There are at least 500 missing Canadian aboriginal women according to a recent CBC broadcast. And there are the notorious Highway of Tears and Downtown Eastside Vancouver missing women horrors in B.C., neither seemingly close to resolution.
Canadian legal history was not a prominent endeavour when I entered law school. There was little mention of it except anecdotally and peripherally. Since 1979, the Osgoode Society for Canadian Legal History, among others, has addressed this void bounteously.
In Carnal Crimes, Sexual Assault Law in Canada, 1900-1975, University of Ottawa law professor Constance Backhouse — one of Canada’s leading legal intellectuals — focuses on misogyny and class bias which she identifies as matters infecting sexual assault law at its core.
She spares none of the participants — lawyers, police, judges, juries, doctors, reporters — although her criticisms are always explained. She draws attention to numerous deficiencies and outrages in historical criminal law standards and practice, including those involving gang rapes, date rape, consent, corroboration, and seduction.
I was amazed to learn that contraception was once illegal, among other bizarre features of our criminal law past. And that women could not be jurors in Ontario until 1951.
The taut narrative is given immediacy, variety, and realism by the artful inclusion of newspaper clippings, photographs, maps, transcript quotations, and even department store catalogues.
Every one of the nine women’s stories evokes the strongest emotions: sometimes it seems black and white, but Backhouse shades in some greys. Their names deserve recognition: Mary Ann Burton, Yvonne Collin, Velma Demerson, Ethel Machan, Beatrice Tisdale, Marie Tremblay, Williemae Moore, Rose Maria Roper, and Ana Tesla. Tremblay and Tesla are altered names, for privacy reasons.
An aura of extensive forensic competence overlays the project. It relies upon a large number of “creative and brilliant research assistants” and numerous lawyers, judges, doctors, and archivists. I cannot imagine any legal mind not being interested in this remarkable effort. Biographical detail and popular history enlivens the piece, often of judges, lawyers, or other characters.
Over 1,200 sexual assault cases were reviewed: the largest numbers from Ontario (356), Nova Scotia (314), British Columbia (179), and Quebec (143). Five cases were pre-1900. The author’s web site constancebackhouse.ca has a listing of the cases.
There is no way to improve upon her introductory words:
Sexual assault has been astonishingly widespread throughout Canadian history. It emerges out of disparities in power between men and women, adults and children, and those with and without the privileges of class, race, ethnicity, heterosexuality, physical/mental ability and other variables that create hierarchies among individuals. To pursue the study of when and how people with power perpetuate sexual assault upon the less powerful is to begin to unmask inequalities that manifest themselves through sexual coercion and violence. To review how our legal system characterizes the wrong of sexual assault puts the phenomena into sharper focus. It brings us face to face with the raw power of law, along with the enormous potential and appalling failures at the root of the Canadian justice system.
In her conclusion, she charges that “at times the criminal justice system was up for sale.” Of course, this allegation has been made about virtually all aspects of the law, but the strength of her measured observations is rooted in what appears to be meticulous research.
Her notes section is replete with textual, case, statutory, and article references crossing law, sociology, history, politics, psychology, and feminism. The sources are mostly Canadian and American.
This is no dry text. It resonates with compelling detail and novelistic passion. As a lawyer who never practised criminal law, and has read insufficient legal history, I was intrigued to see the depth and breadth of the documentary material.
Overworked though it is, “page-turner” is an apt description for these stories. Rich in social history and cultural mores, sprinkled with both the horrific and the uplifting, the selected events are loaded with emotional and mental challenges. London, Ont.; Toronto; Verdun, Que.; Weyburn, Sask.; Halifax; Hull, Que.; Yellowknife, Williams Lake, B.C.; Windsor, Ont.,: these are the Canadian cities in or near which the tragedies unfold.
Readers will be well-informed about the additional barriers faced by children and native women, racial and linguistic minorities, the hearing impaired, and the curiously twisted way in which a lesbian was prosecuted over an attempted kiss.
One chapter overviews sexual assault, sexual harassment, and sexually discriminatory practices in the workplace. It provides an enlightening retrospective of the 1970s’ emergence of workplace safety and health advocacy around gender equality and power imbalance. Highlighted are the emergence of criminal injury compensation, changes in sentencing, and victim impact statements. Backhouse also pinpoints the issue of victim restitution, for pain and suffering, through criminal or civil processes.
She also discusses incarceration as a useful reply to sexual assaults and rapes, weighing feminist positions on all sides. She urges systemic solutions based on empirical evidence rather than a focus on individual penalization. Readers can ponder and decide for themselves.
Her charges cannot be more serious: that the criminal law’s injustice was both “widely recognized” and “openly condoned.”
This can easily be expanded to civil law. She denounces the failure of our legal and political cultures — which have heavily overlapped — to respond with “special efforts to enforce the criminal law.”
Carefully elucidated are the myriad ways in which that law was lacking, either in intent or in application. The major corruption was misogyny. She unabashedly calls for a “radically transformed society” and argues that the legal system must be too.
Academics are some of the only people who can write prodigiously for publication anymore, established prose stars and the wealthy aside. Carnal Crimes has actually sold well in a market where academic writing does not sell.
Backhouse’s heavily researched writing is highly respected in Canadian academic circles. She has published 10 books since 1979. She holds or has received numerous high honours including an Order of Canada and fellowship in the the Academies of Arts, Humanities and Sciences of Canada. And she is apparently the only Canadian ever to head the American Society for Legal History.
Craig Paterson entered law school in September 1967. He can be contacted at email@example.com. This will be Craig's final review but if you are interested in joining our team as the reviewer of all things legal, be it fiction, non-fiction, film etc., please contact editor Gail Cohen at firstname.lastname@example.org.