Diversity in our idea of Family: What is family law?

Teaching family law has its perils — on every issue there is someone in the class who has faced the questions addressed.  This makes teaching some of the questions even harder, particularly questions related to child welfare and child protection, to directly addressing issues of race, Indigeneity and cultural understandings of the best interests of the child.

But I would argue, it is inappropriate to teach an introductory course in family law without paying due attention to the issues of colonialism, particularly in British Columbia.  The legacy of residential schools and the sixties scoop have had profound impacts on Indigenous families, from non-recognition of diverse family forms, to direct intervention to a failure to acknowledge that parenting is a socially and culturally generated practice that can be destroyed.

I have been teaching family law at UVic Law since 2004 using materials that have been generated and edited over many years between family law professors at UVic and UBC.  Primarily the work of Professor Susan B. Boyd (recently retired).  Editing our materials year to year has given us the ability to include diverse media, links to resources like RCAP, and have themselves been a source of conversation.

The course has been taught with colonialism being one of the central themes, particularly in the family formation part of the course, and introduction to the legacy of residential schools is part of the first set of readings.  We have used excerpts from RCAP and the texts of the apologies in the House of Commons, but will work to edit our materials to be inclusive of the TRC Report and Recommendations.

In this short blog post I just want to mention two resources that I have used.  The first is a video that I show when teaching a class on Indigenous child protection.  It is a VHS cassette (an historical artefact for today’s students) produced by the Carrier Sekani Family Services: A Journey Home: Reclaiming our Children, Carrier Sekani Family Services (CSFS), House of Talent Productions, 2005  www.csfs.org  If your library doesn’t have it you can probably get it ILL from UVic Law.  The video tells the story of a bah’lats (a potluck) held by the Carrier Sekani to welcome back into the clans children who had been apprehended and raised outside their communities.

The other readings for the class are Marlee Kline, “Child Welfare Law, ‘Best Interests of the Child’ Ideology, and First Nations” (1992), 30 Osgoode Hall L.J. 375; and annie bunting,“Complicating Culture in Child Placement Decisions” (2004) 16 Canadian Journal of Women and the Law 137.  This enables an open and challenging conversation around the ideologies embedded in our understanding of terminology like “best interests of the child,” questions of essentialism, questions of protocol, and a more embodied response to the questions mostly due to the visual presentation and the powerful words of the elders (with English subtitles).

I have written about using that resource in class here: Gillian Calder, “‘Finally I Know Where I am Going to be From’: Culture, Context and Time in a Look Back at Racine v. Woods” in Kim Brooks, ed., Justice Bertha Wilson: One Woman’s Difference (Vancouver: UBC Press, 2009) pp. 173-189.

The second resource is a short story by Thomas King, “The Baby in the Airmail Box” in A Short History of Indians in Canada (Toronto: Harper Collins, 2005) 34-49 at 34-42.  The story is about an Indigenous couple who goes to a Child Placement Office in Alberta to adopt a white baby, while simultaneously a white baby has mysteriously shown up in a box delivered to the local Chief and Counsel.  It is wry and laugh-out-loud funny.  But every year I sit on the edge of the desk and for the last 8 minutes of class I read this short story to an almost silent, holding in their breath class.  At the end of the reading, when there is inevitably laughter, I set up the next class.  In that class the students are required to read a series of difficult adoption cases, including Racine v. Woods.  Thomas King is purposefully playing with stereotypes, and it makes some of the students uncomfortable.  But the goal is to go to the readings thinking carefully and critically about what is not said in those cases.  What kinds of stereotypes and assumptions are at play.  And the following class is inevitably more engaged as a result.

I am very happy to share lecture notes, syllabi from family law, or other materials (gcalder@uvic.ca).  And I am happy to know what family law teachers across the country are doing to respond to the TRC.

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“The Problem of Prostitution” – Problem-based learning in Constitutional Law: some reflections on colonialism

gillianIn the 2014-2015 academic year I revised the methodology of my first-year Constitutional Law class to centre “problem-based learning.” And the problem that I chose to ground the year, federalism, Indigenous laws, and the Charter, was the “problem of prostitution.”

If anyone is interested in thinking through what a shift to problem-based learning might look like, I have lots of resources from my year that I am super happy to share. Just email me at gcalder@uvic.ca. It is the best thing I have done to challenge my own perceptions and teaching in a long time. Here are a couple of articles about problem-based learning that I found helpful when I started my own rethinking:

  • Julie Macfarlane and John Manwaring, “Using Problem-Based Learning to Teach First Year Contracts” (1998) 16(2) Journal of Professional Legal Education 271-298
  • Shirley Lung, “The Problem Method: No Simple Solution” (2009) 45(4) Williamette Law Review 723-766.

However, what I want to say briefly here in the context of how law schools should respond to the TRC, is that one of the problems I have faced in teaching Constitutional Law is the volume of materials, but also the silos. I have tended to teach the course in three separate chunks, and evaluate those three chunks separately as well. What I found this year using a thick, messy, political, economic, social, ethical and multi-legal problem like “prostitution” was that the integrated questions of jurisdiction, colonialism, and rights remained present throughout all components of the course.

And in particular, the issue of who is affected by the sex-trade and the correlation between colonialism, murdered and missing Indigenous women and girls, and law’s engagement with prostitution, was something we returned to throughout our learning process. And while there are Indigenous issues in federalism and in the Charter, here the engagement and the learning was deep-learning. And, as a result, discussion in class and work, collaborative projects and work on evaluations engaged with questions of colonialism in a way that I have never experienced teaching Constitutional Law before.

The resources that I drew upon in teaching the Indigenous component of the course included:

I also had Guest lectures by  Val Napoleon, John Borrows.  The students also listened to this phenomenal podcast, by UVic law grad (and singer-songwriter) Tara Williamson (please use with acknowledgement to Tara and to UVic Law): https://www.dropbox.com/s/81jgawpfl7h5zx1/Podcast%2014%20intro%20to%20s7.m4a?dl=0

I also tried to challenge the pedagogy used in each class, with an aim to use movement, the visual, art, and the diversity of learning styles of my students, to connect their learning and their emotions.

The questions that students were asked to answer as part of their evaluation included:

 Question one: Amongst other goals, this section of the course has asked you to think about the relationship between Indigenous Laws and the Canadian Constitutional order. To explore this relationship you are asked to choose one source (for example, an article, a book, or a film) that is external to our course materials and to offer a critical review of that source. Your analysis should draw on at least three of the sources our course has addressed with the goal of examining the tensions that exist between Indigenous and non-Indigenous legal orders. Do we truly live in a multi-juridical country? What happens when one set of legal orders can’t hear the other? How does your source contribute to a shifting understanding of law?

An example of an external source might be: Louise Erdrich’s novel The Round House (New York: Harper Collins, 2012); Christy Jordan-Fenton and Margaret Pokiak-Fenton’s children’s book Fatty Legs: A True Story (Toronto: Annick Press, 2010) or the Inuit film, Atanarjuat (The Fast Runner), Zacharias Kunuk, 2001.

Question two: Amongst other goals, this section of the course has offered you the opportunity to critically engage with s. 35 of the Constitution Act, 1982, primarily through the cases that have interpreted that provision. In the SCC’s recent Tsilhqot’in Nation v British Columbia, 2014 SCC 44 decision, the Court held as follows:

[42] There is no suggestion in the jurisprudence or scholarship that Aboriginal title is confined to specific village sites or farms, as the Court of Appeal held. Rather, a culturally sensitive approach suggests that regular use of territories for hunting, fishing, trapping and foraging is “sufficient” use to ground Aboriginal title, provided that such use, on the facts of a particular case, evinces an intention on the part of the Aboriginal group to hold or possess the land in a manner comparable to what would be required to establish title at common law.

With attention to at least three sources that we have studied this term, how is the Court’s concern with a “culturally sensitive approach” reflected in Canadian law? Is the Court moving the jurisprudence in a new direction? What underlies this critical aspect of the judgment? What obstacles or concerns do you foresee with this approach?

 Question three: Amongst other goals, this section of the course has asked you to think about the role that colonialism plays in the “problem of prostitution.” Indeed, an argument of our course is that that the passion and creativity of the Idle No More movement has brought legal issues to light that might have otherwise lain dormant. With attention to at least three sources that we have studied together this term, what does looking at “the problem of prostitution” through the lens of the Idle No More movement bring to the surface? What systemic issues inherent in our study of the sex trade this term are elucidated through a colonialist or postcolonialist lens? How have the stories of Indigenous women been reflected, or not, in our journey through Constitutional law to date?

But significantly, issues of Indigeneity, colonialism, and being a residential-school survivor, were issues that were part of the student’s final evaluation, a factum that was to either challenge or defend Bill C-36. Teaching law in an integrated way, centring problem-solving as the primary skill, can lead to unexpected results.

I have never seen this kind of quality work from students in a first year class before, it was exhilarating and humbling to be part of – and I think there is lots to learn for how we approach the challenge the TRC recommendations set for law schools.

Idea for First Year Criminal Law?: Teach a class on R v. Kikkik (1958)

118136408_640If you are looking for a unit to add into your Criminal Law class, I would recommend taking up the 1958 case R v. Kikkik.

This was the high profile trial of an Inuk woman who was charged with murder (for killing her brother-in-law, who had killed her husband), and with child abandonment (for leaving two of her children behind when she tried to walk the 45 miles to nearest trading post).  These events took place in the winter of 1958, after the Ahiarmiut had been ‘relocated’ from their traditional lands at Ennadai Lake to Henik Lake (to a place hundreds of miles away, where there were no caribou, and where many Ahiarmiut starved to death).

I don’t think the case shows up in any of the mainstream criminal law texts, but was one of the big showtrials of its time (covered by TimeLife).  As a result, there is lots of material to drawn on for teaching!  Part of what it makes it a great case to teach, especially in first year, is that there is a documentary film you can use!  In what might be the only example I can call to mind, the documentary is made by Kikkik’s daughter, Educator Elisapee Karetak (who was a baby at the time). [Elisapee was also a cultural advisor to the first Akitiraq Law Degree Program]

I use this film/case in the very first few weeks of the class.  I don’t have them do any mandatory readings, i just arrange for them to see the film.  I have tried both having a lab session (in which they watch together), and simply letting them watch it on their own time.  There are different advantages to each approach.  The film is accessible on Vimeo (“Kikkik” https://vimeo.com/18742945.

After they have seen the film, we spend class time talking about “the facts” (as seen by the criminal justice system), both the successes and limits of that system, and then work outwards in layers to explore what other harms are present, what is not visible within the Canadian justice system, and the after-effects into the future.

Though it is early in the term, the case is memorable and carries its weight, so that we can return to it throughout the year (much in the way that some scholars use the Marshall inquiry).  My experience is that the first few week are not “too early.”

What you get is:

  • a really compelling narrative (which makes it accessible for students)
  • a rich text (which means  you can work with it on many levels, which means it works both for students with more and with less prior education/knowledge/experience with the intersection of crim and colonization)
  • both historical distance (which makes the case somewhat easier to process), and an active layering into the present (which makes visible connections between past and present)

I have been using the film/case in my criminal law class (for the past 10 years) and have found the case to be both powerful and pedagogically awesome.  (I should also say that i have taught it in different ways in different years, and have learned new things from it each time…. i think this is a great case for people wanting to start to take small steps in shifting their materials, and it would work no matter what case book you were using)

Pedagogy Notes:

  • it is a fantastic way of including the history of arctic relocations, and of the “e-number system”
  • it is a case that the judicial system “got right” (people can feel good about the possibility that the judicial system can get it right… but can also see why ‘getting it right’ is not enough)
  • It makes visible the ways that the larger systemic harms suffered by the Ahirarmiut were completely invisible to the Canadian judicial system (that is, criminal law doesn’t easily make visible the harm of relocation itself). This weaves itself back into the materials throughout the year
  • it raises questions of gender, necessity, self-defence, mothers-and-babies-in-jail, child apprehensions, right to counsel, confessions, translation, juries, judges charges to juries, media coverage of judicial system, etc etc.  [especially if you use the transcript].  There are many ways you can easily refer back to the case throughout the year in ways that support better knowledge about the history of Aboriginal/Crown relations.
  • Because this case was a HUGE show trial in the 50s (made the world stage), there are lots of materials you could draw on: The trial transcript, media coverage, sculptures, films. This means that the case/film works well with a variety of different learning styles

OTHER COMMENTS ON RESOURCES:

  • UVic has a copy of the trial transcript (for the murder trial) in our law library. In an upper year legal theory course, the students read the whole transcript.  I don’t do that in first year crim, but there are some parts of it that are really excellent for teaching with! I made a PDF copy for the students, divided into two PDFs
  • If you like to use images in class, here is a link to the powerpoint I sometimes use.  Feel free to modify, extend, alter, make it your own, etc.
  • If someone wanted to read more about it, I wrote an article that looks at the 4 genres in which the story could be told (i don’t assign it, but it can be helpful background for someone wanting to familiarize themselves with the story, or pull things out of bibliography…or if you want to talk about genres of justice, and challenge the assumption that justice finds its purest expression in the genre of criminal law cases) 
  • there are two versions of the film.  The shorter vimeo one (link above), and a longer one that has an additional 30 minutes of footage taken after the elders had returned to the home from which they had been moved.  I really love the longer version, but it is only online in the inuktitut version (as far as I can tell).  Students find it easier to access the shorter version.  If you have time to do a larger screening, the longer one has additional material that is very powerful.

OK.   other suggestions welcomed!

Criminal law & procedure

For my first subject-specific post, I’ve chosen to talk about teaching criminal law to first year students.

This coming year, I’ll be using Roach et al Criminal Law & Procedure (11th ed) for the first time – in the past, I have used custom materials that were first prepared by Isabel Grant but have more recently been kept up to date by Christine Boyle, Janine Benedet and myself.  There are trade offs to both choices.

I like very much that the Roach casebook foregrounds the troubled relationship between the Canadian criminal legal system and Indigenous people, in part through its extended use of the Donald Marshall Jr wrongful conviction as a case study (ch 4).  Prof Roach is coming to speak to our students about Marshall in October.  But I’d like to make sure that they are introduced to some of the difficult issues before then.  In September, I will ask them to read the extracts from the Report of the Aboriginal Justice Inquiry of Manitoba and from Dr Mary Ellen Turpel (LaFond)’s 1993 paper ‘On the Question of Adapting the Canadian Criminal Justice System for Aboriginal People’s: Don’t Fence Me In’ (both contained in chapter 4 of Roach et al).  Alongside these texts, I will set pages 211 – 215 and 217 – 228 of the Summary of the Truth and Reconciliation Commission Report (http://www.trc.ca/websites/trcinstitution/File/2015/Findings/Exec_Summary_2015_05_31_web_o.pdf).

I considered inviting students to read an extract from Jane McMillan’s excellent recent article on the Marshall Inquiry: L Jane McMillan, ‘Still Seeking Justice: The Marshall Inquiry Narratives’ (2014) 47:3 UBC Law Review 927 – 991 (http://ubclawreview.ca/issues/volume-473/l-jane-mcmillan-still-seeking-justice-the-marshall-inquiry-narratives/), but I think that the sheer amount of reading and the complexity of the issues risks overwhelming students who will still be in their first month of law school.  Ditto Sherene Razack’s piece, ‘Gendered Racial Violence and Spacialized Justice’ from Razack’s edited collection Race, Space and the Law (a copy is online here: http://web.uvic.ca/~ayh/104%20Razack%20WS104.PDF).  But both are excellent resources and worth mentioning to students who are interested in pursuing these questions.  As I will post in a future update, I use the Razack chapter in my jurisprudence course.

One challenge I have experienced in teaching classes regarding Indigenous people and the criminal legal system is that our students vary widely in their past exposure to and understanding of Canada’s colonial history and present, and the impact of that history and present on Indigenous people.  The TRC Summary offers a very helpful resource for students who have less understanding of this history.  My plan for these classes will be to take things slowly and to adopt Tracey Lindberg’s extremely helpful principles for pedagogy when teaching students who are encountering Indigenous perspectives and Indigenous culture for the first time (http://www.cbc.ca/radio/q/post-show-notes-shad-s-week-seven-highlights-1.3106456).  In fact, I will post these principles (with due credit, of course!) into my syllabus and invite students to discuss them early in the term.  I would appreciate hearing from others about how you handle this challenge, and whether you have resources you can share to help with this.

The Canadian criminal legal system is and has historically been a source of enormous harm to Indigenous Canadians.  I find it difficult to teach classes about Indigenous encounters with the Canadian criminal law because I want to:

a.  ensure students have a sense of the magnitude of over-representation of Indigenous Canadians in most aspects of the criminal legal system (as victims, in prisons, as children, as women, …) and the relative under-representation of Indigenous Canadians as judges and lawyers (and, Kokepenace reminds me, as jurors); but also

b.  resist reinforcing pejorative stereotypes of Indigenous people as leading disordered lives of addiction and violence.

I think the TRC will help me do this, but I am interested to hear ideas from others about how to walk this line.

I will seek to return to the principles introduced in these classes throughout the year.

Towards the end of the year, we reach a module on sentencing. Gladue and Ipeelee present teaching challenges of their own, as does the increasing reliance on mandatory minimum sentences and the restrictions on conditional sentences.  I will put up a separate post on these issues.