhaps a worthy prequel, is just how and why those “ubiquitous criminal stereotypes“ came to be, such that they could be activated even in the absence of conscious and deliberate thoughts. That is, why, given “dwindling racial bigotry” (P. 312) does non-conscious bias against people of color, Black people in particular, persist, and where did it begin? The authors indicate that people have racialized go-to’s; that is, automatic, non-conscious, unintentional, and disparately racialized ways of thinking. These heuristics interact with our implicit biases to produce disparate outcomes for some people, Black people being their main focus. This begs the question: Why do we have the particular racial short-cuts that we do in the first place?

That said, this is an important and timely article. It provides an easily understandable primer on the law of self-defense, its history, development, classification, and utilization. (Pp. 314-318, 321-334.) This depth of analysis, combined with a solid description of the duty to retreat, and the stand-your-ground laws would delight law students engaged in criminal law exam preparations. (Pp. 326-332.) It also demonstrates the ways in which the uber-powerful legal notion of reasonableness is impacted by the suspicion heuristic, thereby having broad doctrinal appeal. (Pp. 318-320.) However, I think the greatest strength of the article is in providing a way to understand discrimination—and racism in particular—in the absence of intentionality. American jurisprudence addressing discrimination and bias remains fixated upon the intent standard, thereby excluding the contemporary manifestations of unintentional, implicit, and covert discrimination. The lack of a nomenclature about unintentional discrimination has diminished legal analysis (see for instance, Charles Lawrence III’s pioneering 1987 Stanford Law Review article, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism), which still expects and sanctions only explicit and more obvious forms of discrimination. This article should help us in this respect; it has provided both the empirical evidence to unmask, and a language to elaborate upon, the fiction of exclusively intentional forms of discrimination.

 
 

Challenging Inequality in Credit Markets—Towards a Reconstituted Financial Subject

Gary Dymski, Jesus Hernandez & Lisa Mohanty, Race, Gender, Power, and the US Subprime Mortgage and Foreclosure Crisis: A Meso Analysis, 19 Feminist Econ. 124 (July, 2013), available at SSRN.

Race, Gender, Power, and the US Subprime Mortgage and Foreclosure Crisis: A Meso Analysis, by Gary Dymski, Jesus Hernandez, and Lisa Mohanty, is a reminder of the power that mainstream economic analysis wields to shape social understandings of inequalities in personal credit markets and the terms on which potential legal and regulatory solutions are debated. At the same time, the article exposes the inadequacy of mainstream economic analysis when dealing with important questions about financial subjects and their exploitation in subprime lending markets.

The authors ask: what is it about the circumstances of minority women and men that renders these financial subjects too risky for lenders to trust with the relatively safe and affordable credit supplied by mainstream personal finance markets and at the same time the sub-prime market’s preferred borrowers of risky, dangerous, and unaffordable loans? They ask also: why did the well-documented over-supply of credit at the turn of the 21st century fail to exert competitive downward pressure on the predatory pricing of the subprime mortgages marketed to minority households, particularly minority female-headed households? It perhaps seems odd that such crucial questions about the performance of subprime markets have received little attention in conventional economic accounts of the crisis. But, as noted in the article, their absence reflects economic analysis’s robust assumptions that markets are socially neutral institutions populated by financial subjects that are abstracted from relations of racialization, class, and gender. The centering of this ahistorical, pre-political disembodied financial subject within economic analysis then perpetuates the invisibility of systemic racialized and gendered inequalities in the law reform and policy debates that economics influences.

The article contests this model of the disembodied financial subject. It draws on data about gendered and racialized inequalities in U.S. housing and housing finance markets that have been generated since the passage of the Fair Housing Act, the Equal Credit Opportunity Act, and the Home Mortgage Disclosure Act in the 1970s. To answer their questions the authors compare conventional micro-level economic analysis of the exclusion of minority populations from access to standard mortgage loans with a meso-level analysis of institutions and practices associated with the hyper-inclusion of minority and female borrowers in the subprime mortgage economy.

This comparison illustrates the differences that explanatory frames can make to understandings of problems and debates about solutions. Both micro and meso analyses may find that unequal treatment persists in credit markets essentially because it is profitable to suppliers of loans. But the micro analysis is based on an imperfect information model that also rationalizes unequal treatment. Factors correlated with race, gender, and socio-economic disadvantage (such as precarious income, asset-holdings and care responsibilities) are constructed as external to the credit market and legitimate information for suppliers to integrate into their business models and their processes for assessing loan applicants.

By contrast, the meso analysis seeks critically to explain how markets, along with other institutions, contribute to the production and perpetuation of racialized and gendered inequality. This type of economic analysis focuses on “mediating institutions and instruments,” (P.11, quoting Elson) rather than information. It traces connections between the restructuring of financial firms following the early 1980s neoliberalization of their regulation, an explosive growth of fringe banking facilities—often owned or funded by global banking firms—in minority and low-income communities, and the shift from intermediation to securitization as the production technology of mortgage finance. Financial subjects are racialized, gendered, and situated by reference to location and income. Evidence of unequal treatment by lenders is integral to the analysis.

The authors find answers to their questions in the layering of institutional and strategic changes in the banking business on top of the legacy of the US’s reliance on markets and legal instruments to create gendered and racialized social spaces, differentiated by wealth. Their data indicate that subprime lenders targeted minority communities in an era of stagnant or declining incomes and rising house prices (particularly the incomes of minority women) to extract equity and deepen debt among the already indebted. So, “there was no simple shift from exclusion to inclusion,” (P.14) and “subprime lending was never the rosy alternative path to homeownership that [it was] made out to be.” (P.16). Competition failed to reduce the prices of subprime loans in minority communities because the appearance of competition among a multiplicity of brokers hustling for business is belied by the reality that the flow of finance to households was regulated by “a small number of megabanks [acting] on behalf of return-seeking investors.” (P.20). Racial segregation, “the legacy of a race-making process … in urban housing markets,” (P.21) increased the structural market power of lenders “provid[ing] them with more opportunities to leverage short-term gains in communities of color.” (P.21).

This article is an interesting read. Its positioning of systemic racial, gender, locational, and income inequalities as integral to analysis of sub-prime lending offers a valuable corrective to mainstream economic analyses that portray consumer finance markets as socially neutral institutions for allocating credit and distributing risk. The meso economic analysis also complements the work of critical race theorists and progressive credit law scholars who have studied the exploitation of African American, Hispanic, female-headed, and other low-income households in credit markets. As such, Race, Gender, Power, and the US Subprime Mortgage and Foreclosure Crisis: A Meso Analysis provides a stimulating contribution to the trans-disciplinary project of displacing the disembodied financial subject.

 
 

The Global Problem of Women’s Equality

That we are still strategizing how to achieve gender equality—the equality of women’s constitutional and legal status, social and economic opportunities, and daily realities with those of men’s—is the perplexing truth at the heart of Penelope Andrews’ important book, From Cape Town to Kabul. Known for her work on South Africa and legal feminism, Andrews here posits questions about how gender equality can be achieved on a global scale. She offers no easy answers or totalizing theories, but proposes a notion of “conditional interdependence” as a method of situating women within their various cultures as a way to move forward with the project of equality. It’s a concept that could go far in resolving some of the thorniest arguments about “choice” and “autonomy” that permeate questions of women’s equality.

At its most hopeful, Andrews’ book presents the struggle for equality in South Africa as it was mounted against the Apartheid state, resulting in a new constitutional regime devoted to transformative law and politics. Andrews attributes the fact that this transformation included gender equality to a confluence of forces, but most importantly women’s participation. She suggests that the path chosen by South Africa is a model for many other nations, stressing that the involvement of women at all levels and phases is vital.

Nevertheless, the path towards the goal of eliminating sexism is more labyrinthian than straightforward. In part, this is because the definition of what constitutes “sexism” is itself unsettled. Among the Constitutional Court’s decisions she discusses, Bhe & Others v. The Magistrate, Khayelitsha, decided in 1996 under the Interim Constitution, provides an apt illustration. In Bhe, male inmates challenged the constitutionality of an executive order by then-President Nelson Mandela pardoning all “mothers” in prison who had children under the age of 12. The Constitutional Court ultimately upheld Mandela’s order, rejecting the kind of reflexive formal equality so prevalent in United States constitutional equal protection doctrine. Instead, the Court acknowledged that Mandela’s order did discriminate on the basis of gender, but that this discrimination was outweighed because the order would assist mothers—and more importantly, children—in the real, rather than idealized, world. Yet the dissent argued such assistance would perpetuate gender stereotypes.

Differences in strategies for eradicating gender discrimination in South Africa, however, are not the major source of Andrews’ critique. Instead, she focuses on more entrenched obstacles. She is certainly not the first to note that specific guarantees in constitutions, even when they track the most progressive human rights documents, are not sufficient to change lived experiences. But she argues that in South Africa, “the eradication of apartheid and racism, while immensely challenging and still ongoing, has been popular and not as onerous as eradicating the numerous forms of discrimination against women.” (P. 100). She attributes this to three overlapping sources, including the masculinist culture emanating from the previous authoritarian and militaristic apartheid state; the masculinist cultural remnants of a violent anti-apartheid struggle; and aspects of indigenous customary law that continue to subordinate women. It would have been interesting in this regard to devote even more attention than she does to South Africa’s evolved stance on sexual orientation equality, including a constitutional textual guarantee and a powerful doctrinal jurisprudence. Nevertheless, given the obstacles she names, it seems rather miraculous that South Africa’s commitment to gender equality is as robust as it is.

An even greater miracle would be necessary for Afghanistan to achieve even a semblance of such equality. Andrews accepts the notion of “gender apartheid” as an apt description of Afghanistan, even as the constitution contains more than a few explicit references to women’s rights. Unquestionably, the lived reality of women—across class and ethnicities—is brutal. Andrews argues that these women can maneuver to create a focus on gender equality similar to that achieved by women in South Africa during the transition to constitutional democracy. The key, Andrews believes, is making clear that national needs are intertwined and interdependent with women’s needs and rights. Men, she contends, need to stand with women. Such a possibility may seem exceedingly slight for Afghanistan, but of course it also once seemed inconceivable in South Africa.

Although Andrews’ polestars are Kabul and Cape Town, she is exceedingly mindful of the lives of rural women throughout the respective nations. Further, her examination of two nations is situated within the global struggle for women’s equality, including the international human rights context. She values culture without valorizing it, subjecting the gendered practices of developed nations (e.g., cosmetic surgery) to incisive scrutiny as part of her comparative analysis.

From Cape Town to Kabul is a book for wherever you may be—whether first world or third world or, as is true so often, straddling the usual borders—because that’s where the gender equality project is incomplete.

 
 

Law As Unfinished Social Action

Sara Ahmed, On Being Included: Racism and Diversity in Institutional Life (Duke University Press, 2012).

After reading Presumed Incompetent: The Intersections of Race and Class for Women in Academia1 and attending the Symposium organized around the book by the Berkeley Journal of Gender, Law and Justice, I came home to find Sara Ahmed’s On Being Included: Racism and Diversity in Institutional Life waiting in my mailbox (this Jot is about On Being Included, although I’m quite prepared to say that I like Presumed Incompetent (lots) as well). The combination of these two books, both filled with personal stories and institutional insight, cracked my vision of my own place in the legal academy, and the “practice” of diversity, wide open. I read this work as a person who shares a (not surprising, really) number of experiences-as-academic with Ahmed. I read it just after reading the often deeply personal essays in Presumed Incompetent. I also read it as a person who has worked to avoid being noticed as “the problem” while trying to maintain a commitment to anti-racist work. These days, that means deep concern that my own strategies and efforts are nothing more than thinly veneered cooptation. All of these things, I think, amplified the impact of the book on me. But I still do not hesitate to recommend it to you, Jotwell reader.

On Being Included is a different kind of offering from a well-known Black British feminist, Professor in Race and Cultural Studies at Goldsmiths (University of London), whose work draws on feminist theory, queer theory, critical race theory and post colonialism. She writes, “It develops my earlier arguments about ‘stranger making’ by thinking more concretely about institutional spaces…” (P. 3.) The book is a study of “diversity” as work inside institutions of higher education. Unlike most of her other work, this one developed out of an empirical study she undertook with a team (read the Introduction for the description of how this happened). Ahmed’s interviews, her personal connection to the subject matter (her presence is part of how her institution does diversity (P. 153), and she has done ‘diversity work” there as well), and her linking of empirical and theoretical insights make this a deeply engaging read.

The theoretical underpinning of this work is a mix of sociology (mainly in terms of methods) and philosophy. Although not the author’s focus, law is embedded in the work. The need for diversity is often driven by regulation, whether found in state laws or rules and regulations binding the institution, whether external or internal. In the UK, at least, many of the interviewees hold positions created after the Race Relations (Amendment) Act 2000 created a positive duty “to promote equality of opportunity and good relations between persons of different racial groups” which applied to a wide variety of public bodies, including “institutions within the further education sector”. “[I]n effect,” writes Ahmed, “[diversity] practitioners in the public sector in the UK have been writing documents to comply with the law.” (P. 8.) Law is what lies behind the production of the documents that Chapters 3 and 4 are focused on. Ahmed notes the “language of compliance” in that the documents written to comply with the law often refer to those laws in their opening paragraphs. (P. 86.) The law, she argues, is “an occasion of action.” (P. 88.) And what is that action? Ahmed suggests that the requirement of having a document created another duty—to “find the writer.” (P. 88.) The identity of the writer of the institutional document will matter in terms of how the document is received and acted upon, as Ahmed discusses in Chapters 1 and 3. And yet all of this “compliance” is taking place inside an institutional culture which is often focused on anything but law, which has cultural norms and established practices, where whiteness is often overwhelming, and “diversity workers” are needed for even quite superficial challenges to these traditions.

The book offers two important things, going beyond a critique of diversity as being something altogether different from anti-racism. First, it considers diversity not by asking what diversity might look like, or whether it has been achieved, but as both the product of work, and as doing work itself. What is “doing diversity” doing? Using interviews with a group of “diversity workers” (in Britain and Australia) and a variety of textual sources, Ahmed develops a picture of what the work is, and how it is done. Working with Butler’s performativity, she develops a notion of “non-performatives,” where “the failure of the speech act to do what it says is not a failure of intent or even circumstance, but is actually what the speech act is doing.” (P. 117.) For those who are working in the area of equality law, the book also offers a different lens on (our own) calls for legal reform in ways which require “diversity,” or demands that legal institutions, such as the judiciary, be “diverse.” As we think more about diversity not just as a contestable outcome, but as a daily work process engaged in by human actors within existing institutional structures, we might understand the likely outcomes of our work differently. I am not claiming that this understanding will lead to a complete revisioning of goals—even Ahmed leaves some space for optimism that diversity imperatives can be leveraged into ways to force people past the “brick wall” and to “the table” where conversations about what “diversity” conceals can finally happen.

Secondly, the book is focused on diversity work in institutions of higher learning (albeit mainly in the UK context, where the pace of change seems particularly blistering at the moment). There may be a particular benefit for academics and students in thinking about how “diversity” is operationalised inside institutions with which we are so familiar. What does it mean when job advertisements say, for instance:

Osgoode Hall Law School is committed to equality and diversity. The Law School has an Employment Equity Plan, which aims to ensure that our faculty is reflective of the four designated societal groups identified in the federal Employment Equity Act: women, visible minorities, Aboriginal persons, and persons with disabilities. The Law School welcomes applications from members of these groups and encourages candidates to self-identify in their initial applications (e.g. in cover letters).

Does this mean Osgoode Hall is doing diversity? Does it also mean the institution is male, white, settler, and able-bodied? What boxes are ticked by this? Is it anti-racist? Reading this book might offer a way of engaging and trying to understand institutional practices (and, perhaps, strategies) in “our own” institutions. I was particularly intrigued by Ahmed’s engagement with “performance culture” in Chapter 3. While Ahmed believes that “the development of state mechanisms for ensuring the accountability of public institutions can have progressive as well as disciplinary ends”, she wants to consider what happens when “equality becomes a performance indicator.” (P. 85.)

It might be ironic, given Ahmed’s previous work, that I found the book enjoyable to read. Her conclusions are not particularly optimistic in terms of the possibility that “diversity” will produce forms of equality which are meaningful. Diversity work, says Ahmed, tends to obscure exclusion, race and racism. It creates a discourse and a practice which can prevent the development of institutional habits of diversity. And, in fact, Ahmed argues, these effects, these non-effects, are the ones that much diversity work is designed to do. Yet Ahmed also suggests that the very “hollowness” of the term may allow possibilities for those diversity workers (not all of them) who are trying to use the space created for diversity work to force difficult conversations on unwilling institutions. Read this work to reflect on how “in legislating for equality (and against inequality) it can be assumed that equality is achieved in the act…it is as if having a policy becomes a substitute for action…which can work to conceal the inequalities that make the law necessary in the first place.” (P. 11.)



  1. Presumed Incompetent: The Intersections of Race and Class for Women in Academia (Gabriella Gutiérrez y Muhs, Yolanda Flores Niemann, Carmen G. González, & Angela P. Harris, eds., Utah State University Press, 2012). []
 
 

Provoked Intimate Femicides: A Privatized Version of “Honour”?

Pascale Fournier, Pascal McDougall & Anna R. Dekker, Dishonour, Provocation and Culture: Through the Beholder’s Eye?, 16(2) Can. Crim. L. Rev. 161 (2012), available at the University of Ottawa.

In their thought-provoking work Dishonour, Provocation and Culture: Through the Beholder’s Eye?, Pascale Fournier, Pascal McDougall and Anna R. Dekker use a unique blend of historical, cross-cultural and empirical analysis to reveal the connections between so-called “honour killings” and intimate femicides where the defence of provocation is invoked.  While “honour killings” typically involve “non-Western” defendants, and concerns about gender equality are more explicit, intimate femicides raise similar equality concerns which are often unrecognized and concealed.  The authors acknowledge that there are differences between our typical conception of honour killings and the spousal homicides in which provocation is raised by Western defendants.  For example, traditional honour killings invoke the idea of public honour, whereas in the provoked intimate femicides, “the locus of honour has shifted from the traditional extended family to the individual man” (178). However, there are underlying features that link spousal homicides to honour killings: both are “cultural claims tied to male domination of the family” (180) and both turn on the desire to control women’s sexuality. In essence, the defence of provocation is portrayed as a privatization of honour, with aspects of honour manifested through Western understandings of “passion”.

The defence of provocation in Canada has not been explicitly linked to male honour in the case law.  Instead, the defence is viewed as making concessions to human frailty, and is limited by the concept of the “ordinary person”.  The insult which triggers the killing must be grave enough to cause the ordinary person to lose self-control, and the accused must have reacted suddenly, before there was time for his “passions to cool”.  But this concession to human frailty masks the historical basis of the defence and the meaning embedded in spousal homicide cases. The idea of women and children as property of their male partners looms large even in recent cases.1 The public framing of honour killings as something “other” than Western obscures the foundations of spousal femicides in Canada, which are rooted in individual conceptions of male honour.

In the empirical section of the paper, the authors analyze recent cases involving honour crimes and spousal femicides in Canada.  Their results demonstrate a significantly higher success rate for the defence of provocation for those defendants identifiable as Western than for those from non-Western cultures.  The authors caution readers about drawing too much from their limited sample. However, it is important to consider whether these cases reflect a failure to recognize the underlying misogynist basis for Western cases involving provocation, while in cases involving accuseds from other countries with “foreign” conceptions of honour, we are able to see the misogyny for what it is.  Rosemary Cairns Way has previously made this argument2) that the honour cases fail to acknowledge the assumptions about male entitlement to women that pervade Canadian culture.  While cases involving immigrant accused often rely on expert evidence to explain the cultural basis for the accused’s actions, non-immigrant accused succeed on the provocation defence without any such evidence because the values about gender inequality reflected in the cases are deeply embedded in Canadian culture.

In R v Tran3, the Supreme Court of Canada held that the ordinary person standard in the provocation test must be  informed by values of equality, such that the ordinary person cannot be held to be imbued with qualities contrary to the values reflected in section 15 of the Charter.  This has generated optimism in those concerned about the scope of the provocation defence in Canada: many feel that Tran will limit the applicability of the defence both in cases dealing with intimate femicides and in cases dealing with “homosexual panic”.  In the latter cases, which arguably construe homophobia as ordinary, accused men have had their liability reduced after killing a man who may have made a sexual advance.4  However, Fournier et al. caution against too much optimism following Tran.  We should not assume that importing Canadian values into the provocation defence will necessarily solve the issue of honour-based killings.  In other words, we must unpack what Canadian values reflect about male dominance and the use of violence to assert control over women.  As the authors conclude, “however right the harsh punishment of honour crimes may be, this has the potential to conceal Western femicidal behaviour, an unintended consequence we should be wary of” ( 188).  While the horror of honour killings is explicitly acknowledged, “the equally horrifying practices which our “ordinary person” seems to accommodate” must also be scrutinized (189).

I would argue that if a commitment to equality is to be taken seriously, we must move beyond simply accepting that “ordinary” people kill in response to rage and jealousy.  Rather, we must ask why these emotions are privileged over some other “human frailties” that might be more deserving of our compassion.  Abolishing the defence of provocation outright is more difficult as long as we have mandatory minimum sentences for murder.  Courts understandably look to defences like provocation to mitigate the harshness of those mandatory minimums in cases where they appear excessive.  However, it is important to scrutinize closely why we feel mitigation is appropriate in some contexts and to ensure that gender inequality (and inequality based on sexual orientation) are not underlying the claims for mitigation.  This carefully crafted article makes a significant contribution to this endeavour in the context of gender and reminds those of us hopeful about the impact of Tran not to be complacent about the Canadian values that will be incorporated into the objective test.



  1. See, e.g., R v Thibert ([1996] 1 SCR 37), where the defence of provocation was allowed when a man killed his estranged spouse’s new partner; the “insult” was the refusal of his spouse to talk to him in private and the victim standing his ground when faced with a loaded gun []
  2. Culture, Religion and the Ordinary Person: An Essay on R. v. Humaid, 41 Ottawa L. Rev. 1 (2010 []
  3. 2010 SCC 58 []
  4. See, e.g., the recent case of R v Ouimet, unreported, summarized in Mary Ganes Welsh, Ex-Soldier Jailed in Gay Killing, Winnipeg Free Press, June 8, 2012, http://www.winnipegfreepress.com/local/ex-soldier-jailed-in-gay-killing-158045545.html. []