A Culture of Rights: Law, Literature, and Canada 9781442625808

Table of contents :
Contents
Acknowledgments
A CULTURE OF RIGHTS. Law, Literature, and Canada
Introduction
1. “This Is Why Redress Matters”: Rights and National Belonging
2. Excessive Rights: Freedom of Expression and Analogies of Harm
3. “Nothing but the Pure, Entire, and Unblemished Truth?”: Trials, Counter Narratives, and Legal Rights
4. Allegory, Interpretation, and Equality Rights
5. “We Don’t Need Anybody’s Constitution”: Indigenous Peoples and Resistance to Rights
Conclusion
Notes
Works Cited
Index

Citation preview

A CULTURE OF RIGHTS Law, Literature, and Canada

With the passage into law of the Canadian Charter of Rights and Free­ doms in 1982, rights took on new legal, political, and social significance in Canada. In the following decades, Canadian jurisprudence has em­ phasized the importance of rights, determining their shape and as­ serting their centrality to legal ideas about what Canada represents. At the same time, an increasing number of Canadian novels have also en­ gaged with the language of human rights and civil liberties, reflecting, like their counterparts in law, the possibilities of rights and the failure of their protection. In A Culture of Rights, Benjamin Authers reads novels by authors in­ cluding Joy Kogawa, Margaret Atwood, Timothy Findley, and Jeannette Armstrong alongside legal texts and key constitutional rights cases, ar­ guing for the need for a more complex, interdisciplinary understanding of the sources of rights in Canada and elsewhere. He suggests that, at present, even when rights are violated, popular insistence on Canada’s rights-driven society remains. Despite the limited scope of our rights, and the deferral of more substantive rights protections to some pro­ jected, ideal Canada, we remain keen to promote ourselves as members of an entirely just society. benjamin authers is an assistant professor in the School of Law and Justice at the University of Canberra and a visiting fellow at Reg­ Net School of Regulation and Global Governance at the Australian ­National University.

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A Culture of Rights Law, Literature, and Canada

BENJAMIN AUTHERS

UNIVERSITY OF TORONTO PRESS Toronto Buffalo London

© University of Toronto Press 2016 Toronto Buffalo London www.utppublishing.com Printed in the U.S.A. ISBN 978-1-4426-3187-8 (cloth) ISBN 978-1-4426-2579-2 (paper) Printed on acid-free, 100% post-consumer recycled paper with vegetablebased inks. Library and Archives Canada Cataloguing in Publication Authers, Benjamin, 1975–, author A culture of rights : law, literature, and Canada / Benjamin Authers. Includes bibliographical references. ISBN 978-1-4426-3187-8 (cloth). – ISBN 978-1-4426-2579-2 (paper) 1. Canadian literature (English) – 20th century – History and criticism.  2. Legal literature – Canada – History – 20th century.  3. Law and literature – Canada.  4. Law in literature.  5. Human rights in literature.  6. Civil rights in literature.  7. Politics in literature.  8. Canada. Canadian Charter of Rights and Freedoms.  9. Canada – In literature.  I. Title. PS8101.L39A98 2016   C810.9'3554   C2016-900611-5

This book has been published with the help of a grant from the Federation for the Humanities and Social Sciences, through the Awards to Scholarly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada. University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council, an agency of the Government of Ontario.

Funded by the Financé par le Government gouvernement du Canada of Canada

Contents

Acknowledgments  vii Introduction  3 1 “This Is Why Redress Matters”: Rights and National Belonging  29 2 Excessive Rights: Freedom of Expression and Analogies of Harm  47 3 “Nothing but the Pure, Entire, and Unblemished Truth?”: Trials, Counter Narratives, and Legal Rights  74 4 Allegory, Interpretation, and Equality Rights  100 5 “We Don’t Need Anybody’s Constitution”: Indigenous Peoples and Resistance to Rights  127 Conclusion  149 Notes  159 Works Cited  169 Index  183

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Acknowledgments

A Culture of Rights: Law, Literature, and Canada has only been possible because of some remarkable people, all of whom I owe immense thanks. Ajay Heble has guided this work with enthusiasm and rigour from the beginning, and given me a lasting example of the hope and honesty that should always drive intellectual endeavour. Christine Bold, Sally Booth, Hilary Charlesworth, and Smaro Kamboureli have all been generous in­ terlocutors, providing me with invaluable advice as I worked with the complexities of disciplines, methodologies, laws, and literatures. Many others, across three cities and two continents, have contributed to the slow process of writing and rewriting this book. I have received boundless personal and intellectual support from Eric Adams, Suzanne Akila, Susan Brown, Sharon Ballantyne, Heather Davidson, Heather Davis-Fisch, Cecily Devereux, Michelle Elleray, Mark Fortier, Elizabeth Groeneveld, Erica Grondin, Debra Henderson, Kate Henne, Heather Kerr, Sarah Krotz, Marie-Eve Loiselle, Kris Moruzi, Jacinta Mulders, Ingrid Mündel, Caroline Read, Troy Riddell, Laura Stenberg, Kyla Tienhaara, Richard Weisberg, and Ann Wilson. Each of these scholars and friends has helped shape my thinking through their questions, suggestions, and willingness to read the various iterations that this project has taken. I’d like to thank the staff of the Petherick Reading Room of the National Library of Australia for their assistance in locating sources vital to the writing of this book and for providing such a pro­ ductive space in which to work. I am also indebted to discussions with participants at a number of conferences and workshops, notably Smaro Kamboureli’s TransCanada conferences and the annual meetings of the Association for the Study of Law, Culture and the Humanities and the Association of Canadian College and University Teachers of English.

viii Acknowledgments

At the University of Toronto Press, Siobhan McMenemy’s expert edi­ torial eye and boundless patience have shepherded me as I revised my work. Siobhan’s engagement and encouragement have made this a far better book, as have the insightful comments provided by the anon­ ymous reviewers of the manuscript and by Cheryl Suzack and the other members of the Press’s Academic Board. I am deeply grateful to Carolyn Zapf and Leah Connor for the care with which they have guided me through the final stages of this book’s publication. The Government of Ontario, the Orlando Project, the University of Guelph and the School of English and Theatre Studies, and the Impro­ visation, Community, and Social Practice Project all provided gener­ ous financial assistance for my graduate study. Postdoctoral support, in the form of a Grant Notley Memorial Postdoctoral Fellowship at the University of Alberta and an Australian Research Council Laureate Postdoctoral Fellowship at the Australian National University’s Centre for International Governance and Justice, supported by an Australian Research Council Laureate Fellowship Grant (FL 100100176), has en­ abled me to revise my doctoral work. This book has been published with assistance from a Federation for the Humanities and Social Sciences Award to Scholarly Publications Program grant, using funds provided by the Social Sciences and Humanities Council of Canada. Portions of this book originally appeared as “Truth in the Telling: Procedure, Testimony, and the Work of Improvisation in Legal Narra­ tive” in Critical Studies in Improvisation/ Études critiques en improvisa­ tion, and “The Individual Is International: Discourses of the Personal in Catherine Bush’s The Rules of Engagement and Canada’s International Policy Statement” in University of Toronto Quarterly. I would like to thank Sally Booth, Catherine Douglas, Mark Douglas, Stuart Evans, and Elke Veeh for unstinting friendship across oceans. The Authers and the Bugejas have been loving family regardless of country and time zone. Michelle Peek has read every word of this book more times than I can count; it owes much to her intellectual guidance, and I owe even more to the generosity of her friendship. Finally, this book would have been impossible without the unfailing love and support of Patrick Bugeja, a remarkable reader and my partner in all things.

A CULTURE OF RIGHTS Law, Literature, and Canada

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Introduction

How do law and literature give meaning to civil and political rights in Canada? What are the rights they see as a part of Canada and its society? Can the frequently critical approach of many legal and literary texts to the existing state of rights, a stance that often depicts ongoing and systemic violations within Canada, nonetheless be said to draw its rights standards from Canada itself? Are literature and law complicit in limiting, as well as expanding, the scope of rights? And why are these questions important? In A Culture of Rights: Law, Literature, and Canada, I examine the role of legal and literary texts in imbricating rights into Canadian public discourse. My aim is to develop a reading of the national place of rights through an examination of how law and literature, broadly understood, represent rights’ forms, potentials, and limits, and to ask what critical possibilities are produced as rights are read across disciplines. The unique rights landscape of Canada is shaped by international human rights ideals, a multi-ethnic history with distinct political conse­ quences, and a constitutional rights instrument, the Canadian Charter of Rights and Freedoms, that has fundamentally changed Canada’s law, politics, and culture. Contemporary Canadian jurisprudence empha­ sizes the importance of rights, determining their shape and affirming, through case law and legislation, their centrality to legal representa­ tions of the country. These juridical emphases are further reflected in the engagements by a growing number of Canadian novels with the language of human rights and civil liberties. Like Canadian law, these fictional depictions have served an aspirational and normative role, promulgating the rights ideals of the Charter and indicating their uto­ pian possibilities, even as existing inequalities are critiqued. Through

4  A Culture of Rights

these and other socio-cultural means, rights have become an important aspect of the values contemporary Canada understands itself to hold. In A Culture of Rights, I am particularly concerned with the central role that the dialogue between law and fiction has had in naturalizing the equation between Canada, Canadians, and rights. Even when rights are violated, this imagined equivalence works through an aspirational and yet already present futurity premised on a concomitance between Canada and rights. However, and despite their prevalence, these Canadian rights and freedoms are also often conservative in form, perhaps pre­ cisely because they are so deeply entangled with the nation-state. Rights in Canadian literature and law are often narrowly defined, with many texts producing and protecting a limited, even exclusory, range of rights: eliding economic rights, for example, in favour of civil and political rights. At the same time, both law and literature also produce moments of disruption where such understandings of rights are resisted and re­ thought, and my discussion traces the possibilities for new and more agile conceptions of social justice that might subsequently arise. This project builds upon work in the interdisciplinary field of law and literature by scholars such as Guyora Binder and Desmond Manderson who argue, as Binder puts it, that law has a “compositional role in modern culture” (1999, 88). Law’s forms, aesthetics, and ideologies are embedded in society and its institutions, and have a substantive conse­ quence for how lives are lived. At the same time, literature is involved in shaping individual and collective conceptions of the nation and its purported values. Culture is a product of the discourses that compose it and are composed by it, and law and literature have both participated in this complex constitutive process, representing Canada as premised on a rights-based ideal of individual and national good. In A Culture of Rights I seek to understand how literature and law, with their common investments in language, narrative, and rhetorical form, create particu­ larly evocative examples of these stories that Canada tells about itself. What follows is a reading practice undertaken from an interpretive position that is sensitive to the presence of rights in fictional and le­ gal conceptualizations of Canada. It is an interdisciplinary practice, one that is indebted to Mieke Bal’s (2002) methodology in Travelling Concepts in the Humanities and her assertion that “interdisciplinarity in the humanities, necessary, exciting, serious, must seek its heuristic and methodological basis in concepts” (5; emphasis in original). In Bal’s for­ mulation, concepts can “facilitate discussion on the basis of a common language” (22) between different disciplines. In A Culture of Rights, this

Introduction 5

methodology forms the basis for an interdisciplinary dialogue between legal and literary approaches to rights concepts that acknowledges simi­ larities while not discounting what is distinctive about each field’s engagements. Unlike law, which generally names rights in order to de­ termine their nature and applicability, in literature rights can form an integral part of a novel, poem, or play without being explicitly identi­ fied. A right enumerated in the Charter – such as freedom of expres­ sion – might populate a novel like Margaret Atwood’s Bodily Harm and influence our reading of that text even when the legal concept is never named as such. It is through this often-coded persistence, as well as in more overt cases, that the novels in this study engage with Canadian rights discourses, and so function alongside law as one of the constitu­ tive textual forms of rights in the nation. As Richard Weisberg argues in Poethics, the joining of literature and law, “our culture’s two most central narrative endeavors,” brings about “not just a refreshing but indeed an enduring opportunity to understand our cultural life” (1992, xiv), and it is the possibility of such an understanding that impels my reading in what follows. I take as my point of departure the enactment of the Canadian Charter of Rights and Freedoms during the 1982 Canadian constitu­ tional “patriation.”1 Part of a series of reforms passed with the Canada Act, 1982,2 the Charter forms a facet of Canada’s Constitution, with the consequence that “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or ef­ fect” (Constitution Act, 1982, section 52[1]). An aspect of “the supreme law of Canada” (ibid.), the Charter has juridical and political force com­ mensurate with that standing. In the following introduction I trace how, in addition to its significant repercussions for Canadian constitutional law, the Charter has come to have an important symbolic role in con­ structing rights as central to Canadian society. Such a broadly imagined relationship between rights and Canada has significant cultural-legal consequences. The final part of this introduction thus begins to explore how law and literature, taking the logic of section 1 of the Charter as their cue, conceive of Canada as both rights violating and rights pro­ tecting, through an often conservative understanding of rights in the nation-state as presently conceivable but also frequently deferred. The Canada Act’s constitutional modifications have had important institutional, political, and legal consequences for the Canadi­an state, with some of the most significant changes coming from the enshrining of rights under the Charter. While it acknowledges broad group rights

6  A Culture of Rights

and protections that include gender equality (section 28), pre-existing Aboriginal rights (section 25), and the rights of certain linguistic mi­ norities (sections 19–23), and gives “multicultural heritage” interpre­ tive consideration (section 27), the Charter primarily acts to protect more traditional civil and political rights and freedoms. Thus, it covers freedom of conscience and religion (section 2[a]), belief and expression (section 2[b]), the right to vote (section 3), common law legal rights (sections 7–14), and equality rights framed in the language of contem­ porary anti-discrimination law (section 15[1]), all rights that assert the primacy of the individual in the face of state power. By giving a rights schema constitutional legitimacy, the Charter has made significant legal, political, and symbolic changes in the relation­ ship between the Canadian state and its citizenry. For political theorist Alan Cairns (1995), this new constitutional focus on the rights of the individual signifies a change in the politico-legal structure of Canada itself. Cairns argues that Canadians’ “possession of Charter rights was designed to transform the base of the constitutional order” through the creation of “a pan-Canadian sense of self,” a “nationalizing, Canadi­ anizing constitutional instrument intended to shape the psyches and identities of Canadians” (197). Rather than looking to the provinces as the basis of constitutional distinctiveness (as had tended to be the case), the Charter instead foregrounds a set of national values rooted in in­ dividually oriented conceptions of law, rights, and civil liberties. The Charter comes to act as a declaration of the beliefs of the nation-state, and proffers those beliefs as something for Canadians to identify with. In the decades following its enactment, the Charter has become some­ thing of a synecdoche for Canadian ideals. Public discourse makes fre­ quent reference to the Charter as representing deeply held principles, with these often vague concepts generalized as normative and aspira­ tional for the citizenry as well as for the state as a domestic and inter­ national actor. Canadian jurisprudence has emphasized the importance of these rights, determining their shape and affirming, through case law and legislation, their centrality to legal representations of the nationstate. These legal and political emphases are further reflected in the en­ gagement of a growing number of Canadian novels with the language of human rights and civil liberties. Representations of the World War II internment and subsequent dispersal of Japanese Canadians in Joy Kogawa’s Obasan (1983), Kerri Sakamoto’s The Electrical Field (1998), and Wayson Choy’s The Jade Peony (1995) all respond to historical vio­ lations of rights within Canada, as does Margaret Sweatman’s novel of the 1919 Winnipeg General Strike, Fox (1991). Other works depict and

Introduction 7

interrogate violations of rights occurring internationally, such as the horrors of the Nazi holocaust in Anne Michaels’s Fugitive Pieces (1996), the “state of internal emergency” in India that forms the setting for Rohinton Mistry’s A Fine Balance (1995), and the civil war in Sri Lanka, as in Michael Ondaatje’s Anil’s Ghost (2000) and Shyam Selvadurai’s Funny Boy (1994). The global movements of refugees give context to Dionne Brand’s What We All Long For (2005) and Camilla Gibb’s Sweet­ ness in the Belly (2005). And Margaret Atwood’s The Handmaid’s Tale (1985), a common text for many Canadian high school students, and Timothy Findley’s Headhunter (1993) speculate about dystopic futures where individual rights have been subsumed, either by a repressive theocracy or the excesses of a wealthy oligarchy. Institutionalized as part of Canada’s cultural industries and subject to the economic, cor­ porate, and social forces that determine how and when works will be published, these novels represent only part of a growing spectrum of fictional texts that engage with rights discourses, exploring their con­ sequences, limitations, and possibilities. In focusing my analysis of rights in Canada through the Charter, I do not mean to suggest that its enactment was an entirely radical mo­ ment in Canadian culture, or that a Canadian rights discourse has only developed in the past thirty years. The Charter forms part of a larger national, and at times global, dialogue about rights, engaging with a series of complex ideological and terminological debates.3 It also has an institutional genealogy, the product of years of discussion and lobby­ ing, provincial and federal directives, and a heritage in both domestic and international rights discourses and instruments. As Cairns asserts: [T]he many changes in the constitutional culture of Canadians from 1982 to 1992 obviously cannot be defined as effects of the Charter. Such a suc­ cumbing to the imperialism of single causes would ride roughshod over the complex interaction of underlying forces and human choices that have moved Canadians in the past decade. Further, the Charter is not an un­ moved mover, but is itself shaped by the environment of ideas, events, societal transformations, and, of special importance, the agonizing consti­ tutional introspection Canadians seem unable to escape. (1995, 195)

Such influences extend back well into the twentieth century, gaining currency from the interrelationship between the development of do­ mestic and international human rights,4 as well as now-mythologized understandings of the Canadian peacekeeping “mission” and the valo­ rization of Lester B. Pearson, Canadian winner of the 1957 Nobel Peace

8  A Culture of Rights

Prize.5 In addition, a body of pre-existing common law rights, such as habeas corpus or the right to a reputation free from defamation, validates the present constitutional rights structure and exists alongside it, exert­ ing considerable influence on Canadian law. The Charter is also predat­ ed legislatively by other rights documents, including provincial antidiscrimination statutes and the federal Canadian Bill of Rights, 1960 – although the latter is now largely derided for decisions such as those in Attorney General of Canada v. Lavell (Supreme Court of Canada 1974) and Bliss v. Attorney General of Canada (Supreme Court of Canada 1979).6 Similarly, anglophone Canadian novels, including Mordecai Richler’s St Urbain’s Horseman (1971), Robertson Davies’s The Manticore (1972), and Rudy Wiebe’s The Temptations of Big Bear (1973) and The Scorched-Wood People (1977), all give prominence to rights issues or mirror legal forms in ways that could produce fascinating interdisciplinary discussions about rights discourses in Canada before the introduction of the Charter. A number of francophone novels similarly engage with legal and human rights issues. To take one example, Anne Hébert’s Kamouraska (1970) interrogates questions of guilt, innocence, and legal rights from within an imposed anglophone juridical system, what the narrator cyn­ ically describes as “the English law of this captive land that says we’re innocent until they prove us guilty” (Hébert 1973,199). Another novel, Gil Courtemanche’s Un dimanche à la piscine à Kigali (2000), translated as A Sunday at the Pool in Kigali (2003), represents the genocide in Rwanda and the AIDS pandemic as intimately connected abuses, violations of the rights to life, equality, and security of the person. The Charter’s cultural, theoretical, and historical contexts have been essential in shaping its form and content, as well as the rights concepts that it privileges. While acknowledging the environment in which it was formed, I concentrate primarily on texts roughly contemporane­ ous with the Charter’s first three decades (beginning in 1981) in order to consider its embeddedness in anglophone Canada’s current cultur­ al, legal, and political life. Similarly, my argument can only take fran­ cophone representations of rights issues into account in limited ways. The francophone Canadian legal and literary response to the Charter, both within and outside Quebec, is a complex one deserving of its own dedicated analysis, and the arguments that I develop about represen­ tations of rights in anglophone Canada cannot be readily mapped onto francophone examples. The novels and legal and political texts at the core of this study variously engage with rights that are articulated in, attributed to, or

Introduction 9

extrapolated from the Charter. They explicate the ideas underpinning rights concepts such as freedom of expression and the right to equal­ ity, affirming or critiquing – or, as is often the case, some combination of both – their ideology and application. Whether or not the Charter is ever explicitly mentioned, these texts demonstrate a conceptual en­ gagement with Canadian rights discourses and form part of the pro­ cess of reading and making meaning from the often disparate stories of rights in Canada. Rights function as an important means by which contemporary Canada knows itself: as a nation-state shaped by, and in some fashion representing, the values of human rights and civil liberties. But how is this knowledge articulated, and what is the nature of the image of itself that Canada is said to hold? In the 2007 edition of The Rights Revolu­tion, Canadian-born academic, novelist, and, recently, politician Michael Ignatieff asserts that, “like every Canadian, I carry within me a certain idea of Canada” (2007, vii). Throughout Ignatieff’s descrip­ tion of what he terms the “immense achievement that Canadian free­ dom represents to all our citizens and to the world” (xii), Canada is depicted with celebratory nationalism as a diverse yet stable place that “balance[s] majority and minority interests” in order to “maintain the unity of a complex federation” (ix). Tracing the development of rights discourse from the post–World War II “rights revolution,” whereby human rights have become central to how “we think about ourselves as citizens, as men and women” (1), Ignatieff describes rights in con­ temporary Canada as a new national imaginary, one that reflects “the values we care most about – dignity, equality, and respect” (2). “Rights have worked their way deep into our psyches” (ibid.), he argues, and are found throughout Canadian society. While legal measures enshrine and augment human rights and civil liberties in Canada, for Ignatieff “constitutions do not create rights” (28). Rather, they “codify the ones we already have” (ibid.), and as such are a consequence of a Canadian national culture wherein rights are socially endemic. Early in The Rights Revolution, Ignatieff introduces the legal form of rights as something of an uncomfortable necessity. “Rights are more than dry, legalistic phrases,” he asserts. They “are not just instruments of the law, they are expressions of our moral identity as a people” (2). He reiterates this point later in the book: [I]t may seem strange to confess a love for something so seemingly legalistic and desiccated as rights. Yet we need to think of rights as something more

10  A Culture of Rights than a dry enumeration of entitlements in constitutional codes, as more than a set of instruments that individuals use to defend themselves. Rights create and sustain culture and by culture we mean habits of the heart. Rights create community. (125; emphasis mine)

For Ignatieff, conceiving of rights as more than law can help us to bet­ ter understand how they come to be equated with culture and commu­ nity, and so become “habits of the heart” (ibid.). I take some issue with Ignatieff’s apparent legal embarrassment here, as his argument seems to miss the intrinsic role that law plays in constituting national cultures, and draws a somewhat arbitrary line to separate law from community. Law is one of the originary means of talking about rights, at the very least because it often creates the forum in which rights are contested and that justifies their enforcement. The political, normative, and in­ dividually internalized model of rights that Ignatieff idealizes in The Rights Revolution is given partial form by the narratives of law, whether in the common law, legislation, or constitutions. Law also often gives shape to discussions of rights in other spaces: witness the frequent use of courtroom scenes in literature to explicate discussions of rights, for example. Robin West constructs a more nuanced understanding of this interconnection when she argues that “the justification for rights, and for the particular rights that we have is … distinctly moral. The conse­ quence of having a right, however, is legal and political. That we have a right entails that the state may not, legally, interfere with us in those pre­ scribed ways” (2003, 72; emphasis in original). Nonetheless, Ignatieff’s argument illustrates an important connection that is often drawn be­ tween legal rights and the nation in Canada. Rights, it is argued, are not simply laws or political talking points. Rather, they transgress such disciplinary formulations, existing prolifically and somehow intrinsi­ cally to Canadian society and culture in a manner that seems unique and might be exceptional. Works like Ignatieff’s, which conceive of the national place of rights, are significant both because they depict rights constituting and af­ firming an important ideal for Canada and because they are numerous. Such representations appear again and again in texts produced by le­ gal, governmental, and social institutions in order to justify and explain existing practices, or to conceptualize how to enact “the Canada we know we can build together” (Ignatieff 2007, viii). The Charter, a potent document whose cultural meaning has proven to have connotations beyond its strictly legal application, is symbolic within these texts of

Introduction 11

a larger idea, a Canadian rights discourse that permeates the nationstate’s imaginary construction of itself as committed to the protection of rights. This is not to assert that the prevalence of these representations has resulted in Canada becoming a rights utopia, or that the Charter is emblematic of the way rights have “worked their way deep into our psyches” (ibid., 2). Rather, it is to recognize that such a belief is often expressed and that, because of its pervasiveness, an examination of that belief is necessary to understanding an important aspect of contempo­ rary Canadian culture. Through its intersection with what Terri Sussel (1995) has described as “rights consciousness” (“public attitudes, beliefs, expectations, etc., about justice and compensation” [7]), the Charter re­ flects and helps to constitute a specific, idealized conception of Canada. In Cairns’s terms, the Charter is a “nationalizing, Canadianizing con­ stitutional instrument intended to shape the psyches and identities of Canadians,” functioning as part of a large and complex discursive sys­ tem that seeks to normalize “rights-based Canadianism” (1995, 197). The idea of a rights-based Canadianism speaks to the types of links that have developed between the Canadian nation-state and rights. These connections persist in pronouncements made by a spectrum of institutions and public figures, and are frequently given context by the Charter. At its enactment, for example, then Prime Minister Pierre Trudeau noted that for the “day-to-day lives of Canadians,” the Charter constituted “probably the most significant feature” of the patriated Con­ stitution (1982, i). It is the Charter that Trudeau reasons will speak most to the Canadian people, who are less directly affected by (and by impli­ cation, less interested and invested in) the Constitution’s other changes to Canada’s politico-legal structure. The Charter’s provisions are also presented by Trudeau as the concretization of a series of rights seen as enmeshed with Canada, as already being a reality. “Most of the rights and freedoms in the Charter,” Trudeau argues, “are not totally new and different. Indeed, Canadians have tended to take them for granted over the years” (ibid.; emphasis in original). For Trudeau, the rights enumer­ ated in the Charter are already a part of Canada’s national ideology; the difference is that they will now “be guaranteed by our Constitution” (ii), along with the means of their judicial enforcement. What the Charter does is give physical manifestation to a national desire: “Canadians need and want their rights and freedoms protected” (i–ii). Jean Chrétien, minister of justice when the Charter was enacted and subsequently Canadian prime minister, echoed his predecessor when he wrote the following in a 1997 guide to the Charter:

12  A Culture of Rights The Charter embodies the central principles of our Canadian democracy. It is part of the fabric of who we are as a people. It is an affirmation of the decency of our society. It is a statement of the dignity and worth of the in­ dividual …Throughout the course of our history, we Canadians have built our society on the principles of fairness, justice, mutual respect, democracy and opportunity. Through the Charter, Canadians translated those basic values into the preeminent law of our land. Through the Charter, basic human rights became enshrined as the permanent foundation of the fu­ ture of our nation …The Canadian Charter of Rights and Freedoms ensures that whatever decisions we make, whatever paths we follow, we will do so with respect for the fundamental freedoms of each and every person who is blessed enough to live in Canada. (Chrétien 1997, n.p.)

Stressing the importance of the Charter’s adoption as “a defining mo­ ment in our history, our identity and our equality as Canadians,” Chrétien sees the Charter as a manifestation of Canadian “shared val­ ues,” “a document which serves as the guiding law of our land and entrenches the values of all of us who call Canada home” (ibid.). The Charter textualizes Canada for Chrétien, it seems, giving national val­ ues a written form that simultaneously reflects and constitutes “who we are as a people” (ibid.). Other documents produced by the state continue this celebratory understanding of the intrinsic place of the Charter. In the federal gov­ ernment’s A Newcomer’s Introduction to Canada (2006), the putative new­ comer is informed that “the Canadian Charter of Rights and Freedoms describes the basic principles and values by which Canadians live. The Charter is part of Canada’s Constitution. The Charter protects you from the moment you arrive on Canadian soil” (Government of Canada 2006, 37). Not only is the Charter fundamental to Canada’s legal and political structures, then, it is also a part of how Canadians experience the nation’s geography. Canada’s 2009 report to the United Nations Human Rights Council, as part of the first round of the Universal Periodic Review, similarly incorporates rights into the national experi­ ence. Deputy Minister of Justice John Sims opines: In Canada respect for human rights has become very much a part of our national discourse and this public discussion of human rights is ongoing. It takes place within government as new laws and policies are reviewed for consistency with domestic and international human rights standards. It also takes place in the courts and the administrative tribunals of Canada

Introduction 13 and in public commissions of inquiry. It is a prominent theme in civil soci­ ety initiatives and a focal point in the press and in the arts. Canadians from all sectors of society actively engage and help shape Canadian public opin­ ion and Canadian approaches to the advancement of human rights. (United Nations Human Rights Council 2009a)

Similarly, Canadians are reminded that when Canada acts internation­ ally, its foreign policy is also “intimately linked” to “the character of our society and the values it embodies” (Government of Canada 2005, 4). In the Overview volume of Canada’s International Policy Statement: A Role of Pride and Influence in the World, readers are told that while many coun­ tries are influenced by human rights ideals in their approaches to inter­ national affairs, because of Canada’s unique nature, its human rights have taken on a particular, and potentially ideal, form: Our shared commitment to peace, order and good government, combined with the dynamism of our communities and citizens, has produced a vi­ brant and prosperous political community. Our federation has become a diverse multicultural society capable of transcending the narrow politics of ethnic and cultural difference … Canada’s continued success depends on the joint pursuit of democracy, human rights and the rule of law. Though many countries share these values, we have moulded them into a particular constellation that reflects our historical experience and our cur­ rent aspirations. Our overarching vision is an inclusive society, where the will of the majority is balanced by a commitment to minority rights. (ibid.)

Canada’s foreign policy is presented here as the reflection of Canada’s distinctive rights identity. It is an articulation of the centrality of rights to the nation, which can also have global benefit when Canada asks of itself, in the words of another former prime minister, Paul Martin, “how best to project Canadian values and interests into the world and make a real difference in the lives of its embattled peoples, now and in the future” (2005, n.p.). Judicial pronouncements have also worked to reinforce the sym­ bolic relation between the Charter, Canada, and Canadians, enshrin­ ing them in law. According to Justice Gérard La Forest in the Supreme Court of Canada case R v. Lyons, “the Charter protects a complex of interacting values, each more or less fundamental to the free and demo­ cratic society that is Canada” (Supreme Court of Canada 1987, 326). Justice Claire L’Heureux-Dubé in Baker v. Canada (Minister of Citizenship

14  A Culture of Rights

and Immigration) found that law, the Charter, and Canadian values were interconnected and equivalent concerns when she held that im­ migration officers’ discretion “must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Cana­ dian society, and the principles of the Charter” (Supreme Court of Canada 1999a, 855). Specific rights can also indicate Canadian values. Justice Peter Cory in Vriend v. Alberta notes that the equality rights enu­ merated in section 15(1) of the Charter “are fundamental to Canada. They reflect the fondest dreams, the highest hopes and finest aspira­ tions of Canadian society” (Supreme Court of Canada 1998, 535), while in R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., Chief Justice Beverley McLachlin and Justice Louis LeBel, writing for a unan­ imous court, stated that “although s. 2(b) of the Charter is not directly implicated in the present appeal, the right to free expression that it en­ shrines is a fundamental Canadian value” (Supreme Court of Canada 2002b, 167). Outside of case law, Justice Frank Iacobucci suggested in an article written twenty years after the Charter’s enactment that it had enhanced “the quality of democracy in Canada by increasing our sensitivity to the importance of ensuring that legislation, and its application, is respectful of the equality and liberty of all Canadians” (2002, 3). Iacobucci also argued that the Charter has revolutionized the nature of the Canadian polity, increasing recognition and participation so that the nation “is more democratic; we are forced to struggle with challenging questions in a manner that ensures that Canada is a better country for all Canadians” (32). Such rhetoric also forms a part of broader public discourse around the Charter, as evidenced in media reporting of the Charter’s thirti­ eth anniversary in 2012. The coverage in the national Globe and Mail newspaper was generally celebratory, with John Ibbitson (2012) report­ ing on research showing how the Charter has become a constitutional model for other nations, and lawyer Bernard Amyot, who describes the Charter as “the cornerstone of our values and national identity” (2012, n.p.), writing that Canadians (including those in Quebec) appreciate the Charter’s protection of their rights and the role of the courts in provid­ ing that protection. The newspaper gave readers the chance to vote in a “Charter Showdown” for the Supreme Court case that they felt had improved Canada the most, with R v. Stinchcombe, the 1991 criminal law decision that all relevant evidence held by the Crown must be disclosed to the defence, receiving 94 per cent of the vote (Makin 2012, n.p.). The

Introduction 15

Canadian Broadcasting Corporation (CBC) also ran a poll on its web­ site, inviting readers to vote on whether the Charter’s thirtieth anni­ versary should be celebrated (of 1801 votes, 74.68 per cent said that it should [Canadian Broadcasting Corporation Community Team 2012b]). Of the online reactions to the impact of the Charter published by the CBC, most were similarly positive in tone (Canadian Broadcasting Cor­ poration Community Team 2012a). A poll on the Maclean’s magazine website, which offered readers four choices (as opposed to the CBC’s “Yes,” “No,” and “I’m not sure”), had a majority 40.46 per cent of re­ spondents agree that “Yes. The Charter defines Canada” and 25.92 per cent voting that “No. It marks 30 years of red tape” (Macleans.ca 2012).7 A survey from later in 2012, sponsored by the Association for Canadian Studies and reported widely in the media, stated that 60 per cent of respondents felt the Charter was “very important” as a source of per­ sonal or collective pride, with a total of 90 per cent feeling it was either “very important” or “somewhat important” (Jedwab 2012, 4). This vision of a Canada whose idealized, rights-based values are enshrined in the Charter is not universal. The number of government statements acknowledging the thirtieth anniversary was small, but did include a bland joint announcement by the Minister of Canadian Heri­ tage and Official Languages and the Minister of Justice and Attorney General of Canada describing the Charter as incorporating national values into the state when it enshrined “certain rights and freedoms that had historically been at the heart of Canadian society into a con­ stitutional document” (Government of Canada 2012, n.p.). Then Prime Minister Stephen Harper’s comments, though, were particularly nota­ ble for their qualified description of the consequences of the Charter’s enactment. While he said that “the Charter was an important step for­ ward in the development of Canadian rights policy,” he also stated that it remains “inextricably linked to the patriation of the Constitution and the divisions around that matter,” unusually casting the Charter not as the crystallization of “rights-based Canadianism,” but rather as a source of national disharmony (quoted in Canadian Broadcasting Corporation Community Team 2012b, n.p.). Print and digital media coverage of the April 2012 anniversary – ­which was substantial, and stirred in part by controversy over the Harper government’s muted recognition – also reveals diverse feelings about what the Charter has done. Editorials, opinion pieces, and let­ ters and comments from readers were often divided as to the docu­ ment’s value, sometimes along political lines that equated it with the

16  A Culture of Rights

Liberal Party and Trudeau in particular, sometimes because it was felt to have created “special rights” for certain minorities (usually women, Indigenous, and LGBTI [lesbian, gay, bisexual, transgender, and inter­ sex] people), and sometimes because it had enabled “judicial activism.” Typical of this mixed feeling might be the treatment in Maclean’s, which recognized the thirtieth anniversary by placing the Charter in both its “Good News” and “Bad News” columns. The “Good News” focused on how the Charter “created a society much more focused on issues of equality and legal fairness”; the “Bad News” that it has “permitted the court system to effectively craft new laws, frequently usurping the right of voters to tell politicians what to do” (Maclean’s 2012, 8). A number of critics, notably from Quebec and from Indigenous com­ munities, have further questioned the “good” of the Charter, character­ izing it as a colonial document that imposes a hegemonic anglophone conception of rights, and also of social norms based on those rights, upon the country. While there is significant contemporary support for the Charter in Quebec,8 the Quebec government refused to sign it in 1982, citing not only its own equivalent protection of rights but also the imperialist impulses underlying both the Charter and the form of its constitutional enactment (along with concerns about the patriation process as a whole). Indigenous opponents to constitutional reform and the enactment of the Charter have echoed this anti-colonial argument, critiques that I consider in greater depth in chapter five. The Charter has also been understood as narrowing the scope of rights in Canada, limiting them to particular forms and tying them, some­times explicitly, to certain places and people. Despite its often-­ universal applicability, the Charter is very much about Canada as a na­ tional and geopolitical entity, establishing its democratic processes (as at sections 3–5), human geography (section 6), and official languages (sec­ tions 16–23). If the Charter establishes the scope of rights in the Canadian state, those rights have frequently been understood and implemented in a nationalizing fashion, a relationship that underscores the univer­ salized individualism that Catharine MacKinnon and Joseph Slaughter describe as privileging certain subjects over others in rights discourses more generally (MacKinnon 1993, passim; Slaughter 2007, passim). The Charter is additionally described as a disruptive force, “a nationdestroying instrument that has turned Canadians against each other” (Laselva 1996, 92; see also Morton and Knopff 2000). For some critics, the individual and group-based nature of certain Charter rights (most nota­ bly the constitutional equality rights of section 15) undermines national

Introduction 17

unity and has given so-called “interest groups” the means to use activ­ ist courts to subvert the political process. These arguments continue to have currency, playing out in Grant Huscroft’s (2012) article in The Globe and Mail where he argues that the Charter has enabled the judiciary to make changes undemocratically, an opinion that echoes critiques put forward by Samuel V. Laselva (1996), Michael Mandel (1994), and Chris­ topher Manfredi (2001).9 At times, such assessments obscure the point that one of the stated functions of legal rights is to protect individuals and non-hegemonic groups: as Justice Iacobucci argues provocatively in Vriend, “groups that have historically been the target of discrimina­ tion cannot be expected to wait patiently for the protection of their hu­ man dignity and equal rights while governments move toward reform one step at a time” (Supreme Court of Canada 1998, 559). Critiques like these do, however, point to another underlying issue with constructing a nationally held body of rights: that other than the concept (and so cor­ rectness) of rights themselves, there is little in the Charter to suggest the nature of the Canadian identification with rights. Canadian federalism was riven by Quebec’s objections to the patriation process and the fail­ ure to reach a compromise. Subsequent legal and political battles have shown considerable division in how Canadians understand concepts like equality. So why does the perception of Canada as a nation whose identity shapes and is given shape by its rights discourses persist, if even a cursory analysis reveals there to be no uniform understanding of the scope, applicability, and meaning of legal rights protections? Questions like this cannot be easily answered by pointing to the Charter as the sole statement of rights in Canada (I think that a very per­ suasive argument can be made that it is not such a statement). Rather, they illustrate that underneath assertions of a collective valuing of rights and the prominence of equations between rights and Canada, there is no single understanding of rights’ social, cultural, or indeed legal mean­ ing. Rights discourses in Canada proliferate in multiple forms that are often incoherent to each other. So while statements like those in The Globe and Mail’s coverage of the Charter’s thirtieth anniversary or in A Newcomer’s Introduction to Canada link a national rights discourse to the Charter, there is also considerable discussion about rights in Canada that does not see the Charter as a definitive declaration of rights, or else resists the document altogether. Rights have significant, albeit unsta­ ble, political currency in Canada, and the political uses of the Charter are often “open to reinterpretation” (Bakan and Smith 1997, 220). These contestations stand as testament to the important social power to be

18  A Culture of Rights

found in invocations of rights; that such diversity is often glossed indi­ cates the potency that an undifferentiated national discourse of rights holds as an ideal. Literature, perhaps less obviously, has also become an often equally contested vehicle for the constitution and dissemination of Canadian rights discourses. An increasingly large number of texts produced by Canadian writers engage with, and ask critical questions about, the forms and meanings of rights. Alongside television, newspapers, magazines, and new media, Canadian literature provides one of the most immediate and accessible representations of rights abuses for many Canadians. But why use literature to talk about rights? What consequences can a novel or poem have that compare to those articulations of legal rights enacted through the institutional power of the state? For some critics, responding to these questions has meant constructing for literature an affective role wherein revealing the stories and subjectivities of the “other” (including a fictional “other”) can manifest in the reader a sym­ pathetic understanding of that other. Brenda Carr Vellino (2004) argues that this relationship has a pedagogic role, teaching about rights abuses and their consequences. For Carr Vellino, literary representations can personalize violations of the rights of another so that “the affective powers of the imagination cultivate compassion for those dissimilar from me,” with the consequence that “feeling, sentience, embodiment, and affect all do critical work in fostering human rights consciousness in citizen readers” (142). Martha Nussbaum (1995) argues that this af­ fective power can be a valuable component of judicial decision making. In Nussbaum’s articulation, novels constitute their readers “as judges of a certain sort” (83), as “literary judge[s]” (82) who, adjudicating in concert with traditional judicial reasoning, can come to a more contex­ tualized and therefore just decision. The novel, Nussbaum argues, en­ ables this judgment by provoking in the reader a particular emotional response: “[i]n its formal commitment to following complex life histo­ ries,” the novel brings the reader’s attention to “the minute details of motive and intention and their social formation – all that Seneca would have the good judge examine” (1998, 35). This human and emotional context supplements law’s own forms of reasoning and judgment, and can have explicitly civic ends when it “promotes habits of mind that lead towards social equality in that they contribute to the dismantling of the stereotypes that support group hatred” (1995, 92). An example of such reasoning could be seen in the use of Joy Kogawa’s novel Obasan by Ed Broadbent, then leader of Canada’s New Democratic

Introduction 19

Party. Broadbent asserted that Kogawa’s text, which he presented to the federal parliament on 22 September 1988 as evidence of “profound, serious human suffering” (House of Commons 1986–88, 15:19501), un­ derscored the depth of the injury to Japanese Canadians caused by the World War II internment and dispersal, and so justified the necessity of recompense. The novel is attributed with providing an indispens­ able context for comprehending and responding to lives far removed from the experience of many in Canada, and with evoking a compas­ sion that is then deployed as justification for the Redress Agreement negotiated by the National Association of Japanese Canadians and the Government of Canada. Other theorists have suggested links between literature and rights through the mobilization of empathy. In her Inventing Human Rights, Lynn Hunt (2007) traces the origins of human rights to burgeoning eighteenth century European conceptions of autonomy and empathy. Human rights, she suggests, “depend both on self-possession and on the recognition that all others are equally self-possessed” (29), the for­ mer being a manifestation of autonomy and the latter an empathetic understanding writ large. During the eighteenth century these ideas, and the fertile ground for rights discourse that they fostered, found articulation in a number of cultural works, including the epistolary novel. Citing Samuel Richardson’s Pamela (1740) and Clarissa (1747–8) and Jean-Jacques Rousseau’s Julie (1761) as examples, Hunt argues that epistolary novels were seen as representing their characters’ in­ ternal lives, often provoking strong emotional responses from readers. Through these novels, Hunt claims: Readers learned to appreciate the emotional intensity of the ordinary and the capacity of people like themselves to create on their own a moral world. Human rights grew out of the seedbed sowed by these feelings. Human rights could only flourish when people learned to think of others as their equals, as like them in some fundamental fashion. They learned this equality, at least in part, by experiencing identification with ordinary characters who seemed dramatically present and familiar, even if ulti­ mately fictional. (2007, 58)

As a result, novels functioned as particularly powerful sites of “imag­ ined empathy” (32), creating “a sense of equality and empathy through passionate involvement in the narrative” (39) and working to show readers their common feeling with others unlike them.

20  A Culture of Rights

In The Better Angels of Our Nature: Why Violence Has Declined, Steven Pinker (2011) also examines the idea that literature might, through pro­ cesses of empathy, create a socio-cultural space more receptive to uni­ versal rights. Pinker notes that the “Rights Revolutions” of the 1960s to 2000s were also a booming period for the publishing industry, with a near fivefold increase in publication (477). He describes literature, along with media such as television, as “empathy technologies” (478), “pervasive and engaging” (ibid.) means for disseminating the views and experiences of others. Often, it is assumed that such technologies will enable readers or viewers to imagine themselves in the position of another, and Pinker suggests that “it would be surprising if fictional ex­ periences didn’t have similar effects to real ones, because people often blur the two in their memories. And a few experiments do suggest that fiction can expand sympathy” (589). Yet he also notes the problems and difficulties of such an approach, ultimately opining that empathy is an uncertain means for ensuring that others lead dignified lives safe from harm and preferring instead “policies and norms that become second nature and render empathy unnecessary” (592). There is often a presumption in theories such as Nussbaum’s and Carr Vellino’s that literature will necessarily produce a particular – that is a compassionate, or empathetic, or merciful – response in the reader. Pinker notes the lack of evidence supporting this assertion (2011, 589), and philosopher Dewi Zephaniah Phillips, in his review of Nussbaum’s Poetic Justice, describes it as an assumption that “judgement must go in a certain direction, namely, that of her [Nussbaum’s] liberal human­ ism” (Phillips 1998, 203; see also Acorn 2004). As Michael Hanne (1996) notes in The Power of the Story, his study of novels with explicitly politi­ cal lives, writers’ intentions do not delimit the potential interpretation of their works; rather, readers go on to “appropriate the text for their own purposes” (4), something Nussbaum herself gestures towards (Nussbaum 1995, xvii). Indeed, Nussbaum articulates some of the other possible limits to this argument in Poetic Justice, positing that readers could, although they are unlikely to, resist engaging with a novel on its terms – that is, on terms that encourage an understanding of the context of characters and an immersion in a form wherein “concern for the disadvantaged is built into the structure of the literary experi­ ence” (87). She also acknowledges somewhat mildly that literature can distort in its representation of individual and social problems (75), and concedes that not all novels will lead the reader “toward social equality rather than its opposite” (76). The solution, she suggests, is to exercise

Introduction 21

a critical stance towards the novels that we read and our judgments in reading them. While such a position seems at odds with her later ques­ tioning of why readers would resist “the novel’s invitation to engage ourselves with it in the ways it suggests” (83), and is largely subsumed within the larger argument of Poetic Justice (as well as in critiques of it), it is a qualification worth noting. While I believe that literature can be productively employed to rep­ resent difference, and that its representations can have affective con­ sequences, I am not attempting to assert here that Canadian literature necessarily makes its readers more receptive to ideas of equality and human dignity, or that it inevitably leads to compassion for others or respect for human rights values. I agree with critical cautions against presuming that novels representing human suffering will make read­ ers more compassionate towards distant others. Some of my scepticism comes from the assumptions these theories make about a reader whose sympathy for rights (and for certain forms of rights) will be engaged, or indeed generated, by textual representations of the lives of others. The meanings attributed by readers to literature cannot be said to necessar­ ily produce a human rights consciousness or a more equitable or merci­ ful form of judgment, which are ideologically laden terms that presume very particular audiences and reading contexts and consequences. The queer, anti-capitalist aesthetic of Larissa Lai’s Salt Fish Girl (2002), for example, might receive a very different response to the approval it has garnered within Canadian universities in reading communities outside of the academy. It is also important to consider the role played by literary production in the relationship between readers and rights. From Marcus Zusak’s The Book Thief (2005) to Azar Nafisi’s Reading Lolita in Tehran (2003), a growing number of the novels and life narratives that appear on best­ seller lists in the Global North deal with human rights abuses. Their popularity suggests simultaneously an interest on the parts of authors and readers in rights issues and the central role that Western publish­ ing has in producing and catering to this interest (Slaughter 2007, 38). The demands of publishing markets can be seen to shape the nature of the rights that are discussed in these works, frequently privileging, for example, individualism and civil and political rights over economic, social, and cultural rights. At the same time though, these literary de­ pictions of rights abuses are not wholly delimited by their complicities with the market, their stories equally likely to be “received and inter­ preted in unpredictable ways by the audience whose attention they

22  A Culture of Rights

seek and garner” (Schaffer and Smith 2004, 27). While literature should not be understood as a site of comprehensive resistance to hegemony, there remains the possibility that stories of human rights abuses might be read and responded to in dissonant ways. My argument here is not that literary, or indeed legal, texts are nec­ essarily technologies of empathy, or that they can or should be used to such ends. Presuming that the literary representation of rights will make a reader more compassionate towards the victims of rights abuses is a very different assertion from a thesis holding that literature might be complicit in the production and dissemination of certain kinds of rights discourses. I argue the latter proposition: that art has a constitu­ tive role, working to delineate and perpetuate rights discourses, even as it is also responsive to socio-cultural norms and ideas. The constitutive role of Canadian literature is a very similar one to that of rights law in Canada, with these novels generating a “literary” rights discourse that can “constitute and regulate, imagine and test, kinds of subjects, subjec­ tivities, and social formations” (Slaughter 2007, 8). Like law, literature contributes to the ways in which rights are understood in Canada, and informs how the subjects of those rights conceive of their individual and collective relationship to a rights-based Canadianism. In positing that rights are central to how Canada imagines itself, I am arguing for a complex interrelationship between national symbolism and the production of that symbolism. The Charter is held to represent Canadian values. Concomitantly, the Charter also reinforces the ideol­ ogy behind those values, and so is complicit in producing the idea of Canada that it is said to represent. In this somewhat circular equation, then, the Charter represents Canada, and in so doing re-presents the do­ mestic valorization of rights as constituting, in order to constitute, the nation. It is a relationship that plays out in novels as well as in case law, and the legal and literary texts that I analyse in the following chapters are important sites through which the hegemonic discourse of rights as Canadian can be better known. In establishing the terms of this study, however, it is first useful to consider the representational strategies, exemplified by section 1 of the Charter, through which rights are con­ structed as inextricable from the Canadian nation-state. Section 1 holds that “the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (Canadian Charter of Rights and Freedoms, 1982, section 1). As a potential restriction on constitutional

Introduction 23

rights, section 1 thus makes explicit the tension between the nationstate that both violates rights (section 32 of the Charter limits its ap­ plication to public bodies) and guarantees them (through those same public bodies). Section 1 also articulates the nature of the relationship between the individual holder of rights and Canada, here idealized as a “free and democratic society.” The Supreme Court of Canada established the terms of this rela­ tionship in the 1986 case R v. Oakes, which remains the principal inter­ pretative methodology for section 1. The facts in Oakes are often now eclipsed in favour of its section 1 test; the case considered whether a reverse onus provision in the Narcotics Control Act, 1970, contravened the presumption of innocence, and thus section 11(d) of the Charter. Having established the violation of the defendant’s right to a fair trial, the court then turned to whether the reverse onus provisions were jus­ tified by section 1. In a majority decision that was unanimous on this point, Chief Justice Brian Dickson found that section 1 constitutionally guaranteed rights as part of “the supreme law of Canada” (Supreme Court of Canada 1986, 135). He then went on to argue that the values of a “free and democratic society” described in section 1 do not simply determine what a reasonable limitation on rights is, but also generate and protect those rights: A … contextual element of interpretation of s. 1 is provided by the words “free and democratic society.” Inclusion of these words as the final stan­ dard of justification for limits on rights and freedoms refers the Court to the very purpose for which the Charter was originally entrenched in the Constitution: Canadian society is to be free and democratic. The Court must be guided by the values and principles essential to a free and demo­ cratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which en­ hance the participation of individuals and groups in society. The underly­ ing values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, de­ spite its effect, to be reasonable and demonstrably justified. (136)

In Dickson’s interpretation Canada becomes an idealized abstraction. Canada is to be free and democratic – a presumption that is never

24  A Culture of Rights

really elaborated upon or challenged by the court – and the values and principles of a free and democratic society that underpin and are enumerated in the Charter establish the norm to which the nationstate aspires. Dickson returns to this understanding in his decision in the Keegstra (1990) freedom of expression case, stating that section 1 “has a dual function, operating both to activate Charter rights and freedoms and to permit such reasonable limits as a free and demo­ cratic society may have occasion to place upon them” (Supreme Court of Canada 1990a, 736) and finding that it articulates Canada’s “funda­ mental values and aspirations” (735). At the same time, Dickson reads Canada as if it somehow presently manifests those fundamental val­ ues, albeit through a complex temporality. It might fail to uphold val­ ues and principles like human dignity in particular cases, but Canada nonetheless constitutes the standard by which the scope and nature of those values can be known, derived as they are from the society that produced the Char­ter that guarantees them. The sense here is not that those values are purely  aspirational, but that they are in some way already embodied in Canadian society. Oakes thus ambivalently reads section 1 as representing how Canada strives to achieve its imagined form as a nation structured by rights, while simultaneously under­ scoring that this ideal nation is already constituted conceptually by those rights. The same complex temporality can be seen in section 27, which states that the Charter “shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Cana­ dians” (Canadian Charter of Rights and Freedoms, 1982, section 27). Rarely invoked within the courts, this section denotes a making of mean­ ing that is contingent on other rights and freedoms, and so lacks the in­ dividualized applicability and distinct consequences of many Charter rights. Nonetheless, the provision’s “shall” suggests an explicatory force, an interpretive requirement that influences how other rights are to be understood. Section 27 is omnipresent, given meaning by its capacity to denote what is stated unproblematically to be Canada’s historical and social context. It is thus a depiction of interpretive action and of how Canada is. Section 27 does not stand simply as a hermeneutic guide for conflicts to come, although by its incorporation into the Charter it does note the possibility that such conflicts might arise. Instead, it rec­ ognizes that rights are consistent with Canada, as otherwise the section could never be law, could never be conceivably instituted. Rights and Canada, here marked by the nation’s integrally multicultural heritage,

Introduction 25

are consequently coexistent and reconcilable, not simply as an aspira­ tion but as a concretely manifestable “shall.” It is on conceptions like this that much of the rhetoric about Canada as a nation constituted by rights depends. They enable statements like Justice Cory’s earlier-mentioned opinion in Vriend, for example, that equality rights “are fundamental to Canada. They reflect the fondest dreams, the highest hopes and finest aspirations of Canadian society” (Supreme Court of Canada 1998, 535). For Justice Cory, equality rights are not just dreams, hopes, and aspirations. Rather, they are fundamental to Canada, even if they remain fond dreams and high hopes from a sub­ stantive perspective – as, for example, in specific Charter cases before a court. As a representation of the nation, Canadian rights discourses occupy a place between what will be and what is, and are simultane­ ously aspirations to be striven for and foundational principles that are already conceptually omnipresent. We also see this in Ignatieff’s exhortation “to narrow the gap between the Canada we actually live in and the Canada we know we can build together” (2007, viii). Ignatieff’s statement, like Cory’s, envisions a Canada that is both a place where rights are violated and a place where a better, more just society is already conceived of. It is a statement of aspirational futurity that is at the same time a statement of reality about what Canada is already understood to be. The Canada “we actually live in” may not represent a place of rights perfection, but at the same time, “we know” such a place, because we have already imagined it as Canada. Dickson’s judgment in Oakes has drawn mixed responses: Peter Hogg, for instance, describes it as “brilliant” (2006, 829) while Troy Riddell and F.L. Morton view it as having allowed “public interest litigators” (1998, 480) unprecedented and unwarranted access to the mechanisms of constitutional change. For the purposes of this argument, however, I am particularly interested in how Dickson’s judgment might be in­ terdisciplinarily extrapolated from the field of law to talk about other cultural discourses, and so to speak to the broader cultural work of rights in Canada. Are literary texts similarly idealizing Canada, even in the breach of rights? This question might be answered through a reading of, and then di­ vergence from, the correlations Joseph Slaughter draws between inter­ national human rights and the Bildungsroman genre. Slaughter argues that human rights are represented rhetorically as both what everyone already knows – that is, they are fundamental to an ideal human soci­ ety – and what everyone should know, and so are aspirational (2007, 2).

26  A Culture of Rights

Slaughter’s formulation thus suggests for international human rights an echo of the strange temporality I argue Chief Justice Dickson puts forward for Canada. Slaughter’s representation of the relationship be­ tween what “everyone knows” and “everyone should know” is a varia­ tion on Dickson’s idea of the free and democratic society that Canada already is, even in its acknowledged failure to be so. Within this con­ ceptual frame, Slaughter’s reading of the Bildungsroman takes as its primary problematic the incorporation of a (frequently maverick) indi­ vidual into society. It is thus a narrative that dramatizes the “legibility of human rights … the didactic story of an individual who is socialized in the process of learning for oneself what everyone else (including the reader) presumably already knows” (3). Many of the Canadian novels I discuss tend towards a similar harmo­ nization of individual and social. In a manner similar to the represen­ tation of the tension between individual and communal that concerns the Bildungsroman, these novels illustrate the disharmony between the protagonist and collective structures that are frequently hostile to indi­ vidual difference. The novels’ resolution of this disharmony, however, is rarely incorporation into society as it presently exists; even where such reconciliation does occur, histories of rights violations complicate the new relationship. Rather, these Canadian novels eschew the vis­ ible moment of integration – what is – in favour of Dickson’s “free and democratic society”: the futurity of a “what will be” that is nonetheless presently conceivable. In these works, it is the idealized paradigm of the rights-based free and democratic society that has thematic and ide­ ological centrality and with which the individual seeks harmonization, rather than with the society that has failed to meet that ideal. While not a strict mirror to how the Charter has influenced ideas of Canadian national identity, there are parallels between how legal and literary texts have constructed and disseminated rights in the Canadian nation-state. An array of works, many of them considered canonical, interrogate Canadian society and history from a perspective of disen­ franchisement and inequality, with Kogawa’s Obasan (1983), Atwood’s The Handmaid’s Tale (1985), Ondaatje’s In the Skin of a Lion (1987), and Beatrice Culleton’s In Search of April Raintree (1983) being only a wellknown few. In novels such as these, Canada is often the site of a failed promise of rights. As with the construction of a legal case under the Charter of Rights and Freedoms, the state is cast in these novels as a violator of rights.

Introduction 27

Yet, like the vision of legal rights in the Charter, rights persist, even in their violation. Novelistic attacks on the state through an evocation of rights concepts, including security of the person and equality, also work to underscore the importance of those concepts. Where these cri­ tiques do not produce a reparative result, so that a rights abuse fails to be remedied in a specific novel, the importance of rights remains as an interpretive frame by which actions and events are to be under­ stood, whether in the uncertain possibilities of Arcadia’s final flight in Catherine Bush’s The Rules of Engagement and Mrs Noyes’s final prayer for rain in Timothy Findley’s Not Wanted on the Voyage, the bleak ending of Rohinton Mistry’s A Fine Balance, or in the ideal, futurized depic­ tion of Canada as the “free and democratic society” of section 1 of the Charter. These texts assert that, while the promises of rights might not be fulfilled presently, rights themselves remain the privileged way of determining fictional and legal meaning. While as yet unrepresentable, the realization of rights is as conceivable as their violation. It is thus important to stress that rights discourse itself is not usu­ ally in contention in either the legal or literary texts that I am examin­ ing. Most often, the debate seems not to be that rights are the wrong response to a problem, but that their particular manifestation, or the limited or failed nature of their protection, is. This position is at once aspirational and normative. Rights may not have been protected in a particular instance, but, by virtue of their cultural presence, their illdefined permeation of the nation, they exist as a potential in the present, and not only the future. It is not a matter of bringing rights into the Canadian imaginary: they are already there; they have already “worked their way deep into our psyches.” The problem, it might be said, is that rights have not yet properly manifested. We have not yet figured out how to make effective the rights ideals that we already hold. The vision of a Canada constituted by rights – the “free and democrat­ ic society” of section 1 – consequently remains, even in the ambivalent representation of rights in these novels or in cases like Egan v. Canada (Supreme Court of Canada 1995), which uphold the right to equality at the same time as they rely on a “reasonable limitation” under sec­ tion 1 to deny the claimant’s case. Moreover, following Oakes, Canada is not only the source of rights but also the standard by which they are known. The principles valued by the free and democratic society that is Canada are represented as absolutely compatible with legal rights, because they are those rights.

28  A Culture of Rights

The law and novels I look to here clearly mount a challenge to sub­ stantive and formal inequality. Nonetheless, their linking of Canada and rights often also manifests a corresponding conservatism with regards to the appropriate scope of rights. The idealized nation-state consti­ tutes, justifies, and legitimates rights in Canada. It gives them meaning and determines their scope. It can also rank rights; the Charter’s val­ orization of freedom of religion but not economic rights, for example, delimits the scope of legal and political protection and inevitably in­ fluences the socio-cultural value attributed to certain kinds of rights abuses. Moreover, the conceptual correctness of a right to equality or to a fair trial is rarely at stake in works of anglophone Canadian literature, just as the fundamental social good of these rights is unchallenged in the Supreme Court. Individual texts may condemn abuses, but they rarely question why rights more generally should be the privileged re­ sponse to inhumane treatment. The nature of rights in Canada cannot be understood without interrogating conceptions of both the prima­ cy of rights and what specific rights signify, reflected and constituted through means that include literature and law. Literary critic Lennard Davis argues that the novel is “inherently ideological” (1987, 224) and that the genre’s politics is “one that by and large preserves the status quo and defends against radical aspirations” (225). As the chapters that follow demonstrate, this conservatism can be seen in many of the novels that address rights in Canada, as well as in the more overtly state-centred work of legal texts like Supreme Court decisions and the Charter. It manifests both in a return to an ideal, if yet unrealized, Canada in discussions of rights, as well as an often delim­ ited conception of the scope of rights protection. What this suggests is that contemporary rights discourses might be pushed to endow rights with more manifold content and that we should also recognize other ways of creating social justice. It also questions the terms by which Canadians have come to their rights, interrogating the forms that those rights take and arguing for the necessity of a far deeper understanding of the complexity of ideas of human dignity and of the nation than has been suggested by many contemporary literary and legal representa­ tions of rights in Canada.

1 “This Is Why Redress Matters”: Rights and National Belonging

On 22 September 1988 an agreement was signed by Canadian Prime Minister Brian Mulroney and Arthur Miki, president of the National Association of Japanese Canadians, stating that the forced removal, in­ ternment, and dispersal of Japanese Canadians during and after World War II was “unjust and violated principles of human rights as they are understood today” (Government of Canada 1988, section 1). The Redress Agreement, which followed years of negotiations and lobbying by Japanese Canadians, attempted to acknowledge and remedy these wrongs, and saw the Government of Canada pledge to prevent such a violation of rights from ever reoccurring (ibid., section 2). The issue of Japanese Canadian redress neither began nor ended with the signing of this document: as important as the Redress Agreement is, it is only one moment in a political and personal continuum. None­ theless, as Roy Miki argues in his study of the redress movement, the agreement has significant figurative connotations, not the least of which is the rearticulation of Japanese Canadian identity “to incorporate the more inclusive language of ‘citizenship’ and ‘human rights’ that consti­ tutes the liberal democratic values of the Canadian nation” (2005, 264), a reading of Japanese Canadians “into the nation as ‘citizens’” (323). This chapter examines how rights are linked to ideas of Canadian na­ tional belonging in Joy Kogawa’s novel Itsuka (1992/1993, subsequent­ ly re-envisioned as Emily Kato [2005]). Kogawa’s novel fictionalizes the work of the Japanese Canadian community towards redress and repre­ sents the movement’s success as enabling personal healing and a figu­ rative re-entry into Canadian society. Memorializing Canada’s abuse of rights, Itsuka presents the official recognition of that abuse as the means by which Japanese Canadians finally become part of the nation. In this,

30  A Culture of Rights

it echoes the celebratory rhetoric of inclusion that marks the Redress Agreement and much of the parliamentary discussion around it, as well as broader imagined connections between Canada and rights. Yet Itsuka also evinces unease with assertions that, in the moment of redress, contemporary Canada has ensured rights. While it ends with a moment of euphoric victory, Itsuka simultaneously recognizes the viola­ tion of rights in the past and acknowledges that the protection of rights has not been completely achieved in the present, offering instead an un­ written future as the moment where rights are potentially realized. In this postponement, Kogawa invokes the free and democratic Canada of section 1 of the Charter, and foreshadows the deferred endings I return to in my discussions of Margaret Atwood’s Bodily Harm and Timothy Findley’s Not Wanted on the Voyage. Itsuka, along with the more muted ending of Emily Kato, suggests the importance of the futurity of the rights vested in Canada, depicting rights not as a broken promise, but as unrealized. To begin with a note on my texts: in 2005 Kogawa published Emily Kato, a renamed and substantially reworked version of Itsuka, which was itself revised between its initial hardcover release in 1992 and its paper­ back publication in 1993 (Chen 1994, 100; my analysis here uses the 1993 paperback edition, Kogawa’s final revision of the text under this name). Dissatisfied with Itsuka’s reception (and particularly with the response in The Globe and Mail, where reviewer Stan Persky condemned its “pag­ es and pages of painfully embarrassing writing” [Persky 1992, C20]), Kogawa then “spent years thinking about how to rewrite it” (Posner 2006, R3). While Emily Kato significantly revises Itsuka, it depicts the same political trajectory as the earlier novel. My focus in this chapter is on Itsuka, partly because of the immediacy of the response it provides to the Redress Agreement, and partly because of the more politicized nature of the language Kogawa uses in this earlier novel. I do not gen­ erally dwell on the differences between the two texts, but will instead focus on Kogawa’s reading of the personal, communal, and political processes of redress through Itsuka before turning to an analysis of how, in their conclusions, the novels diverge while echoing each other. Prior to Japan’s entry into World War II, British Columbia had 22,000 Japanese Canadian residents, 95 per cent of Canada’s community (Miki and Kobayashi 1991, 18). Following the bombing of Pearl Harbor, male Japanese nationals were removed from a hundred-mile “protected zone” along Canada’s west coast and “detained” in road camps, pursu­ ant to Order-in-Council PC 365 (Sunahara 1981, 37). On 24 February

Rights and National Belonging  31

1942, Order-in-Council PC 1486 was passed, requiring any “persons of Japanese racial origin” to be removed from the protected coastal zone and relocated to camps in the British Columbia interior (Miki and Kobayashi 1991, 24). Japanese Canadian assets, supposedly held in trust by the Custodian of Enemy Property, were liquidated without consent at prices well below market value, with the proceeds used to pay for their incarceration. The Mackenzie King government enacted both these orders under the War Measures Act, 1927, a move that allowed parliament, and any public debate on the issue, to be bypassed (25). Following the war the federal government instituted a policy of dis­ persal, whereby interned Japanese Canadians were given a choice of either relocating east of the Canadian Rockies or to Japan. This latter aspect of the policy was described as “repatriation,” a farcical term as many Japanese Canadians were not Japanese citizens and were con­ sidered alien residents there (National Association of Japanese Cana­ dians 1984, 19). Moreover, as Roy Miki notes, the freedom of the con­ sent given to being “repatriated” was highly problematic. Certainly, the circumstances in which the forms consenting to relocation were presented for signing by Japanese Canadians were not free of duress or implicit threats (2005, 101–3). Perversely, domestic dispersal was de­ scribed by the state as a means of protecting those Japanese Canadians remaining in Canada from the hostility their presence was said to gen­ erate, even as the existence of that hostility was accepted uncritically. Prime Minister King stated in the House of Commons on 4 August 1944 that “the sound policy and the best policy for the Japanese Cana­ dians themselves is to distribute their numbers as widely as possible throughout the country where they will not create feelings of racial hostility” (House of Commons 1944, 6:5917). King’s rationalization was thus that, because a visible Japanese Canadian community “gener­ ates anxiety for Canadians” (Miki 2005, 41), this anxiety could best be ameliorated by “the absorption of Japanese Canadians in small doses across the country so that they would disappear as a group” (40). Char­ acterized as enemies whose community was disruptive of Canada, Jap­ anese Canadians were consequently given a choice between leaving Canada or being dispersed and assimilated. The order for “repatria­ tion” was opposed in parliament and eventually rescinded in 1946, but not before 4,000 individuals (2,000 of whom were born in Canada) had been removed to Japan. Many more were relocated east of the Cana­ dian Rockies before restrictions on Japanese Canadian movement were finally lifted on 1 April 1949.1

32  A Culture of Rights

Such a brief history cannot do full justice to the breach of Japanese Canadian rights and liberties during World War II, nor to the xenopho­ bia impelling that breach. But it does demonstrate how the Canadian state’s policies had two points of impact: first, on individuals who were denied the rights and protections due them as Canadian citizens, and, second, on the Japanese Canadian community, particularly as it ex­ isted in British Columbia, which was deliberately fragmented and its infrastructure destroyed. As the movement for redress grew, the focus of Japanese Canadian activism fell on attempting to find the means to address these simultaneously personal and communal effects, and the Redress Agreement would eventually reflect this dual focus by afford­ ing both individual redress and funds for community development. In Kogawa’s novels, redress is likewise as much about social healing as it is about healing individuals. The success of the agreement at the end of Itsuka lies in its capacity to produce “Reconciliation. Liberation. Belongingness. Home” (Kogawa 1993, 277; the same scene in Emily Kato omits the reference to “Liberation” [2005, 269]), emotions that are meaningful both for Naomi and the Japanese Canadian community that she has spent the novel becoming a part of. While the focus of this study is on Kogawa’s redress novels, Itsuka in particular is in many ways a continuation of Obasan; the sense of dislocation that Naomi Nakane, the protagonist of these works, grap­ ples with throughout the later text is the consequence of events in its predecessor. In Obasan Naomi’s conception of self is principally tied to her immediate family. Naomi’s sexual abuse by the family’s Vancouver neighbour, Old Man Gower, creates a violent rupture in Naomi’s “oneness” with her mother, changing her from an “offshoot” to a “parasite” (Kogawa 1983, 64) and leading her to feel that “in the centre of my body is a rift. In my childhood dreams, the mountain yawns apart as the chasm spreads. My mother is on one side of the rift. I am on the other. We cannot reach each other” (65). Naomi’s loss of “one-ness” then be­ comes permanent when her mother is trapped in Japan after the bomb­ ing of Pearl Harbor. This loss, and her family’s forced removal from their home in Vancouver, results in a sense of rootlessness that persists throughout both novels, personal loss becoming indistinguishable from political loss, and the history of internment represented in Obasan figured as a physical schism that is lived emotionally in the body. In Itsuka, Naomi moves from an isolated existence in rural Alberta to a new life in Toronto with her aunt Emily Kato, becoming involved with the Japanese Canadian community as it lobbies for redress. As Emily

Rights and National Belonging  33

draws her into political action, Naomi realizes that, while her childhood community has been fractured through internment and dispersal, this does not foreclose the possibility of community now assuming other, alternate forms. To become part of this movement, however, Naomi must, like the Japanese Canadian community itself, first reconceive of herself as a social being. Early in the novel her fellow activist Cedric asks Naomi what she thinks of the redress movement, and she responds: I stare at the floor. “I’m not really part of the community,” I say hesitantly. It’s my guess that we don’t really have a community at all. After all, as Aunt Emily puts it, we were all “deformed by the Dispersal Policy” and grew up striving to be “the only Jap in town.” “No, I don’t speak Japanese,” we’d say proudly. (Kogawa 1993, 107)

The policy of dispersal has led individuals like Naomi to distance them­ selves from Japanese linguistic and cultural traditions, figured as mark­ ers of Japanese Canadian-ness. However, the policy has not offered an alternative narrative of belonging to Canada, and so Naomi’s social “deformation” is consequently also from much of Canadian society. Despite becoming a “model minority – more ‘Canadian’ than Cana­ dian,” Japanese Canadians retained, “in the folds of their memories, their historical connections to the experience of being marked” (Miki 2005, 256; see also 261), of being racialized as the enemies of Canada and betrayed by the state. Reading the internment and dispersal as a traumatic event that led to “the death of the prewar identities and communities, and … the death of trust in the rights of citizenship” (256), Roy Miki notes that neither affiliation with Japanese Canadian identity and community nor Canadian citizenship were reconstructed following World War II. It is not until the process of seeking redress, Miki argues, that the community began to develop a way of narrat­ ing and mobilizing its traumatic memories (264–6). Doing so created a “Japanese Canadian redress identity” whereby “the individual pain and suffering of Japanese Canadians can be displaced so that their vic­ timization can become a matter of ‘citizenship’ rights, a more inclusive condition that transforms their internment into a ‘Canadian’ experi­ ence” (266). Once articulated in the language of rights, Japanese Ca­ nadian experiences became Canadian, the imagined equation between Canada and rights serving as a conceptual basis from which the abuse of the community (and the individuals who compose it) could be rec­ ognized and addressed.

34  A Culture of Rights

Through her involvement with the redress movement, Naomi grad­ ually begins to overcome her interlinked personal and social “deforma­ tion.” She enters into a relationship with Cedric that echoes her earlier bond with her mother and the safety that it signified: “he cradles me as a mother holds her child, with care and confidence. He is as gentle as the smallest waves from the sea where the rainbow is moored and he does not, he does not invade” (Kogawa 1993, 252). With Cedric, Naomi begins to repair the “rift” in herself that began with her sexual abuse and her mother’s exile. But what finally enables her to say “I am whole. I am complete as when I was a very young child” (276) is the sense of belonging Naomi gains as a part of the movement, a sense she has until now only associated with her family – and has mourned as lost. Redress brings with it a sense of completeness for Naomi, and it does so in a manner that is simultaneously individual, familial, and communal. The redress movement has a similarly revitalizing effect for many within the Japanese Canadian community, causing Naomi to comment that “within our cocoons, new life is being formed. One by one, we are coming forth with dewy fresh wings. The more meetings we attend, the more we need to attend. We’re learning how to fly by stuffing enve­ lopes” (204). What becomes apparent as Itsuka progresses is that the of­ ficial aim of redress, government recognition of the violation of rights, brings with it a sense of belonging that helps to rejuvenate individuals and communities destroyed by the state’s actions: All Japanese Canadians. The dream of touching every single one of us wherever we were flung … Instead of redress being Nikki’s rocket ship to the stars, redress could itself become the star, a movement bursting in all directions. The sparks would leap and glow, leap and ignite the people, “my people,” across the country. This dream I begin to see is one I could share with Morty and Anna and everyone. (166)

In its eventual success, the redress movement also has consequen­ ces for Canada, working to correct national history. When redress is achieved, Naomi and other Japanese Canadians in the novel are seen, and see themselves, as a part of Canada, rather than as marked and foreign bodies viewed through the never officially countered lens of disloyalty. This sense of belonging is an important part of “why redress matters. Because there are many many people intent on defending the oppressor’s rights no matter what the truth, and they are in places of power. Not one of us, not a single one of us, was ever found guilty of

Rights and National Belonging  35

a disloyal act against Canada. But the accusation remains” (222). It is with the public statement of the Redress Agreement, which includes a recognition of “Japanese Canadians who, despite great stress and hard­ ship, retain their commitment and loyalty to Canada and contribute so richly to the development of the Canadian nation” (Government of Canada 1988, section 3), that this lie begins to be put to rest, with re­ dress, and the attribution of rights that it brings, acting as a recupera­ tive response to the traumatic betrayal Miki describes. In her reflections on the Redress Agreement, Maryka Omatsu notes that “before redress the community … seemed to be in a state of psy­ chosis. But by bringing a shameful past into the open and, more impor­ tantly, by demanding and fighting for its rights, the community became engaged in an important healing process” (1992, 171). For Naomi, re­ dress operates to heal individual trauma through a long-awaited reart­ iculation of national belonging: Aunt Emily and I look at each other and smile. We’ve all said it over the years. “No, no, I’m Canadian. I’m a Canadian. A Canadian.” Sometimes it’s been a defiant statement, a demand, a proclamation of a right. And today, finally, finally, though we can hardly believe it, to be Canadian means what it hasn’t meant before. Reconciliation. Liberation. Belonging­ ness. Home. (Kogawa 1993, 277)

Redress thus marks the beginning of a new relationship with the Canadian nation, a form of inclusion rather than “a defiant statement” made from outside. It incorporates the Japanese Canadian experience into the national discourse of rights, the renewed conception of iden­ tity achieved through redress now a part of “the more inclusive lan­ guage of ‘citizenship’ and ‘human rights’ that constitutes the liberal democratic values of the Canadian nation” (Miki 2005, 264). It reasserts Japanese Canadian belonging to Canada through the government’s recognition that they held rights and that those rights were violated. It also recognizes that the violation of rights is a danger to all Canadians, what civil rights lawyer Alan Borovoy, in words that Kogawa cites in both Itsuka and Emily Kato, describes as “social justice for everybody. You are fighting not only for you but also for us” (Kogawa 1993, 264). Redress publicizes and generalizes Japanese Canadian experience, rec­ ognizing the loss of rights as a potential national danger, and in so do­ ing underscores that holding rights is one of the markers of what it means “to be Canadian.”

36  A Culture of Rights

The fictionalized account of the redress movement in Itsuka ends on 22 September 1988, the day the agreement was signed. In its conclu­ sion, Itsuka recognizes and reiterates the symbolic weight with which the Redress Agreement is vested, going so far as to replicate the text of the agreement’s “Acknowledgment” at the novel’s end.2 Naomi describes how difficult it is for her to articulate just what the parlia­ mentary announcement of the agreement means to her; she terms it a “feast of words” that is “too wonderful, too sad, too joyful” (275). The consequences of redress, it seems, are unrestrained, and I would ar­ gue that Kogawa frames the agreement not simply as a conclusion but as an acknowledgment of the past that is also a promise of something still to come, a document and a symbol whose meaning bridges prior wrongs and an idealized future Canada now freed from those wrongs. The entry by Japanese Canadians into the nation symbolized by redress is not an end but part of a continuity, one wherein “the children, the grandchildren, will know that certain things happened to their ances­ tors. And that these things were put right” (274). Redress allows for a “belongingness” that extends beyond a single day. Kogawa’s largely celebratory final chapter emphasizes that the inclusive national future it foresees has been facilitated by the present currency of rights dis­ course in Canada, and that this is only possible because the national past has been redressed. In an iteration of the ideal and yet already imagined Canada of the Charter, the nation Kogawa foresees begin­ ning from this moment is one made possible by the present recogni­ tion and valuing of rights. The Redress Agreement’s recognition of the violated rights of Japa­ nese Canadians similarly attempts to address itself both to past state wrongs and to current (and future) protections that will prevent their re­ occurrence. It begins with an “Acknowledgment.” There is no apology, something that would have, as Roy Miki argues, worked to once more position Japanese Canadians as subject to their characterization by the state (2005, 265). The “Acknowledgment” emphasizes that Canadians “commit themselves to the creation of a society that ensures equality and justice for all, regardless of race or ethnic origin” (Government of Canada 1988). Having established these as key national beliefs, the agreement recognizes that in the specific historical moment of World War II, the state acted in an “unprecedented” (ibid.) manner against the Japanese Canadian community. The “Acknowledgment” enunci­ ates the nature of the violations of Japanese Canadian rights, noting simultaneously that there were “perceived military necessities at the

Rights and National Belonging  37

time” and that the actions undertaken were “unjust” and “influenced by discriminatory attitudes” (ibid.). Again, these rights violations are represented as past actions, influ­ enced by specific concerns about security in the period as well as a racism that the document casts as historical: “[t]he acknowledgment of these injustices serves notice to all Canadians that the excesses of the past are condemned and that the principles of justice and equality in Canada are reaffirmed” (ibid.). The “Acknowledgment” does not seek to deny or minimize the nature of the violation that has taken place. However, the representation of an idealized Canada that we see here does delib­ erately locate the wrongs committed against Japanese Canadians in the past, enabling contemporary Canada to acknowledge them in order to differentiate itself. As “excesses,” the state’s actions are “unprec­ edented” anomalies. This representation simultaneously asserts that Japanese C ­ anadians are deserving of redress (the state’s actions were undeniably discriminatory and unjust) while casting the internment and dispersal as aberrations in national history and the national char­ acter. Echoing Dickson’s imagining of a “free and democratic” Canada in Oakes, the agreement infers that the nature of Canada lies not in past excesses but rather in the equal and just society articulated in the “Ac­ knowledgment.” In particular, the agreement locates these ideals in the present of its terms and the future in which they will come into effect. The specific terms of the Redress Agreement speak to what has been lost by the Japanese Canadian community and to the possibility of res­ titution, offered through both symbolic and material means, and often in the language of rights. The agreement legitimates the $21,000 redress payment to individuals as a remedy for the loss of “full enjoyment of fundamental rights and freedoms” (Government of Canada 1988, sec­ tion a), terminology that invokes the Charter. Its “symbolic redress” provisions work to respond to specific historical wrongs, with sections that offer to clear the names of Japanese Canadians convicted under the War Measures Act, 1927, and the National Emergency Transitional Powers Act, 1945 (section d) and to reinstate the Canadian citizenship of Japanese Canadians and their ancestors where these were revoked during the war and the dispersal policy (section e). Emphasizing the Japanese Canadian community’s place in Canada through such provi­ sions, the agreement confirms their contribution and commitment to the country “despite great stress and hardship” (section 3). Issues of temporality are also important here, with the agreement’s terms recognizing that the internment and dispersal were “unjust and

38  A Culture of Rights

violated principles of human rights as they are understood today” (section 1). In doing so, the agreement explicitly relegates the state’s actions to the past and affirms that those actions are not a reflection of contemporary Canadian principles. The terms of redress are thus a way of mediating time, acknowledging wrongdoing in the past and foreclosing that past, a meaning exemplified in the Canadian govern­ ment’s “pledge to ensure to the full extent that its powers allow, that such events will not happen again” (section 2). There was considerable discussion of the meaning of the Redress Agreement when it was announced in parliament, and it is interesting to note how the “feast of words” Naomi describes in Itsuka included mark­ edly different interpretations of the agreement. Prime Minister Brian Mulroney, for example, echoes Kogawa’s conception of redress as an act of Canadian reconciliation and national community-building, stating: [T]he present Government has sought a settlement with the JapaneseCanadian community to put things right between them and their country; to put things right with the surviving members of the Japanese-Canadian wartime community of 22,000 persons; to put things right with their chil­ dren, and ours, so that they can walk together in this country burdened neither by the wrongs nor the grievances of previous generations. (House of Commons 1986–88, 15:19499)

As it progresses, Mulroney’s speech moves between suggesting that the Redress Agreement will set the past “right” and acknowledging that while redress “must go beyond words and laws … no amount of mon­ ey can right the wrong, undo the harm, and heal the wounds” (ibid.), an ambivalence Nick Smith reads as a possibility in every act of redress (2008, 80–91). For Mulroney, the agreement is “symbolic of our determi­ nation to address this issue, not only in the moral sense but also in a tangible way” (House of Commons 1986–88, 15:19499). Interestingly, the question of financial compensation has moved from being the rea­ son redress cannot be reached3 to its “tangible” symbol; as a whole, the Redress Agreement accords with Michael Ignatieff’s statement that “in capitalist societies, past wrongs are compensated in two currencies: the language of apology and hard cash” (2007, 75). Despite acknowledging the monetary aspect of the settlement, Mul­ roney is careful to highlight that the Redress Agreement also includes the establishment of the Canadian Race Relations Foundation, rectifica­ tions of Japanese Canadian citizenship, and the expunging of criminal

Rights and National Belonging  39

convictions, provisions that reference the relevance of the terms of the agreement to Canada as a whole. Indeed, Mulroney emphasizes that the treatment of Japanese Canadians “went against the very nature of our country, of Canada,” a Canada that is “tolerant” and characterized not by racism but rather by “the Charter of Rights and Freedoms, the new Official Languages Act and the Canadian Multiculturalism Act. A Canada that at all times and in all circumstances works hard to elimi­ nate racial discrimination at home and abroad” (House of Commons 1986–88, 15:19499–500). Mulroney’s description of Canada here is in­ vested in notions of the nation protecting and upholding rights, and emphasizes not the distinctiveness of Japanese Canadians but the im­ portance of the resolution provided by redress to the nation as a whole. Finally, the Prime Minister stated: I know that I speak for Members on all sides of the House today in offering to Japanese Canadians the formal and sincere apology of this Parliament for those past injustices against them, against their families, and against their heritage, and our solemn commitment and undertaking to Canadians of every origin that such violations will never again in this country be countenanced or repeated. (15:19500)

In these closing comments, Mulroney characterizes the function of the Redress Agreement as both restitution and closure, the conclusion to unrepeatable injustices and a “monument” to the government’s newly “redeemed state” (Miki 2005, 319). However, not all discussions of the Redress Agreement in parliament followed this rhetoric of closure. Ed Broadbent focused on the injustice the internment and dispersal inflicted on a minoritized community, but also, as I noted above, on the “very real” personal consequences that it provoked. To this end he quotes from Obasan as a means of illustrating that “when we talk about the grievous injustice that was inflicted, we are not taking about an abstract breaking of an abstract right. We are talking about profound, serious human suffering” (House of Commons 1986–88, 15:19501), something best illustrated for him by a literary work. Thus, Broadbent counters the celebratory rhetoric of nation by refocus­ ing discussion on internment and dispersal as a “hardship [that] is so pervasive, so inescapable, so thorough, it’s a noose around my chest and I cannot move anymore” (Kogawa, quoted in House of Commons 1986–88, 15:19501). In this formulation, the Redress Agreement is more ambivalent, less easily denoting closure because of the personal and

40  A Culture of Rights

profound human suffering to which it responds. In the “pervasiveness” of the hardship Broadbent reads what has been suffered as incalculable, and apology and acknowledgment as unable to “mitigate at all the hor­ rible experience that has been inflicted” (House of Commons 1986–88, 15:19501). For him, there is no closure, simply the hope that “this kind of experience for us as a nation will never be repeated” (ibid.). The symbolic role of the Redress Agreement must also be read in the context of how the Government of Canada’s treatment of Japa­ nese Canadians during the 1940s is remembered, and so understood in the present and future. For Mulroney, and in the terms of the Redress Agreement itself, this remembering involves invoking the national (“all Canadians”) in an act of restitution that condemns the “excesses of the past” as past, while Broadbent focuses on the individual as locus of the effects of redress, and importantly on Obasan as representative of “real experiences in real lives” that continue to be marked by the “hard­ ship” of the past (House of Commons 1986–88, 15:19501). In her read­ ing of Itsuka, Davina Te-Min Chen tasks Kogawa with having written a novel more interested in “hegemony-maintenance” (1994, 127) than in presenting a challenge to the Canadian nation-state, of having uncriti­ cally accepted redress as an act of justice and inclusion. And, certainly, much of the novel’s conclusion focuses on belonging to the nation, with Naomi’s final words, “Thank you for this” (Kogawa 1993, 279), appar­ ently directed to Canada as a whole. But does Itsuka do something more than celebrate a Canadian capacity to respond to violations of rights? I would contend that Kogawa’s project in Obasan, Itsuka, and Emily Kato has not been simply to represent internment, dispersal, and redress, but to also bear “literary witness” (Felman and Laub 1992, 95) to the war­ time violation of Japanese Canadian rights, and to begin the process by which others might come to some way of understanding this experi­ ence.4 Like a number of works that represent historical violations of rights, Itsuka presents a testimony to internment, dispersal, and redress through its “first hand, carnal knowledge of victimization, of what it means to be ‘from here’” (Felman and Laub 1992, 111). As Broadbent’s response to Kogawa’s first novel indicates, Obasan has certainly been politicized in this manner, but while Obasan refers to the personal ef­ fects of history through remembrance and introspection, Itsuka takes a different approach, depicting more explicitly the simultaneously per­ sonal and political consequences of the denial of rights by the state and utilizing the tropes of both memorialization and activism as a means of literary representation.

Rights and National Belonging  41

A number of critics have noted that Itsuka is less poetic and more “documentary” than Obasan, particularly after Naomi moves to Toronto and becomes involved in the redress movement. The generic mixing of Obasan, which includes diaries, personal reflection, and real and fiction­ alized political documents, is repeated in Itsuka. But the latter text is also shaped by the protagonist’s involvement in an activist organization, and as such it includes details of committee meetings, legal documents, and direct quotations from public figures such as Brian Mulroney and Alan Borovoy (see, for example, Kogawa 1993, 263–5). Mason Harris has argued that Itsuka’s “more conceptual language” (1996, 192) is the consequence of “Kogawa’s need to complete the history of the redress movement … [through Aunt] Emily’s bare narrative” (205). The novel’s style and tone thus signal “a determined move into the public arena” (192) that is against the grain of Naomi’s tendency towards introspec­ tion, and reflects the personal transformation that politics provokes in her. In Itsuka the political conditions (lobbying that uses the language of rights and state obligation, parliamentary debate, writing reports) of the story mirror Naomi’s increasing involvement and agency, while also reaffirming these personal consequences as important aspects of the redress movement’s activism. Kogawa’s representation of political involvement as personally transformative in statements such as “we’re learning how to fly by stuffing envelopes” (1993, 204) mirrors what Roy Miki describes as a new Japanese Canadian identity created through the redress process: Japanese Canadians were themselves formed by the call for redress. They shaped their unredressed identity out of the racialized national boundar­ ies that had disenfranchised them since the issei first arrived in Canada, and that had led to their incarceration during the war as the “enemy” within. To read themselves into that nation as “citizens,” they had to situ­ ate themselves in the narrative of nation building as a collective of “citi­ zens” to which they belonged through the rights and responsibilities of citizenship. (2005, 323)

Moreover, the introduction of Obasan into the House of Commons de­ bates comes to exemplify metatextually the central importance of the political to Kogawa’s text. As Rachelle Kanefsky notes, the reading of Obasan in this highly public and political forum “confirms that Kogawa’s words are understood as relevant, accurate, and finally, as signifiers of truth” (1996, 15). The novel’s use of “actual” political history and a more

42  A Culture of Rights

documentary style underscores the veracity and importance of Naomi’s story. If Obasan’s incorporation into parliamentary debate acts as a signi­ fier marking Kogawa’s text as in some manner “true,” then the use of these very debates in Itsuka functions in a similar fashion: as a significa­ tion of the truth of what the novel is seeking to represent. I would argue that Itsuka’s witnessing of the process of redress, of the continuity from past wrongs and present consequences to the Redress Agreement as the marker of a new Canada, is also an attempt to pre­ vent the agreement from symbolically “closing” discussion of the treat­ ment of Japanese Canadians in World War II. If redress is a promise that being Canadian might mean “what it hasn’t meant before,” that promise, while powerful, has yet to be fulfilled. Even as Itsuka posi­ tively represents the agreement as the start of a new form of Canadian community, then, the absence in the novel of any depiction of the spe­ cific forms that this community takes suggests that there is a caution in its optimism, a desire not to foreclose remembrance of the history of racism, which has led to the internment and dispersal and so to the necessity for the agreement. The “itsuka” or “someday” of the title consequently reflects an opti­ mistic but processual vision, one in which Canada is becoming, but is not yet, a protector of rights and a country where racism has no place. Kogawa’s ending of the novel with the text of the agreement can be read as a celebration, but also as a reiteration of the document’s neces­ sity, a reminder of past wrongs and of their potential to be repeated. It is a potential that the novel offers in connection with the language of the agreement itself. Thus, the agreement represents itself as a commit­ ment on behalf of all Canadians to end racism (implying a state that is conceived of, but not yet realized). Similarly, the novel emphasizes the ongoing prejudice that makes this anti-racist ideology so difficult to enact. Kogawa’s novel is at all times concerned with the racism that prompted the internment and dispersal, which haunts both the redress process and Canada more systemically. When Naomi and Aunt Emily, so long involved in political lobbying, finally hear that the agreement is going to be signed, the decision comes as a surprise to them because the negotiating team “was sworn to secrecy. They were told that if the news leaked out in any way, and if the Legion,5 for instance, objected, the whole thing could be jeopardized. Even now, everything could be stopped” (Kogawa 1993, 272). Sadly, this reflects the sense that Maryka Omatsu has of the abruptness of the final agreement: unlike the resolu­ tion in the United States a month earlier, which included the passage of

Rights and National Belonging  43

an act through Congress that acknowledged the wrongs done to Japa­ nese Americans, Prime Minister Mulroney seems to have kept Japanese Canadian redress quiet because “he had been afraid of the opposition he would face within his own party – indeed, within his own cabinet” (Omatsu 1992, 21). The rhetoric of a Canada dedicated to fighting rac­ ism is also undeniably problematized when one considers the Conser­ vative government’s six-year refusal to proclaim the bill enabling the Canadian Race Relations Foundation, one of the terms of the Redress Agreement (Miki 2003, 171). Kogawa and Omatsu’s identification of objections to the Redress Agreement defies the closure of racist history afforded by interpreta­ tions such as Mulroney’s. Itsuka may be interpreted as resisting the temptation to represent racism as past, instead underscoring the vio­ lation of rights in a manner similar to how certain German “countermonuments” seek to deny the possibility of consigning the atrocities of the Nazi holocaust to the past. James Young, for example, describes Esther Shalev-Gerz and Jochen Gerz’s Monument against Fascism, War and Violence – and for Peace and Human Rights, a twelve-metre-high pillar which, having been erected, was gradually lowered into the ground. It thus disappeared, but nevertheless remained visible in its absence. The result is a memorial that affects the viewer through a provocation of memory: With audacious simplicity, their “counter-monument”… flouted a number of memorial conventions: its aim was not to console but to provoke; not to remain fixed but to change; not to be everlasting but to disappear; not to be ignored by its passersby but to demand interaction; not to remain pris­ tine but to invite its own violation; not to accept graciously the burden of memory but to throw it back at the town’s feet. (Young 2000, 8–9)

Similarly, Itsuka resists the impulse to locate internment and disper­ sal in the past by representing redress as “a symbolic starting point for the not-yet-realizable yet nevertheless worthwhile process of striv­ ing towards reconciliation” (McGonegal 2005, 67).6 Itsuka represents the process of redress as a significant social and political phenomenon whose very processuality is integral to understanding its importance and meaning. In that, as well as its recognition that changes brought about through redress have been significant to Japanese Canadian lives that continue to be lived, Itsuka seeks to ensure that memorializing does not lead to forgetting. Like the uncontainable nature of Shalev-Gerz

44  A Culture of Rights

and Gerz’s monument, Itsuka represents redress extending beyond the physical confines of the novel, both in its representation of “real” lobby­ ing and its insistence on gesturing towards the continuing (and indeed future) importance of the movement. Kogawa thus memorializes by remembering the past but also by insisting upon the present relevance of redress as a political campaign and an affirmation of the centrality of rights to Canada and to the future as the place in which the promise of redress will ultimately be made real. The same might be said of the uses to which the “symbolic redress” provisions were themselves put. Arthur Miki’s The Japanese Canadian Redress Legacy: A Community Revitalized describes many of the projects undertaken following the settlement. Miki emphasizes that the $12 mil­ lion payment to the Japanese Canadian community (provided for by section b of the Redress Agreement) has funded a large number of capital projects, as well as cultural and educational activities, aimed at “rebuilding the community” (Miki 2003, 66). Through ongoing projects of reconstruction and development, such work both memorializes dis­ crimination against Japanese Canadians and reconstitutes the commu­ nity in Canada. These activities serve as material reflections of redress’s processuality and echo Naomi’s future-focused recognition at the mo­ ment of redress that “what we as a community decide to do from this day on will reveal who we are” (Kogawa 1993, 273). Itsuka ends (although not incautiously) with a triumphal represen­ tation of redress as the beginning of the Japanese Canadian commu­ nity’s reintegration into the nation forty years after the World War II internment and dispersal. Here, the declaration “I’m Canadian” (277) marks the successful assertion of rights and a sense of reconciliation and belonging after the fight for redress. Acknowledging the past, the novel’s act of memorialization also includes a promise for the nation to come, couched in terms of a tentative future that “can come true”: “this country, my country, your country, is one country where the great wide technicolour dream can come true. We can stamp out racism and show the world how it’s done” (191; emphasis mine). And yet, surprisingly for a work so concerned with redressing the past and looking to a future where “the children, the grandchildren, will know that certain things happened to their ancestors. And that these things were put right” (274), in the end the present proves inadequate to Kogawa’s idealized Canada. That is, Itsuka ends with the text of the Redress Agreement and a sense of meaningful national identification, but without any representation of how this is subsequently experienced

Rights and National Belonging  45

in a world still rife with racism. Rather than depict the ideal of rights and national belonging symbolized by redress, Kogawa invokes them as processual: conceived and seemingly achievable, but not yet lived. In rewriting Itsuka as Emily Kato, however, Kogawa chooses to end not with the announcement of the Redress Agreement but with a fi­ nal chapter that reflects on the “sixteen Septembers [that have] passed since that wonderful day” (2005, 272). The revised ending to Naomi’s narrative sees Japanese Canadians “practicing the identity of our new privilege, our new status as first-class citizens,” something Aunt Emily describes as “a tremendous challenge” (273). The novel is also, how­ ever, more pensive, hindsight tempering its previous, triumphal un­ derstanding of what redress means. Naomi writes in Emily Kato that the rejuvenated Japanese Canadian community formed in the political activism of redress has proven to be elusive, faltering if not entirely failing. As Naomi describes in sober retrospect: “[i]t is not given to me to know whether the hearts and psyches of Japanese Canadians were transformed by the struggle for redress … Thousands of niseis and sanseis who did not actively participate simply applied for their re­ dress money, then disappeared back into their private lives” (ibid.). The sense of belonging to a national community, and the rights that attend to that belonging, also seem more fragile. In light of the “more visible September event known as 911,” Naomi notes, with some relief, state assurances that “government interventions in the past against Japanese Americans and Japanese Canadians must not be revisited on Muslim citizens today” (272). Nevertheless, “racism remains” (ibid.): “on the basis of appearance alone, people are relegated to the company of the despised and viewed with suspicion and fear” (272–3). These conse­ quences of the “war on terror” are echoed in other global conflicts and catastrophes (275), and there is a recognition that “hatred continues” (272). In her retrospective consideration of those “sixteen Septembers,” Naomi suggests that, despite government assurances, the belonging­ ness promised by redress has yet to be realized. What Itsuka cautioned readers not to forget remains a reality in Emily Kato, suggesting the lim­ its of official declarations of inclusion and shared rights, and so the fail­ ure of at least some of what it was hoped redress achieved. Yet, while Emily Kato is less hopeful than Itsuka, its soberness is not necessarily a denial of hope, but rather a displacement: like Itsuka, it defers the realization of rights. Naomi posits that “the work of love is deeper, brighter, better. Love endures” (272), and is ultimately stron­ ger than both hate and racism. While Naomi remains uncertain that

46  A Culture of Rights

redress has brought about coherent Japanese Canadian community, her personal experience of redress has been immensely satisfying because of the meaningful friendships and emotional connections it has led to (273). It is with this reiteration of the personal, rather than the explic­ itly political, that Kogawa completes Naomi’s narrative in Emily Kato. Itsuka ends by thanking Canada for the realization, through redress, of a “dream [that] enters day” (Kogawa 1993, 279), and this gratitude can also be seen in the penultimate chapter of Emily Kato. In its final chapter, though, Emily Kato turns instead to Naomi’s two aunts, figur­ ing Emily’s activism and Obasan’s “silence” as “one” (Kogawa 2005, 276). Rather than idealizing national welcome and expressing faith in Canada, Naomi instead looks to the more personal terrains of love: to family and to friendship, where she identifies something “deeper, brighter, better” (272). What does this revised, more personal turn say about the meaning of the rights recognized in the Redress Agreement, and by implication Canadian rights discourses more generally? Rights in Canada falter at Emily Kato’s conclusion, proving still-unrealized sixteen years after re­ dress. Yet, this turn to the personal seems less a rejection of rights than a new way of framing what they promise: “‘all shall be well, and all shall be well, and all manner of things shall be well’” (Kogawa 2005, 276). Linking Aunt Emily and Obasan, the activism of one “co-extensive” with the “peace” of the other, Emily Kato integrates rights into the hope symbolized by itsuka, someday (ibid.). Politics and governments remain important public symbols for the protection of rights, but with those institutions’ slow progress and failures – and, in some measure, the failure of the Redress Agreement itself to create the substantive change it heralded – Emily Kato reiterates that the personal consequences of redress remain vital. Even as its “official” manifestations have not been realized, the individual meaning of rights and justice, “co-extensive” with peace, is a hope, and a promise, for the future.

2 Excessive Rights: Freedom of Expression and Analogies of Harm

In 1981, the same year as the publication of her novel Bodily Harm, Margaret Atwood addressed an Amnesty International conference, asking: “what is the writer’s responsibility, if any, to the society in which he or she lives?” (1982, 393). Positing that they must have the ability to hope, to imagine, and to communicate, Atwood argues that writers have a unique capacity to resist oppression, which she characterizes as “a failure of the imagination: the failure to imagine the full humanity of other human beings” (397). Being able to express (often contrary) ideas is an essential aspect, for Atwood, of a free society: “powerless­ ness and silence go together; one of the first efforts made in any totali­ tarian takeover is to suppress the writers, the singers, the journalists, those who are the collective voice” (396). Along with the suppression of labour movements and a “perversion” of the legal system, when expres­ sion is restricted, Atwood argues, “what you are left with is a reign of terror” (ibid.). The importance that Atwood gives to these institutions and to the con­ cept of expression finds ready affirmation in a number of human rights documents, including the Universal Declaration of Human Rights’ (1948) recognition of the rights to association, expression, and a fair trial. A year after her address, the Charter gave constitutional protection to those same rights in Canada. Freedom of association, for example, is now enshrined in section 2(d) of the Charter and includes the right to form a trade union, while among other legal rights (enumerated at sec­ tions 7–14), section 11(d) protects rights to a “fair and public hearing by an independent and impartial tribunal” (Canadian Charter of Rights and Freedoms, 1982, section 11[d]).

48  A Culture of Rights

Freedom of expression, one of the first mentioned of the Charter’s “fundamental freedoms,” is explicitly protected in section 2(b), described expansively as “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” Within legal and liberal thought, freedom of expression holds a particu­ larly valorized position, Joseph Raz arguing that the freedom operates as “a prerequisite of a democratic government … [that is] vital for the prosperity of a pluralistic culture … [and] a crucial element in control­ ling possible abuses and corruption of power” (1994, 28). Free expres­ sion is seen to generate debate and to enable new ideas – even when they are unpopular or controversial – with important political, civic, in­ stitutional, and personal consequences. As Atwood argues, expression is also an enabling freedom for literature. Artistic texts are often depen­ dent on an absence of government restraint for their publication and dissemination; conversely, authors are frequently reliant on grants that provide the financial support to produce cultural work, grants that are ideally distributed in a manner that respects freedom of expression.1 Linking law and literature and enabling both, expression is represented as a freedom to be defended, its guarantee of the capacity to exert dis­ sent a necessary part of the liberal democratic “marketplace of ideas,” and an integral aspect of a free society. As Atwood’s novel Bodily Harm and Supreme Court jurisprudence on the state control of pornography illustrate, however, lodged within discourses about the good of expression in Canada is an ambivalence about its disruptive potential. Certain forms of hateful, seditious, ob­ scene, or violent expression are seen to embody a limit on the good that the concept can otherwise do. Such texts, whatever their form, become a source of harm, potentially producing a rhetorical, representational, or actual violence that is held to proliferate where the freedom is not restrained and justifying legal intervention in certain cases.2 In Bodily Harm the capacity to express and to disseminate expression is an essential aspect of the protagonist’s occupation as a journalist. Indeed, the narrative of personal political revelation in Atwood’s novel turns on Rennie Wilford’s decision to engage more directly and actively with the “subversive” potential of being a writer (Atwood 1996b, 300). Expression is also at the root of the discourse of harm that Atwood elucidates throughout the text as she incorporates the cultural-social representation of women into an expansive analogic continuity of vio­ lence. In the novel, seemingly mundane representations of women’s social and sexual roles constitute and are constituted by systems of

Freedom of Expression and Analogies of Harm  49

meaning that include pornographic discourse. Expression is further linked to political violence in the novel, with pornography extrapolated to acts of torture and persecution through a spectrum of dehumaniza­ tion. Even where the ideas promulgated by expressive acts work to chal­ lenge practices of inequality, violence, and denigration, these analogic interconnections make resistance difficult because expression’s conse­ quences frequently proliferate uncontrollably. In Bodily Harm’s ambigu­ ous ending, where Rennie may or may not have escaped from political detention, her decision to pursue more fully her freedom of expression as a journalist is counterbalanced by her sense of state restraints on her speech. Her decision is also troubled by the text’s reminder that her freedom is a consequence of her privileged position, denied to her cellmate Lora and other marginalized characters. In R v. Butler, a similar ambivalence can be seen in the Supreme Court of Canada’s (1992) approach to the protection of expression under the Charter. There, while freedom of expression is upheld as fundamental­ ly important, the abrogation of the freedom is occluded by the court’s section 1 analysis, which finds that the potential harm of obscene ex­ pression justifies its legal regulation.3 Enabling the Charter-legitimated goal of systemic equality validates the court’s decision to infringe free­ dom of expression in this instance. In its reasoning, the court articulates a vision of the nation as needing protection from harmful expressive acts, which it considers as somehow excessive to the nature of Canada, rather than an aspect of the already existing harmful representational practices that Atwood describes in Bodily Harm. Obscenity, the court ar­ gues, must be constrained because it has the potential to permeate soci­ ety, affecting at first women and children, and then Canada as a whole. In Bodily Harm and R v. Butler, freedom of expression brings with it proliferating meanings and connotations that cannot be readily man­ aged, and consequences that simultaneously embrace both social good and social harm. This chapter engages with expression as an intemper­ ate concept that links literature and case law as aspects of a Canadian discussion about the valorized and yet also troubling place of repre­ sentation to which pornography has been central. In examining Bodily Harm, my reading pursues what Martine Watson Brownley terms the text’s “excess of analogical associations” (2000, 69) as a means of considering how Atwood represents freedom of expression as both to be protected and potentially injurious. It is because the rights of in­ dividuals, the power of the state, and social good are associated and inextricable in the novel that Bodily Harm can argue simultaneously for

50  A Culture of Rights

the protagonist’s freedom of expression as a journalist and the politi­ cal good that this freedom can do, and for the individual, collective, and political harm that can come from expression. In Butler, the self-­ legitimating rhetoric of section 1 of the Charter justifies the Supreme Court’s curtailing of expression in the name of equality and collective well-being, even as the court continues to view expression as a valu­ able individual freedom and a national good. For both, the excess of expression makes for an ambivalent understanding of the concept, ar­ ticulating it as at once a value in need of constitutional protection and a source of potential harm requiring constitutional limitation. This same ambivalence manifests in each text’s idea of the permissible scope of rights and works, as it did in Itsuka and Emily Kato, to dislodge the ac­ tualization of rights. In Butler and Bodily Harm the right both is and is not safeguarded, with the Supreme Court longing for an ideal Canada where obscenity is absent, protecting expression while also abrogating it, and with Atwood’s novel concluding in an explicit deferral. In each text, the excessive right of expression can be conceived of, and con­ ceived of as a part of Canada, but it remains an imagined ideal, yet to be realized. Bodily Harm begins in retrospect, with Rennie stating “[t]his is how I got here” (Atwood 1996b, 11). The story is then revealed through a series of narrative fragments that are ultimately shown to be a dialogue between Rennie and another woman, Lora, with whom Rennie is shar­ ing a jail cell in the novel’s present. The story of how Rennie got to be “here” begins in Toronto. A journalist whose specialty is writing about “lifestyles,” “what people wear, what they eat, where they go for their vacations, what they’ve got in their livingrooms” (136), Rennie has recently undergone a mastectomy, followed closely by the end of her long-term relationship with Jake and an affair with Daniel, her surgeon. Returning home to her apartment one day, Rennie finds that it has been broken into, the now-absent intruder leaving “a length of rope coiled neatly on the quilt” (13). Deeply unsettled by the rope’s symbolic co­ alescence of the potential and actual harm that has recently affected her life, Rennie seeks a temporary escape in an assignment to the fic­ tional Caribbean islands of St Antoine and Ste Agathe. She will write a travel article, she says to her editor, “nothing political … a good Fun in the Sun, with the wine lists and the tennis courts” (16). Once there, however, Rennie finds that it is impossible to be just a tourist, to be “ex­ empt” (203), in the politically volatile St Antoine. Caught up in a failed coup, she is arrested on “suspicion” (262) and detained without trial.

Freedom of Expression and Analogies of Harm  51

Whether she is eventually freed is unclear; the Canadian government seems to secure Rennie’s release, but the novel’s final section is writ­ ten in an ambiguous future tense, stating “[s]he will never be rescued. She has already been rescued” (301). What is certain is that Rennie’s experience, both in Canada and on the islands, leads her to a revitalized political awareness. With this comes a renewed sense of the systemic nature of inequality and violence and the dehumanizing practices that enable it, as well as of the potential in acts of expression to provide a witness, and a possible counter narrative, to such wrongs. As is presaged by its title, Atwood’s novel is a work of “gross physi­ cality” (Irvine 1993, 101), with bodies acting as actual and metaphoric sites of the proliferation of individual and social harms. Rennie’s own body forms a nexus of contesting representations in the text, linking medicine, pornography, gender, and law (and law’s “perversion,” as Atwood puts it in her Amnesty International address [1982]). The epi­ graph to Bodily Harm, taken from John Berger’s Ways of Seeing, prefaces these concerns, contextualizing them as indicative of gendered repre­ sentational practices that are both malign and culturally endemic: “[a] man’s presence,” Berger argues, “suggests what he is capable of doing to you or for you. By contrast, a woman’s presence … defines what can and cannot be done to her” (1972, 45–6). While physical bodies are ab­ stracted in this manner in the novel, their visceral nature is also empha­ sized by Atwood, particularly as they become the objects of a violence that ranges expansively from Rennie’s mastectomy to the acts of torture she witnesses on St Antoine. The consequence is an excessive one: as the locus of so much mean­ ing, of gross physicality, bodies are overdetermined in Bodily Harm. They denote multiple discourses and, through a series of analogies drawn by Atwood, have meanings that are simultaneously social, cultural, and physical. This multiplicity reflects the novel’s broader use of the asso­ ciative explications of analogy to demonstrate the interconnection be­ tween forms of symbolic and material injury. Atwood works here with a continuum of analogies that compound relentlessly and excessively to reveal the manifold aspects of harm. The novel’s linking of pornog­ raphy with torture, for example, functions analogically to demonstrate the often obscured relations that connect the socio-cultural representa­ tion of women with acts of violence – an idea that the Supreme Court of Canada also takes up in its discussion of obscenity. More expansively, these analogies also disrupt the ordinariness with which much inequal­ ity and violence is treated.

52  A Culture of Rights

Atwood’s use of analogy in Bodily Harm begins with the novel’s form. The story of “how I got here” (1996b, 11) is constructed through its telling as storytelling, as a dialogue between Rennie and Lora told in narrative fragments and recounted retrospectively, but not in a strictly chronological order. Similarly, the novel’s concluding pages tell “what will happen” (293) through a future tense that ambiguously posits that Rennie “will never be rescued. She has already been rescued” (301). While Atwood’s style in Bodily Harm deliberately resists linearity, the novel is nonetheless cumulative in form. Events may be described out of order, but they aggregate, constructing the story in pieces that build on one another. This method is particularly effective at Bodily Harm’s end, when the various narrative moments coalesce into the possibility and impossibility of Rennie’s rescue, and the authorial assertion that Rennie “is not exempt” (ibid.) is equally meaningful in the context of either conclusion. As Atwood reveals that “what will happen” is in fact uncertain, the reader recognizes that a definitive representation of what has happened is similarly vague. Rather, like the associations of anal­ ogy, meaning comes from the often-unlikely relations between narra­ tive moments and from the figural productiveness of these connections. Irresolution in form (in surfeit of conclusion) thus mirrors the novel’s excessiveness of meaning, perhaps a necessity when, as Atwood notes in an interview, one authors satire in a world where “there’s almost nothing you can write about which has not been outdone in absurdity or ghastliness by real events” (1990, 55). Being able to recognize this reality, and to begin to trace connections in order to determine the origins of harm, offers the potential for social change: Rennie realizes that “what she sees has not altered; only the way she sees it. It’s all exactly the same. Nothing is the same” (Atwood 1996b, 300). Atwood thus posits the re­ thinking of seemingly stable ideas as a methodology for understanding the possibilities and dangers to be found in even the apparently socially positive concepts (such as freedom of expression) that she discusses. This interpretive frame is presented in Bodily Harm as a means of em­ phasizing the figurative connections between disparate concepts, and so demonstrating how meaning proliferates through analogy in oftendisquieting ways. As I discuss later in greater detail, the Supreme Court of Canada similarly sees the possibility that harm might come from the social good of expression. In R v. Butler the court draws conceptual associa­ tions between what is said in hate speech and what is represented in

Freedom of Expression and Analogies of Harm  53

pornography (notably, for the court, both traffic in degradation and dehumanization) and, like Atwood, sees their consequences proliferat­ ing from the individual consumer of expressive texts to “society at large” (Supreme Court of Canada 1992, 501). Unlike Atwood, though, the court largely sees the causes of this harm as external to Canadian society; as such, they can be addressed by law and potentially dealt with without fundamental change to Canada. By contrast, Atwood sees the roots of harm as intrinsic. Exemplified in the novel by Rennie’s breast cancer, the body, as the consequence of multiple, associated ideas about gender, race, health, sexuality, law, and nation, forms a particularly evocative lens for Atwood’s analogically derived critique, figuratively stressing its focus on discourses that are embedded within culture and society. Rennie’s diagnosis with cancer has left her feeling alienated, seeing her body as a “sinister twin, taking its revenge for whatever crimes the mind was supposed to have committed on it,” and asking “[w]hy had it turned against her?” (Atwood 1996b, 82). Describing her body as an enemy, Rennie fears that her mastectomy will reveal her to be “infested” (83), “permeated, riddled, rotting away from the inside” (19). Conceived of as a metaphor of infiltration, cancer then permeates the novel, creating analogic linkages that locate Rennie at the centre of a dis­ cursive schema of corruption. Despite Daniel’s assertion that it “isn’t a symbol, it’s a disease” (82), Rennie cannot help but think of her cancer in figurative terms, and Atwood repeatedly adds to the illness’s expansive signification. One of these readings presents cancer as a consequence of its victim’s moral failings, an interpretation rooted in Rennie’s back­ ground (or “subground,” as she calls it in another image of infestation, “full of gritty old rocks and buried stumps, worms and bones” [18]) in the small Ontario town of Griswold. In Griswold, “cancer was a frontparlour subject, but it wasn’t in the same class as a broken leg or a heart attack or even a death. It was apart, obscene almost, like a scandal; it was something you brought on yourself” (82).4 Rennie interprets the rope left by the faceless stranger in similarly moralistic, Griswoldian terms – “This is what happens to women like you. What can you ex­ pect, you deserve it” (18) – and understands that one of the police of­ ficers who comes to her apartment, believing her to have encouraged the intruder, “wanted it to be my fault, just a little, some indiscretion, some provocation” (15). Threat, harm, and fault cannot be separated from Rennie’s body in these interpretations, just as they cannot be dis­ entangled from the meanings given to female sexuality more generally,

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meanings that proliferate into a range of socio-cultural representations, acts, and practices. Thus in Bodily Harm the positive medical intent behind Rennie’s mas­ tectomy is not distinguished from its harmful connotations, which she describes in terms analogous to a more pervasive threat of gendered violence: She had a horror of someone, anyone, putting a knife into her and cutting some of her off, which was what it amounted to no matter what they called it. She disliked the idea of being buried one piece at a time instead of all at once, it was too much like those women they were always finding strewn about ravines or scattered here and there in green garbage bags. (23)

While the mastectomy is benignly, even beneficially, intended, it is also represented in the novel as an intrusion analogous to that of the faceless stranger. “No matter what they called it,” in Bodily Harm such acts are violent, and so are interpretable as part of a larger continuity of harm (later, Rennie will see a pornographic video of women “having their nipples cut off by men dressed as Nazis” [210]). They are also under­ standable in the novel as part of a pervasive discourse of explicitly gen­ dered harm, as Rennie’s analogy between her surgery and the murdered women found in Toronto’s ravines foregrounds. Numerous critics of Bodily Harm have posited that Rennie’s cancer (understood as an invasive corruption of the body) also denotes a po­ litical corruption. For Mary Kirtz, “the very title, Bodily Harm, stands for not only Rennie’s body, invaded from within by cancer, but also for the body politic, riddled by the malignancy of corruption” (1987, 118). This corruption is endemic, from the overt displays of brutality on St Antoine to the more subtle, sexualized violence seen in Rennie’s life in Toronto. Rennie’s response to this degraded social world has been to become politically alienated, just as she has become alienated from her body. When she tells Daniel after her mastectomy that “massive involvement” has “never been my thing” (Atwood 1996b, 34), the pun is personal and professional, medical and political, a reference to the possible spread of her cancer and an evocation of her move away from political journalism and engagement to “lifestyles.” Moreover, Rennie’s reaction is characterized by Atwood as denoting a national response, typified by the Canadian embassy official who arranges her release and states that “we don’t make value judgments … [W]e just allocate aid

Freedom of Expression and Analogies of Harm  55

for peaceful development” (295). Bodily Harm depicts both individual Canadians (including Rennie) and their representatives as unwilling to become involved in international affairs, and as ineffectual when they do (as the quickly embezzled Canadian foreign aid consisting of a thou­ sand tins of Maple Leaf Premium ham indicates [29]). But while Rennie has sought to be “exempt,” to be a “tourist” (78), her illness, her life in Toronto, and her time on St Antoine, where “[e]veryone is in politics … [a]ll the time” (124), have proven that this is impossible. Her sense of the necessity of witnessing and engaging with dehuman­ izing representations and violence through the expressive act of report­ ing renews her politically and marks her, by national standards, as a “subversive” (300). At Bodily Harm’s end, rather than continue to be alienated by her cancer or the pervasive threat of harm posed by the “faceless stranger” with the rope, Rennie resolves instead to risk “mas­ sive involvement” with others. With the novel’s conclusion, this idea moves analogically “beyond its diagnostic associations with cancer to suggest the new commitment that Rennie develops to an active life linked with other people” (Brownley 2000, 70). Holding Lora, so badly assaulted by St Antoine prison guards that she now has “the face of a stranger, someone without a name” (Atwood 1996b, 298), Rennie can recognize that “there’s no such thing as a faceless stranger, every face is someone’s, it has a name” (299). “The sinister symbolism of the anony­ mous stranger” thus “shifts to a positive acknowledgement of mutual­ ity” (Rubenstein 1987, 10–11) at Bodily Harm’s conclusion, Atwood’s excessive figurative connections enabled in this final example by the pervasiveness of the violence represented in the novel. Analogizing victim with perpetrator, the text deliberately thematizes the resignify­ ing potential of analogy, recognizing the multiple and interconnected nature of the abuse of rights while also positing the possibility of refig­ uring its violence into positive political change. The analogies that Atwood pursues in Bodily Harm are ambitious and global. Misogynistic inequality and violence proliferate through­ out the novel, forming a systemic web that links, among many other ideas, discussions of art, politically motivated torture, and the repre­ sentation of pornography. Repeatedly, Bodily Harm returns to Berger’s epigraph to interrogate the meaning of a woman’s gendered “pres­ ence,” finding that “what can and cannot be done to her” (1972, 45–6) is rooted in discursive practices that represent women as always avail­ able for harm in some form. In the novel’s analogic understanding,

56  A Culture of Rights

pornography is a form of expression whose connotations extend be­ yond legalized understandings of obscenity and whose injurious con­ sequences are ubiquitous. Before turning to Atwood’s discussion of pornography in Bodily Harm, however, I want to consider the cultural-legal landscape in which the novel circulated, a landscape changing due to the influence of femi­ nist thought, and through that to examine how the Supreme Court of Canada would conceive of the harm of obscenity a decade later, in R v. Butler. As Brownley notes, Atwood’s novel “arrived in the early 1980s accompanied by a plethora of works arising from the feminist movement’s campaigns against rape and other forms of sexual violence against women during the 1970s” (2000, 73). It also came at a point at which Atwood herself was directly engaging with the issue in her writ­ ing, including an article in a September 1983 issue of Chatelaine where she raises, but does not really attempt to answer, the question of “what’s the harm” in violent pornographic representation (1983, 126). In the intellectual wake of second-wave feminism, the correlation of pornography and harm become central to debates about state censor­ ship, with the argument made not just that the “real” nature of the sexual acts depicted in pornography warrant its restriction, but that pornographic representation itself creates harm, because it both partici­ pates in and perpetuates the dehumanization and degradation of wom­ en. As Susanne Kappeler describes this argument in The Pornography of Representation, “sex or sexual practices do not just exist out there, wait­ ing to be represented; rather, there is a dialectical relationship between representational practices which construct sexuality, and actual sexual practices, each informing the other” (1986, 2). Pornography assists in the naturalization of sexism, normalizing its representations and so, by reiterating and eroticizing the dehumanization of its subjects, both re­ flects ongoing inequality and justifies its continuation. Thus the harm of the dominant, heteronormative form of pornogra­ phy comes from the interaction between its representation of women as objects and its reinforcement of a sexist culture wherein women have always been objects. As Kappeler articulates it: The history of representation is the history of the male gender representing itself to itself – the power of naming is men’s. Representation is not so much the means of representing an object through imitation (matching contents) as a means of self-representation through authorship: the expression of subjectivity. Culture, as we know it, is patriarchy’s self-image. (52–3)

Freedom of Expression and Analogies of Harm  57

Pornography is not the sole source of marginalizing and dehumanizing representations of women, but it is a notable part of a system of cultural imagery that works to constitute and legitimate women’s objectifica­ tion. So long as the cyclical relation between the representation of wom­ en and their denigrated cultural location remains unchanged, the harm of pornography – the perpetuation of gender inequality – persists. As I discuss later, this cyclical relation is the far-reaching conception of harm Atwood identifies in Bodily Harm, traced from bedrooms in ­Toronto to the politically motivated detentions and tortures of St Antoine. It is also an understanding of the interconnection between representa­ tion and corporeal harm that justified the censorship of some forms of pornography in the Supreme Court of Canada decision of R v. Butler. Published more than ten years before Butler, Bodily Harm foreshad­ ows many of the arguments that would be presented to the court and aspects of the court’s own judgment. When put into dialogue, these two texts also respond to the excessive complexities of expression it­ self. Both see harm stemming from expression’s inability to be con­ tained, to either be “just” a representation or “just” a good, and both conceive of expression as uncontainable, warranting restraint even as the right itself remains legitimate. The positive possibilities of ex­ pression in both Bodily Harm and Butler – journalistic witnessing, art, free and frank civic discourse, certain forms of sexual expression – are still to be protected, but that protection is uneasily twinned with the right’s capacity to also produce social, political, and cultural harms. The value attributed to the right acknowledges its capacity to bring about change. In its manifestation in these two texts, we might also see a desire to constrain those possibilities for change where they are seen as undesirable, a conceptual conservatism about the permissible scope of the right that speaks to the larger conservatism about what rights in Canada should protect. R v. Butler concerned provisions in Canada’s Criminal Code, 1985, that prohibited the possession, distribution, and sale of obscenity. On 21 August 1987, police in Winnipeg, Manitoba, entered the premises of the Avenue Video Boutique, seizing the store’s entire inventory (Supreme Court of Canada 1992, 461). The owner, Donald Victor Butler, was charged on a number of counts of possessing and making avail­ able for purchase obscene material contrary to the Criminal Code. A second police seizure occurred on 29 October 1987, with further charg­ es being laid, including against one of the store’s employees (Supreme Court of Canada 1992, 461).

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On appeal to the Supreme Court of Canada, the case turned on wheth­ er the Criminal Code’s prohibition of obscenity justifiably violated the freedom of expression protected by the Charter. As the first case to chal­ lenge Canada’s obscenity law under the Charter, it garnered interest from a number of interveners, including civil liberties groups and antipornography activists (Jochelson and Kramar 2011, 39). Notably, this in­ cluded the feminist organization LEAF, the Women’s Legal, Education and Action Fund. In its factum, which Catharine Mackinnon helped to draft (Jochelson and Kramar 2011, 41), LEAF argued that pornography produced harm, including “actual harm to women in its production” and “attitudinal harm to women as a group because it changes how women are viewed in society” (Jochelson and Kramar 2011, 40; see also Cossman et al. 1997, 86–101, on LEAF’s argument). While LEAF is nev­ er cited by the Supreme Court, aspects of its argument find their way into the Butler decision, forming, in a shared concern about pornogra­ phy’s social harms, implicit discursive links between judicial reasoning and feminist anti-pornography thought. As I discuss later, it is a rea­ soning that is echoed and expanded upon in aspects of Atwood’s own discussion of pornography as indicative of pervasive harm. Broader than the court’s argument that social harm can stem from certain forms of obscene expression, Bodily Harm describes pornography as part of a continuum of often-invisible harms that ultimately manifest in the violations Rennie observes and experiences both in Toronto and on St Antoine. Through Rennie’s growing inability to dismiss violent sexual fantasy as “a game” (Atwood 1996b, 211), Atwood articulates an ex­ panded version of the court’s argument, one that is similarly influenced by feminist anti-pornography thinking. In its reasoning, the court found that the Criminal Code provisions infringed freedom of expression: defining the subject matter of expres­ sion broadly, Justice John Sopinka stated in his reasons that “[m]ean­ ing sought to be expressed need not be ‘redeeming’ in the eyes of the court to merit the protection of s. 2(b), whose purpose is to ensure that thoughts and feelings may be conveyed in non-violent ways without fear of censure” (Supreme Court of Canada 1992, 489). Expression, un­ derstood to manifest in materials that produce “meaning,” has a wide scope for the court, and most forms of expression (including pornogra­ phy, although with violent acts being the major exception) will warrant constitutional protection. Nonetheless, the court held in Butler that the Criminal Code’s infringement of expression was justified under sec­ tion 1 of the Charter. In this case, the Supreme Court found that the

Freedom of Expression and Analogies of Harm  59

obscenity provisions were legitimate because the avoidance of the harm potentially created by such materials constituted a reasonable limit on the scope of the Charter freedom under section 1. Writing for the majority, Sopinka argued that, since the current pro­ vision of the Criminal Code5 had come into force, a new, “objective” (474) standard for obscenity had supplanted the earlier common law test, established by Chief Justice Cockburn in R v. Hicklin, of whether the impugned material would tend to “deprave and corrupt” those ex­ posed to it (Court of Queen’s Bench [England and Wales] 1868, 371). The statutory measure, as interpreted by the Supreme Court, required the application of a “community standard of tolerance” test to deter­ mine whether the exploitation of sex represented in the expressive act could be considered “undue,” and therefore obscene (Supreme Court of Canada 1992, 475–6). As the court described it, the community stan­ dards test was contemporary, drawn from the Canadian community as a whole, and was based not on “what Canadians would not tolerate being exposed to themselves, but what they would not tolerate other Canadians being exposed to” (478; emphasis in original). The test also asked whether or not the expression in question exploited sex in a “‘de­ grading or dehumanizing’ manner” (ibid.), and whether or not the ex­ pression was defensible on artistic grounds. The court found that these considerations worked relationally, each referring to and building on each other. In the Supreme Court’s formulation, representations of sex with vio­ lence or those that “exploit sex in a ‘degrading or dehumanizing’ man­ ner,” “even in the absence of cruelty and violence” (ibid.), will probably fail the community standards test. Such representations were held likely to result in societal harm, which the court defined as “predispos[ing] persons to act in an anti-social manner as, for example, the physical or mental mistreatment of women by men, or, what is perhaps debatable, the reverse. Anti-social conduct for this purpose is conduct which so­ ciety formally recognizes as incompatible with its proper functioning” (485). The decision also held that consent did not necessarily save rep­ resentations of “subordination, servile submission or humiliation”: in­ deed, “sometimes the very appearance of consent makes the depicted acts even more degrading or dehumanizing” (479).6 In its reasoning, the court underscored that in its view the community (whose tolerance the courts are to ascertain [485]) “is the arbiter of what is harmful to it” (481). Presenting harm as the consequence of “degrading and dehumaniz­ ing” pornography, Justice Sopinka’s judgment, through a reasoning that

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is indebted to certain streams of feminist anti-pornography thought, asserts a causal relationship between representation and systemic gen­ dered inequality and violence: Among other things, degrading or dehumanizing materials place women (and sometimes men) in positions of subordination, servile submission or humiliation. They run against the principles of equality and dignity of all human beings … This type of material would, apparently, fail the com­ munity standards test not because it offends against morals but because it is perceived by public opinion to be harmful to society, particularly to women. While the accuracy of this perception is not susceptible of exact proof, there is a substantial body of opinion that holds that the portrayal of persons being subjected to degrading or dehumanizing sexual treat­ ments results in harm, particularly to women and therefore to society as a whole … It would be reasonable to conclude that there is an appreciable risk of harm to society in the portrayal of such material. (479–80)

In Sopinka’s reasoning, the prohibition of obscene materials recogniz­ es Canadian standards and serves the community as a whole, acting for the “avoidance of harm and the advancement of equality between all members of society” (Johnson 1995, 71). Legitimating the parlia­ mentary intrusion on individual freedom, Sopinka argues that “the overriding objective of [the Criminal Code provisions] is not moral disapprobation but the avoidance of harm to society” (Supreme Court of Canada 1992, 493), the latter constituting a reason that, in the end, justifies the abrogation of expression. These aims, the court finds, are of sufficient importance in a “free and democratic society” to legitimately override the exercise of the individual right to expression, and so sat­ isfy its limitation under section 1 of the Charter. Implicitly, this rea­ soning is also a potential justification for the limitation of Charter ­protections more generally, the avoidance of societal harm being un­ derstood as in the interests of defending the conception of Canada promulgated in rights discourses. Articulating his reasons in this manner, Sopinka makes the “problem” of obscene expression – its excessive inability to remain “mere” represen­ tation – transparent. Based on what he terms an unprovable, but none­ theless reasonable, public opinion that obscenity is harmful to society, Sopinka asserts that certain forms of pornographic expression can never be read privately, as they have “a causal relationship to changes in at­ titudes and beliefs” (Supreme Court of Canada 1992, 502). As excessive

Freedom of Expression and Analogies of Harm  61

in its own way as the analogic movement in Bodily Harm from surgery to the murdered women of Toronto’s ravines (Atwood 1996b, 23), or from the obscene material Rennie views at the Toronto Metropolitan Police’s Project P to the political violence she witnesses in St Antoine (290), pornography in Butler resists containment. Rather, through an associative link that the court draws between representation and the systemic or specific injury of women, pornography moves beyond the screen or page, producing changes in its audience that threaten to harm Canadian society. What Sopinka does not highlight, however, is that the problems of obscenity are also, of course, the problems of expression more gener­ ally. It is worth reiterating that Sopinka sees obscenity as a form of ex­ pression – that is never in doubt. Rather, the question in his judgment is what forms of expression require constraint in order to protect soci­ ety from harm. But if obscenity cannot be defined (Supreme Court of Canada 1992, 506) and must instead be contingently re-understood in the context of the Canadian community’s standards on a case-by-case basis, are otherwise “good” expressions not also perpetually possible sources of harm? Doesn’t the harm precipitated through obscenity mirror the social value freedom of expression seeks to generate – that expression can have material consequences? And is obscenity’s exces­ sive conceptual meaning not also always potentially good and bad, as when it is rescued by its being art? As Sopinka notes in his judgment, the court’s “internal necessities” test, which acknowledges the legality of artistic works, allows that an expressive act that otherwise unduly exploits sex might be saved by that exploitation being justifiable in the work as a whole. Thus, while the entire work can be defensible, the test presumes that the specific representation of sex remains obscene, with “any doubt in this regard … resolved in favour of freedom of expres­ sion” (486). Butler thus characterizes expression as significantly trans­ gressive, but also never questions the good of the freedom at stake. Expression, it seems, is ambivalent – excessively so. The same ambiguities can be seen in how Sopinka’s judgment frames the relationship between the “free and democratic society” envisioned by section 1 of the Charter and the obscenity provisions of the Criminal Code. Rejecting the idea, derived from the common law Hicklin stan­ dard, that deviations from a majoritarian conception of morality are “inherently undesirable” (492), Sopinka instead argues that the preven­ tion of harm is central to the objectives of the Criminal Code provisions. Thus, because “it is reasonable to presume that exposure to images

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bears a causal relationship to changes in attitudes and beliefs” (502), avoiding the harm that can result as a consequence of those changed beliefs is sufficient to warrant a restriction on the freedom of expres­ sion. The legislation itself, Sopinka argues, is of “fundamental impor­ tance in a free and democratic society” (509), in contrast to the kind of expression being impinged upon. Determining the application of sec­ tion 1 of the Charter to the Criminal Code, the court finds some forms of expression to be more worthy of protection than others. What a free and democratic society requires in this instance is not freedom of ex­ pression, but its limitation: [The Criminal Code provision] is aimed at avoiding harm, which Parlia­ ment has reasonably concluded will be caused directly or indirectly, to individuals, groups such as women and children, and consequently to so­ ciety as a whole, by the distribution of these materials. It thus seeks to enhance respect for all members of society, and non-violence and equality in their relations with each other. (ibid.)

The balancing of social good and harm that the court undertakes re­ quires attention to the value of the freedom being impugned in relation to its potential negative consequences. Because the harms threatened by expression cannot be readily contained without curtailing the scope of the freedom, the needs of a free and democratic society justify limit­ ing that freedom. Ultimately, limiting expression is seen by the court to push society closer to the ideal envisioned in the Charter (the ideal, once again, that section 1 both creates and protects). The Butler decision has judicially legitimated the idea that mate­ rial harm can come from pornographic representation, a social conse­ quence that mirrors the analogic associations of Bodily Harm. Also, as in Bodily Harm, analogy functions in multiple ways in Butler. On the one hand, it appears through law’s use of analogic reasoning, an interpretive methodology where a legally novel situation is compared with a case that has already been the subject of legislation or a judicial determina­ tion in order to ascertain the appropriate legal principle.7 Legal anal­ ogy operates in the Supreme Court’s decision most explicitly where the majority, agreeing with the Ontario Attorney General as intervener, determines that “the message of obscenity which degrades and dehu­ manizes is analogous to that of hate propaganda,” finding it to have a similar “power to wreak social damage in that a significant portion of the population is humiliated by its gross misrepresentations” (501).

Freedom of Expression and Analogies of Harm  63

Being analogous to hate propaganda in the court’s reasoning, obscen­ ity has similar proliferating harms beyond the image or written word. Implicitly, it therefore warrants prescription, as hate speech did in the court’s 1990 decision in R v. Keegstra (Supreme Court of Canada 1990a).8 The court’s drawing of an equivalence between obscenity and hate speech also suggests conceptual linkages with Atwood’s novel. The connection made by the court between the two criminalized forms of expression is to their similar capacities to degrade and dehumanize. The “message” that comes from obscenity (and, by analogous implication, hate speech) can rapidly spread, the majority argues, most disturbingly in its “power” to “wreak social damage” through “gross misrepresenta­ tions.” In this formulation, the meaning of illegal pornography moves from the textual to the social and across different types of expression; it is excessive in both form and impact. This leads the court to argue for obscenity’s prohibition in Butler because of the ramifications that this uncontrolled meaning has for a “significant portion of the population.” In Bodily Harm the pervasive analogic influence of expression moves between art, pornography, politically motivated torture, and intimate re­ lationships, specifically in the form of Atwood’s description of Rennie’s relationship with her former boyfriend Jake. Perhaps too obviously, Jake is a designer of packages: “[h]e decided how things would look and what contexts they would be placed in, which meant what people would feel about them” (Atwood 1996b, 103). Atwood underscores the importance of representation here, describing it not simply as some­ thing frivolous, but as central to how meaning is ascribed. Jake reor­ ganizes his and Rennie’s shared apartment, changing the furniture and decorating with prints depicting sexualized or objectified women (as prostitutes, bound, or “featureless” [105]). He also manipulates Rennie’s body for his sexual pleasure by dressing her in “bad taste” lingerie (“[g]arters, merry widows, red bikini pants with gold span­ gles” [20]), and telling her, “Put your arms over your head … [I]t lifts the breasts. Move your legs apart, just a little, raise your left knee. You look fantastic” (105). All of this is offered to Rennie by Jake with “iro­ ny and hope” as an expression of “the real you” (20). It is a “real” con­ structed for Rennie by Jake, one that she accepts largely because she thinks she should, justifying it to herself with trite self-help phrases such as “a secure woman is not threatened by her partner’s fantasies … [a]s long as there is trust” (105). Analogies tend to intensify in Bodily Harm. Seemingly harmless and socially condoned ideas and actions lead to related but often unexpected

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effects, and, in a manifestation of the court’s fear in Butler, frequently produce significant harms. While Rennie sees Jake’s “packaging” of her as innocuous fantasy, sex between them demonstrates how these repre­ sentations mean something of consequence, escalating in a manner that blurs ready separations of fantasy from harm. Jake approaches sex as a series of “games” that frequently involve some kind of threat to Rennie. He is “inventive,” surprising her by sneaking in through the window or by sending her obscene messages, or else “he’d hide in closets and spring out at her, pretending to be a lurker” (27). Rennie’s response, that “apart from the first shock, none of these things had ever alarmed her” (ibid.), affirms the extent to which an erotics of threat and domina­ tion have become normalized in their relationship. It is also indicative of how that erotics forms part of a broader social discourse: Jake liked to pin her hands down, he liked to hold her so she couldn’t move. He liked that, he liked thinking of sex as something he could win at. Sometimes he really did hurt her, once he put his arm across her throat and she really did stop breathing. Danger turns you on, he said. Admit it. It was a game, they both knew that. He would never do it if it was real, if she really was a beautiful stranger or a slave girl or whatever it was he wanted her to pretend. So she didn’t have to be afraid of him. (207)

Eroticized harm, rendered acceptable by its being “only a game,” is a constitutive part of Rennie and Jake’s relationship. Jake’s manipulation of Rennie, including his dressing her to reveal “the real you” and his presumptive understanding that “danger turns you on,” is derived, despite his declarations of an identified and specified Rennie (“you”), from a generalized understanding of sexuality and of women’s bodies as being determined by their depiction as objects of male desire. There is a sense in which Rennie’s body is interchangeable with almost any woman’s body for Jake, as his erotics are focused on a fantasy of how that body is depicted (in garters, as a slave girl, or as a beautiful strang­ er).9 This phantasmic female body is also characterized by its general­ ized desire to be defeated in order that Jake might “win.” Yet, there is also a banality for Rennie in Jake’s actions; the sexualized threat in their relationship is unsurprising for her because threat, the novel argues, forms part of the conventional and accepted construction of women’s sexuality. In its proliferation, the danger of harm becomes ordinary. The cultural practices at the heart of such a pornographized un­ derstanding of women permeate the novel. In response to what her

Freedom of Expression and Analogies of Harm  65

editor describes as the “heavy and humourless” feminist pieces being published in “radical women’s magazines,” Rennie is asked to write an article about “pornography as an art form” (207). As part of her research she interviews an artist who makes sculptures out of female mannequins dressed in lingerie not unlike what Jake has given her, and shaped into poses like tables and chairs with their wrists tied. The art­ ist, Frank, describes them as a “visual pun”: one piece has a “woman harnessed to a dogsled, with a muzzle on. It was called Nationalism is Dangerous” (208). Frank explains his work by saying that “[i]t’s not supposed to turn you on … Art is for contemplation. What art does is, it takes what society deals out and makes it visible, right? So you can see it.” (ibid.; emphasis in original). His art makes representation manifest, reiterating cultural imagery and explicating an already extant dynamic between gender and power so as to problematize, however banally, its manifestations. Frank’s work is, of course, also implicated in that dynamic, and so its subversive consequences may be limited, as evi­ denced by Rennie’s difficulty in reading it as other than sexual (“your work doesn’t exactly turn me on” [ibid.], she tells him). Nonetheless, these pieces suggest the political potentialities of such representations. Strategically foregrounding rights, Bodily Harm portrays artistic ex­ pression as part of the same analogic continuum as the more readily dismissible “right” to produce pornography.10 Frank’s work is “pornog­ raphy as an art form,” and so simultaneously complicit and disruptive. An excessive expression, his work manifests one of the interpretations (that of art) that would make pornography legally defensible, and so underscores the slippery conceptual distinctions – that it is obscene (and so potentially harmful) and art (and so vindicated) – that charac­ terize the Charter freedom. After her interview, Rennie views some of the “raw material” (209) on which Frank’s work is based, visiting the collection of obscenity seized by the Metropolitan Toronto Police’s Project P.11 Struck by “the ordi­ nariness of the rooms” (ibid.) where it is housed, Rennie, unfazed, sees the collection itself as ordinary, saying to herself that the “sex-and-death pieces” “could not possibly be real,” that “it was all done with ketch­ up,” and watching bestiality videos with “detachment” (210). It is not until the collection’s final exhibit, a video in which a rat is shown com­ ing out of the vagina of a black woman, that Rennie’s detachment is finally ruptured. Watching it, she feels “that a large gap had appeared in what she’d been used to thinking of as reality. What if this is normal, she thought, and we just haven’t been told yet?” (ibid.).

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Presenting works of increasing explicitness and intensity, the novel’s depiction of the Project P collection attributes expression with the ca­ pacity to harm and disrupt. There is a tension here between the cultur­ al normalization of pornographic imagery and its capacity to surpass that normalization, illustrated in Rennie’s reaction and her sense that what she has seen might, in fact, be normal, be acceptable in a way she has already attributed to other pornographic texts. In this moment – the moment when pornography stops being normal, while threaten­ ing to become normal – we see the assertion of the law as a means of constraining expression. When Rennie vomits after seeing the rat, the police officer accompanying her “didn’t seem to mind. He patted her on the back, as if she’d passed a test of some sort,” and comments that “at least it’s not for queers” (211). The officer sees Rennie’s response as normal not just because she was repulsed, but because repulsion is the appropriate reaction to obscenity (earlier the same officer had been an­ noyed by Rennie and her friend Jocasta joking about some of the other material in the police collection). Obscenity’s excess, which the officer interprets from Rennie’s reaction, is also an affirmation of the neces­ sity of regulating such expressive acts. Reliant on examples of harm like Rennie’s visceral reaction, the control of freedom of expression is justified as an act of protection by the state. Rennie will later make an analogic connection between this video and torture on St Antoine (290), thus explicitly locating these “obscene” harms on a continuum of denigration from expression to violence, and from forms of state protection through regulation to state control through brutalization. Rennie cannot bring herself to write the article about pornography as art, arguing that “there were some things it was better not to know any more about than you had to” (211). Nonetheless, she is now unable to continue ignoring the link between pornographic representation and harm, and as a consequence recognizes it more explicitly in her own relationship. After her visit to Project P, Rennie finds it hard to have sex with Jake, realizing that “she didn’t like being thrown onto the bed or held so she couldn’t move. She had trouble dismissing it as a game” (ibid.). The meaning of Jake’s manipulation of her image and body be­ comes less easily dismissible in the analogic light of her exposure to the obscene materials seized by Project P. Despite not wanting “to be afraid of men” (ibid.), or to believe that the pornography she saw reflects the desires of “most men” (212), Rennie can no longer readily separate the stylized performance of harm in their relationship from “real” harm. It is a slippage of meaning that makes all the more disturbing Rennie’s

Freedom of Expression and Analogies of Harm  67

uncertainty whether Jake once said to her “I want to be the one you open up for,” or “I want to be the one who opens you up” (106). In its disruption of the division between normalcy and fantasy in their relationship, Rennie’s visit to Project P also prompts her to re-­evaluate pornography’s broader discursive ramifications: Lately [Rennie said] I feel I’m being used; though not by you exactly. Used for what? said Jake. Rennie thought about it, raw material, she said. (212)

Rennie’s discomfort comes from her recognition that Jake’s behaviour and the pornography she has seen draw from a cultural context, and that it is behaviour neither unique to their relationship nor to a discrete group of obscene expressive acts. Rather, pornography and their sexual relationship are aspects of the broader gendered power relations that the novel describes, constituted by but also constituting the eroticization of “male domination and female subordination” (Bouson 1993, 118) and disseminating those acts as desirable. In Bodily Harm’s critical reflection on the erotics that link gender and power, Rennie’s sense of herself as “raw material” reflects her embeddedness in a cultural schema of “what can and cannot be done” (Berger 1972, 46) to women more pervasively. Such connections reach, excessively, into the scenes of Atwood’s nov­ el set in St Antoine. Here, the “rhetoric of domination extends beyond sexual difference to the wider political scenario” (Howells 1996, 122), and while sexual difference is not rendered irrelevant,12 “harm” be­ comes more overt, while still connected to its manifestations in Canada. When Rennie watches a man being tortured while she is imprisoned, she comes to realize the continuity between the prison guards’ actions, the more systemic harm of pornography, and the structures of power and harm of which they form an aspect: It’s indecent, it’s not done with ketchup, nothing is inconceivable here, no rats in the vagina but only because they haven’t thought of it yet, they’re still amateurs. She’s afraid of men and it’s simple, it’s rational. She’s afraid of men because men are frightening. She’s seen the man with the rope, now she knows what he looks like. (Atwood 1996b, 290)

Because nothing is inconceivable in their excessive meaning and con­ sequences, acts of political violence can be analogically like acts of pornography. For Atwood, these acts’ capacity for harm is a systemic

68  A Culture of Rights

consequence of globalized cultural practices that are premised on the pervasiveness of dehumanizing and violent representations in both Canada and St Antoine. Bodily Harm and R v. Butler both engage with the excessive poten­ tial of expression, tracing the possibilities of harm that can come from it and arguing that these are part of a larger socio-cultural context. There are, however, also marked differences between the construction of pornographic representation and harm in these two texts, notably around the concept of society with which each works. Like Kappeler, Atwood argues that pornography is in a “dialectical relationship” with an inegalitarian society, each productive and reflective of the cultural norms promulgated by the other. In R v. Butler, however, obscene rep­ resentations are depicted as the consequence of a “harm that may flow from such exposure” (Supreme Court of Canada 1992, 485). Obscenity is not described as an inherent part of society, but rather as bringing degrading or dehumanizing representations into it from outside, and thereby causing harm. Sopinka’s judgment presumes, in Jochelson and Kramar’s words, “that society exists in a state of equilibrium, which in­ cludes equality, but that the existence of ‘obscenity’ throws that stability off balance” (Jochelson and Kramar 2011, 43). The court’s conception of obscenity is consequently focused on specific prohibition rather than on systemic change, and its model of obscenity sees expression producing social harm but not necessarily as a reflection of the systemic presence of gendered violence and inequality, unlike pornography’s representa­ tion in Bodily Harm. Obscenity is somehow external to Canadian society in Butler, an excessive ramification of expression understood as unnatu­ ral and foreign to the nation as it is ideally conceived in rights. Sopinka’s judgment concludes that avoiding the harm associated with obscenity “is sufficiently pressing and substantial to warrant some restriction on full exercise of the right to freedom of expression” (Supreme Court of Canada 1992, 498). For the majority, pornographic expression is not strongly enough linked to “the values which underlie the protection of freedom of expression … the search for truth, par­ ticipation in the political process, and individual self-fulfilment” (499). This reasoning points not only to the majority’s ambivalent relationship with moral value as a determining factor in obscenity (see, for example, pages 492–3 of Butler) but also to a pervasive sense that expression’s po­ tential for harm comes from the same root as the rationale for its pro­ tection – that is, its capacity for excessive consequences. Expression

Freedom of Expression and Analogies of Harm  69

is attributed with the ability to proliferate, to manifest in a number of structures and institutions valorized in rights discourses (including dem­ ocratic processes and the voicing of dissent), as well as exhibiting con­ siderable potential for social harm (obscenity, hate speech). It is because of the apparent unruliness prompted by the freedom’s excess that the court found the necessity for expression to be constrained under section 1 of the Charter. Butler conceives of potentially pervasive consequences for Canadian society from section 2(b) of the Charter, consequences that are rooted in a perceived risk of harm that justifies obscenity’s restric­ tion. The majority’s judgment also heralds a suspicion of rights more generally, and so illustrates the limitations of Canadian rights discourses when their particular formations run counter to how an idealized “free and democratic society” is understood and enforced by the court. Unlike the decision in Butler, Atwood’s view of the interrelationship between pornography, representation, and harm is inextricable from the society that produces it; stylistically, these connections develop meaning as they circulate around and through Rennie. Repeated ex­ pressions like “massive involvement” demonstrate the possibility of resignification: the phrase “oh please,” for instance, functions in the novel as a plea in the face of violence, an exclamation of sexual desire, and a statement of both belief and want. Proliferating analogies also have the capacity to shift meaning. The faceless man with the rope, such a potent source of threat throughout the novel, becomes by Bodily Harm’s end a symbol for human interconnectedness, an acknowledg­ ment that “there’s no such thing as a faceless stranger; every face is someone’s, it has a name” (Atwood 1996b, 299). Yet, as Mary Jacobus notes, analogy can also be “a means of deny­ ing difference; since it really works to superimpose likeness, difference becomes the blind spot of analogy” (1986, 283). For Martine Watson Brownley, for example, the excessiveness of the novel’s analogies means that “strong disanalogies dilute their impact”: Violence against women by the medical profession, in pornography, and by the state could be viewed as existing across a spectrum of sorts, but surgery in a modern hospital is finally a different experience from torture under a totalitarian regime (torture that in any case has historically been inflicted more frequently on men than on women). Analogizing these dis­ parate forms of violence obscures as much as it reveals – and, in the case of state power, perhaps more. (2000, 71)

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Thus, the “excess of analogical associations” (69) through which Atwood develops the novel’s concept of harm is also, at times, a strain within the text; the links between Rennie’s cancer and political torture on St Antoine, for instance, are obscure and sometimes troubling, given the differences between them. Once in jail, Rennie herself notes this, saying that now her illness “seems of minor interest, even to her … She may be dying, true, but if so she’s doing it slowly, relatively speaking. Other people are doing it faster: at night there are screams” (Atwood 1996b, 284). Even as analogy shows our broader connections with each other, then, it works to create meaning by eliding difference, something that I will return to in my discussion of equality rights in chapter four. While Bodily Harm’s use of analogy enables Atwood to trace the prolif­ eration of harms connected to socio-cultural practices of representation, that same analogic reasoning brings with it a danger of eroding scale and context, and risks hiding important dissimilarities, including those of class, race, wealth, and the protection of rights. The narrative focus on Rennie also manifests as a troubling metaphoric consumption of other characters’ experiences and lives. The meaning of Lora’s beating, for example, is almost entirely symbolic, refigured in or­ der to impel Rennie’s revitalized political involvement: when/if Rennie returns to Canada, she feels Lora’s hand “there but not there, like the afterglow of a match that’s gone out. It will always be there now” (300). As J. Brooks Bouson notes, Lora is “sacrificed so that Rennie’s character may be redeemed” (1993, 131). This refiguring is also a concern in the context of the novel’s Caribbean setting, given the literary heritage (in which the white protagonist’s journey into the “heart of darkness” cre­ ates self-awareness) from which Bodily Harm draws. Atwood does not seem unaware of these connotations: that Rennie flies to St Antoine and St Agathe as a travel writer wryly establishes her from the beginning as involved in a field that actively commodifies other countries and cultures, and there are numerous mentions of the islands’ colonial his­ tories that obliquely place Bodily Harm in the context of Conrad’s novel. Nonetheless, Atwood’s intertextuality fails to mitigate entirely the use of the novel’s Caribbean setting as primarily a means of enlightening its Canadian protagonist. For Helen Tiffin, Bodily Harm’s “valid” per­ ception of “the violence and power politics inherent in the relationship between men and women in the North American context can seem ide­ ological indulgence when made the metaphorical equivalent of torture and assassination in another” (1987, 125). Thus,

Freedom of Expression and Analogies of Harm  71 Atwood seems to be endorsing the equivalence of the connection: obscen­ ity of one kind or another exists in both societies. But where a universalist perspective and aesthetic might lead a writer to stress “in both societies,” cross-cultural material demands an emphasis on difference in kind. Other­ wise the effect is, as in all universalist perspectives, self-serving on the one hand, and reductive of the “foreign” culture on the other. This is not to deny Atwood’s point (and Rennie’s perception) that obscenity and power politics do exist in both areas, but the metaphorical connection is made at the expense of real engagement with the “other” culture. (ibid.)

In linking Canada and St Antoine in order to facilitate Rennie’s political awakening, Bodily Harm displaces the specificity of her Caribbean set­ ting, making it a representation intended to say more about Canada (as a universalized setting) than St Antoine. The equivalence that is created here obscures the specificity of the (non-white) “other” in order to fa­ cilitate a Canadian character’s political awakening. Atwood’s novel is frequently scathing about what it views as the ineffective international role of Canada. Canadians are wryly identi­ fied as “famous for their good will,” a detached form of philanthropy that is mocked in the donation of “a thousand tins of ham, Maple Leaf Premium” (Atwood 1996b, 29), which is then promptly taken by the corrupt St Antoine regime. Providing aid, Canada does not, however, “want to make judgments” (295) about other countries or the rights abuses that take place within them. At best a naiveté, this national vac­ illation can also be read as an unwillingness or inability to become in­ ternationally engaged in a manner that can effectively address global crises and human rights abuses. In Bodily Harm, Canada stands sym­ bolically for rights, but maintains a belief, like Rennie’s, that it can be exempt from more visceral engagement. In St Antoine, though, such a distinction is meaningless: “Everyone is in politics here, my friend,” says Dr Minnow. “All the time. Not like the sweet Canadians” (124). Yet, despite Minnow’s (and possibly Atwood’s) pessimism about the ineffectiveness of Canadian responses to global rights violations, ex­ pression nonetheless functions to underscore the importance of rights, albeit through their displacement and failure. In a manner not dissimi­ lar to the complex place of freedom of expression in Butler, Atwood’s excessive analogies also amend constantly within the text, acknowledg­ ing, refiguring, and, to some extent, participating in the harm that they expose. Expression in Bodily Harm and Butler is a troubling twinning, a

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good and a harm. Characterized by its capacity to be surfeit, expression is represented in both the case and the novel as unrealized but realiz­ able, even as it is constrained. The excessive consequences of Butler itself soon became apparent. As Brenda Cossman and Shannon Bell note, the lauding of Butler as a femi­ nist decision characterizes the Supreme Court’s finding as progressive, and an anti-pornography position as the authoritative means of protect­ ing gender equality (Cossman et al. 1997, 3–7). One consequence of the decision, however, was a “new momentum to the censorship of counter discursive sexual materials,” notably through Canada Customs’s zeal­ ous seizing of gay and lesbian publications (7).13 For the majority of the Supreme Court in the Little Sisters Book and Art Emporium v. Canada case, however, Canada Customs’s actions were the improper actions of state authorities, with the court asserting that customs officials failed to recognize that “Canadian society cannot reasonably be interpreted as seeking to suppress sexual expression in the gay and lesbian commu­ nity in a discriminatory way” (Supreme Court of Canada 2000, 1162). The majority’s decision thus foretells the realization of the protection of rights despite the state’s failures; rather than this discriminatory treat­ ment being the perhaps-predictable consequence of Butler’s majoritar­ ian community standards test, in its finding that Canada Customs had acted in a discriminatory manner, the validity of Butler still stands. The future protection of rights thus remains imaginable should the state act in a manner that “reasonably” interprets the intentions of Canadian so­ ciety, even though certain manifestations of the right to free expression, such as obscenity, remain constrained in that same free and democratic society’s interests. Because the meanings of rights proliferate, they carry with them the potential for both social good and harm, something invoked by the Supreme Court in Butler, as well as in Oakes, and in the limitation en­ shrined by section 1 of the Charter itself. This understanding of the excess of rights also accords with Bodily Harm’s ambivalent represen­ tation of expression and the potential harms that can come from it. By invoking the dangers of its excesses, these texts gesture not only to expression’s possibilities, but also to the free and democratic Canada in which such constraint will no longer be necessary. For the Supreme Court, expression must be contained and controlled, lest its inability to stay on the literal page (or screen) result in social harm. Nonetheless, the value of protecting the right persists, located in the ideal Canadian society that the court sees in the absence of obscenity and that it seeks to

Freedom of Expression and Analogies of Harm  73

protect from harm. For Rennie, the future at first seems even more un­ certain. Atwood’s refusal to make clear whether Rennie ends the novel flying back to Toronto or remaining in prison is, I would argue, a rec­ ognition that neither the island locale of her torture nor the Canada to which she is returning, as evidenced by the Canadian government offi­ cial who says “[o]f course we believe in freedom of the press” (Atwood 1996b, 294–5) even as he asks her not to write about her experiences, give substantive protection for rights. Instead, Atwood offers the read­ er an ambivalent future, one in which a “free and democratic society” – the ideal Canada of the Charter – is imagined but as yet postponed. It is this imagined Canada in which Rennie undertakes to become a witness through her journalism, exercising her freedom of expression in a manner that brings with it the potential for social change. In Bodily Harm and Butler, such possibilities are manifest only in the ideal of the texts’ deferred, but nonetheless imagined and so realizable, futures.

3 “Nothing but the Pure, Entire, and Unblemished Truth?”: Trials, Counter Narratives, and Legal Rights

As the privileged space for the public determination of legal truth (a space that is often conflated with truth more generally), trials are one of the most culturally valorized manifestations of law. Trials pronounce the existence of legal rights and obligations, and ascertain their scope. They are seen to establish a finding that is both particular and univer­ sal, not only affecting the case at hand through their manifestation of one of law’s privileged functions, the resolution of disputes, but also by contributing to the normative discourse of common law precedent. Courtrooms, and the trials that take place in them, often metonymize the origins of law itself, an understanding that eclipses other sources of legal authority (such as the legislature) in favour of a juridical model that is rhetorically adversarial, vested in cultural concepts of impartial­ ity (Bell 2006, 42), and aimed towards the determination of a specific form of truth. From a rights perspective, trials also work to provide a corrective to the majoritarian nature of democracies, a means of ensur­ ing the protection of individuals from encroachment by the state and providing a space within which discordant narratives might be enunci­ ated. For a constitutional instrument like the Charter, especially in the spectacularized environment of the Supreme Court of Canada, the trial can become rights’ most public scene of affirmation. The veracity with which the truth produced in a trial is imbued is frequently contingent upon the role of rights in its production. Indeed, the Supreme Court has underscored this centrality, framing the trial as an exemplary moment of the social value of rights, law, and justice: A consideration of trial fairness is of fundamental importance … A fair trial for those accused of a criminal offence is a cornerstone of our Canadian

Trials, Counter Narratives, and Legal Rights  75 democratic society. A conviction resulting from an unfair trial is contrary to our concept of justice. To uphold such a conviction would be unthink­ able. It would indeed be a travesty of justice. The concept of trial fairness must then be carefully considered for the benefit of society as well as for an accused. (Supreme Court of Canada 1997, 651)

Yet the trial is often an ambivalent legal signifier, invoking a pro­ found scepticism about the capacity of courts to produce the various outcomes attributed to them. In many narratives – legal, literary, and political – the trial is itself the exemplary moment at which rights are violated. A trial might fail to properly understand, and so to adjudicate justly, the stories before it, or it may reproduce systemic inequalities and biases seen to be inherent to the judicial system. Whether in exam­ ples of unfair courts, wrongful convictions, or in innumerable novels, trials can stand for the law’s substantive inability to protect individuals and their rights. This chapter engages with the reciprocal relationship between rights and the forms and procedures of the trial. It highlights how certain types of narrative – including those that engage with the “legal rights” enumerated in sections 7–14 of the Charter – are central to the construc­ tion of truth in courts. Vitally important to this is testimony, the stories told by witnesses through a mixture of direct statements and formalized answers to questions. Testimonies are both constituted and constrained in the trial through an apparently improvised and interrogative dis­ cursive form, and their perceived immediacy and responsiveness are a necessary part of how law constructs truth and the narratives by which truth is known. Performed in and effected by the valorized space of the courtroom (a physical context inseparable from the nature of legal stories), testimony mirrors a culture steeped in the aesthetics of law, and this chapter begins with an examination of how the law produces testimony and the notion of truth that legal forms are said to guarantee. The determination of truth through testimony, however, is not the whole story of the trial. The second part of this chapter, which examines the occluded place of “counter narratives” as explicated by the “legal storytelling” movement, will begin to think about how the production of narrative within or in contradistinction to the trial troubles assump­ tions about how justice might result from the courtroom’s procedures. In particular, the literary examples I draw on here suggest the limita­ tions of the trial as a means of determining truth precisely because of its procedural failure to recognize marginalized narratives as legally

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meaningful. Literary engagements with the trial are as numerous in Canadian literature as they are in other national traditions: authors as diverse as Robertson Davies in The Manticore (1972), Rudy Wiebe in The Temptations of Big Bear (1973), and Mordecai Richler in St Urbain’s Horseman (1971) form part of a lengthy genealogy of works that echo legal forms and interrogate the determinative narratives produced in trials. Cordelia Strube’s novel The Barking Dog (2000), Ann-Marie Mac­ Donald’s The Way the Crow Flies (2003), and Margaret Atwood’s Alias Grace (1996) – the literary works at the core of my discussion here – each describe a different failure of the trial. In their respective critiques, however, they all posit the efficacy of alternative stories to provide a corrective response to the justice system’s inability to accurately appor­ tion responsibility. The representations of trials in these literary works are among the most overt criticisms of law that I consider by anglophone writers. De­ spite their critical understanding of court practice, however, these nov­ els nonetheless work to reaffirm the capacity for “correctly” told stories to reveal important and meaningful truths. What such texts posit is that while the contemporary form of the trial may be flawed, the underly­ ing – and legally inflected – right to present one’s narrative in “a fair and public hearing” (as in section 11[d] of the Charter) endures as an ideal. Indeed, these works frequently invoke the trial in their forms and themes, constituting in their own pages a “fair and public” space for the truth of what happened. In a distinct but conceptually related manner, wrongful conviction cases, such as the Court of Appeal for Ontario’s decision in Truscott (Re) (2007), displace the failures of specific trials by categorizing them as exceptional, containing the law’s mistakes and ob­ fuscating discussion of the systemic inadequacies in the criminal justice system. In both the novel’s generic form and the self-reflexivity of law, then, the valorized conception of the trial as the locus of a right to be heard and to be justly treated persists in the face of critiques directed at law’s failings. Law and literature reaffirm the cultural-legal impor­ tance of the rights exemplified in section 11(d) of the Charter and the formal procedures that those rights are simultaneously constituted by and protect. Narrative is a way of creating meaning. As a response to the past, nar­ ratives are representations of events, creating order through a rhetorical strategy that artificially imposes causality and coherence. As Hayden White argues, narrative provides “integrity, fullness and closure,” struc­ turing our otherwise chaotic lived experience with “proper beginnings,

Trials, Counter Narratives, and Legal Rights  77

middles and ends, and a coherence that permits us to see ‘the end’ in every beginning” (1981, 22). The genre of the novel, as epitomized in Victorian multiplot works by writers including George Eliot and Charles Dickens and present in Rohinton Mistry’s more contemporary A Fine Balance (1995), similarly frames seemingly unconnected events in order to demonstrate unity and resolution (or, at the least, a tentative conclu­ sion).1 Understood in this light, narrative is procedural as much as it is a product, providing the means and methodology by which the texts of history, fiction, and innumerable other cultural practices are effected. As Costas Douzinas and Ronnie Warrington argue, the urge to nar­ rativize, to “show ‘reality’ as meaningful and closed” (1991, 107), is a legal urge. Like historiography, but also like much novelistic fiction, law seeks to impose the unities of narrative onto the past, constructing a coherence that “displaces this imagined meaningfulness on to a legal register and emplots the diffusion and dispersal of lived experience as the facts of a moral drama” (ibid.). The legal trial produces meaning by understanding the past as a series of potentially conflicting narratives – manifest in arguments and testimonies – that culminate in the form of a judgment that determines truth. While, in Jan-Melissa Schramm’s words, “the presentation of evidence in a court of law has often served authors of fiction as a coherent and influential model of ‘reality,’ and writers have long imitated the strategies of persuasion privileged by le­ gal forensic methodology” (2000, 1), the trial’s linking of form to the cre­ ation of truth is reciprocally indebted to strategies similarly employed by other narrative practices, such as the novel. I discuss the relationship between interpretive practice and narrative at more length in the next chapter, but it is worth underscoring here that “textual interpretation” and the “rhetorical politics [of both literary and legal narratives] can never be separated” from the cultural-legal context that gives their spe­ cific forms meaning (Mailloux 1990, 133; emphasis in original). The formal procedures that aim to determine legal truth include rules of evidence such as hearsay, relevance, and the live delivery of testi­ mony. These procedures work in aid of an attempt by law to “organise in its own grammar and lexicon other dialects and idioms, not least or­ dinary speech” (Douzinas and Warrington, 1991, 161) so as to impose a legally sanctioned narrative coherence onto the stories that a court hears. This rhetorical ordering creates, in turn, a “privileged description … one that enables the audience to tell what really happened as opposed to what those involved thought happened. Truth can be found by remov­ ing the self-serving accounts of those who stand to gain in the process of

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being partial” (Scheppele 1989, 2089–90; emphasis in original). In this understanding of law’s capacity to produce truth through narrative, formal legal rules are held to integrate procedure with epistemology and to assert that content and form are inextricable at law. Evidentiary procedures, then, are methodologies for producing an account of an event, but they are also moments in which normative legal ideals are enacted. Law constructs narrative meaning, such as the veracity of testimony, through a self-referential understanding of legal forms as inextricable from content, and procedures in the courtroom both cre­ ate ideal narratives and themselves constitute exemplary instances of law’s legalized values. For Desmond Manderson, this interdependence of form and content is at the heart of understanding law as an aesthetic practice. As he argues in Songs without Music, aesthetics is not like law, “it is part of what law means and how it develops” (2000, 33). Manderson’s study suggests, like Richard Weisberg’s “poethics,” that law integrates form and content. In describing it, Manderson argues that legal aesthetics “is a method of interpretation and categorization … But at the same time it is epistemo­ logical and normative. It stakes a claim not only about the meaning of law but about why the law has developed in certain areas as it has and what the law ought to be” (40). Law’s aesthetics are thus a factor in its capacity to act normatively “outside” courtrooms and parliaments: Aesthetics affect the values of our communities, values which are in their turn given form and symbolism within the legal system. In the law, then, we find not only evidence of our beliefs but traces of the aesthetic concerns that have propelled them. But the converse also holds. The legal system is not merely the passive mirror of a worldview. The law is a kind of dis­ course whose outlook on the world takes its place as one (frequently privi­ leged) way of perceiving events around us. If we look at a street march as an “exercise of first amendment rights” we may approve of it, while if we focused on the substantive issues behind the demonstration we might not. But either way we think of the question in terms of “freedom of expres­ sion” in part because that is how the law approaches the problem. The gaze of the law influences all of us: it defines a situation in a certain way and encourages us all to look at it likewise. (27)

The practices of law can thus be understood aesthetically as “a way of seeing and constructing the world” that is culturally significant because it “will tell us what a particular law or judgment actually means to a

Trials, Counter Narratives, and Legal Rights  79

community and how it influences them” (28). In the trial the formal aspects of law are emphasized, with rules of evidence and procedure acting (in culturally endorsed ways) to generate a certain kind of narra­ tive from the stories before the court. Reiteratively, the procedural as­ pects of the trial produce a specific style of narrative and so produce a truth that is a consequence of that style. As Gregory Comnes notes, “in common law, what separates good jurisprudence from bad is not truth but craft: the immersion in a large and demanding body of work with a commitment to scrupulousness and to the discovery of the right word, recognizing that decisions rely as much on rhetoric as logic or dialectic in proving their claims” (1998, 359). The point is not to say that such decisions are illegal, or legally incorrect. Rather, as Manderson argues, “[f]ormal design or structure – whether of a poem or a statute – is not just the medium through which ideas are expressed but is itself an as­ pect of meaning (2000, 33). Because form, content, and the truth that they produce are so inextricable, legal narrative and rhetoric are deter­ minative of good testimony, good judgment, and so good law. In trials the law seeks to resolve what Richard Delgado terms “a war between stories,” deciding between narratives to enable “the realitycreating potential of stories and the normative implications of adopting one story rather than another” (1989, 2418). Judicial opinions act “edito­ rially to harmonize prosecution and defence narratives – giving weight to one story, dismissing another as implausible, pruning a third – to produce a logically coherent and (it is hoped) a justice-satisfying narra­ tive” (Kramer 1998, 386). There is also a belief that the rhetorical skill of lawyers plays a role in the success of certain stories over others. Thus, as Richard Weisberg notes, “the cleverest lawyer – the one who best manipulates procedural strictures, or who most convincingly re-creates a particular fact pattern in order to append it to prevailing authorities sympathetic to his position – will ‘win’” (1994, 161). The rhetorical skill of lawyers in constructing appropriately “legal” narratives that are somehow divorced from a non-legal or anterior truth is a pervasive literary trope, deployed in Cordelia Strube’s The Barking Dog as a critique of the trial’s formalism that is simultaneous­ ly evidence of an ambivalence towards legal rights. In Strube’s (2000) novel the protagonist’s son, Sam, is charged with the violent murder of an elderly couple. However, while he is in one sense responsible for their deaths – there is no doubt that the action was perpetrated by him – Sam claims to have been asleep at the time, and to have no memory of what happened. Sam’s defence is consequently a deftly crafted plea of

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non-insane automatism, which, if successful, will see him freed without incarceration or institutionalization. As Sam’s mother Greer notes, making this case is not a simple asser­ tion of blunt facts, but a carefully constructed and contingent denial of responsibility. Sam’s defence is an interpretation of events challenged by the Crown, which seeks to show that “at the very least … my boy suf­ fers from a disease of the mind” (29). Proving this, or that his “somnam­ bulism stems from a disease of the mind, will stop Sam from walking free if he’s found not guilty. They’ll toss him in the loony bin and throw away the key” (ibid.; emphasis in original). Such distinctions are repre­ sented in the novel as essential to the legal understanding of Sam’s ac­ tions, and respond to the requirement of the Canadian Criminal Code, 1985, that “only those who act voluntarily with the requisite intent to commit an offence should be punished by criminal sanction” (ibid.; em­ phasis in original). That Sam’s defence is ultimately successful is an af­ firmation of his lawyer’s capacity to produce an argument that better satisfies the aesthetic requirements of the trial than the Crown’s does. This resolution sits uneasily with Greer’s own view of what has hap­ pened. While she was not witness to the deaths, and cares deeply for her son, Greer is unsettled by the defence lawyer’s articulation of the crime. At Sam’s bail hearing Greer bespeaks her scepticism when she describes their lawyer as “a Houdini eluding the Criminal Code” (5). She fears Sam killing again, ambivalently thinking to herself “[p]lease don’t lock him up, please lock him up” (ibid.) and questioning whether Sam deserves any better than the dehumanizing conditions he experi­ ences in prison (21). Greer also acknowledges that the deceased cou­ ple’s daughter, Lila, has a competing and valid desire for retribution against Sam (“seething with hatred … [she] must want to see my only son burned alive” [11]) that has gone unheard by the law. Greer’s af­ fective understanding of Lila’s pain and her desire to somehow make recompense for her son’s actions eventually see her become intimately involved in the increasingly mentally ill Lila’s life. In representing Greer’s ambivalence, Strube depicts the often com­ plex cultural response to how the lawyer’s ability to craft a story in­ fluences its juridical acceptance. Even as narratives within a court are recognized as constructed, they can also become institutionally legiti­ mated, and so successful, because of their legal location. Personal am­ bivalence – “please don’t lock him up, please lock him up” – might become public certitude by means of the trial, through the legal determination of responsibility. Form and procedure are a key method of addressing the

Trials, Counter Narratives, and Legal Rights  81

ambiguity that attends every event judged at law, as they establish an apparently neutral and effective way of determining between compet­ ing and often quite distinct stories. Law’s procedures also inflect more specific considerations of the meaning of legal rights in Canada. Many of the rights enumerated in sections 7–14 of the Charter codify long-standing common law rules such as habeas corpus, the presumption of innocence, and the protec­ tion from self-incrimination, all concepts that attempt to formulate a balance between incursions by the state on individual liberty and the regulation of a putatively criminal subject who “is in desperate need of correction to maintain the civil order and to save him from his own vices” (Kramer 1998, 392). The broad terms of section 7 of the Charter, for example, enshrine “the right to life, liberty and security of the per­ son and the right not to be deprived thereof except in accordance with the principles of fundamental justice” in Canada. Despite its normative qualities, this section has been interpreted as primarily procedural, as can be seen in the reasoning of Justice Antonio Lamer (as he was then) for the majority in Re B.C. Motor Vehicle Act (Supreme Court of Canada, 1985). For Lamer, the broad guarantees of section 7 are ascertained in­ ternally from law, contextualized by the terms of the Charter and draw­ ing on and guided by rights concepts derived from the legal system. The ideologies that determine the nature of “principles of fundamental justice” under the Charter are “founded upon a belief in ‘the dignity and worth of the human person’” (503) and the rule of law (as refer­ enced in the preamble to the Charter), both of which Lamer asserts as integral to the Canadian legal system: In other words, the principles of fundamental justice are to be found in the basic tenets of our legal system. They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system. Such an approach to the interpretation of “principles of fundamental justice” is consistent with the wording and structure of s. 7, the context of the section, i.e., ss. 8 to 14, and the character and larger ob­ jects of the Charter itself. (ibid.)

So while Lamer asserts that “clearly, some of those sections [the legal rights sections of the Charter] embody principles that are beyond what could be characterized as ‘procedural’” (ibid.), they are nonetheless given shape by the law as “a system for the administration of justice” (ibid.; emphasis mine). How the law enables justice to be done through

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the formal, rhetorical, and procedural systems it has in place is clearly an integral aspect of the work of courts in Canada. Thus, in R v. Seaboyer (Supreme Court of Canada, 1991c), a rape shield law under the Canadian Criminal Code was struck down as overly broad because it unduly restrained the capacity of the accused to con­ duct his defence. In the Supreme Court’s interpretation, the procedural rule in question violated the principles of fundamental justice protected under section 7 by amending the form in which evidence was to be pre­ sented at trial. As Justice Beverley McLachlin, as she was then, held in her reasons for the majority: Canadian courts, like courts in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenet of our judicial system that an innocent person must not be convicted. (611)

In this instance the procedural limitation was held to have the signifi­ cant substantive consequence of constraining the defendant’s capacity to represent the events in question and so to establish his defence. The court’s judgment is thus a recognition of the importance of establishing a coherent and legally meaningful narrative of events and a restate­ ment of juridical principles about the role that form plays in making a just determination in Canada’s legal system. Other Charter legal rights provisions reinforce this connection be­ tween form, rights, and the production of law. Thus section 8 concerns how evidence is to be gathered, while “the right not to be arbitrarily detained or imprisoned” (section 9) is realized by way of police proce­ dures as well as through judicial and legislative oversight of those pro­ cedures. Similarly, sections 10 and 11, which set out the rights of those subject to state prosecution, have a number of provisions with sub­ stantive legal consequence, including rights to be informed “without unreasonable delay” of an offence (section 11[a]), to be tried promptly (section 11[b]), and to habeas corpus to determine whether a detention is legal (section 10[c]). These and the other legal rights enumerated in the Charter structure legal procedure so that it represents a standard, its formality cohering norms and giving discursive legitimacy. These rights determine the shape of the law’s execution in order to produce a particular model of fairness and impartiality, and so justice. Section 11(d), which enshrines the right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an

Trials, Counter Narratives, and Legal Rights  83

independent and impartial tribunal” is similarly a procedural directive that speaks to the legitimacy of the trial, and so the law. This right not only encodes how subjects before the law are to be understood and the context in which they can be judged, but also takes legal characteriza­ tions that are formal and procedural – the accused whose innocence must be reinforced by the court until determined otherwise, the forum in which judgment can legitimately take place – and prescribes these understandings of fairness and validity as normative for the Canadian nation-state. Necessarily reliant on judicial procedure and interpreta­ tion for its content, section 11(d) does little to elaborate on how an “in­ dependent and impartial tribunal” might look, or how the presumption of innocence might be enforced in the context of such a tribunal. The Charter right instead leaves these interpretive matters to the courts, which have largely reproduced and validated the trial’s pre-Charter form as an ideal site for the determination of legal truth. As a result, and like many of the legal rights in the Charter, the section 11(d) right to the presumption of innocence and an independent and impartial tribu­ nal cannot be separated from the legal institutions in which it originat­ ed. Rather, the Charter reproduces those institutions in the context of rights, establishing them as exemplary fora for the interaction between state and individual through their constitutionalized capacity to make authoritative determinations of legalized events. The value and legitimacy of testimony, the privileged form of nar­ rative evidence in a trial, is similarly understood to derive from the common law’s procedures. Individual testimonies rarely constitute an entire case. Yet the coherence of testimonial statements – what Grace Marks in Atwood’s Alias Grace describes as “a story that would hang together” (Atwood 1996a, 429) – is essential to a successful case, speak­ ing not only to the specific testimony’s veracity but also to that of a defendant’s or plaintiff’s case as a whole. Moreover, because it must be produced and proved, persuasive testimony is not constituted by a single act of telling a story within the space of a courtroom. Rather, testimony is the collective product of witnesses and lawyers (and often of judges or other judicial officers) reproducing personal experiences as meaningful, and potentially persuasive, legal narratives. Different forms of legal questioning produce different responses, and so narra­ tives with different meanings and effects: the examination-in-chief is the initial presentation of the witness’s testimony, given with the in­ tent of persuading the court; cross-examination seeks to undermine the veracity of that story in order to discredit it and/or supplant it with

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another. Both these forms of narrative production are, due to their question-and-answer construction, necessarily fragmented. Their ca­ pacity for persuasion consequently relies in large part on the capacity of lawyers and witnesses to collaboratively fashion these testimonies, through means that rely on legal (and in particular evidentiary) proce­ dures, into something intelligible and cohesive. Produced through the advocate’s asking of questions and the wit­ nesses’ replies (which, in turn, prompt further, different questions), the testimonial story can be understood as developing in a manner that is cumulative and contingent, a narrative that is the result of the impro­ vised responses of each party to the other.2 This form is akin discur­ sively to a conversation, an interaction that comes from taking turns and interpreting and responding to another’s statements. As such, a useful means through which to discuss the apparently improvised na­ ture of testimony can perhaps be found in Ingrid Monson’s reading of the conversation as an analogy for musical improvisation. For Monson, “when [jazz musicians] compare performance in the ensemble to ‘con­ versation,’ they refer to a specific genre of musical talk that requires listening carefully to the other participants” (1996, 85). While I do not think that jazz improvisation can or should be bluntly extrapolated to legal testimony – Monson continues this sentence by saying that “the interpersonal character of this process is emphasized very clearly by the conversation metaphor, for what could be more social than a musical or verbal conversation” (ibid.), and much testimony, created through adversarial means, maps uneasily onto the cooperative ethos that usu­ ally influences jazz improvisation – the analogy can nonetheless pro­ ductively illuminate the processes by which testimony is constructed. As a conversation, antagonistic or cooperative, testimony is indeed responsive, with both witness and lawyer listening carefully to each other. In examination-in-chief this conversation can be the process by which a lawyer’s questions and a witness’s responses become a legally viable statement, “otherwise the witness might well have difficulty in speaking at all, or in constructing a coherent account” (Lane 1990, 241). None of this is to say that lawyers, witnesses, or judicial officers can­ not mishear or misrepresent each other, reinterpreting statements in an improvised manner to suit certain rhetorical ends. Cross-examination is an adversarial practice often predicated on a suspicious legal herme­ neutics that aims, if not to mishear, then to undermine the credibility given to a witness’s statements. But even a contentious conversation

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says something, and the legal meaning that testimonial conversations are understood to produce through these improvisational processes is an essential part of how trials are considered to uphold the “principles of fundamental justice.” If improvisation shapes the forms through which testimony is creat­ ed, then it, or at least the meaning with which improvisation is imbued, also carries through to the forms of knowledge esteemed by the legal structures of the trial. The relative value given to certain types of evi­ dence over others reflects a preference for live, and allegedly unmedi­ ated, testimony. As Philip Auslander (2008) has noted, there are striking similarities between the hierarchies of value given by law to testimony and arguments about the authenticity of a live performance and what is lost – or thoroughly differentiated – in any attempt to record or dupli­ cate that performance. For example, hearsay (when a witness recounts something of which she or he does not have direct experience) is ex­ cluded as a form of legal evidence precisely because it is a mediated version of events, seen as the witness imperfectly reproducing the ex­ periences of another. Eyewitness or first-hand testimony, however, con­ stitutes a performance of remembering by the witness (provoked by the lawyer’s questions) that is understood as more authentic because the act of recollection performed draws on personal experience or knowl­ edge and is supposedly unmediated. What determines the authenticity of testimony, then, is the directness of the memory being recalled, its value said to lie in its capacity to be recollected. Indeed, as Auslander provocatively notes, “the essence of testimony is not the information recalled but the performance of recalling it in the courtroom, before the accused and the jury” (145). Memory, contingently and conversation­ ally evoked by examination as testimony, thus becomes the exemplary form of evidence through its performance in the trial scene. Such a privileging is not, of course, necessary or natural: to quote again from Auslander, “it should be clear that this respect for liveness is ideological and that it is rooted in an unexamined belief that live confrontation can somehow give rise to the truth” (144–5). Moreover, memory cannot be separated from its legal manifestations, because its cultural meaning has been shaped by law’s aesthetics: [I]t is clear that memories do not summon the law by becoming visible or by being entered into discourse, because there is no moment at which a memory exists prior to its inscription in and by the law. The context of any

86  A Culture of Rights memory has already been shaped by law as part of the phenomenology of daily life. In that sense, all memory is inhabited by the structures of law, is always already entered into legal discourse. (180)

Like the determination of truth through competing narratives, memory is a cultural discourse that cannot be understood as distinct from its legal meaning. But this does not undermine its power or the impor­ tance it has to determinations of legal veracity. Rather, it underscores how tropes of improvisation might be read onto testimony in order to understand the valuing of evidence in court. Liveness is not necessarily improvisation. Yet within the trial, evidence is given in a fashion that is preferably (although not exclusively) in person, produced through a discursive form that relies on contingency and responsiveness, and is understood as having no predetermined outcome. Even expert wit­ nesses, speaking to scientific evidence and who may have no first-hand knowledge of the specific events being tried, present their evidence by means of a testimony that is first evoked, and then interrogated, in the responsive manner that I have described as owing much to an improvi­ sational method. One consequence of this discursive form is that, unlike the deroga­ tory (and often racist and classist) understandings of improvisation as an instinctual practice that operates in the stead of “proper” training and skill (Ramshaw 2006), the trial seems instead to be valorizing the improvised, contingent production of testimony as essential to the con­ struction of legal truth. If, according to both common law tradition and the protections of the Charter, responsibility is best determined in “a fair and public hearing by an independent and impartial tribunal,” and the privileged form of evidence in this forum is contingent, conversa­ tionally produced testimony, then the space of the trial would seem to be one in which improvised forms of narrative carry with them signifi­ cant institutional weight. Moreover, even in the face of legal realities that overtly discount improvised practice – witnesses rarely first meet and discuss their stories with the lawyers examining them in the court­ room, and defence lawyers have access to prosecution evidence (and often vice versa) in advance of the trial that allows them to prepare for what is said in court – the appearance of improvisation through tes­ timony and the recollection of memory remains and has force. These procedures constitute the substance of the law in accordance with legal aesthetics. They reproduce a narrative form that glosses the disconnect Scheppele notes of narratives more generally: “truth isn’t a property of

Trials, Counter Narratives, and Legal Rights  87

an event itself; truth is a property of an account of an event” (1989, 2090; emphasis in original). In a way, it does not matter if the production of testimony is “really” performing improvisation in the courtroom. What is important is that judicial structures characterize the presentation of persuasive testimonial evidence as meeting the law’s formal require­ ments, that is, as collaboratively improvised testimonies that are suf­ ficiently legally persuasive to form the basis of a judicial decision, and so legal truth. Improvisation is incorporated into the legal production of individual accounts of past events, but that function is not circumscribed by the space of the courtroom. Through their manifestation in formal rules that aim to test the veracity and coherence of witnesses’ memories, im­ provisatory practices create a valorized form of truth that is important in the context of the trial and has meaning for how narratives of truth are understood socially. It is, to build on Manderson’s formulation, part of a cultural aesthetics that cannot be disentangled from legal aesthet­ ics, an understanding of the law as constitutive of other cultural in­ stitutions and practices. Reading the formal strictures of the trial is a means of interpreting legal aesthetics and a recognition of often-hidden aspects of law’s coercive power. While it may seem to inhabit a discrete institutional space, then, the legal idea of “a fair and public hearing” is never distant. Instead, it is a perpetual presence, part of a complex of ideas that give coherence to the narratives by which cultures are repre­ sented to themselves and to others. Understanding law’s forms, including the apparently improvised methodologies of testimony, can help us better recognize the processes by which truth is produced culturally. Such understandings can also ground our critical engagement with the presumptions and occlusions on which these narratives are founded. In Ann-Marie MacDonald’s The Way the Crow Flies, procedural determinations of how memory is to be performed have significant legal consequences. Madeleine, the novel’s central character, is called to testify on behalf of her neighbour and friend Ricky Froelich, who has been wrongly charged with the murder of Madeleine’s classmate Claire. In an earlier police interview, Madeleine maintained that she saw Ricky turn away from the site of the murder, something that would likely have exculpated him. When she testifies at the trial, however, Madeleine admits that she does not know which way Ricky turned, and that she lied because she was afraid he would be hanged. Ricky is subsequently found guilty and imprisoned, and while he is eventually released, he is never the same after his time

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in jail. Madeleine blames herself for his conviction, and carries a sense of guilt well into adulthood for what she sees as the consequences of her admission. For MacDonald, Ricky’s trial proves deeply inadequate to the deter­ mination of truth and, consequently, to the production of a just ver­ dict. Within the narrative of the novel the question is not one of Ricky’s guilt, but whether the court will correctly find him not guilty. Privy to some of the circumstances surrounding the murder, the reader inter­ prets the novel’s courtroom scenes through the justice system’s failure to correctly ascertain what happened. That Madeleine “told the truth” (MacDonald 2004, 576) perversely facilitates an incorrect finding by the court, and so a wrongful conviction; the truth of Madeleine’s statement and the truth of Ricky’s innocence are disconnected from each other. Moreover, the reader knows that Madeleine’s father Jack could have provided Ricky with an alibi, but chose not to in order to protect the secret government operation he was involved in. Equally troubling is that the court misinterprets the false testimony of Madeleine’s class­ mates Marjorie and Grace as constituting proof of Ricky’s guilt. The pair is finally shown to have caused Claire’s death, although the novel complicates and contests the nature of their responsibility, representing it in the context of the abuse that they themselves have suffered. MacDonald’s representation of Madeleine’s testimony consequently critiques law’s failure to produce justice even when its procedures have been followed. Despite the court in The Way the Crow Flies having control over how the information before it is delivered, it is unable to correctly evaluate the truth of testimony. In representing the trial in this man­ ner, MacDonald also questions the characterization of the courtroom performance of testimony as improvisation, even as she utilizes that same trope for its dramatic effect. For the reader, the constructedness of Madeleine’s testimony in this scene has already been foregrounded by the larger text that is the novel. While MacDonald leaves the revelation of what Madeleine chose to say until the trial scene itself (and glosses the specifics, cutting instead to its aftermath), Madeleine’s vacillation between lying to save Ricky and telling the truth has already been fore­ shadowed in a conversation with her father the night before her ap­ pearance in court. When she comes to speak about “what she really saw – didn’t see” (564), she follows her father’s suggestion to “do it your way, sweetie. Tell the truth” (575). Read with this context, Madeleine’s testimony is the product of a great deal of thought, with the improvised moment occurring in her choice between the two alternatives of lying

Trials, Counter Narratives, and Legal Rights  89

and telling the truth. She also makes her decision while Ricky’s lawyer looks at her “waiting for her to remember her lines” (ibid.), an explicit evocation by MacDonald that improvisation serves a symbolic function in the performance of the testimonial process. However, despite her critique of the court trying Ricky, MacDonald also reinforces some of the cultural-legal meanings of improvisation in her representation of his trial. Madeleine’s admission that she did not see Ricky turn is clearly understood within the court as a moment wherein truth has been told in a spontaneous and improvised manner. After Madeleine confesses, the defence lawyer stops his examination. The story is then taken up by the Crown with a triumphalism that depicts Madeleine’s earlier statement as having been manipulated by the defence, an il-legal variation that the trial process has corrected. The tropes of revelation and surprise attributed to improvisation here signify suspense and drama. While MacDonald perpetuates this through misdirections and delays in revealing who was responsible for Claire’s death, the anterior truth that Madeleine did not see Ricky turn towards the highway – the factual crux of her testimony – has already been exposed for the reader by this point. In its quality as a surprise in the courtroom, then, and even though it proves nothing in itself, Madeleine’s testimony depicts the purported capacity of stories produced through examination and cross-examination to stand as a revelation of truth. Therefore, while the novel questions the capacity of such testimony to be improvised, The Way the Crow Flies also rein­ forces the role of improvisation in ascertaining truth within the trial by depicting its procedures as able to do just that. The novel’s critique of the legal system also extends to the capacity of the court to correctly interpret all of the testimonies before it. While Madeleine’s admission is accepted during the trial, the narrative of Ricky’s foster sister Elizabeth, whose disability necessitates that her speech be translated by their mother Karen, is rejected as being unable to meet the standards of testimonial proof. Her evidence to the court ends “with Elizabeth in tears, her testimony struck and Mr. Waller – and, by extension, Karen Froelich – chastised by the judge for sub­ jecting a ‘poor crippled child’ to such an ordeal” (569). Elizabeth’s state­ ment is tainted by the necessity for translation, a mediation that means it is no longer “live” in the manner of the privileged form of testimonial narrative. For the judge, the narrative’s source, a “poor crippled child,” renders it unreadable, so discordant that it cannot be understood as validly contributing to legal determinations of truth.

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In the idealized conception of the trial that has privileged status in the Charter and in culture more generally, there is the possibility that seem­ ingly discordant stories like Elizabeth’s might be told and validated by courts. Elena Loizidou, for example, notes that “[t]he effects of a trial are to give the subject the possibility of telling their story, albeit within the confines of the law, its rules and procedures, to have their story recorded and to counter-attack, and to at least be given the possibility of sur­ vival rather than be put to death” (2007, 109). This cautiously positive understanding of the trial as a space in which all subjects might speak is optimistically – or perhaps utopically – the form of legal narrative protected by the Charter. The capacity to be heard “in a fair and public hearing by an independent and impartial tribunal” carries with it the presumption that one will be permitted to tell one’s story in that forum. And yet the trial, shaped by procedural rules that have developed over centuries and that form the core of a conservative institution, is not always welcoming of stories that “answer back” to law in an in­ appropriate manner. Many of the narratives coming to trial (and so subject to judicial interpretation) risk becoming misshapen in their attempt to conform to evidentiary procedures.3 Certain other stories fail to be recognized at all by the law, and are instead interpreted as inadmissible. Ironically, even as legal rights ostensibly exist to protect marginalized subjects before the law, the formal processes enshrined in those rights tend to prefer forms of narrative that have long-held insti­ tutional privilege, rather than those alternative modes used by speak­ ers such as Elizabeth. Legal forms can be myopic about what constitutes evidentiary worth in the courtroom. As Kim Lane Scheppele writes in her introduction to the influential 1989 issue of the Michigan Law Review on law and narrative, some stories – what Scheppele terms “outsider narratives” and what Richard Delgado (1989) refers to as “counterstories” – “are not easily processed in the traditional structures of legal narratives” (Scheppele 1989, 2097). As she explains: Drawing the boundaries of legal stories closely around the particular event at issue may exclude much of the evidence that outsiders may find necessary to explain their points of view. But standards of legal relevance, appearing to limit the gathering of evidence neutrally to just “what hap­ pened” at the time of “the trouble,” may have the effect of excluding the key material of outsider’s stories. And this apparently harmless legal hab­ it has consequences that are not at all harmless. (ibid.)

Trials, Counter Narratives, and Legal Rights  91

This concern with creating legal space for marginalized narratives is central to the contribution that legal storytelling, or narrative jurispru­ dence, made to the study of law. A relatively short-lived intellectual movement with considerable interdisciplinary consequence, narrative jurisprudence “was influenced by several concurrent institutional for­ mations that mingled psychotherapeutic claims for the healing power of telling one’s story with political claims of the transformative power of narratives of oppression” (Peters 2005, 447). Incorporating theoreti­ cal insights from fields as disparate as “feminist and critical race theory, testimonio as a critical field (eventually emerging as trauma studies and other subdisciplines), and the establishment of truth commissions where victims of atrocity might tell their stories” (ibid.), narrative juris­ prudence asserts that enabling the law’s institutions to better hear the words of previously silenced others is essential to a just legal system. While under the Charter substantive rules do not appear to overtly exclude particular stories or narrative forms, law’s procedures create the possibility that the scope of testimony, and so of legal rights, might nonetheless be proscribed. Procedures establishing the worth of testimo­ nies can work to perpetuate systemic hierarchies and exclusions by fa­ vouring those forms of storytelling (and so those people versed in such storytelling) that have always received legal endorsement. In the con­ text of rights-based guarantees such as in section 11(d) of the Charter, then, seemingly neutral forms within the justice system may foreclose the possibility of alternatively constituted narratives operating with a persuasive legal force, even as they give the appearance of consistency to law’s treatment of disparate stories (one of the legitimating ideas of law and a basic tenet of “a fair and public hearing by an indepen­ dent and impartial tribunal”). The failure to acknowledge and question law’s processes can then function as a failure to appreciate how certain counter narratives are appraised unequally in a trial. Such narratives are not in a position to challenge the reading given them by the law, as within the space of the courtroom they are wholly constituted by their legal interpretation. Legal procedure also restrains the law’s capacity to reflect self-­ critically on how it makes decisions. Instances of wrongful conviction provide a particularly stark illustration of this, contrasting legal certainty with the law’s failure to judge correctly. In recent decades, high-profile state inquiries and judicial decisions have seen a number of Canadian cases of wrongful conviction – such as those of Thomas Sophonow, Guy Paul Morin, and Stephen Truscott – feature prominently in public

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discourse. These cases have been seen as particularly stark illustrations of “concerns about the fallibility of due process, human rights viola­ tions, and the limitations of the adversarial approach … [as well as] questions about the legitimacy of the justice system and those profes­ sionals who work in it” (Denov and Campbell 2005, 225). Critiques of the criminal justice system and the judicature have argued that wrong­ ful convictions reveal the discrimination inherent in law’s apparently neutral procedures. For Barrie Anderson and Dawn Anderson, such discrimination is historical, pervasive, and entrenched: “the Canadian justice system is class-based … At no point do marginalized people play a role in developing or administrating the system … [S]ystemic inequalities ensure that the marginalized will be the criminals and the wrongfully convicted” (1998, 26). David Tanovich has further written that courts in Canada have tended to ignore evidence of racial profil­ ing as a factor in arbitrary detainment by police. The consequence, he argues, is that people of colour are proportionately more likely to ap­ pear before the courts (and to be overcharged, tried, and potentially wrongfully convicted). The courts have been slow to take this into con­ sideration, however, because to do so would mean acknowledging how such procedures sit at odds with the law’s self-image of itself as a neu­ tral institution (2006, 2).4 Where a wrongful conviction is exposed, it is more usually presented as “evidence by the authorities that the system does work and is self-correcting” (Anderson and Anderson 1998, 11) than as proof of flaws in trial procedure. The Court of Appeal for Ontario’s 2007 review of Steven Truscott’s murder conviction gives a nuanced depiction of the culpability of the le­ gal system in instances of wrongful conviction. Ann-Marie MacDonald cites the Truscott case as “a major inspiration” (2004, 819) for The Way the Crow Flies, and the factual parallels between the two are readily ap­ parent. In 1959, at age fourteen, Truscott was convicted of the murder of twelve-year-old Lynne Harper. Initially sentenced to death and then life imprisonment, Truscott was released from prison on parole in 1969. In 2001, Truscott successfully petitioned the Minister of Justice to insti­ tute a review under the Criminal Code of Canada to determine whether a miscarriage of justice had taken place either in his trial or in a 1966 reference that was heard by the Supreme Court of Canada. Reviewing the case on the basis of fresh evidence, the Court of Appeal for Ontario (2007, para 60) ultimately acquitted Truscott, finding that “while it can­ not be said that no jury acting judicially could reasonably convict, we

Trials, Counter Narratives, and Legal Rights  93

are satisfied that if a new trial were possible, an acquittal would clearly be the more likely result” (para 787). The Court of Appeal is clear that in its opinion Truscott was the victim of a miscarriage of justice, a determination that speaks to a failure of the legal system. Yet, the court is also careful to qualify the connotations of its findings. It delimits the meaning that can be attributed to its review, stating that “we are not asked to decide what, if anything, went wrong in the prior proceedings” (para 60). Noting that fresh evidence can form the basis of an appeal as section 686(1)(a)(iii) of the Criminal Code al­ lows “an appellate court to grant an appeal ‘on any ground there was a miscarriage of justice’” (para 110), the court clarifies that this can in­ clude situations where “there was no unfairness at trial, but evidence was admitted on appeal that placed the reliability of the conviction in serious doubt” (ibid.). As such, the miscarriage should be seen “not in the conduct of the trial or even the conviction as entered at trial, but rather in maintaining the conviction in the face of new evidence that renders the conviction factually unreliable” (ibid.), a reasoning that contextualizes and thereby validates aspects of the original trial. The Court of Appeal similarly reiterates the sanctity of the Supreme Court of Canada reference as a legally defensible interpretation of the evidence available in 1966 (para 66), reinforcing this opinion with its assertion that determining whether the Supreme Court “properly in­ terpreted the jury’s verdict or correctly approached its task” (para 68) is irrelevant to the present proceedings. That the earlier courts did not hear the new evidence before the Court of Appeal is, in its decision, the primary reason that they failed to acquit Truscott. Had the trial jury or the Supreme Court been able to consider this new evidence, the Court of Appeal suggests, seemingly apologetically, that it “could reasonably be expected to have affected the result of those proceedings” (para 111). What this judgment creates is a strangely historicized understanding of the earlier decisions, preserving their findings of fact (para 66) un­ less they are reinterpreted by way of fresh evidence or new analyses. Among the reasons the Court of Appeal for Ontario gives for refusing to address Truscott’s claim that there was unfairness in the earlier cases, for example, is that it sees no value in disturbing those decisions with­ out significant cause for doing so: Any court must go where the evidence takes it and decide the issues that must be decided even if those decisions do harm to the reputation of

94  A Culture of Rights otherwise respected individuals. Where, however, the evidentiary record is far from clear and the issues do not need to be resolved to do justice in the case, decency dictates that the court avoid stretching the evidence to make factual findings that could irreparably harm the reputation of individuals who will never have the opportunity to respond to the allegations made against them. (para 124; emphasis added)

While Truscott’s acquittal acknowledges a miscarriage of justice, the Court of Appeal constrains the meaning of this acquittal by determin­ ing that the miscarriage comes about because of the availability of new evidence. In doing so, the court re-legitimates the legal system (by find­ ing that the decisions were valid and not “stretch[ing] the evidence”) and avoids either a renunciation of the earlier courts’ determinations or a more condemnatory finding that they acted “unfairly.” Notably, the Court of Appeal has already determined at this point in its judgment that Truscott’s conviction is to be quashed, rendering a determination of unfairness unnecessary in the court’s view. What this elides, how­ ever, is the significance that such a finding has as a marker of law’s failure, and the concomitant reinforcement of possibly unfair practices through their invisibility from review. Cases of wrongful conviction acknowledge specific failures of the law and afford counter narratives space within the judicial system, while limiting the extent to which such failures can discredit the trial as an idealized space of fair and public hearing. By contrast, the novel has often provided a more welcoming space for counter narratives and cri­ tique of law precisely because it is not bound by the law’s institutional and generic constraints. Unfettered by legal rules of evidence and pro­ cedure (although subject to its own forms), fiction has a scope that is often used to demonstrate the place of non-hegemonic stories in a more expansive understanding of relevance, and so in the determination of “what (actually) happened.” At the same time, cultural sanctioning of the trial as a means of engaging with the past and establishing truth persist in literary usages of the legal aesthetics epitomized by the court­ room. While often critical of legal forms and procedures, then, novel­ ists, perhaps unsurprisingly, nonetheless make use of some form of the trial in order to represent truth amidst otherwise competing stories. The Way the Crow Flies and The Barking Dog both depict courts as be­ ing unable to determine truth in complex and ambiguous situations; their representations of trials also speak to systemic failures by law to provide an accessible and just avenue through which determinative,

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public findings of guilt or innocence can be made. In Strube’s novel, for example, the court’s verdict of not guilty does not lead to a public exculpation for Sam. As Greer notes, one of the reasons Sam finally kills himself is that he “didn’t want to live in a society that despised and dismissed him, a society unwilling to deconstruct its notions of inno­ cence and wrongdoing. A society immersed in colour, but determined to see only in black and white” (2000, 411). Sam’s trial fails because its claim to find the truth in his case is not effective outside of law’s strict institutional confines. The lawyers in Elizabeth Nickson’s The Monkey Puzzle Tree even go so far as to discount the capacity of trials to effectively provide resolution for the abuses – CIA-funded behavioural engineering experiments in Montreal – depicted in the novel. Despite a witness who “is articulate, she is educated, she is clear. Her testimony, in court, will decimate your [the defence’s] case and you know it” (1995, 263), the lawyers for the plaintiffs prefer to settle the matter out of court. In the words of one of Nickson’s lawyers, “regardless of boilerplate denials, everyone knows that the CIA acknowledged its past wrongdoing [in the settlement] – no one pays three-quarters of a million dollars unless they did something wrong” (272). With this public recognition – “the symbolic message of US government contrition” (ibid.) – the necessity of the courtroom as a site of justice is obscured, marking instead a turn to the possibility of alternative, although still legal, sites of restitution and justice through the settlement. In Margaret Atwood’s Alias Grace, the finding of guilt in Grace Marks’s trial for murder serves as the historical and legal context against which Grace tells her story. The novel acts as an opportunity for her to re-present the murder, invoking but also departing from legal procedures to allow Grace some control over her representation in a society that “seem[s] to know my story better than I do myself” (1996a, 45). In the novel Grace refigures the murder as an aspect, rather than the totality, of her life. Instead of being incapable of plotting the murder because she was “little better than a halfwit; and very soft and pliable” (434), as she was characterized by her lawyers, or as the calculating ma­ nipulator she is presumed to be by others, Grace mounts her own de­ fence through an account of her life that grants her a certain agency and legitimacy. Countering the simplistic and determinative depiction of herself as a “celebrated murderess” (23), she can critique the hypocriti­ cal Canadian Tory society that, pruriently more interested in whether she had a lover than in her guilt of the murder (28), simultaneously

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condemns and is fascinated by her. Proffering her own narrative also allows Grace to speak to the context that brought her to where she is: her emigration from Ireland, her poverty, and the denigration she has experienced in Canada. Alias Grace is also an extended consideration of the narrative means through which legal truth is constructed. Grace shapes her testimony for Simon Jordan, the “doctor who works not with bodies, but with minds” (44) and who is part of an attempt to take Grace’s case to ap­ peal. Ambiguously (both for Jordan and the reader), Grace appears to be telling her story with an acute awareness that law privileges certain narratives over others. Disowning her published confession as being “only what the lawyer told me to say, and things made up by the men from the newspapers” (114), Grace demonstrates a canny and quite le­ gally inflected understanding of how to best frame her words. Having been a careful audience to the rhetorical skill of her lawyer, Grace re­ counts his advice before the trial: He wanted me to tell my story in what he called a coherent way … [H]e said that the right thing was, not to tell the story as I truly remembered it, which nobody could be expected to make any sense of; but to tell a story that would hang together, and that had some chance of being believed. I was to leave out the parts I could not remember, and especially to leave out the fact that I could not remember them. And I should say what must have happened, according to plausibility, rather than what I myself could actually recall. (429–30)

Grace emphasizes the constructedness of legal narrative here, the selfreferential textuality that looks explicitly to itself to show its legitimacy (thereby echoing the comments by Hayden White and Douzinas and Warrington with which I began this chapter). Building on the parallels that the novel draws between the interroga­ tive, associative techniques of Dr Jordan and the collaborative storytell­ ing of the trial – Jordan describes Grace’s story as “testimony” (216) at one point – Alias Grace also troubles the attribution of truth to particular kinds of narrative. In the control that she seems to exert over her ac­ count, Grace expands the scope of her story, although in doing so she also risks activating the reader’s suspicion, and even resistance, to her formulation of events. Speaking to Jordan, Grace tells him what she thinks he wants to hear, describing their conversations as “playing a guessing game … [where] there is always a right answer, which is right

Trials, Counter Narratives, and Legal Rights  97

because it is the one they want” (44). The constructedness of her story also comes out in the careful way she limits the information she tells him, denying that she has any memory of the murder (89) and refusing to share her dreams: “I have little enough of my own, no belongings, no possessions, no privacy to speak of, and I need to keep something for myself” (114). Grace’s narrative in the novel can be read as her only op­ portunity to tell her heretofore marginalized account of events; from a less exculpatory perspective, it can also indicate a studied attempt to re­ late what happened in a manner that best absolves her of guilt. Jordan himself notes the factual uncertainty that surrounds her statements: How much of her story can he allow himself to believe? … In her favour, much of what she’s told him accords with her printed Confession; but is that really in her favour? Possibly it accords too well. He wonders if she’d been studying from the same text he himself has been using, the better to convince him. (385–6)

Despite his qualms, Jordan finds himself wanting “to be convinced … He wants her to be vindicated” (386). Nonetheless, his own preference for certain narrative procedures limits the extent to which the story that Grace tells him can act in her defence. Jordan’s use of an associative technique as the means through which he engages with Grace and his lack of patience for her recounting her poor childhood and immigration to Canada (what he views not as important context but rather as “only the usual poverty and hardships, etc.” [152]), serve to limit Grace’s nar­ rative agency. Grace is also unable to complete telling her story due to Jordan’s hurried departure, with the material consequence that her ac­ count cannot be used to prove her innocence. If Alias Grace represents an alternative trial for Grace, then it is one in which the legitimacy of coun­ ter narratives suffer when read in the legally inflected context of what constitutes an acceptable testimony. Atwood’s critique is, as a conse­ quence, an ambivalent one. She enlarges the possible scope of stories about the murder by allowing Grace to speak and to reframe the context in which she will be judged. But Atwood also maintains an ambiguous stance towards the factual truth of Grace’s story, casting suspicion upon it and questioning the exculpatory capacity that alternative narratives might possess. There may be challenges to legal institutions in stories such as Grace’s, but the system itself is not readily undermined. Unlike the Truscott decision, novels such as Alias Grace and The Way the Crow Flies can be intensely critical of courts, trials, and the means

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by which they produce narrative. At the same time, these works of­ ten remain conceptually committed to legally inflected models as the means of telling their stories. This novelistic criticism frequently reiter­ ates aspects of the trial (particularly those derived from rights norms) while challenging their particular legal manifestations. In Alias Grace, Atwood critiques juridical constructions of testimony for their artifici­ ality, reproducing them in Grace’s account in a mediated form that is neither improvised nor live. Yet, when she tells her story to Jordan and to the reader, Grace depicts a coherent and constructed representation of the past, one that is challenged, like testimony in a trial, by conflict­ ing narratives. So while Alias Grace presents Grace’s story to the reader rather than to a court to evaluate, and despite its critique of legal pro­ cedures, the trial remains central to the novel’s interpretive model, the frame through which Grace’s narrative, and her innocence, are to be determined. The criticism of law’s ability to produce truth in Alias Grace can consequently be read as belying a deeper similarity, a continuity between the forms of testimonial narrative at the trial and the selec­ tive narrative that Grace produces in her discussions with Dr Jordan. Even in the uncertainty Atwood constructs around Grace’s telling of her story, the trial is invoked as an idealized forum in which a “fair and public hearing” can be given to such stories. Similarly, while The Way the Crow Flies is deeply critical of the crim­ inal justice system trying Ricky Froelich, there remains in the novel a privileging of the form of the trial, framed by the Charter section 11(d) right, as a means to ascertain truth. Rather than the legal drama played out in a small Ontario courtroom, in MacDonald’s novel it is Madeleine’s much later reconstruction of what happened, presented not for the court but for her family, the Froelichs, and the reader, that manifests the ethos of the rights enshrined in the trial. The failure of the court to hear and understand certain testimonies is rectified by Madeleine, who turns to archives and memory to introduce new forms of evidence. Madeleine determines what happened through her more complex articulation of the events surrounding Claire’s murder, and presents this to the reader, who can then know the truth. The story she tells is capable of producing a far more contextualized understand­ ing of the systemic evils – including the sexual abuse of children and Canadian blindness to the horrors of the Nazi holocaust – that produced the murder. Beyond the strict controls of the courtroom, Madeleine’s story takes on what the legal structure idealizes for itself but lacked in Ricky’s trial: the requirement to “listen to the children” (MacDonald

Trials, Counter Narratives, and Legal Rights  99

2004, 748) and to “bear witness” (ibid.) to otherwise marginalized stories. Heeding an urge to “tell” (804) what went unheard in court, MacDonald proffers the novel as an idealized literary space in which a fair and public hearing can take place. Novels like Alias Grace and The Way the Crow Flies supplant the court­ room by presenting literature itself as a forum in which alternative and occluded stories might gain legitimacy. In both MacDonald’s and Atwood’s texts, though, truth is nonetheless finally produced in a man­ ner that very much defers to the legal mode of the trial, as exemplified in section 11(d) of the Charter. Each book’s critique positions the novel as the ideal location of a “fair and public hearing,” with the reader as­ suming a privileged judicial position. These works consequently echo the logic of the Court of Appeal for Ontario in Truscott (Re), arguing that fault for wrongful convictions resides in the absence of evidence and the limits of forensic science, not in the concept and idealized opera­ tion of the trial itself. The inadequacies of specific trials, then, do not demonstrate an intrinsic fault in the form of the trial, but rather that it has failed in these cases due to other reasons. As a result, there is a limit to the degree that these fictional texts are able to substantively critique the assumptions inherent in the trial as a legal and cultural institution. Through their sanctioning of its legalized and rights-based forms (im­ provised, conversational testimony in a fair and public hearing as an effective means of producing truth), such literary representations in­ stead replicate legal aesthetics and form part of the larger constitutive processes that give the trial its privileged position. Finding legitimacy in the trial, these novels are involved with law in the conceptual coproduction of cultural-legal ideas of a just society. Critical of law, litera­ ture also invokes it, reaffirming law’s procedures and underscoring the place of legal rights in the process of finding truth.

4 Allegory, Interpretation, and Equality Rights

Building on the debates about “legal hermeneutics” that formed an im­ portant aspect of law and literature’s intellectual genealogy, this chapter theorizes legal equality in Canada as a question of interpretation. The claim to predictably, consistently, and objectively interpret general rules and to apply those rules to individual circumstances justifies law’s pow­ er, standing as a marker of its purported impartiality. As Robin West describes the law’s approach, “we should ‘treat likes alike’… because by doing so we recognize our common nature and our moral equality both” (2003, 110). For those whose narratives are accepted by law, the promise of a legal system that will hear cases before it in a fair and im­ partial manner is an essential part of the credence the rule of law is given as a form of social order. Yet there are limits to the predictability and consistency of legal interpretation, and so to law’s capacity to provide an objective and knowable hermeneutic system. It is a problem that much contempo­ rary jurisprudence has struggled with extensively, and one that is par­ ticularly contentious for a discourse that claims to provide certainty in the resolution of disputes. Legal interpretation is plagued by the sus­ picion that it is subjective and indeterminate, that claims of objectivity, and so the claims of impartiality and equality that stem from them, might prove unsupportable. Questions of equality and interpretation are tightly interconnected in law, and this chapter examines the idea of constitutional equality rights in Canada, with particular attention to this complex relationship. My reading looks at Timothy Findley’s 1984 novel Not Wanted on the Voyage and Supreme Court of Canada Charter jurisprudence to sug­ gest that interpretation has a direct impact on the means by which law

Allegory, Interpretation, and Equality Rights  101

creates equality. Findley’s text and the Supreme Court’s analogy-based equality jurisprudence both present classificatory interpretive prac­ tices as central to legal thought. For the court, this operates through a constitutional framework wherein equality is understood as formed “in particular” by the grounds of “race, national or ethnic origin, co­ lour, religion, sex, age or mental or physical disability” (Canadian Charter of Rights and Freedoms, 1982, section 15); in Not Wanted on the Voyage, it is enacted through the language of Yaweh’s Edict and the terms of Noah Noyes’s faith (Findley 1996). While each is premised on a different understanding of equality, with the Charter framed as pro­ viding expansive protection and Findley’s novel seeing law as more exclusory, both suggest that hermeneutic practices curb substantive legal protection, and that the implicit presence of anterior contexts in interpretation shape what constitutes equality before and under the law. At the same time, Not Wanted on the Voyage and the dissenting judg­ ment of Justice L’Heureux-Dubé in Egan v. Canada (Supreme Court of Canada 1995) also suggest that there are alternative ways of ensur­ ing equality, counter discourses of interpretation that differ from the majoritarian conception. Reinterpreting law’s hermeneutics provides possibilities for rethinking its exclusions and, potentially, a means for refiguring ideas of legal equality more expansively. At the same time, however, the reader must also ask whether such reinterpreta­ tions rely on the idealized, imagined Canada given shape by section 1 of the Charter, and, if so, whether they are premised similarly on a temporality of deferral that sees protection from inequality primarily located in the future. On 21 October 2005, Canada’s Globe and Mail newspaper reported that Louise Arbour, then UN High Commissioner for Human Rights and a former justice of the Supreme Court of Canada, had spoken out against attempts by the US administration to “reinterpret military law to allow some forms of physical and psychological coercion while in­ terrogating terrorism suspects” (Sallot 2005, A4). Arbour argued that any action based on such an interpretation would likely be contrary to international human rights instruments (such as the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) and that the suggestion was symptomatic of the distorted nature of debates in the so-called “War on Terror,” which contrasted individual rights with the security of society. By creating a “dichotomy between us, good, law-abiding citizens, and these foreigners, or oth­ ers” (Arbour, quoted in Sallot 2005, A4), a class of individuals (usually

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described as terrorists, but often, as Arbour notes, generalized as for­ eign to the nation-state) comes into being who are understood as some­ how less worthy of law’s equal protection than “we” are.1 Law is predicated on these kinds of classifications. It must repeat­ edly determine who holds certain categories of rights and who does not, and ascertain the individual circumstances in which certain actions are understood to be either conscionable or culpable. However, while the classificatory impulse in law reflects a deeper ideological impulse “inherent in language and … therefore essential to the way we think” (Iyer 1994, 182), the expectation in many legal regimes is that the law itself will nonetheless be applied equally to similar subjects in simi­ lar situations. This presumption of equality before the law is, as Robin West has argued, “seemingly a requirement of justice, of fairness, and of equality” (2003, 110), perpetuating the belief that law is objective and not arbitrary in its determinations. The idea that certain legal subjects warrant less protection than others – in Arbour’s characterization of the US argument, that suspected terrorists are less deserving of human rights protections against torture than other people – runs counter to deeply held ideas about the impartial and fair manner in which law is to exercise its power. Ideologically central to both the Charter (as evidenced by the pro­ portionately high number of section 15 cases) and the idea of fairness under the rule of law, constitutional equality rights seek to delimit the distinctions that might legitimately be made between individuals.2 Rather than allowing imputed characteristics to justify discriminatory treatment – making hiring decisions with regard to stereotypes based on ethnicity, say – equality jurisprudence posits that some categoriza­ tions do not form a legitimate ground of distinction.3 Equality rights can thus stand for many of the promises of Canadian rights discourses more generally, with universally enjoyed access to law, rights, free­ doms, and participation in public life protected from encroachment by the state. Arbour’s comments, however, indicate that this idealized understand­ ing of the interpretation and application of law is often not so uniform or egalitarian. Certainly, the historical experience of legal equality has been less utopian than the idealized picture painted by Justice Cory of the Supreme Court of Canada, who depicts equality rights as seeking “to reinforce the concept that all human beings, however different they may appear to be to the majority, are all equally deserving of concern, respect and consideration” (Supreme Court of Canada 1995, 595). As

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Kathleen Lahey argues in her study of law and sexuality in Canada, forms of exclusory othering that restrain participation in the nationstate are often tied to the attribution or denial of legal “personhood,” and without the institutional recognition full personhood brings, in­ dividuals “do not have the civil capacity to function in the modern state” (1999, 127). It was women’s lack of legal competence (the judi­ cial failure to acknowledge women as having full personhood before the law) that meant they were historically denied political participation and private-law rights, and the removal of capacity, beginning with the right to citizenship, that formed “the legal foundation for the genocide of Jewish persons” (133) under the Nazi regime. Even if there had been structures in place to protect the right to life or participation generally, a lack of personhood meant that these individuals and groups were often interpreted as being outside that framework, so that, as far as the legal systems in question were concerned, there was no violation of rights. The legal “other” in these regimes might thus be denied certain protections available to enfranchised legal persons – the right to vote, for example, or to hold property – and be unable to have that denial rectified in the judicial system. The use of analogy in Canadian constitutional equality rights decisions suggests that such a classificatory logic is present in legal interpretation more generally. Courts rely on apparently neutral analogic practices to ascertain the scope of rights between disparate categories of legalized identity (arguing, as the Supreme Court of Canada [1995] did in Egan, for example, that sexual orientation is sufficiently like the categories of discrimination enumerated in section 15 of the Charter to warrant pro­ tection). I argue in my discussion of freedom of expression that analogic reasoning can indicate an excess of meanings, a surfeit of consequences whose potential for harm must be constrained. In the following chapter I want to develop this idea further and to look at how practices of legal interpretation (represented in both case law and literature) can attempt to foreclose this textual excessiveness through references to tradition and the past. This is a hermeneutics that sees legal decision making as always “interpretive of legal history” (Dworkin 1982, 251) but that does so alongside texts, as with Not Wanted on the Voyage’s rebellious lower orders or the rupture provoked by Justice L’Heureux-Dubé’s dissent in Egan, which also gesture to an expansion of possible meaning. I want to begin with an analysis of the exclusory nature of law and legal interpretation in Not Wanted on the Voyage. Findley’s novel, an al­ legorical rearticulation of the biblical tale of the flood, is the story of a

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codified legal instrument interpreted in a violently exclusionary man­ ner. A legal act frames the novel, the “Edict” (Findley 1996, 120) of the failing god Yaweh who, disgusted that his worshippers have turned from him, brings about the flood. Dictating the construction of the ark, the Edict prescribes that Noah Noyes, his wife (only ever referred to as Mrs Noyes), their three sons Shem, Ham, and Japeth, and their wives Hannah, Lucy, and Emma, form the crew of the ark, joined by pairs of animals in what Wendy Pearson refers to as “neat arrays of zoo­ logical heterosexuality” (1998/1999, 117). “Part of it a timetable, part of it a book of rules” (Findley 1996, 121), the Edict is a means of classifying all life like “baggage neatly labelled: WANTED or NOT WANTED ON THE VOYAGE” (3; emphasis in original). Those “wanted” are saved, but for many of them it is a partial protection that marginalizes or requires numerous compromises. For those who are not wanted, who are outside the Edict’s protection, their exclusion means that they occupy a posi­ tion of textual silence in the novel that is beyond legal personhood and ultimately equated with death. Clearly, there are significant differences between the values underly­ ing the Charter and Yaweh’s decree. Whereas the ethos behind the Edict in no way presumes the equality of those subject to it, having been written to protect a select few from an act of genocide, the Charter pur­ ports to articulate equality as a right granted to every individual within its purview. But while the two texts seem ideologically opposed, their respective interpretations reveal a disconcerting investment in exclu­ sory classification that can be tied to an inequitable understanding of legal personhood. To unpack this relationship, I want to argue that Not Wanted on the Voyage can be read as an allegory of law, in the sense of al­ legory put forward by Stephen Slemon: “a trope that in saying one thing also says some ‘other’ thing; it is the doubling of some previous or ante­ rior code by a sign, or by a semiotic system, that also a signifies a more immediate or ‘literal’ meaning” (1987, 4). The idea of law that emerges from Findley’s novel can be understood allegorically as an interroga­ tion of legal hermeneutic practices and an equality-driven critique of those processes of legal othering that Arbour identified. As allegory, a form that relies on gesturing towards the past in order to generate new meaning, Not Wanted on the Voyage might also be read as echoing the imagined Canada of section 1 of the Charter, in that the deferral with which the novel ends centres on the invocation of an imagined, conceiv­ able, and yet so far unformed, better world.

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In Here is Queer, Peter Dickinson (1999) argues that Findley allego­ rizes a number of anterior texts in his novel, producing a work whose meanings are expansive in a manner not unlike those of Bodily Harm. Dickinson’s reading of Not Wanted on the Voyage includes interpreta­ tions that foreground the “reclamation of certain disavowed ‘subtexts’ of sexuality” marginalized by the nation, as well as the textual creation of a new national myth, “difference as sameness (as encapsulated in the national metaphors of Canadian pluralism and multiculturalism)” (61). Extrapolating from Dickinson I would assert that, through the novel’s representation of law, a further allegorical reading of Not Wanted on the Voyage might allow for the analysis and critique of law’s structures and its place in Canada. Given the centrality of the Edict and judicial interpretation to the narrative, as well as Noah’s concern with “the es­ tablishment of law and order” (Findley 1996, 238), Not Wanted on the Voyage can be read as a legal allegory that can then illuminate the na­ ture of both constitutional law and legal equality in Canada. While the novel does not reference a specific geographic location, that it ends without reifying a new beginning does suggest a more limit­ ed extent than its biblical source, which sees the destruction of the old world followed by “nations divided in the earth after the flood” (Genesis 10:32). In the failure of Not Wanted on the Voyage to articulate a moment of new beginning, a deferral I return to in this chapter’s conclusion, Diana Brydon identifies an engagement with the “Dream of Tory Origins,” an originary myth that posits Canada as maintaining continuity with an es­ sentially conservative English past (1989, 36–7). Drawing on this, along with a concomitant acknowledgment that law enables national creation, Findley’s novel can be understood as allegorizing Canadian constitu­ tionalism, which, unlike that of the United States, does not postulate a “break” with the previous constitutional structure, the British North America Act of 1867. Following Brydon’s allegorical reading, the 1982 patriation of the Constitution Act can be interpreted not as a declaration of indepen­ dence, but as a national “attempt at self-definition” (Hogg 2006, 35) that nonetheless seeks to maintain a continuity with a past, including through the enactment of the Charter. Although it might – to follow Hannah’s interpretation of the Edict in Not Wanted on the Voyage – offer a terminological shift “in all our terms of reference” (Findley 1996, 257), the 1982 Constitution of Canada is nonetheless also a tentative “kind of beginning, if only one remarkably conscious of itself as repetition”

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(Brydon 1989, 37). Aware of the ills of the past, the Charter of Rights and Freedoms might similarly be read as acknowledging the existence of historical inequalities that continue to need addressing: without this recognition, its promise of rights and freedoms becomes redundant. At the same time, it imagines a different, hopeful concept of beginnings, and the possibility of their just resolution in Canada. A further allegory might be seen in Findley’s depiction of Yaweh’s Edict as a codified dictate that is both written and interpreted in a high­ ly exclusory and inegalitarian fashion. Itself a reflection of the emphasis on law and judgment in the original biblical text, this reading posits law as a discriminatory institution that extends its protections to only a select few. Noah’s interpretations of the Edict repeatedly categorize and classify the inhabitants of the ark, notably in book three when he con­ structs a chart that diagrammatically depicts his position “above” the animals, Mrs Noyes, Emma, Ham, and Lucy, distinguishing the human “inhabitants” from the animal “cargo,” and between the “upper” and “lower” orders (Findley 1996, 210–11). When challenged, the only jus­ tification for this typology that Noah finds necessary is reference to the god who “has put you in my charge” (213). Noah understands Yaweh’s commandments as an obviously intelligible manifestation of the divine Word: the crime of the lower orders is that they are “spreading oppo­ sition to the Edict – drawing the lines between the will of Yaweh and the mere will of men” (239). Yaweh, and the moral, social, and legal order he represents, provide Noah with “terms of reverence” (25) that invoke the “name of God” (13) to maintain order and give authority to his (Noah’s) interpretation of the law. So when Mrs Noyes tries to take her cat Mottyl aboard the ark, Noah’s response is to turn to the Edict, with its logic of exclusion, and to state that it admits no variation: “we have two cats already, madam. Two very special cats, I might add … and the Edict very plainly states two – and two only” (128; emphasis in original). Mrs Noyes’s reason for taking Mottyl – “BECAUSE SHE IS MINE” (ibid.; emphasis in original) – is insufficient, as for Noah the terms of the law have already been met. Indeed, Noah believes that to deviate from the strict wording of the Edict is itself dangerous; when Mrs Noyes flees from the ark following this incident Noah is frantic, not out of concern for her, but because the law, in his inflexible interpre­ tation, demands her presence, “or none would be saved” (131). Noah’s reading of the Edict thus presents a strict interpretation of the text that draws attention to the centrality of classification in the bib­ lical story (“of every living thing of all flesh, two of every sort shalt

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thou bring into the ark … they shall be male and female” [Genesis 6:19; emphasis in original]) and in Findley’s legal allegory. This interpretive frame is present in the categorizations that Yaweh enumerates as the forms of love: “[b]etween God and His angels … God and man … King and subject … Lord and vassal … Master and Slave” (Findley 1996, 87). It also constructs the “defeat” of the pirates, dolphins who swim alongside the ark and attempt to play with its inhabitants, as a victory for Noah, because in identifying them, he “establish[es] a place for them in the order of things” (238). Noah’s act of classification here is also an act of law, defining the dolphins as criminal, as “[b]arbarians … [v]andals of the seven seas” (209). Indeed, the ark itself illustrates and performs this function, literally partitioning the animals by size, and then by species (197–8). Noah furthers his juridical control in the novel by insisting on “writ­ ing down pronouncements, codifying and controlling interpretation through the written word” (Pennee 1993, 31). Codification reinforces Noah’s interpretative practice, and presents his authority as natural­ ized and ahistorical, just as he holds the written nature of the Edict to be authoritative and self-evident. Thus, when white flakes fall from the summer sky, Noah refuses his son Ham’s “scientific” interpretation – that the flakes are ash – to insist “that it was snow – ‘a miracle!’ And in the end he’d had his way. Hannah had been instructed to write: TODAY – A BLIZZARD” (Findley 1996, 21; emphasis in original).4 Unlike Ham, Noah’s interpretations are guided by terms of reference/reverence that come from faith (“God first and all else after” [25]), and he reads the world, and so the law, in accordance with the supremacy of Yaweh and the tradition that he embodies. On first hearing that Yaweh is coming, Noah calls for a sacrifice in his honour, demanding, apparently as a disciplinary measure, that Ham perform the ritual. When Mrs Noyes protests that killing is against Ham’s scientific principles, Noah fore­ closes discussion, responding that “‘[i]t is a son’s right – and privilege … to perform the sacrifice when bidden. It is law … The only principles that matter here, madam, are the principles of ritual and tradition” (13; emphasis in original). Noah’s understanding represents a strict inter­ pretation determined by his reading of Yaweh’s presumed intent. His is an explanatory system whose divine origins arbitrarily close it from alternative interpretive considerations, and one premised on a belief that certain textual matters can be objectively known. Findley’s allegory represents law as being bound by restrictive her­ meneutic practices, its fidelity to faith and tradition narrowly and

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unequally classifying who warrants law’s protection. By contrast, in its reading of the constitutional equality rights enshrined in section 15 of the Charter, the Supreme Court of Canada has taken a far more expan­ sive view of how, and to whom, the law offers protection and benefit. In 1998, the Supreme Court heard an appeal from Delwin Vriend, a lab instructor at an Edmonton Christian college who had been dismissed from his employment because of his sexual orientation (Supreme Court of Canada 1998). Afforded no standing to challenge the dismissal’s le­ gality under Alberta’s Individual Rights Protection Act, 1980, Vriend argued that the omission of sexual orientation from the provincial legis­ lation constituted a breach of the Charter’s guarantee of legal equality. Although it disagreed on the matter of remedy, the Supreme Court was unanimous in finding that the exclusion of sexual orientation from the Individual Rights Protection Act was indeed a violation of Vriend’s Charter rights. As the court saw it, this silence in a law designed to pro­ tect the rights of all Albertans infringed Vriend’s rights as clearly as if there had been an explicit law discriminating on the ground of sexual orientation. In his findings, Justice Peter Cory stated: [E]xclusion … sends a strong and sinister message … that discrimination on the ground of sexual orientation is not as serious or as deserving of condemnation as other forms of discrimination. It could well be said that it is tantamount to condoning or even encouraging discrimination against lesbians and gay men. Thus this exclusion clearly gives rise to an effect which constitutes discrimination. (550)

According to Justice Cory, the act’s “implicit message” was “that gays and lesbians, unlike other individuals, are not worthy of protection” (551). So while the recognition of rights under the Charter is about specific protections, that recognition also carries a symbolic meaning with significant consequences. In the words of Justice L’Heureux-Dubé in Egan v. Canada, “equality means that our society cannot tolerate leg­ islative distinctions that treat certain people as second-class citizens, that demean them, that treat them as less capable for no good reason, or that otherwise offend fundamental human dignity” (Supreme Court of Canada 1995, 544). In a cognate example, when Mottyl says late in Not Wanted on the Voyage, “Don’t be sorry … It is what we are given here. After all – we are only animals” (Findley 1996, 329), her despair is that of an individual denied the figurative and legal rights of equal

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personhood, an exclusion that has significant consequences for how belonging to the nation-state is conceived. The Supreme Court has interpreted expansively the basis on which a claim of inequality might be made in a number of the cases before it. In Andrews v. The Law Society of British Columbia, its first case to deal with constitutional equality rights, the court argued that “analogous” grounds were protected in addition to those enumerated in section 15 (Supreme Court of Canada 1989). Justice Bertha Wilson found “noncitizens” to be analogous to the nine categories listed in section 15(1) of the Charter because they constitute “a group lacking in political power and as such vulnerable to having their interests overlooked and their rights to equal concern and respect violated” (152). Such a test acknowl­ edges and historicizes discrimination, enabling an important recogni­ tion of the contexts of inequality. In rhetorically interesting ways it also links the premises of equality jurisprudence to legal interpretation, finding that cases with relevant similarities should be treated the same under law. However, this test also risks limiting the terms on which legal equal­ ity is to be awarded. Because it works by tying understandings of dis­ crimination to history, in looking backwards this analogic approach might also curtail understandings of new manifestations and forms of discrimination. Moreover, and no matter how expansively they are sup­ posed to be read, the interpretive guidance provided by the Charter’s nine categories of discrimination also creates an implicit hierarchy wherein a judicial actor has to be convinced to construe unlisted grounds as being within law’s scope. In Andrews, while the grounds listed in section 15 “are not exclusive,” they do “reflect the most common and probably the most socially destructive and historically practiced bases of discrimination and must, in the words of s. 15(1), receive particular attention” (175). Individual experiences of discrimination can be either restrained or obscured by these generalized classifications; they might also be excluded altogether, as not being analogically contiguous with the enumerated grounds. For critics such as Nitya Iyer (1994), this issue is a consequence of equality law’s codification. The legislative tendency to list protected identity categories, such as gender and race, has required that specific in­ dividual experiences be categorizable. While section 15(1) grants equal­ ity rights generally, its enunciation of certain categories “in particular” establishes a classificatory system wherein other “identities” might be

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interpreted as less important or outside the Charter’s protection, just as they are outside its wording.5 Iyer notes that while such an approach to equality is not unique to Charter law, its particular manifestation here is significant: [C]ategorical thinking, especially in legal contexts, tends to be rigid, so that existing categories and their content tend not to be revised. When the categories in question are legal categories, and especially when they pur­ port to sort people on the basis of characteristics which carry particular social weight, such as “race,” “sex,” and “disability,” this rigidity, coupled with the fact that categorizing turns on assignments of difference, takes on special significance. (183; emphasis in original)

As evidenced by Noah’s restrictive interpretations of the Edict in Not Wanted on the Voyage, preclusion from the wording of the law makes protection under that law more elusive. Despite promises made at the time of drafting that section 15 would protect sexual minorities (Lahey 1999, 30), early Charter litigation saw claimants having to establish in court the analogous nature of sexual orientation to other protected grounds. Moreover, their cases were usually brought against “the same governments that had agreed to the non-specific open-ended language in section 15 in the first place, and governments quickly poured mas­ sive resources into resisting lesbian and gay claims for inclusion in the Charter” (31), a costly and time-consuming response that rendered the promise of inclusion somewhat hollow. As the Supreme Court noted in Vriend, silence as to the equality of certain groups in an instrument as symbolically loaded as Alberta’s Individual Rights Protection Act (and, by implication, the Charter) is far from neutral: it marks an exclusion from recognition by the state, and thus a potential denial of the legal personhood of the members of that group.6 In addition, judicial interpretations have tended to put forward either a limited view of equality or the means by which it might be protect­ ed, illustrating how a court must also recognize analogic connections in the consequences of inequality. In Egan, a majority of the Supreme Court held sexual orientation to be “a deeply personal characteristic that is either unchangeable or changeable only at unacceptable per­ sonal costs. [As such, it] falls within the ambit of s.15 protection as be­ ing analogous to the enumerated grounds” (Supreme Court of Canada 1995, 529). However, while sexual orientation was found to be analo­ gous, its expression in same-sex relationships, at least for the purposes

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of welfare security for the elderly, was not. Turning, like Noah Noyes, to “our fundamental values and traditions” (536), Justice Gérard La Forest, writing for the majority, found that because of “biological and social realities” (537) heterosexual unions were the “fundamental unit in society” (540). Marriage, because of the narrow definition taken of child-rearing in the judgment, was as a consequence “by nature hetero­ sexual” (537). Alternatively, in the majority’s opinion, same-sex unions were similar to cohabitation by siblings or friends with shared interests (536). In the end, this interpretation meant that there was in fact no inequality: because there was no discrimination against homosexual couples in the legislation (they were simply outside its purview), there was no breach of the section 15 right.7 Effectively, same-sex couples were denied Charter protection by an interpretive logic not dissimilar to protecting religious belief, but not religious practice. In a decision that echoes the “zoological heterosexuality” (Pearson 1998/1999, 117) of the Edict, those not included in the majority’s heteronormative defi­ nition of “spouse” found themselves outside the Charter’s scope, the consequence of apparently being not “analogous” enough. La Forest’s appeal to “fundamental values and traditions” as inter­ pretive contexts results in a failure to see legal sameness in difference. Through analogy, the invocation of the past as legitimation brings with it a hermeneutic constraint whereby a potential claimant must equate her situation with discrimination experienced by differently placed others and also be identifiable in recognized hegemonic traditions. The discrimination at hand must, as a consequence, be enough like other instances of difference resulting in inequality and also enough like the status quo to be recognizable as the subject of the Charter’s equality rights protections. For Noah as judge, “the terms of reverence” are “God first and all else after” (Findley 1996, 25); beyond this interpretive schema extra-­ judicial concerns, including recognizing the equality of those persons not enumerated in the Edict, become irrelevant. While Findley certainly does not present Noah as a positive judicial model, there is a sense in which his adherence to declared “terms of reverence” represents a valid basis for legal interpretation. The application of legal princi­ ples with reference to a pre-existing set of judicial standards is, after all, one justification for law’s legitimacy, with precedent and rules of statutory construction suggesting that judgment is not an arbitrary pro­ cess. For if, the argument goes, law is not knowable, consistent, and in some fashion objective, how can equality before and under the law

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be determined in a manner that is anything other than arbitrary? Yet legal theory has also questioned the capacity of judicial interpretation to divine a straightforward and objectively knowable truth from the legal past. Such a conception clearly troubles the obviousness of the authority – Yaweh and what he represents – on which Noah bases his interpretations of law. Debates around legal hermeneutics, particularly as they developed during the 1980s, attempted to theorize the authority of judicial inter­ pretation and its concomitant claims to a legitimizing objectivity. In a 1982 article Owen Fiss stated that interpretation “is neither a wholly discretionary nor a wholly mechanical activity. It is a dynamic interac­ tion between reader and text, and meaning the product of that interac­ tion” (1982, 739). For Fiss, who argues that “[o]bjectivity implies that … interpretation can be judged by something other than one’s own no­ tions of correctness” (744), [t]he interpreter is not free to assign any meaning he wishes to the text. He is disciplined by a set of rules that specify the relevance and weight to be assigned to the material (e.g., words, history, intention, consequence), as well as by those that define basic concepts and that established the proce­ dural circumstances under which the interpretation must occur. (ibid.)

Fiss’s conception of objective reasoning, then, “does not require that the interpretation be wholly determined by some source external to the judge, but only that it be constrained” by “disciplining rules” that de­ termine the standards of a “correct” judgment, and by “an interpretive community, which recognizes these rules as authoritative” (ibid.). So while he acknowledges an individual judge’s role in making a decision, Fiss also argues for an anterior set of interpretive rules deriving their authority from a legal community that is both institutional and textual. This is a “bounded objectivity,” “the only kind of objectivity to which the law – or any interpretive activity – ever aspires” (745), and the le­ gitimacy of adjudicative interpretation comes from whether the prac­ tices of that objectivity are appropriately followed. Ultimately, it is the legal “interpretive community” that “both legitimates those rules and is defined by them” (750). Ronald Dworkin also posits the existence of a legal community that constrains judicial interpretation. In “Law as Interpretation” (also pub­ lished in 1982), Dworkin argues that adjudication can be better under­ stood through comparison with certain collaborative writing practices

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in literature. Eschewing notions of a “speaker’s meaning or intention” (1982, 181), he turns to the example of the chain novel, a novel cre­ ated sequentially and cumulatively by multiple authors. In Dworkin’s model, the first author writes a chapter, the second reads it and writes a further chapter in response, and so on. The entire undertaking is con­ strained by the various authors’ “duty” to create “a single, unified nov­ el rather than, for example, a series of independent short stories with characters bearing the same names” (193).8 Each writer comes to the project with the dual obligations “of interpreting and creating because each must read all that has gone before in order to establish … what the novel so far created is. He or she must decide what the characters are ‘really’ like; what motives in fact guide them; what the point or theme of the developing novel is” (192–3). This constitutes “interpretation in a non-intention-bound style,” an understanding of interpretation where­ in the intentions of no single author can be said to be “decisive” (193), and where the law is understood as a cumulative product of authors who are simultaneously creating and interpreting. For Dworkin, judges in the common law are “like a novelist in the chain. He or she must read through what other judges in the past have written not simply to discover what these judges have said, but to reach an opinion about what these judges have collectively done” (ibid.; em­ phasis in original). This model, he argues, can illuminate the process of judicial interpretation within a common law schema, particularly in explaining what he terms “hard cases” that do not appear to have a clear lineage.9 Dworkin suggests that, as a member of the community tasked with judgment, [e]ach judge must regard himself, in deciding the new case before him, as a partner in a complex chain enterprise of which these innumerable deci­ sions, structures, conventions, and practices are the history; it is his job to continue that history into the future through what he does on the day. He must interpret what has gone before because he has a responsibility to advance the enterprise in hand rather than strike out in some new direc­ tion of his own. (193–4)

Law is thus a manifestation of the continuity of history. Normatively, it is also a manifestation of the idea of equality before the law. If, as Dworkin argues, cases from the legal past share a continuity with those in the present, then the case now before a judge is to be treated in the same manner as it was in prior decisions, a manner that recognizes

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similarity and that incorporates past decisions in order to treat like cases alike. Noah justifies his reading of the law in a similar fashion, drawing on the authority of the past as an equitably applied constraint on present interpretation. Throughout the novel Noah’s “terms of reverence … God first and all else after” (Findley 1996, 25) are used to denote the authority and the soundness of his decisions. His interpretations are pronounced as the consequence of Yaweh’s will, which is represented as the judicial “constraint” that renders his decisions objective. Noah’s exclusion of Mottyl, for example, is based on his interpretation of the religio-legal context of the Edict: “[I]t is right. It is proper. We are obey­ ing God” (129). Here, we see Noah’s judicial practice as an interpretive “chain” that is rooted in the past and understood as determinative of present decisions, and where the “only principles that matter … are the principles of ritual and tradition” (13). Noah’s judgments are rep­ resented by him as constrained by socio-religious and legal precedents, the impartial application of these precedents forming the basis of the law’s objectivity and fairness. Noah’s interpretations of Yaweh’s law are validated within the legal context of Not Wanted on the Voyage by institutional authority and ju­ ridical forms and practices. However, as Stanley Fish argues, this le­ gitimation, premised in both Fiss and Dworkin on an idea of judicial interpretation constrained by extra-textual legal rules, assumes that those rules “must directly declare their own significance to any observer, no matter what his perspective” (Fish 1989, 121). Fish rejects this notion because “rules are texts. They are in need of interpretation and cannot themselves serve as constraints on interpretation” (ibid.; emphasis in original). For Fish, any appeal to a constraint imposed on judges by their sense of the legal project, and their putative role in perpetuating it, is itself a construction, another text that must itself be interpreted. The judge’s “terms of reverence” cannot be distinguished from a text by reference to anterior rules or authority; rather, they adjudicate in accor­ dance with their understanding of what a judge does. Judicial authority is textual, not divine (drawing authority from outside the text), and so is itself a product of interpretation. Acknowledging the constructedness of judicial authority, and so in­ terpretation, does not “necessarily mean that [its] authority should be downgraded” (Peters 2005, 450), given that this authority has signifi­ cant material consequences. Indeed, as I have argued elsewhere, “to some extent the reality of this practice, whether the judge or author

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is in fact constrained, matters less than the appearance of such constraint and fidelity” (Authers 2012, 77; emphasis in original) and the response of the relevant publics to that appearance. Such an acknowledgment does, however, open space for a critique of the representation of inter­ pretation as an objective means of evaluating stories within the law. As Findley’s novel progresses, it becomes clear that Yaweh is no longer watching over the ark (Yaweh having seemingly died before the flood [Findley 1996, 112]). At the same time, it is also increasingly apparent that Noah’s interpretations of the Edict are less and less constrained by ostensibly objective “disciplining rules,” such as those derived from religious tradition. Rather, what were once seen by Noah as guides and restrictions on how he read and implemented the law now lack a com­ pulsive force over him and become, in the scene where Noah burns Yaweh’s icon and announces the new covenant, legalized justifications for self-interest (350–1). Foregrounding the constructedness of the au­ thority with which Noah interprets the law, while it does little to deny his power to do so, nonetheless indicates the legitimacy of alternative legal interpretations and approaches. Noah’s juridical authority has been naturalized in the novel, en­ trenched by his control over the interpretation of texts and events. Before his rape of Emma, Noah touches her “not as if she was being harmed, but as if she was being helped” (263), a reading grossly at odds with Emma’s experience; refusing Noah’s interpretation, she will “hate her father-­ in-law forever” (273). Findley frames this scene as one in which Noah establishes control through interpretation, with Emma’s understanding of her violation a powerful contradictory narrative for the reader. Noah similarly calms Japeth by classifying Emma’s rape as a necessity (265), and legitimates his son’s subsequent murder of the Unicorn in divine terms: “Japeth would come to understand he had acted as the arm of God. Noah would explain this for him” (266). The increasing emptiness of Noah’s reverential terms of interpretation becomes evident in the “holy purpose … [he] manufactured” for the killing of the Unicorn, de­ termining it to be “a ritual death” (271); establishing this sacred reason lets Noah create a means for escaping his and Japeth’s responsibility. For Emma, however, “[h]oly meant: no way out” (270; emphasis in original), the inescapable consequence of Noah’s legal and religious in­ terpretation of what Emma’s gender prescribes for her. Thus, despite his wish “for an argument … anything with minds behind it” (243), the univocal way that Noah attempts to record and control meaning creates a hermeneutic structure in which any interpretation other than his is

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dismissed as contrary, and frequently as heretical. This highlights one of the terminological means by which Noah is able to ignore alterna­ tive voices, and so exclude them from law’s protection: while Mottyl and the other animals refer to themselves as “persons” throughout the novel (such as on page 192), and thus potentially deserving of the law’s protection, Noah sees them as “prime sacrificial specimens” not to be wasted (127), “cargo” (210), and finally as goods to be “delivered” (351). In their relegation to the status of chattels, the animals are rendered si­ lent (347–8), so that there will be “no more songs and no more singing” (347). The interdependent web of knowledge that has characterized the animals’ lives before the flood (notably in the sharing of stories as a form of trade directed towards survival [40–1]) is thus lost, and with it the animals’ more expansive counter narrative of who might be recog­ nized as a holder of rights within that society. If Noah’s interpretation of the Edict denies the equality of the ark’s passengers, categorizing them into upper and lower orders and sub­ jecting them to differential treatment, those omitted from the Edict are denied even this protection: rather than being lower, they are simply “not.” Because the Edict “very plainly states two [cats] – and two only” (128; emphasis in original), and Noah has already determined that these shall be Yaweh’s cats, Abraham and Sarah, Mottyl does not war­ rant protection. In condemning her to die, Noah asserts that Mottyl will be “better off where she is. She will die with her own kind – in her own place” (129). What Noah does is symptomatic of discriminatory measures in the law more generally: he de-individuates Mottyl, elid­ ing her entitlement to legal equality and instead making her part of a “kind” that is denied protection. It is an act of interpretation that has significant consequences in the novel, and so for Findley’s allegorical reading of the law. Peter Dickinson describes Not Wanted on the Voyage as “deliberately anachronistic and ahistorical, or rather necessarily ambivalent with respect to iterative, or recursive, temporalities of representation,” a narrative strategy that “points to [Findley’s] rejection of the mimetic tradition in literature” (1999, 58). This anti-mimetic stance, along with an understanding of “history and fiction as contested markers of ideol­ ogy” is, in Dickinson’s view, what enables Findley to “re-imagine al­ legorically the historical narratives of nations … and the ways in which those narratives record minority experience” (58; emphasis in original). As such, the deaths caused by Yaweh’s flood (and by Noah himself in the sacrificial pyres that preface it) can be read as allegories for the

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genocides of the twentieth century, and in particular of the Nazi holo­ caust: early in the novel Lucy gives her reason for joining the human race as “[s]urvival. In order to survive the holocaust in heaven. In order to prevent the holocaust on earth” (Findley 1996, 110). Book two of Not Wanted on the Voyage ends with the ark embodying such acts of exclusion and atrocity: “the bell tolled – but the ark, as ever, was adamant. Its shape had taken on a voice. And the voice said: no” (193; emphasis in original). A final judgment, the ark’s “no” affirms that its interpretation of who warrants protection also constitutes a legalized act of genocide. When the Faeries seek entry onto the ark, the other ani­ mals have a moment of hope: “if the Faeries were admitted – would the doors not open then to everyone?” (192). But the ark, personified by Findley here, remains “adamant,” and the Faeries’ attempts to enter ultimately lead to them being “silenced and removed from life and from all that lives forever” (193). The death of the Faeries is in part a conse­ quence of Dr Noyes’s long failure to acknowledge their existence (37). But it is also an attempt by Findley to allegorically depict the broad­ er consequences of legal and narrative exclusion: as a euphemism for queer subjects more generally, the Faeries’ silencing figures the targeting of sexual minorities under the Nazis, and gestures to a historical dis­ course that has been slow to acknowledge this. Symbolically, as well as legally, the exclusory failure of recognition here is a failure of protection, an adamant “no” that denies equality in the most fundamental manner. As I noted earlier, Justice Cory asserts in Vriend that “the rights en­ shrined in s. 15(1) of the Charter are fundamental to Canada. They reflect the fondest dreams, the highest hopes and finest aspirations of Canadian society” (Supreme Court of Canada 1998, 535). Constitutional equality rights in particular are held by Cory to have brought with them a utopian potential for pervasive social change in the Canadian nation-state: “Canada by the broad scope and fundamental fairness of the provisions of s. 15(1) has taken a further step in the recognition of the fundamental importance and the innate dignity of the individ­ ual” (ibid.). However, judicial interpretation of these codified rights has demonstrated (as it does in Findley’s novel) that those aspirations bear out unequally for certain groups and individuals. In concluding, I would like to gesture towards some of the alternative interpreta­ tions, offered in the “dissents” of Mrs Noyes, Hannah, and Lucy in Not Wanted on the Voyage and by Justice L’Heureux-Dubé in Egan v. Canada, to such limited recognitions of personhood, and the possibilities that they offer our thinking about interpretation and equality.

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Throughout Findley’s novel, the interpretations offered by Mrs Noyes are usually presented in competition with Noah’s. Inevitably, her husband dismisses her understanding as incorrect, even illegal: he finds “her innate susceptibility to acts of kindness,” for instance, “waste­ ful at the best of times,” and declares them “criminal” in the straight­ ened circumstances following the flood (Findley 1996, 205; emphasis in original). Mrs Noyes’s determination that Mottyl, Crowe, and Lotte are additionally worthy of protection on the ark is held by Noah not only to defy the Edict, but to misunderstand more fundamentally the nature of “man’s” relationship with Yaweh. Children like the mentally disabled Lotte are considered by Noah to be less worthy of protection because they are less than human, and are dismissed by him as “apes.”10 The prejudice against Lotte-children, exemplified in their socially mandat­ ed murder, demonstrates the integrated nature of law, rules, and com­ munity in the normative order of the pre-flood world: “sometimes, if you did not kill it yourself, other people came and killed it for you. This was the rule – though not the law. The law said nothing about such matters – perhaps because the law assumed that anyone civilized knew the rules” (149). Noah’s interpretation of the Edict mirrors and builds upon this same socio-legal context. A restrictive interpretation of who warrants protection is thus not simply a characteristic of the law; it is also a characteristic of the soci­ ety that the law constitutes and is constituted by, the “tradition” from which Noah draws. Mrs Noyes, having once consented in accordance with these norms to the death of her own Lotte-child, Japeth’s twin, Adam (150, 162–3), now struggles to save Lotte from the flood. Instead of relegating Lotte and children like her, she attempts to connect their personhood to a more expansive understanding of equality: “[i]f only Doctor Noyes could have seen her now. I am an ape – but I had a hu­ man mother and I had a human father; I was loved – I was cherished – I was held by human arms” (179; emphasis in original). When she is unable to save Lotte, Mrs Noyes’s failure is accompanied by her recognition that she will no longer include Yaweh in her own terms of reverence (170). However, in the face of Noah’s hegemonic control of interpretation, counter narratives, such as Lotte’s personhood or Mrs Noyes’s uncon­ ventional terms of reverence, are silenced, at least in formal, public legal spaces. Alternative understandings can only be heard extra-judicially in Not Wanted on the Voyage, a discursive space exemplified in the lower order’s illegal rebellion against Noah’s monocratic rule.

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Unlike Mrs Noyes, who openly questions Noah’s interpretations, her daughter-in-law Hannah has given herself over to both his wishes and his words. Apparently deferent, and charged with codifying Noah’s pronouncements, Hannah has sacrificed much of herself in achieving a position of relative influence: “[a]ll her pride was shuttered in her silence: all her ambition was locked in the choice she had made to sit on the right hand of power” (267). Hannah is “full of words. Sentences and paragraphs. Whispers and shouts. Hundreds of them. Thousands” (243; emphasis in original). But whereas silence for the Faeries is equated with literal death, for Hannah it marks a less immediate, but no less real, loss: “she was a woman and she could not speak. Aloud. But only think in silence and go mad” (ibid.). Even though she is protected by the Edict and relatively privileged, in her silence Hannah is marginal­ ized by Noah’s gendered hierarchies of value and her own complicity with them. Yet while she never speaks or directly acts against Noah, there are moments when Hannah does set herself against his authority. Massag­ ing Emma prior to her rape by Noah, Hannah proffers a sexual text that is vastly different from the touch of men: “[t]his was not at all like Japeth, whose hands were all fingernails and fists and thumbs. The fingers landed – light as butterflies” (262). Pleasurable for Hannah, who sounds “oddly excited” (261), this queer moment stands in stark contrast to the procreative discourse propounded by Noah (77) and the violation of Emma that follows this scene (and in which Hannah is complicit). It is notable that while Hannah maintains her “silence,” never saying anything contrary to Noah, her pleasure suggests an in­ terpretation of the massage quite different from his: if she cannot speak, perhaps she finds in the non-verbal an opportunity to pursue some of the “possibly dangerous” (13) words that she thinks, but never says. Also non-verbal is Hannah’s challenge to Noah’s authority when she writes in her “handmade book” (288). Given Noah’s investment in codification, that Hannah should write on her own volition (rather than at Noah’s instruction, as with the “miracle” of the white flakes) is an act of some significance. Moreover, Hannah not only copies from a vol­ ume of tales (fiction being a knowledge that is often marginalized), but chooses to do so from Chaucer’s Wife of Bath lamenting that “if women had written stories, they would have written of men more wickednesse than all the sex of Adam may redresse” (ibid.; emphasis in original), thereby directly critiquing the gendered nature of power on the ark. This small

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act of resistance to patriarchal control is all Hannah will allow herself, but given his investment in controlling the written word, it remains an important counter to the textual authority that Noah has attempted to construct and impose. For Lucy, the cross-dressing angel who marries Ham, the necessity of reconceiving interpretive power is even more readily apparent. From the beginning of Not Wanted on the Voyage, Lucy unsettles clear clas­ sification, and is equally unsettling for most of the novel’s characters. Mottyl, who first hears of her as a “presence” in the woods (45), finds Lucy “likeable enough – even genuinely kind” (75). But “there was something wrong – something worrying about her” (ibid.). Mrs Noyes finds her “somewhat odd” (73), and is concerned by her “make-up. The clothes. The sudden appearance. And those eyes” (74). While both Mottyl and Mrs Noyes will eventually recognize Lucy as an ally and find her presence “wonderful” (279), she remains an ambivalent figure in Not Wanted on the Voyage, including among the lower orders. Lucy’s fellow angel Michael Archangelis finds her especially disturb­ ing. Speaking “as if he was quoting from a book of rules for border guards” (107), Michael, who is aligned with Yaweh and Noah and their creation of unequal binaries between the privileged and relegated (87), asks Lucy what she hopes to accomplish by “dressing as a woman … And a foreigner” (107; emphasis in original). In describing Lucy as a woman and a foreigner, Michael categorizes her as holding a subordi­ nate position in a world where women have little authority (Mrs Noyes notes Yaweh’s entourage has “not a single female presence” [71]), and conformist similarity is privileged. Lucy’s answer, that she “like[s] dressing up” (107), is flippant, but it also suggests that hermeneutic categorizations might lack the truth status they claim, if they can be so readily disturbed. Her desire to become someone else is also very simi­ lar to the question Lucy says motivated her desire to leave heaven: “if I were to say; ‘I am not I – but whoever I wish to be,’ would I be believed – in this other world?” (282). Perhaps it is because she cannot be readily classified that Noah finds Lucy particularly objectionable; nonetheless, he does eventually label her as what is presumably the lowest place in his hierarchy of women, describing her as a “whore” (74). Despite their oppositional positioning throughout much of the novel, Lucy does share similarities with Dr Noyes. She has a “streak of ruth­ lessness” in her that her husband Ham, for instance, “would never un­ derstand and perhaps not ever be able to cope with” (300). She seeks brutal vengeance for the wrongs done to her, much like Yaweh, and

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curses Japeth rather than forgiving him. She and Dr Noyes both also desire someone to argue with (282). For Lucy, though, argument comes from “difference,” and reflecting this, her idea of a better world does not lie in greater order. Leaving heaven “because it was intolerant of rain,” Lucy later seeks to leave earth “because it is intolerant of light” (284): both represent an absolutism akin to Noah’s. Rejecting the clas­ sification and codification of edicts, Lucy instead starts a verbal rumour of a world where “darkness and light are reconciled” (ibid.), one built on the promise of equality, of “life for everyone” (283; emphasis in origi­ nal). Lucy’s rumour is an interpretive alternative in the novel; an as­ pirational invocation premised on rights, it is part of why Mrs Noyes would ultimately rather continue the ark’s journey than accede to a so­ ciety under Noah’s new covenant, deferring that world in favour of one that promises to be more egalitarian. That Lucy’s is a verbal rumour suggests it might not be fettered by the constraints of codification. Yet because it exists without form, as a possibility at the end of a further voyage, there is also nothing to suggest how this reconciliation might occur, or what further revolts may be necessary to create it. Radically rethinking law, it premises society on equal “life for everyone” while leaving unclear how this might be lived. Like so much about Lucy her­ self, there is little in what she says that can readily be made concrete. Because law is required to provide formal resolution of disputes, such recourse to the unwritten is not something that it can legitimately pursue, at least not in the space of the courtroom. This is not to say that alternative perspectives might not be postulated (law is certainly not as monolithic as it is sometimes described), or that the judicial investment in categorization cannot be rethought. One approach to this rethinking can be seen in Justice L’Heureux-Dubé’s dissent in Egan, which seeks to disentangle Charter equality rights from the analogous grounds test favoured by the rest of the court. L’Heureux-Dubé argues that the pur­ pose of section 15 of the Charter is to “guarantee to all individuals a cer­ tain kind of equality: equality without discrimination” (Supreme Court of Canada 1995, 542; emphasis in original). In adopting an analogy test, however, the court “defines the preconditions to when discrimination will be present exclusively by reference to qualities seen generally to reside” (549) in the enumerated grounds of section 15. As such, the test fails to focus on “the absence or presence of discriminatory effects them­ selves” (ibid.; emphasis in original), instead imputing characteristics on the basis of generalities and risking the reproduction of discrimination in equality law itself.

122  A Culture of Rights We will never address the problem of discrimination completely, or ferret it out in all its forms, if we continue to focus on abstract categories and generalizations rather than on specific effects. By looking at the grounds for the distinction instead of at the impact of the distinction on particular groups, we risk undertaking an analysis that is distanced and desensitized from real people’s real experiences. To make matters worse, in defining the appropriate categories upon which findings of discrimination may be based, we risk relying on conventions and stereotypes about individuals within these categories that, themselves, further entrench a discriminatory status quo. More often than not, disadvantage arises from the way in which society treats particular individuals, rather than from any characteristic inherent in those individuals themselves. (551–2; emphasis in original)

Finding that the judicial focus on enumerated grounds and the ques­ tion of analogy obscures the Charter’s guarantee, L’Heureux-Dubé pos­ its an alternate test, one that “focuses on impact (i.e., discriminatory effect)” (545; emphasis in original). The central concern of L’HeureuxDubé’s test is the unequal treatment of an individual because of “mem­ bership in an identifiable group” (552), and the relevant issue is whether the matter at law “is capable of either promoting or perpetuating the view that the individual adversely affected by this distinction is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society” (553). Thus, while she identifies the claimants’ homosexuality as the reason their rights were impugned – and so employs a judicial classification of her own – L’Heureux-Dubé identifies the breach of equality with specific reference to the effects of discrimination “rather than in light of the somewhat illusory neutral­ ity afforded by speaking of the ‘ground’ of ‘sexual orientation’” (566). Under her test, the question for judicial determination is not one that can be properly solved by drawing analogies between discriminatory “grounds.” Instead, L’Heureux-Dubé suggests that the Charter’s goals “could be achieved more simply and truthfully by asking the direct question: ‘Does this distinction discriminate against this group of peo­ ple’” (564).11 In addition, L’Heureux-Dubé argues that the interest affected must also be considered in the application of the Charter guarantee. In Egan, the right impugned was “quite a fundamental one” and, because the message that its restriction sends “is essentially that society considers such relationships to be less worthy of respect, concern and consider­ ation than relationships involving members of the opposite sex,” the

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distinction drawn by the legislation “is reasonably capable of exact­ ing a discriminatory toll upon the group affected” (567). Approaching equality with a focus on the impact of discrimination, L’Heureux-Dubé argues, more readily enables “courts to arrive in a principled manner at an answer that reflects as closely as possible the experience of those in the affected group” (557), thereby purposively and specifically inter­ preting the Charter and applying its guarantees. L’Heureux-Dubé’s dissent in Egan gained a measure of support in the “human dignity” test that became part of section 15(1) jurisprudence with Law v. Canada (Minister of Employment and Immigration) (Supreme Court of Canada 1999b).12 But her position has not gone uncriticized: Peter Hogg, for example, argues that her approach “relies heavily on judicial discretion” and has the potential to “produce quite variable re­ sults from judges who would place different weights on the values in play” (2006, 1096). While acknowledging that the court’s failure to find a uniform definition of analogous grounds renders that test equally un­ certain, Hogg still suggests that a “narrower version of s. 15 is much bet­ ter targeted to its purpose, which is to correct disadvantages imposed through prejudices that may have distorted the political process” (1110). Setting these criticisms to one side, if Noah’s interpretation of the Edict is based on a limited recognition of who warrants the law’s full protection, then L’Heureux-Dubé’s reading shifts the focus from the wording of the Charter (and the potential limits inscribed by the cat­ egories privileged in section 15[1]) to the idea that equality itself must impel the legal right in relation to the claimant. Thus constitutional equality rights are to respond directly to specific instances of discrimi­ nation, rather than requiring the claimant to be recognized in analogic terms. While still referring to legal hermeneutic practices to justify her approach as an act of juridical interpretation, L’Heureux-Dubé posits with her test that legal analogy is not the only, nor necessarily the most equitable, means of understanding Charter equality rights. Faced with a choice between a voyage that will never end and the institution of Noah’s power over the post-flood world in the form of a new covenant (one that enshrines human control of “everything that lived and breathed and moved” [Findley 1996, 351]), Mrs Noyes prays for deferral in the form of more rain. Her choice to reject the recodifi­ cation of inequality that her husband’s covenant represents seems un­ derstandable in order that she might refuse him “another world and more cats to blind” (352). In its form, too, her act is a challenge to Noah: while prayer carries with it Noah’s invocation of religious authority

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and tradition, Mrs Noyes seeks to empty her prayer of these associa­ tions. Rather, she prays “not to the absent God. Never, never again to the absent God, but to the absent clouds, she prayed. And to the empty sky” (ibid.). Her actions build on an earlier prayer to the river (153) that enabled her to save the lives of Lotte and the trapped Faeries, again in deliberate rejection of Yaweh’s (and so her husband’s) authority. That she resists through prayer suggests that Mrs Noyes sees a potential for the ritual of prayer to be reinterpreted in order that it might produce a different set of meanings. Not legal in the same sense as Noah’s, her prayers are an attempt to invoke something that might protect life equal­ ly, rather than hierarchically classify, control, and exclude. But what does Mrs Noyes’s redeployment of prayer for the purposes of deferral mean? Is it a return to the promise of rights, as in Bodily Harm? A reinvocation of the as-yet-still-unfulfilled Canadian ideal that the Supreme Court envisions in its conception of a “free and demo­ cratic society”? Mrs Noyes had said to Emma before the ark departed: “never forget what you have seen down there – for this is the beginning of a new world” (123). To Mrs Noyes, any new world must include a re­ membrance of the old, an act of interpretive contextualization that, like Lucy’s rumour, is shaped by but also resists what has gone before. Her final prayer builds on this by invoking the fear that a new world under the control of Noah will bring with it a return to the ills of the old and a perpetuation of the horrors of the ark. As an alternative Mrs Noyes holds out for the possibility that the future might be postponed, that the past and the present might not be revisited on a new world. Her prayer is “both an act of resistance and a gesture of despair” (Dickinson 1999, 68), an attempt to recognize and oppose the inequalities of the new covenant while also acknowledging the limited means available to the lower orders to fight its apparent inevitability. Invoking both resis­ tance and despair as unresolvable, Findley’s deferred conclusion seems to suggest something even more uncertain than Atwood’s ending to Bodily Harm in which Rennie “will never be rescued. She has already been rescued” (Atwood 1996b, 301). However, as with the ending of Bodily Harm, the ambivalence of Mrs Noyes’s prayer and Lucy’s rumour is also an assertion that rights might be realized in the future. Their dissents invoke an idealized world that does not yet exist but that can be conceived of because the promise of something better coming about after the flood has been bro­ ken and because the promise of something else is imaginable. Lucy’s ru­ mour references the failures of heaven and earth to constitute a tolerant

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world and the possibility that such a world might exist. Mrs Noyes’s prayer for rain positions her both in contradistinction to the atrocities committed by Noah and Yaweh and invokes the protection given earlier by the river to protect Lotte and the Faeries. Complexly, her prayer de­ fers in the hope of something better that may never materialize but that is already thinkable. The new world is consequently always premised on the (failed) past. As such, these acts of suspension might convey an aspect of the complicated temporality that I have argued can be seen in the idea of rights in Canada, wherein the violation of rights exists concurrently with their protection being imagined. Not Wanted on the Voyage’s legal allegory might thus be read as a multifaceted and am­ bivalent articulation of the failure of “Canada,” however abstracted, to protect rights and its simultaneous reinterpretation as a space (even a displaced space, such as Lucy and Mrs Noyes imagine it) where some version of it will. The Supreme Court of Canada’s focus on analogy in constitutional equality rights cases brings with it a similar turn to a temporality in which the equal protection of the law, while comprehensible, is de­ ferred to some future point. The categories enumerated in section 15(1) of the Charter establish identity categories whose members have been historically subject to discriminatory treatment. For groups (to use L’Heureux-Dubé’s terminology) outside those categories, the Charter right can only be established through the judicial assertion of an anal­ ogous connection. While the Supreme Court has shown itself willing to draw these connections, such analogic reasoning nonetheless attri­ butes to groups that are not enumerated an ideal, but as yet unrealized, protection. Moreover, by its nature analogy is an act of interpretation, representing an engagement with a text that is possible but has yet to take place. For example, while sexual orientation was always poten­ tially analogous to the enumerated grounds listed in section 15(1) of the Charter, it was not protected until the court asserted that it was pro­ tected. The analogic reasoning favoured by the majority in Egan thus marks another return to the futurity of Oakes’s free and democratic so­ ciety, wherein certain groups are to be protected, but cannot currently presume that protection. This temporal ambiguity seems somewhat ameliorated in L’HeureuxDubé’s conceptualization of constitutional equality rights, with its fo­ cus on the impact of discrimination.13 In a different way, Chief Justice Beverley McLachlin’s article “Equality: The Most Difficult Right” resists articulating an ideal space of rights to come by denying the possibility

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of the project of equality itself. Here, McLachlin sketches a model of equality that “tolerates a certain degree of disparity” (2001, 20),14 but strives for substantive equality in order to give it real consequence and under which we might improve our judicial tools to effect the Charter right. Yet even as we aim for this goal, “[w]e can never reach complete equality, even if we wished to. But we can work to use the law to com­ bat the evils that flow from inequality” (27). For McLachlin, “the real­ ity of equality can never meet its promise … It promises more than it can deliver” (20), something very different from an idealized world that is conceivable but not yet attained. McLachlin’s ideal of equality is not imaginable and not realizable: it is not deferred, but unable to be brought into being. Where might the discussion of rights discourses in Canada go, then, if it is not bounded by a constant assurance of its inevitable future? What does it mean to fail, or indeed to refuse, to imagine the protection of Canadian rights discourses? Does striving for, but never reaching, the “Tantalus” (20) of rights Chief Justice McLachlin diagnoses for equality, offer some way of thinking of rights without a necessary return to the deferral that seems to come with the idea of a Canada constituted by rights? In the following, final chapter I consider the model of Aboriginal rights that emerged from constitutional patriation and the resistance to a Canadian discourse of rights articulated in Okanagan writer Jeannette Armstrong’s novel Slash. Eschewing the imagined, ideal Canada envi­ sioned by so many of the texts that I have discussed, Armstrong’s novel interrogates the place of Indigenous rights and attempts to disentangle them from the model fostered by the Charter. Coupled with an analysis of the Supreme Court of Canada’s attempts to articulate constitutional Aboriginal rights in R v. Sparrow (Supreme Court of Canada 1990b) and R v. Van der Peet (Supreme Court of Canada 1996), I will discuss the re­ sistance to constitutional rights that Armstrong’s novel puts forward as a very different kind of counter narrative, one that seeks to disentangle rights from Canada and to reconceive how they might be claimed.

5 “We Don’t Need Anybody’s Constitution”: Indigenous Peoples and Resistance to Rights

The works discussed in this study engage with rights concepts in disparate ways: Kogawa’s representation of the political process as a means to constitute national belonging; the multifaceted consequences of freedom of expression in Bodily Harm; the centrality of ideas of truth and fairness in legal trials; Not Wanted on the Voyage’s allegories and analogies of law. Curiously though, given the prominence of rights in these and other works, few Canadian novels of the past three de­ cades make overt or even implicit reference to the constitutional pa­ triation of 1982 and the parallel enactment of the Charter of Rights and Freedoms. The language and institutions of Canadian law are a pres­ ence in all these texts, from Strube’s use of the Criminal Code in The Barking Dog to the fictionalized appearance of Project P in Bodily Harm to the reproduction of the terms of the Redress Agreement at the end of Itsuka. Such representations speak to how rights’ explicitly legal forms are culturally understood and institutionally enacted and, as I have ar­ gued, reciprocally constitute meaning about rights. Nonetheless, given the centrality of rights to their themes and plots, it is intriguing that the Charter and Constitution themselves are so absent from contemporary Canadian literature. Len Findley urges the humanities to “always Indigenize,” a “gesture towards” the critical potentials that might come from new alliances between English literary and Indigenous studies (2004, 367–8). His in­ tent, he writes, is that his call be heard “as a strategically indeterminate provocation to thought and action on the grounds that there is no horsIndigène, no geopolitical or psychic setting, no real or imagined terra nullius free from the satisfaction and unsettlements of Indigenous (pre) occupation” (368). This final chapter follows Findley’s call by reading

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Canadian rights discourses in the context of Jeannette Armstrong’s novel Slash. Slash,1 first published in 1985 and subsequently amended and re­ released multiple times, is one of the exceptions to the general absence of constitutional instruments in Canadian literature, and as such it is notable that Armstrong’s references are made primarily to reject the Constitution and Charter as a valid model for Indigenous communi­ ties. In Slash, rights are a means of entry into the nation-state, but they are also inextricably tied to the imperial project, which grants rights on its own, assimilative, terms. Constitutional Aboriginal rights2 are for Armstrong a means of interpreting Indigenous peoples through their relationship with Canada in order to manage them within the co­ lonial, capitalist state. The consequence of this, she argues, is to deny Indigenous sovereignty (rather than constituting nations able to nego­ tiate with Canada, as in the model of the treaty, Indigenous communi­ ties become the subjects of Canadian law) and to frame Indigenous peoples as supplicants who are granted rights. Articulated through the lens of constitutional rights, the distinctive place of Indigenous peoples in Canada is rewritten in ways that are at odds with ideas of their na­ tionhood and sovereignty. Reading Slash alongside legislative, political, and juridical readings of the place of First Nations, Metis, and Inuit peoples in Canada, in­ cluding the Indian Act, 1985, the Statement of the Government of Canada on Indian Policy, 1969 (also known as the White Paper, 1969), and the Supreme Court of Canada cases R v. Sparrow (1990) and R v. Van der Peet (1996), reveals a history of state attempts to categorize, assimilate, and manage Indigenous peoples. Responding to this context (and rather than tempering the failure of rights with the promise of their inevitable fulfilment), Armstrong argues that constitutional Aboriginal rights in Canada are inimical to Indigenous North American cultures. Slash, a work that has always drawn strong critical responses,3 is thus something of a counter narrative within this study. Rather than critiqu­ ing rights violations while underscoring rights’ centrality to conceptions of Canada, Slash rejects the rights institutionalized in the Constitution as incommensurable with a vital life for Indigenous peoples. Instead, Armstrong’s novel attempts to articulate differently the debate concern­ ing rights and constitutional patriation. Resisting incorporation into the colonial, and colonizing, text of the Charter, Slash instead posits the cen­ trality of Indigenous identities, knowledge, and self-determination. Set in a period when constitutional rights became increasingly a part of Canada’s national imaginary, Slash raises important questions about

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how the universality of rights is conceived and how the imposition of rights can serve to reinforce colonial hegemony. Indigenous resistance to rights, then, constitutes a critical positioning with regards to the na­ tional place of rights in Canada and the temporalities through which that place is articulated. It is a stance that should, I will argue in my conclusion, be brought to bear on the cultural-legal assumptions made about Canadian rights discourse more generally. Confrontational, politicized, and deeply embedded in political strug­ gle, Slash, which was originally commissioned in the 1980s by the Okanagan Indian Curriculum Project for use in high school contem­ porary history classes, is a didactic lesson about Indigenous political struggles in North America through the 1960s, 70s, and 80s.4 It is also a commentary on the limitations of those struggles. The novel follows the life of Tommy Kelasket, a young Okanagan man. Growing up in a Canada that seems to offer Indigenous peoples only two alternatives – either an imperfect form of assimilation into a white society in which racism and discrimination are rife or to “get lost” (Armstrong 2007, 49), to disappear in despair, addiction, and ultimately death – Tommy searches in the novel for an alternative to these choices. Soon, this leads him to politics. Involved in the increased activism by Indigenous peo­ ples in North America during the second half of the twentieth century, Tommy (given the nickname Slash following a fight) becomes an agi­ tator for the reform of Canadian and US government departments of Indigenous affairs and for the resolution of land claims. Armstrong’s pedagogic and historiographic intent can be read in Slash’s political engagement with constitutional reform; the novel is replete with specific references to activism and protests in the period, although dates are curiously absent. Constitutional reform was an im­ portant issue for a number of Canadian civil society organizations, including Indigenous groups, from the late 1960s to the early 1990s (Mandel 1994; Dobrowolsky 2000). In Slash’s recounting of this period (up to the patriation of the Constitution in 1982), there is a developing sense of solidarity: Indigenous people “care because they are needed … They are full of hope and feelings that the future can be changed” (Armstrong 2007, 117). At first, there seems to be the possibility of a rein­ vigorated Indigenous identity growing out of this activism. In a manner reminiscent of how Naomi describes Japanese Canadian community at the end of Itsuka, Slash describes renewed Indigenous community emerg­ ing through politics after it has been eroded by centuries of colonial brutality. Activism brings this about through a growing articulation of

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common goals, such as reforms of government control over Indigenous lands and monies, and a sense of a collective pride and purpose that guides and impels action. When Slash first enters political activism, he finds it gives his life a meaning that he felt it had previously lacked. Slash’s activism also gives an outlet to his anger, a product of his sense of disconnect from both white Canadian society and Indigenous identity. For Slash, as for many of his activist colleagues, anger is mobilized as a highly effective political tool: Every time a meeting would come up, though, I would go straight, and the anger would build. By the time everyone got to have their say, I would be ready. It would just come spewing out. I knew I was good with words. I knew how to say things to get everybody feeling what I was feeling. At them times, I felt like if I had a machine gun, I would have to run out and start shooting at any white man passing. Afterwards, I would huddle somewhere and shake and be so tired I couldn’t do more than get up to pee. (95)

Neither the intensity of his political passion, nor his role as “radical agi­ tator” (53), however, give Slash an enduring sense of satisfaction or of meaningful purpose. Rather, they seem to only increase his frustration, and his anger proves ultimately unsustainable and exhausting. In part, this is because seeking political recognition proves to be a lengthy and disempowering ordeal, as attempts to create a dialogue with the gov­ ernment are consistently rebuffed. Like those involved in the redress movement, the Indigenous activists in Slash find their engagement with government prescribed by the Canadian state. Understood as suppli­ cants reduced to begging for “an audience,” Aboriginal peoples are treated “as if we are dogs or something,” rather than as members of nations who have historically negotiated with the Crown and to whom government has “responsibilities to meet and wrongs to correct” (126). Engaging with the state in this manner de-emphasizes the sovereignty and unique rights of Indigenous communities in Canada, interpolating them into a political structure where they must understand themselves not as autonomous communities, but as subject to the paternalistic con­ trol of a colonizing power. This presumption by Canada to an undisputed and one-sided sov­ ereignty over matters concerning “Indians,”5 including with regards to treaties that were signed by both parties, ostensibly as equals, echoes

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throughout Canada’s history. As Thomas King notes in The Truth about Stories,6 it did not seem to matter to the government that “treaties are le­ gal, binding documents that cannot be dispensed with just because one party suddenly finds them inconvenient” (2003, 138). The assumption of this authority by the Canadian state means that Aboriginal rights are not seen as something “paid for by Native people” (ibid.) through the process of treaty negotiation, but rather as a gift given with the gen­ erosity of the Crown (137). This interpretation minimizes Indigenous agency and discursively locates Aboriginal rights as coming from the Canadian state (rather than distinct from it). Aboriginal rights might exist, but, as King reads this sense of Canadian largesse, they only do so because of the Crown. Reinterpreted as gifts of the state, Aboriginal rights do not have an existence independent of the colonial relationship. Such (unilateral) determinations of the nature of Aboriginal rights – and who is entitled to them – have been a common feature of the legis­ lative relationship between Indigenous peoples and the Canadian state. As exemplified in the various federal Indian Acts since 1876, Canada has tended to wield the legal category of “Indian” as a means of achiev­ ing a number of policy purposes. The Indian Act’s 1880 amendment to the definition of “Indian,” for example, mandated “the automatic enfranchisement of any Indian who obtained a university degree,” and later excluded from Indian status lawyers and clergymen, as well as Indigenous people who served in the military (King 2003, 132). A more recent 1985 amendment to the Indian Act, Bill C-31, came about in part due to provisions that took status from women who married non-status men (whether Indigenous or not). First Nations women (and their chil­ dren) regained status under the bill, and would no longer lose it on marriage to non-status people.7 At the same time, however, the legis­ lation introduced a “two-generation cut off clause,” which held that if status Indians “marry out of status for two generations … the chil­ dren from the last union are non-status” (143). The consequence, King argues, is that fewer and fewer First Nations people will be entitled to treaty rights because fewer and fewer will be legally recognized as “Indians” (143–4). The legal category will still exist, as will the treaties, but there won’t be anyone left to hold the rights (144). By limiting enti­ tlement to status in this manner, the Canadian state alleviates its treaty obligations to Indigenous peoples, instead assimilating them through law into the homogenizing discourse of pan-Canadian rights. As King argues, there is now “no need to send in the cavalry with guns blazing. Legislation will do just as nicely” (143).

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By legislating the form of “Indian” identity, the Indian Act impacts expansively on the lives of First Nations people: [Y]ou can continue to call yourself an Indian, but you can’t live on a re­ serve. You can continue to tell people that you’re Cree or Blackfoot or Ojibway or Mohawk, but you can’t vote in band elections. You can go to powwows, sing at a drum, sell arts and crafts if you like, but you are no longer eligible for treaty benefits, and neither are your children or their children or their children right down to the end of time. (ibid.)

Legal interventions thus bifurcate Indigenous identity, creating what King describes as an anomalous situation (although, I would note, with racist antecedents that include the legal identity attributed to Japanese Canadians during World War II for the purpose of limiting their rights) wherein a specific category of “Indian” is constituted by law. Under the Indian Act aspects of Indigenous identity are reframed, creating, in King’s words, “two identities, a cultural and a legal identity” (149), in the interests of getting “government out of the ‘Indian business.’ Or, conversely, to get Indians out of the government’s business” (137). Even more unforgivably, for King, this legislation of identity takes the capac­ ity to determine their own membership away from Indigenous groups, making access to scarce resources ever more constrained and creating conflict within the groups themselves (149–51). I would add, too, that being unable to exercise the “legal identity” assigned to them under the Indian Act has substantial consequences for the capacity of Indigenous people to participate in their cultures. Without the entitlement to be involved in Indigenous politics, to live on treaty lands or exercise treaty and other rights, Indigenous peoples are cut off from many aspects of their cultural practice. Indeed, the imbri­ cation of law and culture has been at the core of a number of cases that consider Aboriginal rights under the Constitution; the central impor­ tance of fishing to the Musqueam, for example, was tied to an unextin­ guished right to fish by the Supreme Court of Canada in the 1990 case R v. Sparrow. Loss of legal identity, then, is a matter of law and culture, because the two are inextricable. Eventually, Slash comes to realize that an activism that takes place within the context of Western political structures is its own trap, perpetu­ ally characterizing Indigenous peoples as having to seek rights from the state, and so defining them in the context of the state. After attend­ ing an Indigenous-run drying-out retreat, Slash begins to recognize

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that pre-existing the claims of the activist political community are those of Indigenous society. Being a part of this society means that Slash has to reconceive of the relational nature of his existence: “I could never be a person only to myself. I was part of all the rest of the people. I was responsible to that. Everything I did affected that” (Armstrong 2007, 164). As a source of the “great laws [that] are carried and kept in each of us” (165), this social understanding provides solace to an absence Slash has felt all his life. It facilitates his return home to his family, gives him a renewed sense of attachment to Okanagan culture, and helps him recognize that Indigenous peoples’ futures rest not with constitutional rights given by the state, but in the recognition of Aboriginal rights that are unique to Indigenous cultures. As Slash moves away from activism, however, the historical cam­ paigns of the 1970s and 1980s for the inclusion of Aboriginal rights in the Canadian Constitution gain strength. While there was no consensus among Indigenous groups about what their vision of constitutional reform might look like (and there continued to be disagreement at the post-­patriation constitutional conferences, including over issues such as entrenching gender equality in Aboriginal rights – see Borrows [1997]), “all agreed … that they need to protect their rights from constitutional infringement, from the Charter itself, and from further encroachments by the provincial and federal governments” (Ladner and McCrossan 2009, 267). As Peter Kulchyski argues, Aboriginal rights, which “emerged from indigenous community-based battles for land and culture” (2013, 39), should be viewed as fundamentally different things from human rights. Rather than the “universal notion” (39) of equality promulgated by hu­ man rights, Aboriginal rights presume the “cultural distinctiveness” (ibid.) of Indigenous cultures and seek to enable and protect that differ­ ence. Within the novel, Slash’s wife Maeg becomes involved in the push for including Aboriginal rights in the Constitution, arguing that they are a necessity if Indigenous peoples are to maintain their cultural identities: We can’t survive assimilation on such a large scale, and in so short of a time, if we are forced to be treated equally with the rest of Canada. Equal rights is no rights, as you well know. That’s what we will face if we don’t try to secure some Aboriginal rights. Extinction, ethnocide, genocide; it’s a reality right now. (Armstrong 2007, 200)

Maeg’s concern, like that of many Indigenous activists, is that con­ stitutional rights may deny and override distinctive Aboriginal rights,

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with devastating consequences for Aboriginal cultures. This concern is underscored by the egregious history of interference by the Canadian government in the lives of Indigenous peoples that Slash, as a novel and as a pedagogic intervention, draws upon. While ultimately harmful in Slash’s view, Indigenous activists’ engagement with the constitutional process is seen by many as a necessary response to continuous state violations of Aboriginal rights. Residential schools loom threateningly over the first part of the novel, and specific policies, such as the Trudeau government White Paper (Government of Canada, 1969), form the con­ text in which Indigenous lives are lived and against which much of the novel’s political campaigning is aimed. In the White Paper, the state proposed significant changes to the relationship between Indigenous peoples and the federal government: Special status was identified as a trap. The proper goal was equality of rights. Federal responsibility for Indian affairs was to be phased out. The Indian Act would be repealed. Indian treaties would end. Aboriginal rights claims and the promised Indian claims commission were rejected. Commentators suggested that Mr. Trudeau’s opposition to special status for Quebec had led to the rejection of special status for any other group­ ings within the country. (Sanders 1983, 319)

The aims of the White Paper were assimilatory, bringing Indigenous peoples into an undifferentiated populace on the terms of a formal equality that ignored contemporary inequalities as well as the treaty obligations of the Canadian state. This approach is an articulation of the relationship between Indigenous groups and the Canadian state that Maeg is campaigning against, the “equal rights” that are substantively “no rights” because they would extinguish not only existing treaty pro­ visions, but also, through a homogenizing conception of equality, the distinctiveness of Aboriginal peoples. In the face of significant opposi­ tion Trudeau soon withdrew the White Paper, although he “expressed his personal preference for the goal of equality” (Sanders 1983, 320), a loaded phrasing that positions the desires of Indigenous groups as against equality, where equality is understood neutrally and uncritical­ ly as a good. It also, I would argue, characterizes Indigenous peoples as regressive, resisting a modern Canada in which the equality of all is the normative ideal. As Slash foreshadows, the inclusion of Aboriginal rights in the patri­ ated Constitution has had mixed consequences, with the law’s protection

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also meaning an increased scope for the legal regulation of Indigenous lives. At its enactment, three sections of the Constitution Act, 1982, re­ ferred directly to Aboriginal peoples. Section 25, which forms part of the Charter, holds that none of the rights and freedoms protected there­ in “abrogate or derogate from any aboriginal, treaty, or other rights or freedoms that pertain to the aboriginal peoples of Canada.”8 Section 37, which fell outside of the Charter and has since been repealed, required a constitutional conference to discuss “constitutional matters that di­ rectly affect the aboriginal peoples of Canada, including the identifica­ tion and definition of the rights of those peoples to be included in the Constitution of Canada” (section 37[2]).9 Both these sections represent a significant extension of the constitutional recognition of Indigenous peoples in Canada. Previously, this was limited to section 91(24) of the Constitution Act, 1867, which cursorily granted the federal parliament power over “Indians, and Lands reserved for Indians.” The juridical focus of questions about constitutional Aboriginal rights has, however, been on a third section of the Constitution Act, 1982.10 Section 35(1) states that “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” The section also constitutionally defines who is Aboriginal, asserting that it “includes the Indian, Inuit, and Métis peoples of Canada” (section 35[2]). While this section’s use of the word “includes” foresees the possibility of a nuanced understanding of Indigenous identity, its attempt to define “aboriginality” must nonetheless call to mind King’s argument that the Canadian state has been obsessively concerned with defining “who is an Indian and who is not” (2003, 148) – most often to the detriment of Indigenous peoples. Borrows and Rotman note a related disquiet, that the term “Aboriginal [itself] conceals the great diversity among peoples” (2007, 93) who have distinct linguistic, cultural, and legal traditions and dissimilar contemporary societies. In eliding these differences in the ap­ parent name of constitutional clarity, the section risks excluding from its scope those Indigenous people considered by law to be “not analogous enough,” while reaffirming the capacity of the state to establish and pa­ trol the nature and boundaries of Indigenous identity. As Supreme Court of Canada jurisprudence went on to elucidate, this determinative function brought with it a particular understanding of what constitutes Aboriginal rights and Indigenous identity. In R v. Sparrow (Supreme Court of Canada 1990b), the court held that a con­ stitutionally protected right to fish overrode government regulations that sought to constrain that right. Ronald Sparrow, a Musqueam man,

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was charged with fishing in British Columbia’s Fraser River with a net that exceeded the size permitted by his band’s licence. Sparrow did not deny using the larger net, but stated that in doing so he was exercising an existing constitutional Aboriginal right. Arguing that the right was protected under section 35(1), Sparrow posited that the restriction on net length in the band’s fishing licence was, as a consequence, constitu­ tionally invalid. The Supreme Court, in a unanimous decision11 co-authored by Chief Justice Dickson and Justice La Forest, wrote that Sparrow was an op­ portunity to “indicate its [section 35(1)’s] strength as a promise to the aboriginal peoples of Canada” (1083). On these terms, any reading of constitutional Aboriginal rights is to be purposive and given “a gener­ ous, liberal interpretation” (1106) that permits those rights’ “evolution over time” (1093) and effects the “trust-like” (1108) relationship between Indigenous peoples and the Crown. In Sparrow, the court found that the Musqueam had lived in the area “long before” contact with Europeans, with salmon fishing constituting an “integral part of their lives” (1094). While it did not contest this, the Crown did argue that the Musqueam’s right to fish had been terminated by the imposition of regulations un­ der the Fisheries Act, 1970 (1095). The court, however, held that regula­ tion and termination were not synonymous. Ascertaining the meaning of “existing” (and therefore protected) Aboriginal rights under the Constitution to include any rights not explicitly “extinguished” (1091– 2), the court stated that “the Sovereign’s intention must be clear and plain if it is to extinguish an aboriginal right” (1099). Unless there is such a clear and plain intent, an Aboriginal right remains and has con­ stitutional protection. Thus, as “there is nothing in the Fisheries Act or its detailed regulations that demonstrates a clear and plain intention to ex­ tinguish the Indian aboriginal right to fish,” the court in Sparrow found that the government’s issuance of permits was “simply a manner of controlling the fisheries, not defining underlying rights” (ibid.). Further, government regulation is not capable of “delimiting” the nature of a constitutional Aboriginal right, and any regulation that it does seek to impose on a right must be done in accordance with section 35(1) (1101). The court’s interpretation of section 35(1) in Sparrow affirms the place of rights, including Aboriginal rights, in the Constitution more generally: The constitutional recognition afforded by the provision [section 35(1)] … gives a measure of control over government conduct and a strong check

Indigenous Peoples and Resistance to Rights  137 on legislative power. While it does not promise immunity from govern­ ment regulation in a society that, in the twentieth century, is increasingly more complex, interdependent and sophisticated, it does hold the Crown to a substantive promise. (1110)

There is little doubt that the history of Indigenous and non-Indigenous relations in Canada, as well as Canadian government actions more specifically, weigh heavily on the Aboriginal rights provisions in the Constitution Act, 1982, and the court’s interpretation of those provi­ sions. The promise the court speaks of here is a recognition of that history, an attempt to offer redress for it, and a protection against its reoccurrence. This apparently liberal understanding of section 35 must, however, be read in the context of Aboriginal rights’ contingent nature under the Constitution: protected, but incapable of being detached from the au­ thority of the Canadian state. While there are limits on how the Crown can control treaty and other constitutional Aboriginal rights, this is not, for the court, evidence of the Crown’s sovereignty over Aboriginal peo­ ples being anything other than inviolate. As the court asserts, “there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to [Indigenous] lands vested in the Crown” (1103). Indigenous sovereignty, tied to control of land, is represented by the court as having been extinguished with British colo­ nization. As a consequence, Indigenous peoples are rendered part of the Canadian state (which, in turn, enables the Crown to legislate for them and for their rights to be protected under the Constitution). The court’s “assertion of Canadian sovereignty is sufficient to nullify and render non-existent any pre-existing claims of aboriginal sovereignty” (Asch and Macklem 1991, 508). Constitutional Aboriginal rights, it seems, might have their historical origins in a period from before the Canadian state and be protected from extinguishment by that state, but those rights are inextricable from Canada as a geopolitical entity. As with the other articulations of rights in contemporary Canada discussed in this study, the Constitution’s protection of Aboriginal rights is framed in terms of the state and on the state’s terms. It does not countenance the rights of Indigenous peoples being separable from this relationship. In defining the nature of rights under section 35, the court in Spar­ row establishes that the Crown’s reasoning is an integral part of any thinking about constitutional Aboriginal rights. Indeed, as is implicit in the rights enumerated in the Charter, the constitutional protection

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of Aboriginal rights is premised on the Canadian state’s potential to curb them: In response to the appellant’s submission that s. 35(1) rights are more se­ curely protected than the rights guaranteed by the Charter, it is true that s. 35(1) is not subject to s. 1 of the Charter. In our opinion, this does not mean that any law or regulation affecting aboriginal rights will automati­ cally be of no force or effect by the operation of s. 52 of the Constitution Act, 1982. Legislation that affects the exercise of aboriginal rights will nonetheless be valid, if it meets the test for justifying an interference with a right recognized and affirmed under s. 35(1). (Supreme Court of Canada 1990b, 1108–9)

Even as it declares that section 35 of the Constitution Act, 1982, is not subject to the limitations enumerated in section 1 of the Charter, the court here inscribes onto constitutional Aboriginal rights a process of justification akin to that in section 1. As W.I.C. Binnie (later a puisne judge of the Supreme Court of Canada) notes, “Sparrow reads into sec­ tion 35(1) rights a ‘reasonable limitations’ rule analogous to section 1 of the Charter. Of course, the framers of the Constitution Act, 1982 left section 35 out of the Charter in part to allay Native concerns about the possible impact of section 1 and section 33 on their rights” (1990, 237).12 Under Sparrow, “federal power must be reconciled with federal duty”; the “best way” to do this the court argues, in language that cannot help but bring to mind section 1, is to “demand the justification of any gov­ ernment regulation that infringes upon or denies aboriginal rights” (Supreme Court of Canada 1990b, 1109). So while constitutional Aborig­ inal rights are not subject to limits identical to the “free and democratic society” requirement of the Charter, by imposing an equivalent test the court draws section 35 into a rights-based interpretive model that draws heavily from similar conceptual roots. Armstrong’s critique in Slash acknowledges this unequal relationship and its constitutionalization of the Canadian state’s dominance. While others lobby the Trudeau administration for the inclusion of Aboriginal rights in the Constitution, Slash argues that “[w]e don’t need any­ body’s constitution; what we have is our own already. We hold rights to the land and to nationhood. We just need to have it recognized” (Armstrong 2007, 198). As he puts it, “We have the right not to agree on their terms. It’s our land, until we are defeated in war or sign any agree­ ment such as a treaty with them, or we give them their right on it by

Indigenous Peoples and Resistance to Rights  139

selling it to them” (200). Instead, Slash asserts that refusing to negotiate about constitutional rights on the state’s terms – and especially in ways that might involve ceding control over land – preserves Indigenous communities’ dignity and “leaves something for our descendants” (199). Acknowledging this capacity to negotiate equally with Canada and the interests of future generations in Indigenous lands (199, 201), Slash rejects the necessity of seeking rights from Canada, refusing the characterization of Indigenous peoples as passive recipients of largesse from a paternalistic state. The campaign for constitutional inclusion eventually sees Aboriginal rights provisions entrenched in both the Constitution and the Charter. This success, though, leaves Slash devastated and dreading a future battle to refute rights that he sees as being “empty words on paper that had no compassion for what is human on the land” (205). For Slash, these enshrined rights will reaffirm a position of subservience to the Canadian state and take Indigenous communities further from tradi­ tional ways that offer them hope and dignity: I felt deep despair. Nothing much would remain after that [constitutional inclusion of Aboriginal rights] to fight for, nothing to heal our wounds in the fighting. We would no longer know freedom as a people. We would be in bondage to a society that neither loved us nor wanted us to be a part of it. We would truly be second-class citizens instead of first-class Indians. (205)

The Charter “win” means giving the Canadian state a monopoly to de­ termine the scope and nature of Aboriginal rights, reinforcing its place in Indigenous lives and eroding the possibilities for models of selfdetermination that stem from Indigenous communities themselves. Unlike texts such as Itsuka or The Way the Crow Flies, which focus on attempts to reassert rights in the face of their violation, Slash instead actively critiques the representation of constitutional rights as always legitimate and desirable. Instead, Canadian rights discourses are char­ acterized as the assimilatory tool of a colonizing power whose attitudes to First Nations, Metis, and Inuit peoples have spanned ignorance, neglect, paternalism, and overt hostility. The apparently self-evident value of constitutional rights is thus reinterpreted by Armstrong as a further example of the state’s refusal to recognize Indigenous peoples as members of equal nations with their own cultural-legal systems, and a concomitant attempt to “Canadianize” their communities through the symbolism of rights.

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Attending to Len Findley’s exhortation to “always Indigenize,” how­ ever, can offer a counter narrative to national discourses of rights, and so suggest possibilities for how these discourses might be rethought – or, indeed, resisted. For Cree legal scholar Mary Ellen Turpel, the foun­ dational disconnect between Western and Indigenous conceptions of rights lies in the former’s origins in ideas of property. “Notions of pro­ tection from social/legal intrusion,” she posits, “seem to have a com­ mon conceptual origin in or nexus with property rights. The idea that rights are necessary to protect one’s ‘rightful’ corner of town, to restrain the ill-intentioned from depriving someone of their corner, is also an im­ portant justificatory argument for rights claims in contemporary legal and political theory” (1989–90, 16). Both property rights and Western rights discourses generally create a “zone of absolute individual right where the individual can do what he chooses” (1989, 152), something Kulchyski describes as “establish[ing] the preconditions within which citizenship and human rights operate” (2013, 65). Turpel argues that such conceptions inform the Charter rights paradigm, as well as act­ ing pervasively to “regulate the general character of Canadian political discourse” (1989–90, 16). This property-based logic is particularly overt for Turpel in the 1988 R v. Morgentaler decision, where the Supreme Court evokes a relation­ ship between rights, property, and the individual to justify the decrimi­ nalization of abortion. In her reasons, Justice Wilson argues that “rights guaranteed in the Charter erect around each individual, metaphori­ cally speaking, an invisible fence over which the state will not be al­ lowed to trespass. The role of the courts is to map out, piece by piece, the parameters of the fence” (Supreme Court of Canada 1988, 164). For Turpel this underscores the “property-specific and exclusionary” (1989–90, 16) character of rights, with Wilson’s figurative language of maps, fences, and trespass all girding the conceptual continuity from real property to individual rights. By comparison, exclusively held prop­ erty is not a common feature of Indigenous cultures (29), and Turpel flags the Charter’s privileging of the individual as radically inconsistent with Indigenous conceptions of both land and collective rights and ob­ ligations (1989, 151–2).13 Noting the individualist focus of the Charter, Turpel states that section 15 equality rights in particular can pose a serious threat to the continued existence of Indigenous communities. For Turpel, the imposition of equality rights interferes with the ability of these communities to make autonomous, collective decisions that bind the group as a whole.

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Armstrong’s novel presents a related concern about the impact of rights on the distinctiveness and viability of Indigenous cultures to that which Turpel describes, representing constitutional rights as part of a process whereby Indigenous peoples are assimilated into the colonial North American state, and so into capitalism. Frustrated by what he sees as the failures of activism, Slash, now in Seattle, turns once more to drink and drugs. He remains politically engaged, but his politics, echoing the despair and resistance of Mrs Noyes’s prayer in Not Wanted on the Voyage, now combines anger with hopelessness. Faced with an urban world “where there is little feeling and less caring,” Slash looks “at the city and what it stood for” (a homogeneity based on an exploit­ ative capitalism) and adopts a resistant politics of abjected individual­ ism as an alternative (Armstrong 2007, 159). Yelling at the city, Slash asserts: “Screw you, you can’t suck me in. I’m free. I always will be. I’m like the buffalo, man. You’ll never own me because I resist. I won’t join the stink that you are. I’m a dirty, drunken Indian, probably full of lice and that’s how I resist. That’s the only thing that makes you look at it and see that I will not be what you are. I refuse” (ibid.). In this scene Slash pits himself against the “fat, stinking hog[s]” (ibid.) that comprise white society, as well as against the government that represents them. There is a recognition here by Slash that he must resist not only the state but also the subjugation to capitalism that “average” citizens represent. Refusing the presumed value of contemporary white society, “Slash’s abject state” (Jones 2000, 54) is a significant act, but this angry, hopeless resistance to assimilation proves in the end to be as flawed a political model as the forms of activism that he previously adopted. Appearing “nearly homogenous in its will to exploit and deprive” (Davey 1993, 66), Canada is indistinguishable from the faceless Seattle that Slash rails against, and is represented in the novel as synonymous with a destructive economic system that impels the theft and violation of land and a concomitant loss of Indigenous ways of life (Armstrong 2007, 174). These abuses are depicted as an inevitable consequence of North American capitalism, beginning with an education system that privileges “material wealth” and is “meant to teach the young of the middle class the best way to survive their society and to maintain their system” (172). For Slash, such a future must be opposed. Thus, on hear­ ing of the inclusion of Aboriginal rights in the Constitution, Slash “felt like the world had come to an end. The worst had happened. I knew for people like me it meant only one thing. We would finally have to take a real stand to resist this or our children would have nothing but equality

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in a slave market to the corporations. I feared for our future then” (205). By refiguring Indigenous peoples into the recipients of constitutional rights ideologically consistent with ideas of private property, hege­ monic Canadian society facilitates their incorporation into this “slave market.” The “invisible fence” of Morgentaler here becomes a concep­ tual barrier locating Indigenous peoples within the space of capitalism, and so alienating them from traditional practices based on alternative social, cultural, and legal norms. Turpel’s description of the interpellation of Indigenous peoples into Canadian social, legal, and economic practices forms part of the larger relationship between Indigenous peoples and Canada, something that also includes the Crown’s denial of Indigenous sovereignty and the ca­ pacity of Canadian law to legally determine the scope and nature of Aboriginal rights. Characterized as supplicants to the state and made subject to its legal frameworks, Indigenous communities’ relation­ ship with Canadian rights discourses are, in one sense, also subject to the same narrative of postponement I have discussed throughout this study. The outcome of the Supreme Court’s decision in Sparrow, for example, is a literal deferral: the court does not, in the end, make a determination on the facts, sending the matter back to trial and so postponing the Constitution’s “substantive promise” (Supreme Court of Canada 1990b, 1110) from coming into effect. Yet constitutional Aboriginal rights occupy a space even more complex than that found elsewhere in the often-strange temporalities of the Canadian constitu­ tional regime. Looking to the future, they are also explicitly tied to a conceptualization of the past by the court, an idea with a significant lin­ eage in Canada. The White Paper’s attempt to reconceive the relation­ ship between Indigenous peoples and the Canadian state, for example, relied on the rhetorical location of Aboriginal rights in the past: [I]f you point out that all of these so-called gifts were paid for by Native people, sometimes more than once … bureaucrats, politicians, and an un­ informed public roll their collective eyes and mumble platitudes about the “need to move ahead” or the danger of “living in the past” or the fact that “times change.” (King 2003, 138)

This relegation to an (imagined) past forms part of a larger cultural-­ legal schema that determines the parameters of “Indian-ness” while refusing to recognize the capacity of Indigenous peoples to self-assert their identities, legal and otherwise. As both King and Daniel Francis

Indigenous Peoples and Resistance to Rights  143

(1992) write, the “Imagined Indian” has been a central conceit in North America since European contact. This image is a cultural imposition based on a highly generalized and mediatized understanding of Indig­ enous peoples’ cultural, social, and legal practices, framing their lives in terms of the past while doing so ahistorically. Its signifiers of indige­ neity are constituted by a non-Indigenous idea of what Indigenous peoples were, and take their cues not from how Indigenous peoples live in contemporary Canada, but from how the hegemonic society con­ ceives of them as perpetually having been. Aspects of this imagined indigeneity form part of the Supreme Court of Canada’s approach to the temporality of constitutional Aboriginal rights. In R v. Van der Peet, having found that section 35 reconciles Ab­ original rights with the “assertion of British sovereignty” over Canada (Supreme Court of Canada 1996, 543), the majority characterized con­ stitutional Aboriginal rights as inextricable from a juridical construc­ tion of what Indigenous life was like before European contact. Asking whether the rights at issue were “integral” to an Indigenous culture at a particular moment comes to form the relevant test for the majority: To satisfy the integral to a distinctive culture test the aboriginal claimant must do more than demonstrate that a practice, custom or tradition was an aspect of, or took place in, the aboriginal society of which he or she is a part. The claimant must demonstrate that the practice, custom or tradition was a central and significant part of the society’s distinctive culture. He or she must demonstrate, in other words, that the practice, custom or tradi­ tion was one of the things which made the culture of the society distinctive – that it was one of the things that truly made the society what it was. (553; emphasis in original)

The majority’s use of the past tense here is telling. What it asks courts to do is to identify how Indigenous peoples lived pre-contact in or­ der to ascertain their rights in the contemporary period. The majority constructs the evidentiary basis for determining a constitutional Ab­ original right as always, necessarily, historical, a reconstruction of how Indigenous peoples exercised their rights in the past that becomes the only form in which their rights can be given effect. Constituted as being of the past, Aboriginal rights are tied to a particular temporal mo­ ment, one constructed for them by a legal system that also has sole in­ stitutional capacity to determine the nature of their rights. Those rights are often then interpreted as themselves of the past, and so lacking an

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intrinsic worth that should be protected – something reflected in, for example, Trudeau’s casting as retrogressive Indigenous resistance to the White Paper’s suggestion that treaties be dismantled. It also means that the “promise” of section 35 plays out in an even more complex temporality than the rights imagined by section 1’s free and democratic society, shuttling back and forth not from present to future, but between future, present, and past. The decision in Van der Peet asserts that “[b]ecause it is the fact that distinctive aboriginal societies lived on the land prior to the arrival of Europeans that underlies the aboriginal rights protected by s. 35(1), it is to that pre-contact period that the courts must look in identifying aboriginal rights” (555). Constitutional Aboriginal rights can thus only be understood by the court as of the past if they are to be relevant. As John Borrows writes of the majority’s judgment, “Aboriginal is retro­ spective. It is about what was, ‘once upon a time,’ central to the surviv­ al of a community … Aboriginal means a long time ago, pre-contact” (2002, 60). Van der Peet’s is a test that necessarily requires Indigenous communities to be imagined as past even as they make their claims in the present. Freezing the capacity of Indigenous peoples to adapt to a vastly different world, the court’s test denies constitutional protection over practices that have formed as a consequence of European contact. Moreover, because the determination of the past that is central to the court’s “integral to a distinctive culture” test is necessary to prove the existence of an Aboriginal right under section 35, this characterization of Indigenous identity becomes potentially more important than “what is central, significant, and distinctive to the survival of these communi­ ties today” (ibid.). Such cultural-legal imaginings by the court create a discursive bind for Aboriginal rights claimants, locating their rights in the past so that, implicitly, they too must turn to that imagined past to claim them. In Van der Peet, doing so has the consequence of disconnecting Aboriginal rights (in their constitutional form) from Aboriginal rights as the mani­ festation of practices that continue to inform contemporary Indigenous lives. This conceptual break, it must be stressed, is never “simply” sym­ bolic. Aboriginal rights manifest practices that are inextricable from how Indigenous cultures are lived, and that are (as this study has argued, in a differently inflected manner, for the role of rights in anglophone Canada) integral to how Indigenous communities imagine themselves. What alternatives does Slash offer its readers to this understanding of Indigenous peoples and their rights as of the past, or indeed to their

Indigenous Peoples and Resistance to Rights  145

interpellation into Canada more generally? I would argue that as part of its resistance to both Eurocentric conceptions of rights and the sociolegal system from which they stem, Slash proffers a complex response where any idea of a renewed community in the face of state control must be tempered by recognition of ongoing violence and loss, and where hope is always potentially unsettled. At the same time as Slash sees Indigenous community and culture being eroded by the constitutionalization of rights and the threat of his son’s subsequent thrall to the capitalist state, Slash’s wife Maeg is killed in a car accident. Slash writes that his despair “was complete … I was so tired” (Armstrong 2007, 207). This bleak ending, though, is punctu­ ated by Slash’s son whispering to him, “Papa, I’m a Little Chief” (ibid.). If there is some hope in the novel’s conclusion, then perhaps it comes from the possibilities of a child who might yet be protected from the wage market and who invokes a continuity of traditional and future Indigenous community through his name, Little Chief. The promise Little Chief offers reflects what Slash sees as his own role in rebuilding community: “to find out what things were left of the old ways in my own Tribe and make it usable in our modern Indian lives” (171). This response is not based in assimilatory political activism, epitomized in the rhetoric of rights, nor is it an understanding of Indigenous culture that crystallizes it in the past in a manner that might echo the Supreme Court in Van der Peet. Rather, Slash’s hard-won understanding of how Indigenous tradition might shape contemporary life suggests some­ thing more fluid, as can be read in his discussion of the truly “impor­ tant things” (190) being accomplished while constitutional patriation dominated activist agendas. “Young people,” he notes, “were becom­ ing strong leaders in working with the Indian ways. I looked at that and I knew that was where the real strength to fight anything that society had to hand out was going to come from” (ibid.). These young lead­ ers were developing a “worldview” that preserved “the values of old Indian ways” in order to engage with contemporary Canada from a po­ sition grounded in those values. “To me,” Slash writes, “that was more important right than anything else” (191). Mobilized against capitalism, Indigenous anti-colonialism might also be seen as an ideal alternative stance in the novel. Advocating the ne­ cessity of resisting Canada, it does so not in order to obtain something from the state, in the form of political or equality rights, but to protect the land and Indigenous communities. Indeed, Armstrong’s critique here goes further, also acting as a warning to Canadians generally, a

146  A Culture of Rights

recognition of the harm of capitalism and of the potential for “dark days” where “equality in a slave market to the corporations” is the only equality that rights will bring ( 205). Following Findley, “Indigenizing” by way of Armstrong’s novel can help prompt recognition of and re­ sistance to the structural imbrication between rights and the alienating nature of contemporary capitalist society. In this way, it encourages an awareness of the pervasive influence of property upon rights discourses, an awareness that is frequently absent from the idealized discussions that more usually describe rights in Canada. The novel also valorizes the possibility that words might enable change, even as it posits implicit and explicit limits to what they can achieve. Slash’s involvement in politics, for example, is an incredibly frustrating experience for him. Seeking political recognition proves to be a lengthy and disempowering ordeal, an echo of the marginal posi­ tion held by Indigenous peoples in negotiations with Canada during the patriation process. Moreover, the debate and disagreement within activist groups produces its own frustrations, particularly during what Slash dismissively terms “‘bitching’ sessions” (93). Slash’s frequent re­ sponse to this talk (in which he is often complicit) is anger: “I wanted to shout ‘DO SOMETHING!! Don’t die begging and crawling!!! Die on your feet!!!!’” (ibid.; emphasis in original). In his call for action, however, Slash obscures the important role that negotiation and de­ bate can have in political change. Through what Margery Fee terms the “gradual, painful and repetitive … process of forming a counterdiscourse” (1990, 171), “bitching” can become an integral aspect of cre­ ating both community and a conception of Indigenous resistance. Such a counter discourse is a potent act, for as the elder Pra-cwa notes, when Indigenous peoples “talk about rights” they are participating in the pro­ cess of imagining Indigenous community (Armstrong 2007, 170).14 As in Itsuka, communities are constituted through talk (including antagonis­ tic talk), enabling them to recognize that “we are a people” (ibid.). The often-cacophonic talk in Slash, then, opens up the scope of debate about Indigenous lives in a way that echoes Delgado and Scheppele’s con­ ception of resistant stories in narrative jurisprudence. Importantly for Armstrong, however, these resistant stories also offer the possibility of moving beyond the Western juridical purview within which narrative jurisprudence usually operates. Indeed, the place where Slash seems to see the most positive and productive conception of how Indigenous lives might be lived is not premised in Canadian law at all.

Indigenous Peoples and Resistance to Rights  147

At the same time, Slash troubles any easy hope the reader might take from these possibilities, including, notably, in its representation of and silences about Indigenous women. In the novel’s epilogue, Slash ex­ plains that he is telling his story “for my son and those like him be­ cause I must” (209). He speaks of the pain leaders face, which does not defeat them. The pain Slash speaks of in the epilogue, however, is his own. What he does not speak of are the absent, dead, and disappeared women of the novel, including Maeg and Mardi, his first girlfriend. Gender inequity and violence raise difficult questions for Slash, ques­ tions that should upset too easy a turn to any single vision of the future. Armstrong focalizes Mardi and Maeg’s lives through Slash’s, and they most often serve to facilitate his development; Mardi’s death in particu­ lar marks the violence that defines the relationship between Indigenous communities and the Canadian state, against which Slash is struggling. In both cases their roles seem functional, assisting Slash in seeking his “third alternative” to assimilation or death, and the novel does not offer a substantive engagement with the gendered nature of the violence that their deaths represent. Indeed, it is notable that Slash does not tell his story for Mardi and Maeg, but rather to teach his son. The epilogue can also be read as a mirror to a more pervasive in­ strumentality seen in the novel’s depiction of activist women. Women are described as enabling political work, making “things run smooth when things got rough” (122). For the most part, however, Slash seems to represent women as existing primarily to provide male pleasure (as the “chicks” with whom they “party,” female activists are often mentioned simultaneously with drink and drugs by the men in these groups). Doing so, Armstrong speaks to the central role of women in these groups, but also echoes more disturbingly Bodily Harm’s epi­ graph by describing Indigenous women being used for pleasure by Indigenous men. It is a troubling representation, one that must neces­ sarily be read onto Indigenous activist communities but also, because women are absent from what he describes, onto the model of commu­ nity that Slash proposes.15 This, I would argue, is itself a counter discourse, one embedded with­ in the novel’s own resistance to rights. Refusing the presumed good of constitutional rights and the temporal location attributed to Indigenous peoples in judicial readings of those rights, Slash suggests that there may yet be a viable “third alternative” in the prospect of communities that draw on the past but are not fixed by an imposed law and culture

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to an imagined moment in history. Yet, in its muted discussion of issues of gender, the novel also invokes its own discordant form – performs its own “bitching session” – and so enables a space for the reader to engage dialogically with its model of renewed Indigenous community. With women in the novel largely functioning to develop him as a char­ acter, Slash’s relative silence on gender violence and inequity speaks back to his utopian vision, suggesting that without more engagement these issues might remain either as instrumental or tangential as Mardi and Maeg become in a story not told on their behalf. The challenge that this counter discourse offers comes about through Slash’s own struc­ tural logic, employing the dialogism of the debate that constitutes so much of the novel to draw attention to its own lacunae. Ultimately, it is the reader who has to make these interrogations, interpolated, through the process of reading, into a bitching session where silences about dead and disappeared women disrupt the novel’s privileged ideal for Indig­ enous communities. The manifold narratives and counter narratives of Armstrong’s novel thus posit an uncomfortable grounding for the still-tenuous continua­ tion of Aboriginal communities in Canada. Troubled by its own dis­ sensuses and absences, I would argue that the novel should, as such, be read not only as a challenge to Canadian rights discourses, but also as being unsettled by its challenge. In speaking to the other texts that compose this study, what Slash might suggest is that, rather than only turning to the future to seek remedy for the violations of the present, it is the present that may offer the means to interrogate the ideal spaces we make of the future. In my conclusion I want to pursue this counter discursive project, to ask what other possibilities an interdisciplinarily legal and literary analysis might offer any discussion of the place of rights in Canada, and what alternative narratives such readings prompt and elide.

Conclusion

Few of the texts examined in this discussion embrace Canada with quite the enthusiasm of the declarations about the Charter that I surveyed in my introduction. Yet, despite their representation of the state’s many failures to protect its citizens (including, frequently, from the state it­ self), most of the novels and legal writings discussed here – with the no­ table exception of Armstrong’s – reaffirm a conceptual nexus between Canada and rights. In their condemnation of its failings, these texts nonetheless tend to conceive of rights as somehow signifying Canada, either as it is or as it is imagined to be. In conclusion I want to return to some of the questions raised by this phenomenon and by my study more broadly. What are the temporal rhetorics through which rights come to be seen as core national values despite their substantive enactment being deferred to some ambivalent future point? What alternative ways are there of considering the role that rights play in constructions of Canada, and does the hegemony of rights place limits on projects that seek alternative means to amelio­ rate inequity, violence, and injustice? And what might this book’s own span, from the aspirational nationalism of the Charter to Slash’s resis­ tance to constitutional rights, offer for interdisciplinary thinking about the relationship between texts, nation, and the cultural-legal meaning of rights? A Culture of Rights has been a study of the strange temporalities of Canadian rights discourse. In Oakes Chief Justice Dickson described, by way of section 1’s ideal “free and democratic society,” a twofold model of rights in Canada. On the one hand, Dickson’s interpretation of sec­ tion 1 acts as an aspirational directive: that “Canadian society is to be free and democratic” (Supreme Court of Canada 1986, 136). Portrayed

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as a necessary step in justifying any infringement of Charter rights by the state, this ideal provides an “ultimate standard” (ibid.) that has not yet been attained. At the same time, the values of a free and democratic society are vital to the Charter itself. They are said by Dickson to un­ derlie the Charter, giving the document its genesis, significance, and purpose. These values are not solely aspirations, then: through their incorporation into the Charter, and so the Constitution, they are con­ ceived of as legally foundational to Canada. And, as the response to the Charter indicates, these constitutional ideals are also seen to be national ideals, constitutionalized because they represent collectively held be­ liefs. The values of a free and democratic society both contextualize the Charter and signal its limits, as only constraints in accord with those values can be legal. They mark both what Canada is and what it is to be. This present/future conception of a Canada where rights are pro­ tected can be seen in the deferrals of Bodily Harm and Not Wanted on the Voyage, and the uncertainty of the locus in which ongoing violations might be redressed. Due to the racism that endures despite Japanese Canadians finally finding in Canada “Reconciliation. Liberation. Belong­ ingness. Home” (Kogawa 1993, 277), the seemingly optimistic ending of Itsuka turns to the future to find where rights might ultimately be realized. Similarly, literary and judicial engagements with legal proce­ dures assert, in their varying ways, that law’s failings can be corrected and redeemed not through supplanting the trial, but through future tri­ als (whether in courts or novels) that better heed legal rights to a “fair and public hearing.” The focus on analogy developed by the Supreme Court of Canada in its section 15 equality rights jurisprudence suggests a parallel model of legal protection that is always contingent on courts finding a future similarity between already protected grounds and pos­ sible categories of discrimination. Aboriginal rights in Slash, however, have a different engagement with time than the “is/is to be” symbolized by section 1. The novel still looks to the future in the form of idealized new leaders, but unlike the other texts in this study, which usually see the past as a site of the viola­ tion of rights, it also looks to the past for the ways of life from which these leaders are to draw. This outlook is something quite different from the judicial understanding in Van der Peet of constitutional Aboriginal rights as past, constrained by what courts interpret Indigenous practices to have been in order to ascertain what they now are. Rather, because of the impact of colonialism, Indigenous survival means returning to what was cultural practice, but also adapting it.

Conclusion 151

There is a danger in this view, of course, of nostalgia. There are also lacunae in Armstrong’s novel, particularly around gender violence and inequity, that require addressing in far greater detail by the reader. In thinking about the model of Aboriginal rights in Slash, these issues should sit alongside the necessity of examining not only the temporality of rights, but also the interconnected question of how law has spoken for Indigenous people in Canada, categorizing them, giving and de­ nying status, legislating them out of existence. State instruments from the Indian Acts to the 1969 White Paper to the Constitution Act, 1982, have all sought to regulate Indigenous people and communities, often in a manner that incorporates the language of rights. Armstrong’s and Turpel’s resistance emphasizes that even in their most seemingly be­ nign forms, such moves are colonial. Their origins in rights discourse do not change this, and Slash seeks to act as a counter to it. As I gestured towards in the context of Bodily Harm, the potential scope of Canadian rights discourses is also not solely domestic. While developing this theme in depth is beyond the scope of this book, it is worth considering how a national discourse of rights functions out­ side the boundaries of the nation-state. Often affectionately termed a “middle power,” Canada regularly acts beyond its geopolitical bor­ ders, whether pursuing foreign policy aims, trade, and membership in global institutions like the United Nations, or in its military, security, and intelligence actions. If the Charter, in the words of Citizenship and Immigration Canada’s A Newcomer’s Introduction to Canada, “describes the basic principles and values by which Canadians live” (Government of Canada 2006, 37), how are these principles and values “lived” by Canada outside its geographic and juridical boundaries? I would argue that the rights and freedoms enumerated in the Charter do influence Canada’s foreign actions, and that their symbolic power is formative of how Canada represents itself globally. A string of Supreme Court of Canada cases on criminal procedure, for exam­ ple, frame the international actions of the Canadian state in terms of rights. In United States v. Burns (Supreme Court of Canada 2001), the court found that extraditing an accused to a country to face the death penalty would be in breach of section 7 of the Charter unless the re­ ceiving state gave assurances that the penalty would not be applied (Burns was distinguished from the earlier Kindler v. Canada [Supreme Court of Canada 1991a] and Reference Re Ng Extradition (Can.) [Supreme Court of Canada 1991b] decisions on the grounds that Canadian and international concerns about the death penalty had intensified in the

152  A Culture of Rights

intervening decade1). Suresh v. Canada (Supreme Court of Canada 2002c) similarly found that deporting a person from Canada to a state where facing torture was likely would be in breach of section 7. And in Canada (Justice) v. Khadr (Supreme Court of Canada 2008a), the court found that the Canadian government must adhere to the principles of fun­ damental justice enshrined in section 7 by disclosing evidence taken from a defendant incarcerated extraterritorially. In this case, Canada’s obligations under international human rights overruled the traditional deference to the laws of other states because the US Supreme Court had already found the conditions at Guantanamo Bay, where Khadr was held, to be in breach of domestic US and international law (136). Most often, though, Canadian rights discourses are disseminated in­ ternationally through non-juridical means, including through state pol­ icy. In Canada’s International Policy Statement: A Role of Pride and Influence in the World (Government of Canada 2005), for example, individual Canadians are placed symbolically at the heart of foreign policy, jus­ tifying government action as a manifestation of national beliefs about the importance of protecting and promoting rights. This synechdochal thinking mirrors the relationship between Canada and rights discourse in Catherine Bush’s (2000) The Rules of Engagement, where the central character comes to see her experiences of civil warfare and mass atroci­ ty as an impetus to act globally, thereby internationalizing the personal. In both texts a Canadian or Canadian’s belief in rights impels interna­ tional engagement, linking rights as a national ideal with representa­ tions of Canadians acting outside of Canada in ways that evoke rights’ domestic prominence (Authers 2009). A number of other anglophone Canadian novelists draw connections between what Canada and Canadians do (or should do) overseas and the actions taken by fictional characters on rights issues. The protago­ nist of Alan Cumyn’s Burridge Unbound (2000), a sequel to Man of Bone (1998), is a Canadian diplomat who was kidnapped and tortured while on assignment in the Pacific island nation of Santa Irene. On his release Bill Burridge becomes a human rights activist, returning to Santa Irene after a change of government to act on its Truth Commission and to seek reconciliation for the still-fragile nation and for himself. His mis­ sion seemingly fails when Santa Irene undergoes a coup d’état, but Burridge escapes, and his time on the island gives him the possibility of a healed personal life and a renewed purpose as an activist. As with Bodily Harm, Burridge Unbound offers a sombre depiction of the global place of Canada, but one that also asserts that individuals, and through

Conclusion 153

them nation-states, can have a transformative influence in the interna­ tional realm. Michael Ignatieff’s 2003 novel, Charlie Johnson in the Flames, takes place not in the fictional, tropical climes of Cumyn’s and Atwood’s books, but in Kosovo during the 1990s. Charlie Johnson is a seasoned jour­ nalist who, witnessing the death of a woman he endangered and then tried to save, returns to find the soldier responsible. Charlie’s attempt, which is described as being partly for justice and partly for revenge, is ultimately futile. Other characters subsequently portray Charlie as na­ ïve because he seeks to know why such atrocities are committed, rather than recognizing that “[w]hat matters is that they do it” (2003, 156). For Charlie, however, there is significance in the act of engagement. Whereas before “he had witnessed so much in a life of reporting and had done so little,” now he needed not only to confront the woman’s murderer, but “to convince someone, anyone, of the necessity of” ac­ knowledging this one act of murder amidst atrocity (119). Charlie dies at the hands of the same soldier who killed the woman, and his friends destroy the tape he made of the man’s confession, a confession that also acknowledges Charlie’s own endangering of the woman. It is a bleak ending to a novel that nevertheless does not preclude the novel form itself acting as a legitimate form of witness. Throughout these works2 a similar theme emerges, wherein pro­ tagonists find personal consequences in human rights abuses outside Canada that then become synecdoches for international action or in­ action. To be sure, Bush’s novel is careful in its representation of this relationship, with the violence affecting its protagonist coming not only from the “dark” (to adapt Sherene Razack’s [2004] term) parts of the world outside Canada, but also from within her home city of Toronto. Nonetheless, in the international purview of such novels there remains a sense that outside of Canada Canadians will find their complacen­ cy about rights challenged and their dedication to rights ultimately strengthened. Rights are often deployed in explicitly outward-facing ways in Ca­ nadian foreign policy. Like the protagonist whose exposure to rights violations reaffirms her belief in rights’ necessity, however, the deploy­ ment of rights in policy is also often used to say something about the connection between rights and Canada, either to Canadians or to the global community. Canada has, or has had, what Louise Arbour and Fannie Lafontaine term an “international human rights reputation [that] derives in part from its support of the international human rights

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protection system” (2007, 263). It is a characterization of Canada with broad circulation, and yet criticisms have also rightly been made of Canada’s international human rights record despite this reputation. Dominique Clément (2012) has written on Canada’s initial resistance to the Universal Declaration of Human Rights and the country’s histori­ cal domestic disinterest in international human rights. Critics have also challenged the status of peacekeeping as a Canadian rights mythology,3 or have argued that what Arbour and LaFontaine describe as “an en­ dearing tendency” by Canadians in “nurturing their national self-image as humanitarian, pro-human rights, and internationalist” (2007, 240) frequently acts to constrain substantive progress on rights issues. Dur­ ing its appearance before the UN Human Rights Council’s Universal Periodic Review in 2009, Canada was subject to criticisms concerning its ­record as a member of the council, its refusal to participate in the 2001 and 2009 World Conferences against Racism (the Durban conferences), and its failure to sign onto the Optional Protocol to the Convention against Torture or to endorse the Declaration on the Rights of Indig­ enous Peoples (the latter was subsequently endorsed in 2010).4 Despite these criticisms, the connection between Canada and rights remains. Global Affairs Canada writes on its website that “Canadians expect their government to be a leader in the field of human rights by reflecting and promoting Canadian values on the international stage” (Government of Canada 2015, n.p.). Documents such as Canada’s Inter­ national Policy Statement (Government of Canada 2005) often claim that Canadian rights norms have the potential to shape the globe for the better. Other examples cited include Canada’s sponsorship of the Inter­ national Commission on Intervention and State Sovereignty, which developed the Responsibility to Protect doctrine, or Canada’s role in cir­ culating “non-papers” suggesting new human rights reporting proce­ dures for what ultimately became the Universal Periodic Review (Gaer 2007, 113–16). I have written more on this elsewhere;5 in this brief over­ view, I simply want to suggest that when Canada acts abroad, it often frames its actions in the context of rights, and that this framing is as much about a domestic belief and expectation as it is about the good of rights themselves. Literary and political representations each rewrite the relationship between the individual, the state, and Canadian rights discourse, responding according to their institutional, generic prefer­ ences. In doing so they often suggest that in their international engage­ ments, both Canada and Canadians work to disseminate a national ideal of rights and, as a consequence, globalize it.

Conclusion 155

This relationship between Canada, rights, and the international rep­ resents one further way of thinking about how rights discourses are integral to a Canadian national imaginary, and how those imaginings have cultural-legal consequences. Often operating in either quite dif­ fuse ways (through vague allusions to “Canadian values”) or by refer­ ence to the rights protected by the Charter, internationalized Canadian rights discourse often replicates its domestic forms. In doing so, how­ ever, the conception of rights that is promulgated tends, as it also does domestically, to assume a somewhat conservative form. The rights enumerated in the Charter, which novels and legal texts read as present-yet-deferred in the Canadian nation-state, represent only an aspect of how rights are framed internationally. They tend to focus – although not exclusively – on individuals, and to be heavily influenced by civil and political rights models and anti-discrimination law, with language and education rights being notable exceptions. How­­ ever, this focus delimits the possibilities that might come from other conceptions of rights, such as those economic, cultural, and social rights found in the Universal Declaration of Human Rights and protected in international law by instruments including the 1966 International Covenant on Economic, Cultural and Social Rights, to which Canada became a state party in 1976 (Jackman and Porter 2008, 210). A number of Canadian novels challenge the primacy of civil and political rights by representing socio-economic inequality as central to ideas of rights and injustice. Larissa Lai’s Salt Fish Girl offers a critique of capitalism as manifestly inequitable, eroding both the health of la­ bourers (2002, 118, 122–3) and any promise of protection that the state might offer (84–5). The depiction of the 1919 Winnipeg General Strike in Margaret Sweatman’s (1991) Fox represents the state as complicit in capital, exercising its power in the violent suppression of demonstra­ tors. Michael Ondaatje’s In the Skin of a Lion reads migration and la­ bour together, the brutalizing effects of work for migrants and the poor in Toronto (1996, 124) operating in parallel with the city’s laws against association by foreigners: “if they speak this way in public, in any language other than English, they will be jailed” (133; emphasis in original). A security measure motivated by fear of political action, the law equally prohibits attempts to organize collectively in order to bring about the political change that could produce better protections of labour rights. These works, and the many like them, suggest that there are forms of rights other than those proffered by the Charter, and attempt to represent

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the importance of these apparently marginalized rights, albeit with little support from Supreme Court of Canada Charter jurisprudence. Arguments have been made that sections 7 (“life, liberty and security of the person”) and 15 (equality rights) both allow for the possibility of economic rights in Canada, but so far the Supreme Court has not endorsed that position – although in Gosselin v. Quebec, the court did not definitively rule it out (Supreme Court of Canada 2002a, 491–2; see, more generally, Jackman and Porter 2008, 210–14). Canada also has in­ ternational legal obligations to redress socio-economic inequality, and its failures to do so were commented on during its participation in both the first and second cycles of the Universal Periodic Review. Yet economic rights are infrequently articulated as rights in contem­ porary Canada, something that might go some way to explaining the lack of urgency with which they are viewed, in contrast to civil and political rights. Rights may be seen as part of a national ethos, but in their failure to be seen as rights, economic rights (and, indeed, cultur­ al and social rights, also protected by the International Covenant on Economic, Cultural and Social Rights) lose some of the political and popular will that appends to the rights enumerated in the Charter. This failure suggests that “rights conservatism” – a tendency to narrowly define the scope of rights protection – is intrinsic to thinking about what constitutes a right in Canada. Moreover, it also emphasizes an important limit within the temporality of Canadian rights discourse. Integral to the “is/is to be” logic of the Charter is the idea that rights do not and need not change, as the future in which they are substantively protected ensures rights as they are understood now. Even in section 15’s analogic interpretation, new grounds will be protected where they are like the enumerated grounds, that is, what already is protected. Equating Canada with an ideal model of rights that is fully imagined in the present limits the potential scope of the rights that are to be pro­ tected and constrains how Canada will effect that protection. The in­ ability of rights to be realized now means that they are carried forward, seemingly unchanged. Rather, the expectation is that Canada (both the state and its people) will change to afford those rights better protection. So as rights discourses evolve on a global scale – witness, for ex­ ample, the peasants’ rights movement, or the growing number of eco­ nomic, cultural, and social rights with a special rapporteur speaking on their behalf in the UN system – Canadian rights discourses may well become fossilized in their current civil and political terms. The legal system will necessarily respond to new factual situations in the form

Conclusion 157

of cases, but the underlying rights guaranteed by that system risk os­ sifying, always looking back solipsistically to determine their response, as exemplified in section 15’s analogy test. This observation is not to suggest that rights are necessarily the only way of combating global inequality and oppression. Indeed, I would argue that while rights can be immensely useful tools in that regard, they should be seen as one of a number of methods of seeking global justice. In Canada’s case there is a parallel danger that by tying rights so strongly to a national ideol­ ogy they might, as a consequence, preclude other forms of change. This situation may manifest in an over-reliance on courts when other, more overtly political means of seeking equality could be more effective, or a relative privileging of the rights codified in the Charter over other types of rights or protections. I began by asking a number of questions concerning rights in Canada, notably about how law and literature give rights meaning and what rights are seen to be a part of Canada and its society. In seeking to an­ swer these questions, I have argued that Canadian rights discourses must be understood as a matter of culture, and therefore as a matter of the manifold ways in which rights have permeated Canadian literature and law. Through their engagement with the idea that rights are an important value in contemporary Canada, the legal and literary texts at the heart of this study have participated in the work of imagining rights in Canada. They have naturalized and, at times, disrupted the equation between Canada, Canadians, and rights. They have shaped the mean­ ing given to rights, and they have participated in the strange tempo­ ralities through which rights are declared and deferred. Any study of rights in Canada requires paying attention to the imaginative space in which rights operate. As A Culture of Rights has sought to demonstrate, understanding that space means understanding the complex, interdis­ ciplinary interplay between Canada, its law, and its literature.

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Notes

Introduction 1 The term “patriation,” as Peter Hogg notes, is “a uniquely Canadian coin­ age” (2006, 57), with no clear legal lineage or application. Coming into use during the constitutional debates of the early 1980s, it denotes the symbol­ ic autonomy of the Canadian constitutional structure following 1982, draft­ ed domestically and vesting the capacity for constitutional change in the provinces, rather than the United Kingdom. It “conveys the idea of our Constitution becoming a Canadian instrument” (57; emphasis in original), while distinguishing it from autochthonous constitutions, such as that of the United States, created “anew” through revolution (58). 2 The structure of the Canada Act, 1982, is worth clarifying. The Canada Act, an act of the Parliament of the United Kingdom, includes the Consti­ tution Act, 1982, as its schedule B, part I of which is the Canadian Charter of Rights and Freedoms. All these enactments form part of the supreme constitutional law of Canada and are included in references to the Consti­ tution of Canada, as defined by section 52(2) of the Constitution Act, 1982. The former British North America Act, 1867, renamed the Constitution Act, 1867, by the 1982 Constitution Act, remains part of the Constitution of Canada, as do some thirty other acts and orders (Constitution Act, 1982, section 52[2][b]). 3 While not wholly interchangeable, ideas of what constitutes a human right and what a civil liberty or a political freedom are frequently equated in discussions of human rights. In this study I will follow the terms adopted in the Charter (legal rights, equality rights) where they append to specific rights or liberties. “Charter rights” will refer to these rights and freedoms collectively. The particular focus of my discussion is on what I am terming

160  Notes to pages 7–36 “Canadian rights discourses,” narratives about human rights in Canada that draw on, and are exemplified by, Charter rights, but that often assert human rights values not included in the Canadian constitution. Canadian rights discourses emulate, but are frequently distinct from, a broader body of “human rights.” These are exemplified at international law by the Universal Declaration of Human Rights, but also frequently uncodified and often nebulous in construction. 4 See Clément (2012) for a discussion of this interrelationship. 5 Pearson is usually credited with establishing Canada as an important ­provider of effective global peacekeeping. See Razack (2004) and Rubboli (2005) for two of the many critiques of the mythologization of Canadian peacekeeping efforts. See also Brooks and Verdecchia (2001) for a dramatic engagement with this representation of Canada as peacekeeper (especially pages 28–34). 6 In Lavell the Supreme Court found in a majority decision that a section of the Indian Act, 1970, that took Indian status from women who married non-­ status men (but did not do the same to status men who married non-status women) did not violate the Bill of Rights’ guarantee of equality as it was ap­ plied equally to all Aboriginal women (Supreme Court of Canada 1974). In Bliss the court held that a differential provision under the Unemploy­ment Insurance Act, 1971, which pertained to pregnant women was not sex dis­ crimination because “[a]ny inequality between the sexes in this area is not created by legislation but by nature” (Supreme Court of Canada 1979, 190). 7 The other two categories offered were “It’s noteworthy, but not a big deal” (18.16 per cent) and “It’s only an issue for Trudeau fans” (15.46 per cent). 8 See, for example, Nanos (2007). Bernard Amyot (2012) notes that polls at the time of patriation also indicated popular support for the Charter amongst francophone Québécois (n.p). 9 See Dodek (2012) for a recent counter-opinion. Chapter One 1 For a more detailed analysis of the history of internment and dispersal, see in particular Sunahara (1981) and Roy Miki (2005). 2 This gesture by Kogawa reflects the “Memorandum” of the Co-Operative Committee on Japanese Canadians with which she ends Obasan. Unlike the “Memorandum,” which, as Roy Miki notes, has Japanese Canadians “spoken for” (1995, 144), the “Acknowledgment” has Japanese Canadians dialogued with, reproducing the initial section of the agreement between the National Association of Japanese Canadians and the Government of

Notes to pages 38–49 161 Canada “on behalf of all Canadians” (Kogawa 1993, 281). Kogawa’s repro­ duction retains the Canadian coat of arms, emphasizing the official nature of the document, but it is perhaps a sign of ambivalence that she does not also include the specific remedies of the agreement, which serve, in addi­ tion to the “Acknowledgment,” as the material consequences of redress. Doing so may elevate the document symbolically, away from more puta­ tively mundane outcomes, but it also distances the novel from what were hard-fought, and equally symbolic and important, outcomes. Emily Kato similarly includes the “Acknowledgment” without the further terms of the agreement. 3 See, for instance, Secretary of State David Crombie’s statement in the House of Commons on 19 May 1987 that “we have no common ground on the question of money” (House of Commons 1987, 6206), amongst others. 4 This project has not solely been Kogawa’s, with both Kerri Sakamoto’s (1998) The Electrical Field and Wayson Choy’s (1995) The Jade Peony similar­ ly providing literary witness to the internment and dispersal of Japanese Canadians. 5 The Royal Canadian Legion, a Canadian military veterans’ organisation. 6 See also McGonegal’s more recent “The Politics of Redress in Post-9/11 Canada” in Wilson (2011). Chapter Two 1 As Mark Cohen (2001) notes in his reading of censorship in Bodily Harm, economic factors can have a chilling effect on certain forms of expression, as when her editors’ refusal to pay Rennie for politically provocative jour­ nalism prompts her to write about more superficial, but also more profit­ able, topics such as fashion. Atwood terms this “marketplace” control in her Amnesty address (1982, 395), and its connotations can also be seen in the publishing industry’s promotion of certain works over others, perhaps accounting, as I discussed in my introduction, for the prominence of cer­ tain types of human rights narrative over others in anglophone publish­ ing. It can also have a potential chilling influence on authors who are reliant on grants, prompting them to avoid criticizing the state in order to better their chances of funding. 2 See, amongst many others, Butler (1997) and the essays in Waluchow (1994) for a sense of the range of ideas about expression’s potential for both good and harm. 3 Throughout this chapter I will use both the terms “obscenity” and ­“pornography.” Within Canadian law, there is no criminal regulation

162  Notes to pages 53–65 of pornography per se. Rather, obscenity law is concerned with certain types of representation of violent or sexual content, and so the categories of what is obscene, while murky, are nonetheless narrower than what might be termed pornography in general speech. Conversely, in Bodily Harm the conservative inhabitants of Rennie’s home town of Griswold use the term “obscene” to signify cancer as scandalous and self-inflicted, analogically emphasizing both moral censure and social and personal harm (Atwood, 1996b, 82), and giving the term a breadth it does not have in legal discourse. 4 Rennie notes that attributing symbolism to cancer is hardly unique to Griswold: “[o]ther people think that too, but in different ways. Rennie used to think it herself. Sexual repression. Couldn’t act out anger” (Atwood 1996b, 82). 5 That is, section 159(8), which was section 163(8) of the Criminal Code, 1985, at the time of R v. Butler. 6 The juridical dismissal of consent in such circumstances, despite its ­centrality to bondage, domination and submission, and sadomasochistic sexual practices, soon manifested again in the obscenity prosecution of the owner of Toronto’s queer Glad Day Bookshop for stocking the lesbian erotic magazine Bad Attitudes (see Cossman et al. 1997, 132–6). It would be the first in a string of cases where queer bookstores were involved in ­either obscenity prosecutions or disputes with Canada Customs and where the Butler decision was central, demonstrating the problem that a majoritarian approach to what constitutes sexual acceptability poses to sexual minorities (see, for example, Cossman et al. 1997, passim, and Jochelson and Kramar 2011, 44–57). 7 See, for example, the chapter “Analogical Reasoning” in Sunstein (1998) for an extended discussion of the logic and limitations of legal analogy. Law’s use of analogy is also at the core of the discussion of legal interpre­ tation in chapter four. 8 See also Mahoney (1991, 169), in which Mahoney argues for an analogic parallel between the regulation of obscenity and of the tobacco and alco­ hol industries, to justify legal intervention based on evidence of serious harm that is “suggestive,” rather than clearly “dispositive”. 9 This changes with Rennie’s diagnosis of cancer, her disease individuating her body in Jake’s eyes, even as he is “fascinated” (Atwood 1996b, 20) by the violence of her mastectomy. 10 Lorna Irvine makes this connection even more explicit, urging the reader to note the allusion “to Atwood’s visual politics in the carefully crafted

Notes to pages 65–92 163 and sensuous images of Bodily Harm for, somewhat like the sculptor, the author uses a female body to help her readers experience exactly what ­society ‘deals out’” (1993, 68). 11 See Lacombe (1988, 59–64) for a discussion of Project P’s operations. 12 As such, I would affirm Roberta Rubenstein’s statement that Bodily Harm and The Handmaid’s Tale both “demonstrate that female experience cannot be understood apart from the real structures of power” (1987, 101). Howells goes on to argue that “Atwood does not elide the sexual differ­ ences emphasized by pornography though she does point to the features that all male and female bodies share and to those ways in which both ­sexes can be abused and victimized” (1996, 123). 13 See also Human Rights Watch 1994, passim; Justice W.I.C. Binnie’s judg­ ment for the majority in Little Sisters Book and Art Emporium v. Canada (Supreme Court of Canada 2000); and LEAF 2014, passim. Chapter Three 1 Fiction’s capacity to eschew conclusion is one of literature’s most apparent disciplinary differences with law, and a number of the novels under dis­ cussion here reject determinate endings: Bodily Harm and Not Wanted on the Voyage, for example, both end irresolutely. However, even when they challenge some of law’s forms and claims, these novels maintain a dia­ logue with law and are influenced by legal aesthetics. Thus, for example, in their approach to techniques including the presentation of individual stories told in the first-person, or ideas about truth-telling, the works ­discussed in this chapter demonstrate an investment in the procedures of the trial even where they are critical of it. 2 My understanding of improvisational practice here is that while it is ­constrained by procedural forms – evidentiary rules determining what is relevant and admissible – the trial nonetheless has “an openly responsive dimension” through which testimony is produced (Ramshaw 2006). This discussion is indebted to Sara Ramshaw’s Derridean reading of law’s ­improvisatory practices and potentials. 3 Richard Delgado observes that in civil rights litigation in particular, telling stories before the law can demean the teller, “draining away outrage and converting him or her into a supplicant” (1989, 2429). 4 Tanovich (2006) suggests that some recent appeal cases show willingness by a small number of courts and tribunals to begin to address this issue: see especially pages 37–41.

164  Notes to pages 102–10 Chapter Four 1 See Mailloux (1990) for a discussion of the Regan administration’s attempt to similarly reinterpret the Anti-Ballistic Missile Treaty to suit government policy during the mid-1980s. 2 I use the term “equality rights” in this chapter to reflect the language of the Charter and to emphasize the importance of that language in Canadian rights discourse. In doing so, however, I also acknowledge Nitya Iyer’s adoption of “anti-discrimination law” to denote “the structural similarity between equality rights and human rights” and to emphasize her conten­ tion that “the egalitarian liberal conception of equality in such legislation defines equality as neither more or less than anti-discrimination” (1994, 182 n7). I concur with Iyer’s reading of the limits of equality rights, but feel it important to stress the language of the Charter in analysing the ­failures of equality rights to create a wider-reaching, substantive equality. 3 A notable exception to this lies in affirmative action laws and programs. Such programs will often have as their object “the amelioration of condi­ tions of disadvantaged individuals or groups” (Canadian Charter of Rights and Freedoms, 1982, section 15[2]), and as such will be discriminatory on their face. Much equal opportunity legislation in Canada provides, as does the Charter, explicit protection for these schemes, with the inten­ tion of forestalling challenges to their legality similar to that experienced by programs in the United States (Hogg 2006, 1198 n 200). 4 This mirrors the interpretive frameworks adopted by both Noah and Ham. While each conducts experiments, Noah’s are aligned with vivisec­ tion, in his murder of Mottyl’s kittens, and mystic acts, such as alchemy, that involve animal sacrifices. Ham, on the other hand, subscribes to a ­science that, like his father’s, seeks to classify (Findley 1996, 74, 337), but is coupled “with a love of life so great that he could not bear to kill” (25). Despite their similarities, their different “terms of reverence” place them against one another ideologically. 5 Consider this statement on the wording of section 15(1) by Roger Tassé, then Canadian Deputy Minister for Justice, given prior to the Charter’s ­enactment: “We think that to use the expression ‘in particular’ would have the effect of emphasizing, underlining that there are some grounds which are more invidious than other grounds. They are the ones which are specifi­ cally mentioned in the clause … [I]t would be open to the court to add to the list … But perhaps the test which would apply there would have to be a higher one than the test which may be applied in the case of those grounds which the clause does underline” (Quoted in Bayefsky and Eberts 1985, 49; emphasis added).

Notes to pages 110–23 165 6 I use the term “recognition” here in a sense that is similar to, but perhaps more limited in scope than, that adopted by Charles Taylor in “The Politics of Recognition.” There, Taylor argues that a political recognition of differ­ ence, rather than a universalist equality where all are treated identically, is “not just a courtesy we owe people. It is a vital human need” (1994, 26). His “politics of recognition” is thus akin to Cory’s broad conception of equality in Egan (Supreme Court of Canada 1995, 595), although the ana­ logic reasoning of the Supreme Court in that case resulted in a more limit­ ed meaning. A complete analysis of Taylor’s position is beyond the scope of this chapter, but I would direct the reader to Fraser (1997), Gutmann (1994), and Kamboureli (2000), amongst others. 7 Justice Sopinka’s concurring decision differed from La Forest’s in that he upheld the appellants’ section 15(1) claim while finding that the impugned legislation was justified under section 1 of the Charter. 8 Dworkin adds in a note that the first author of this novel, while not re­ sponding to a particular piece of text, is nonetheless constrained generically: “[e]ven the first novelist has the responsibility of interpreting to the extent any writer must, which includes not only interpreting as he writes but inter­ preting the genre in which he sets out to write” (1982, 192 n4). Dworkin (1983) reiterates this point in his later article “My Reply to Stanley Fish (and Walter Benn Michaels): Please Don’t Talk about Objectivity Any More.” 9 In describing the idea of “hard cases,” Dworkin suggests that rather than the fiction of pre-existing rights, the legitimacy of decisions in cases that seemingly have no precedent comes from an interpretive practice wherein “institutional history acts not as a constraint on the political judgment of judges but as an ingredient of that judgment, because institutional history is part of the background that any plausible judgment about the rights of an individual must accommodate” (1977, 87). The legitimacy of rights comes from a political, as well as legal, history, Dworkin argues, and their application to new situations is therefore justified by “the fairness of ­treating like cases alike” (113). 10 Noah’s analogy assumes, as he does, that animals are not themselves ­worthy of protection. This is a belief Not Wanted on the Voyage critiques through its representation of the sentience, language, and complex ­socio-cultural lives that animals lead in the novel. 11 In L’Heureux-Dubé’s formulation the characterization of those subject to discrimination can be intersectional, a positioning she ascribes to the applicants in Egan (Supreme Court of Canada 1995, 567). 12 The more recent decisions of R v. Kapp (Supreme Court of Canada 2008b) and Ermineskin Indian Band and Nation v. Canada (Supreme Court of

166  Notes to pages 125–30 Canada 2009) have heralded a return by the Supreme Court to the Andrews test, with its focus on analogous grounds. 13 L’Heureux-Dubé only briefly considers the idea of a free and democratic society in her Egan dissent, referring to Dickson’s finding in R v. Big M Drug Mart that “inherent human dignity is at the heart of individual rights in a free and democratic society” (Supreme Court of Canada 1995, 543). In doing so, however, she approvingly cites Justice Wilson (in McKinney v. University of Guelph) on the promise of equality (ibid.). While I would argue that L’Heureux-Dubé’s focus on impact does suggest a temporality of the present in addressing equality rights questions, her dissent is certainly not free of an ideal, imagined future Canada in which rights will be realized. 14 McLachlin sees these disparities as primarily, but not exclusively, econom­ ic, a consequence of “market-based representative democracy” (2001, 20). By contrast, the Charter’s enumerated grounds are described by her as ­denoting exemplary instances “which have historically proved unjust and harmful to the affected individuals and to society as a whole” (ibid.). Chapter Five 1 It is worth noting that, like Itsuka/Emily Kato, Slash has been significantly rewritten since its initial publication. I work here with the 2007 edition of Armstrong’s novel, which is condensed but otherwise similar to earlier versions. 2 “Aboriginal rights” is used in this book in the broad sense of Peter Kulchyski’s definition: “they could be seen as a specific form of customary rights, rights that developed over time, through repeated practice of an ­activity” (2013, 21). For Kulchyski, Aboriginal rights are to be contrasted with universal human rights. I use the term “constitutional Aboriginal rights” when referring to the form of these rights articulated in the Charter and Canadian Constitution. 3 See Jones (2000) for a survey of critical work on the novel. 4 Armstrong has spoken of her desire to present contemporary Indigenous history as “something that students could connect and relate to other than just a dry history of dates” (quoted in Jones 2000, 60). As Jones notes, the text’s pedagogic origins not only contextualize its use of real events as part of Slash’s growing sense of Indigenous identity, they also form an integral part of its didactic aesthetic practice (2000, 59–61). Something similar can be said of Kogawa’s use of politics as form in Itsuka. 5 The Indian Act, 1985, defines those Indigenous people subject to it as “Indians.”

Notes to pages 131–46 167 6 King gave the 2003 Massey Lecture series, subsequently published that year as The Truth about Stories: A Native Narrative. 7 These amendments to the Indian Act came about after Sandra Lovelace challenged the previous discriminatory provisions at the UN Human Rights Committee. In Lovelace v. Canada (36 U.N. GOAR Supp. [No. 40] Annex XVUU; U.N. Doc. A/36/40 [1981]), the committee held that the Indian Act’s provisions were in breach of article 27 (minority rights) of the International Covenant on Civil and Political Rights. Lovelace caused Canada “considerable international embarrassment” (Borrows and Rotman 2007, 785) and, along with the passage of the Constitution Act, 1982, and the accompanying constitutional conferences, influenced the decision to amend the Indian Act (785–6). 8 See the Supreme Court of Canada (2008b) case R v. Kapp for a discussion of the application of section 25 of the Charter to constitutional Aboriginal rights. 9 This later became a series of conferences (Borrows and Rotman 2007, 99). 10 Titled “Rights of the Aboriginal Peoples of Canada,” part II of the Constitution Act, 1982, consists of sections 35 and 35.1. Section 35.1 was added to part II by the Constitution Amendment Proclamation, 1983, and legislated for constitutional conferences before any amendment could take place to parts of the Constitution pertaining to Aboriginal peoples. 11 Justice McIntyre took no part in the judgment (Supreme Court of Canada 1990b, 1075). 12 See also Binnie’s (1990, 239) comment on the troubling “implied power of extinguishment” (emphasis in original). 13 The Supreme Court in Sparrow is somewhat cognisant of this, noting “[f]ishing rights are not traditional property rights. They are rights held by a collective and are in keeping with the culture and existence of that group. Courts must be careful, then, to avoid the application of traditional common law concepts of property” (Supreme Court of Canada 1990b, 1112). In determining the Musqueam right to fish, then, the court calls for sensitivity to “the aboriginal perspective itself on the meaning of the rights at stake” (ibid.). While it does not deny the Canadian judicial system’s ­capacity to adjudicate constitutional Aboriginal rights – and so to incorpo­ rate them into the broader schema of the law – the court argues here that ­section 35 rights must be interpreted through a different conceptual ­paradigm to that of common law property, potentially distinguishing them from non-Indigenous understandings of legal rights more generally. 14 See also Kulchyski (2013, passim) for the relationship between Aboriginal rights and Indigenous ways of life.

168  Notes to pages 147–54 15 I am indebted to Hilary Charlesworth and Glen Coulthard for comments that have helped me to develop my thinking here. Conclusion 1 See, for example, Burns (Supreme Court of Canada 2001) at pages 356 and 361. 2 This list is by no means complete. Other notable recent works on this theme include Ondaatje’s Anil’s Ghost (2000) and Gil Courtemanche’s Un dimanche à la piscine à Kigali (2000), first published in English as A Sunday at the Pool in Kigali (2003). Brooks and Verdecchia’s 1991 play, The Noam Chomsky Lectures, while generically and thematically quite different, also engages with many of the same ideas. 3 See Introduction, note 5. 4 See, for example, statements by Algeria, Brazil, Cuba, Russia, and Norway, amongst many others, in the United Nations Human Rights Council’s (2009b) Report of the Working Group on the Universal Periodic Review: Canada. 5 See Authers (2009).

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Index

Aboriginal rights, 6, 126, 128, 130–48, 150–1, 166n2, 167n8, 167nn13–14; and colonialism, 128, 131; consti­ tutional, 6, 126, 128, 132–48, 150–1, 166n2, 167n8, 167n13; differ­ ences with human rights, 133, 140, 166n2; temporality of, 134, 142–5, 147–8, 150–1; and treaties, 130–2, 134. See also Armstrong, Jeannette; Constitution Act, 1982, section 35; Indian Act, 1876–1985; Indigenous peoples in Canada; Supreme Court of Canada, R v. Sparrow (1990), and R v. Van der Peet (1996) Amyot, Bernard, 14, 160n6 analogy, 48–9, 51–5, 61–71, 84, 101, 103, 109–11, 121–3, 125, 127, 135, 138, 150, 156–7, 161n3, 162nn7–8, 165n10, 165n12. See also Atwood, Margaret, Bodily Harm, and anal­ ogy; equality rights, and analogy; Supreme Court of Canada, Egan v. Canada (1995), and analogy, and R v. Butler (1992) and analogy Arbour, Justice Louise, 101–2, 104, 153–4

Armstrong, Jeannette Slash, 126, 128–30, 132–4, 138–9, 141–2, 144–51, 166n1, 166n4 and Aboriginal rights, 128, 130, 133–4, 138–9, 141–2, 145–8, 150–1 and assimilation, 128–9, 133–4, 139, 141–2, 145 and capitalism, 128, 141–2, 145–6 and colonialism, 128–30, 139, 141, 145, 150–1 and constitutional reform, 129, 133–4, 138–9, 145–6, 148 and constitutional rights, 128–9, 133–4, 138–9, 141–2, 145–8, 150–1 and gender, 147–8, 151 and Indigenous culture and community, 128–30, 133–4, 139, 141–2, 145–8, 150 and Indigenous land claims, 129, 138–9, 141, 145 and Indigenous sovereignty, 128, 130, 138 and politics, 129–30, 132–4, 138–9, 141, 145–7

184 Index publication history of, 128–9, 166n1, 166n4 and the relationship between Indigenous peoples and the Canadian state, 128–30, 132, 134, 138–9, 141, 145–8 and resistance to constitutional Aboriginal rights in, 126, 128–9, 133–4, 138–9, 141–2, 145–51 temporality and rights in, 128, 141, 144–5, 147–8, 150–1 See also Aboriginal Rights, Indigenous peoples in Canada Atwood, Margaret Alias Grace, 76, 83, 95–9 and legal truth, 96–9 and stories, 95–9 as alternative trial, 95–9 See also legal rights, consti­ tutional; right to a “fair and public hearing by an independent and impartial tribunal”; trials “Amnesty International: An Address,” 47, 51, 161n1 Bodily Harm, 5, 30, 47–58, 61–73, 105, 124, 127, 147, 150–3, 161n1, 161n3, 162n4, 162nn9–10, 163n12, 163n1 and analogy, 48–9, 51–5, 61–71, 103, 161n3 and Canadian foreign policy, 54–5, 71, 152 and excessive meaning, 48–55, 57, 61–72, 103, 127, 161n3 and feminism, 56, 58, 65 and freedom of expression, 5, 48, 52, 57–8, 63–8, 127

gender and representation in, 48–9, 51, 53–5, 58, 61, 63–8, 70, 147, 162n10, 163n12 and harm, 48–55, 57–8, 61, 63–73, 103, 161n3 and pornography, 49, 51, 54–6, 58, 61, 63–70, 163n12 and Project P, 61, 65–7, 127, 163n11 style of, 50, 52, 69–71 temporality and rights in, 30, 51–2, 72–3, 124, 150, 163n1 and torture, 49, 51, 55, 57, 63, 66–7, 69–70, 73 and witnessing, 51–2, 55, 73 See also analogy; Canadian Charter of Rights and Free­ doms, section 2(b); freedom of expression The Handmaid’s Tale, 7, 26 Auslander, Philip, 85 Bal, Mieke, 4 Berger, John, 51, 55, 67 Binnie, Justice W.I.C., 138, 167n12 Borovoy, Alan, 35, 41 Broadbent, Ed, 18–19, 39–40 Brydon, Diana, 105–6 Bush, Catherine, The Rules of Engage­ ment, 27, 152–3 Cairns, Alan, 6–7, 11 Canadian Broadcasting Corporation, 15 Canadian Charter of Rights and Freedoms: and Canadian values, 5–6, 10–17, 22–5, 149–51, 154–6; context of, 3, 7–8; diversity of views on, 15–18, 126, 128–9, 133–4, 138–40; enactment of, 5, 11, 105,

Index 185 127, 129, 133, 138–9, 145–6, 150, 159n2; individuals and, 6, 10, 16, 17, 23, 26, 50, 60, 68, 81, 83, 102, 140, 155; and Japanese Cana­ dian redress, 37, 39; and judicial activism, 16–17; relationship between Canada and Canadians as a consequence of, 6, 11–12, 15, 105–6, 128–9; representation in literature, 5, 104–5, 127–8; section 1, 5, 22–4, 27, 30, 49–50, 58–62, 72, 101, 104, 138, 144, 149–50, 165n7 (see also free and democratic soci­ ety, Canada as; Supreme Court of Canada, R v. Oakes (1986)); section 2(b), 6, 14, 48–50, 52–3, 57–63, 65, 69 (see also freedom of expression);­ section 2(d), 47; section 7, 81–2, 85, 151–2, 156 (see also legal rights, constitutional); section 8, 82 (see also legal rights, constitutional); section 9, 82 (see also legal rights, constitutional); section 10, 82 (see also legal rights, constitution­ al); section 11(a), 82 (see also legal rights, constitutional); section 11(b), 82 (see also legal rights, con­ stitutional); section 11(c), 82 (see also legal rights, constitutional); section 11(d), 23, 47, 76, 82–3, 91, 98–9 (see also legal rights, constitu­ tional; right to a “fair and public hearing by an independent and impartial tribunal”); section 15(1), 6, 14, 16, 25, 101–3, 108–11, 117, 121–3, 125, 140, 150, 156–7, 164n5, 165n7 (see also equality rights, constitutional); section 15(2), 164n3; section 25, 5, 135, 166n2, 167n8 (see also Aboriginal rights,

constitutional); section 27, 6, 24–5; scope of, 6; and “special rights,” 16–17; thirtieth anniversary of (2012), 14–18. See also introduction; chapters 2–5; conclusion; rights in Canada Canadian Race Relations Foundation, 38, 43 Carr Vellino, Brenda, 18, 20. Choy, Wayson, The Jade Peony, 161n4 Chrétien, Jean, 11–12 Constitution Act, 1982: patriation of, 5, 15–17, 105–6, 126–9, 134, 145–6, 159nn1–2, 167n7; section 35, 135–8, 143–4, 151, 166n2, 167n10, 167n13; section 37, 135; section 52(1), 5, 138, 159n2 Cory, Justice Peter, 14, 25, 102, 108, 117, 165n6 Court of Appeal for Ontario, Truscott (Re) (2007), 76, 91–3, 97, 99 Courtemanche, Gil, A Sunday at the Pool in Kigali, 8, 168n2 Criminal Code, 1985, 57–62, 80, 82, 92–3, 127, 162n5 Cumyn, Alan: Burridge Unbound, 152–3; Man of Bone, 152 Davies, Robertson, The Manticore, 8, 76 death penalty, 151–2 Dickinson, Peter, 105, 116 Dickson, Chief Justice Brian, 23–6, 37, 136, 149–50, 166n13 Douzinas, Costas, 77, 96 Dworkin, Ronald: and hard cases, 113, 165n9; and interpretation, 112–14, 165nn8–9; and law and literature, 112–13, 165n8

186 Index economic rights, 4, 28, 155–6 equality rights: and analogy, 101, 103, 109–11, 121–3, 125, 150, 156–7; and Canada, 9, 12, 14, 16–17, 21, 23, 25–6, 28, 36–7, 49–51, 60, 62, 68, 72, 100–2, 105–6, 108–10, 117, 121–3, 125–6, 134, 141–2, 146; and classification, 101–4, 106–7, 109–11, 120–5, 150, 165n11, 166n14; consti­ tutional, 6, 14, 16, 25, 27–8, 100–6, 108–11, 116–17, 121–3, 125–6, 134, 141–2, 146, 150, 156, 165n11, 166n13; and interpretation, 100–11, 113, 116–18, 121–6, 150; temporal­ ity of, 25, 27, 101, 104, 121, 123–6, 150, 166n13. See also Canadian Charter of Rights and Freedoms, section 15(1); Findley, Timothy, Not Wanted on the Voyage; Supreme Court of Canada, Egan v. Canada (1995), and Vriend v. Alberta (1998) evidence, 77–9, 82–90, 93–9, 143, 152, 163n1 Findley, Timothy Headhunter, 7 Not Wanted on the Voyage, 27, 30, 100–1, 103–12, 114–21, 123–5, 127, 141, 150, 164n4, 165n10 and allegory, 104–7, 116–17, 125, 127 and alternative interpretation, 101–4, 106–7, 115–21, 123–5, 164n4 and Canada, 104–5, 125 classification in, 101, 104–7, 116, 120–1, 124, 164n4 constraints on interpretation in, 101, 103–12, 114–18, 123–4, 164n4, 165n10

temporality and rights in, 27, 30, 101, 104, 121, 123–5, 141, 150, 163n1 the Edict in, 101, 104–7, 112, 114–16, 119, 123 equality in, 100–1, 103–8, 111, 114, 116–18, 120–1, 123–4 interpretation in, 101, 103–12, 114–21, 123–4, 164n4 See also equality rights Findley, Len, 127, 140, 146 Fish, Stanley, 114 Fiss, Owen, 112, 114 francophone Canada and Quebec: responses to rights in Canada, 8; responses to the Canadian Char­ ter of Rights and Freedoms, 14–17 francophone Canadian novels and rights, 8 free and democratic society, Canada­ as, 22–8, 30, 37, 60–2, 69, 72–3, 124–5, 138, 144, 149–50, 156, 166n13. See also Canadian Charter of Rights and Freedoms, section 1; Supreme Court of Canada, R v. Oakes (1986) freedom of association, 47 freedom of expression, 5–6, 47–53, 55, 57–63, 65–9, 71–3, 78, 103; and excessive meaning, 48–50, 52, 57, 60–3, 65–6, 68–9, 72, 78, 103; and harm, 48–9, 57–63, 65–9, 72, 103; and social good, 48–9, 55, 57, 61–2, 65, 69, 72–3. See also Atwood, Margaret, Bodily Harm; Canadian Charter of Rights and Freedoms, section 2(b); litera­ ture, and freedom of expression; Supreme Court of Canada, R v. Butler (1992)

Index 187 freedom of speech (see freedom of expression) Globe and Mail, The, 14–15, 17, 101 Harper, Stephen, 15 Hébert, Anne, Kamouraska, 8 Human Rights Committee (United Nations), Lovelace v. Canada (1981), 167n7 Hunt, Lynn, 19 Iacobucci, Justice Frank, 14, 17 Ignatieff, Michael, 9–11, 25, 38, 153; Charlie Johnson in the Flames, 153; rights are more than law, 9–10; The Rights Revolution, 9–11, 38 improvisation, 75, 84–9, 98–9, 163n2. See also Atwood, Margaret, Alias Grace; MacDonald, Ann-Marie, The Way the Crow Flies; trials Indian Act, 1876–1985, 128, 131–2, 134, 151, 160n6, 166n5, 167n7 Indigenous peoples in Canada: and Aboriginal rights, 130–8, 140, 142–4, 150–1, 160n6, 167n14; and assimilation, 128, 131, 134, 140, 142; and Canadian government policy, 128, 130–2, 134–8, 142, 151, 154, 160n6; and Canadian law, 128, 130–8, 140, 142–4, 150–1, 160n6; and constitutional Aborigi­ nal rights, 126, 128, 132–8, 140, 142–4, 150–1; and constitutional reform, 129, 133; and culture, 128, 132–3, 135–6, 140, 141–4, 167nn13– 14; and politics, 129, 132–3; relationship between Indigenous peoples and the Canadian state, 16, 128–38, 140, 142–4, 160n6;

resistance to constitutional rights, 16, 126, 129, 133, 140; and sover­ eignty, 128, 130, 136–7, 142–4; and treaties, 128, 130–2, 134, 137, 144. See also Aboriginal rights; Arm­ strong, Jeannette international human rights, 4, 7, 12–13, 25–6, 47, 71, 101, 151–7, 159n4, 167n7 interpretation, 62, 77–8, 84, 91, 100–26, 135, 138, 164n1, 164n5, 165nn8–9; judgment, and com­ mon law precedent, 112–15. See also Findley, Timothy, Not Wanted on the Voyage; law, and interpre­ tation; law and literature, and interpretation; Supreme Court of Canada, Egan v. Canada (1995) Iyer, Nitya, 102, 109–10, 164n2 Japanese Canadians: literary repre­ sentations of (see Choy, Wayson; Kogawa, Joy; Sakamoto, Kerri); memorialization of rights viola­ tions, 29, 39–40, 44; and national belonging, 29–33, 35–8, 40–2, 44–5; redress campaign, 18–19, 29–30, 32–6, 40–6, 130; Redress Agreement, 18–19, 29–30, 32, 35–40, 42, 43–6, 127; World War II internment 18–19, 29–31, 33, 36–7, 39–40, 42–3, 132; post–World War II policy of dispersal, 18–19, 29, 31–7, 39–40, 42–3; and rights, 29–42, 44–6. See also Kogawa, Joy; War Measures Act, 1927 King, Thomas, The Truth about ­Stories, 131–2, 135, 142, 167n6 King, William Lyon Mackenzie, 31

188 Index Kogawa, Joy, Emily Kato, 29–30, 32, 35, 40, 45–6, 50, 127, 160n2, 166n1 individual healing in, 32, 45–6 national belonging in, 32, 35, 45–6, 127 publication history of, 30 representation of Japanese Canadian community in, 32, 45–6 temporality and rights in, 30, 45–6 Itsuka, 29–30, 32–6, 38, 40–6, 50, 127, 139, 146, 150, 160n2, 166n1, 166n4 depiction of activism in, 32–6, 40–4, 127, 146, 160n2 individual healing in, 29, 32, 34–6, 40–1 memorialization of rights viola­ tions in, 29–30, 40, 43–4 national belonging in, 29–30, 32–6, 42, 44, 127, 150 publication history of, 30 representation of Japanese Canadian community in, 29, 32–4, 44, 129 style of, 41–3, 160n2, 166n4 temporality and rights in, 30, 42–5, 150 and witnessing, 40–1 Obasan, 6, 18–19, 26, 32, 39–42, 160n2 representation of World War II government policies on Japanese Canadians, 32–6 See also Japanese Canadians La Forest, Justice Gérard, 13, 111, 136, 165n7 Lai, Larissa, Salt Fish Girl, 21, 155

Lamer, Chief Justice Antonio, 81 law: and codification of rights, 9, 81, 104, 106–7, 109, 117, 119, 121; con­ stitutive of rights in Canada, 4–5, 10, 22, 127; and interpretation, 62, 78, 100–3, 105–7, 109–18, 121–3, 125–6; and rights in Canada, 3–5, 9–12, 22, 81, 156–7. See also indi­ vidual chapters law and literature, 3–5, 148–9, 157, 163n1; and interpretation, 77, 100, 112–14, 165n8. See also individual chapters LEAF (the Women’s Legal, Educa­ tion, and Action Fund), 58 LeBel, Justice Louis, 14 legal aesthetics, 75, 78, 80, 85–7, 94, 99, 163n1 legal rights: constitutional, 6, 23, 28, 47, 74–6, 79, 81–3, 85–7, 90–1, 98–9, 150–2, 156. See also Atwood, Margaret, Alias Grace; Canadian Charter of Rights and Freedoms, sections 7, 8, 9, 10, 11(a), 11(b), 11(c), and 11(d); MacDonald, ­Ann-Marie, The Way the Crow Flies; right to a “fair and public­ hearing by an independent and impartial tribunal”; Strube, Cordelia, The Barking Dog legal storytelling. See narrative juris­ prudence L’Heureux-Dubé, Justice Claire, 13, 101, 103, 108, 117, 121–3, 125, 165n11, 166n13 literature: and affect, 18–22, 39–40; constitutive of rights in Canada, 4–5, 21–2, 26, 127, 153–4; and freedom of expression, 48, 59, 61, 65; language of rights in, 6–7, 19, 25–7, 127; and rights in Canada,

Index 189 3–7, 13, 18–22, 25–8, 126–7, 149. See also individual chapters MacDonald, Ann-Marie, The Way the Crow Flies, 76, 87–9, 92, 94, 97–9, 139. See also legal rights, constitu­ tional; right to a “fair and public hearing by an independent and impartial tribunal”; trials MacKinnon, Catherine, 16, 58 Maclean’s, 15–16 Manderson, Desmond, 4, 78–9, 87 Martin, Paul, 13 McLachlin, Chief Justice Beverley, 14, 82, 125–6, 166n14 Miki, Arthur, 29, 44 Miki, Roy, 29, 31, 35–6 Mistry, Rohinton, A Fine Balance, 27, 77 Monson, Ingrid, 84 Monument against Fascism, War and Violence – and for Peace and Human Rights (Esther Shalev-Gerz and Jochen Gerz), 43–4 Mulroney, Brian, 29, 38–41, 43 narrative, 4, 19, 48, 50, 52, 75–9, 82–4, 86–91, 96–8; and coherence, 76–7, 82–4, 87, 96, 98, 113; and law, 77–9, 82–4, 86–91, 96–7. See also trials, and narrative narrative jurisprudence, 75, 90–1, 146, 148, 163n3 National Association of Japanese Canadians, 18–19, 29, 160n2 National Emergency Transitional Powers Act, 1945, 37 Nazi holocaust, 7, 43, 103, 117 Nickson, Elizabeth, The Monkey Puzzle Tree, 95 Nussbaum, Martha, 18, 20–1

obscenity, 48–9, 51, 56–63, 66–9, 71–2, 161n3, 162n6, 162n8 Ondaatje, Michael: Anil’s Ghost, 7, 168n2; In the Skin of a Lion, 26, 155 peacekeeping, 7, 154, 160n5 Pearson, Lester B., 7, 160n5 Pinker, Steven, 20 pornography, 48–9, 51, 53, 55–9, 61–9, 72 precedent, 74, 111–14, 165n9 publishing industry: in Canada, 7; and rights, 7, 20–2, 161n1 Richler, Mordecai, St Urbain’s ­Horseman, 8, 76 right to a “fair and public hearing by an independent and impartial tribunal”, 47, 76, 82–3, 86–7, 90–1, 94, 98–100, 150. See also Canadian Charter of Rights and Freedoms, section 11(d); legal rights, consti­ tutional rights in Canada: and Canadian foreign policy, 13, 54–5, 71, 151–5; and the Canadian psyche, 6, 9, 11, 27; and Canadian values, 3–4, 9–17, 22–8, 35, 38–9, 50, 73, 102, 108, 140, 142, 145–6, 149–57; conservatism of, 4–5, 16–17, 27–8, 48–50, 57, 61–3, 72, 75–6, 81–2, 89–94, 99, 109–11, 117, 121–2, 125, 137–8, 143–4, 149, 154–6; context of, 3, 7–8 ; equation of rights and Canada, 4, 11–14, 22–8, 30, 33, 35, 37, 39–40, 60, 68, 71, 101, 117, 122, 125–6, 128–9, 138–9, 149–54, 157; and excessive meaning, 49–50, 57, 69, 72, 125; and national belonging, 29–30, 35–8, 41, 44, 108–10, 128–9; temporality of,

190 Index 4–5, 24–7, 30, 36–40, 42–6, 50, 62, 72–3, 93, 101, 104, 106, 121, 123–6, 128–9, 134, 142–5, 147–51, 155–7, 166n13; and trials, 47, 74–6, 81–3, 85–7, ­90–4, 98–9, 150–2. See also ­Canadian Charter of Rights and Freedoms; individual chapters Sakamoto, Kerri, The Electrical Field, 161n4 Scheppele, Kim Lane, 78, 86–7, 90, 146 Slaughter, Joseph, 16, 25–6 Sopinka, Justice John, 58–9, 61–2, 68, 165n7 Statement of the Government of Canada on Indian Policy, 1969, 128, 134, 142, 144, 151 Strube, Cordelia, The Barking Dog, 76, 79–81, 94–5, 127. See also legal rights, constitutional; right to a “fair and public hearing by an independent and impartial ­tribunal”; trials Supreme Court of Canada Andrews v. Law Society of British Columbia (1989), 109, 165n12 Attorney General of Canada v. Lavell (1974), 8, 160n6 Baker v. Canada (Minister of Citizenship and Immigration) (1999), 13–14 Bliss v. Attorney General of Canada (1979), 8, 160n6 Canada (Justice) v. Khadr (2008), 152 Egan v. Canada (1995), 27, 100–3, 108, 110–11, 117, 121–3, 125, 165n7, 165n11, 165n11 alternative interpretation in, 117, 121–3, 125, 165n11

and analogy, 103, 111, 121–3, 125 constraints on interpretation in, 110–11, 121, 123, 125 See also Canadian Charter of Rights and Freedoms, sec­ tion 15(1); equality rights Ermineskin Indian Band and Nation v. Canada (2009), 165n12 Gosselin v. Quebec (2002), 156 Kindler v. Canada (1991), 151 Law v. Canada, (Minister of Employment and Immigration) (1999), 123 Little Sisters Book and Art Emporium v. Canada (2000), 72 R v. Big M Drug Mart (1995), 165n11 R v. Butler (1992), 49–53, 56–64, 68–9, 71–3, 103, 162n3, 162n6 and analogy, 62–3, 103 and Canadian society, 50, 53, 59–62, 68–9, 72 and excessive meaning, 49–50, 53, 57, 60–3, 68–9, 71–2, 103 feminist thought in, 58, 60, 72 gender in, 49, 51, 58–63, 68, 72 and harm, 49–50, 52–3, 56–63, 68–9, 72–3, 162n6 and hate speech, 52–3, 62–3, 69 (see also Canadian Charter of Rights and Freedoms, section 2(b); freedom of expression) R v. Kapp (2008), 165n12, 167n8 R v. Keegstra (1990), 24, 63 R v. Lyons (1987), 13 R v. Oakes (1986), 23–5, 27, 37, 72, 125, 149 (see also Canadian Charter of Rights and Free­ doms, section 15(1); free and democratic society, Canada as)

Index 191 R v. Morgentaler (1988), 140, 142 R v. Seaboyer (1991), 82 R v. Sparrow (1990), 126, 128, 132, 135–8, 142, 145, 167n13 nature of constitutional ­Aboriginal rights in, 136–8, 142, 167n13 relationship between Aboriginal rights and Canadian law in, 135–8, 167n13 and the temporality of consti­ tutional Aboriginal rights, 142, 145 See also Aboriginal rights; Constitution Act, 1982, section 35 R v. Stinchcombe (1991), 14 R v. Van der Peet (1996), 126, 128, 143–4, 150 temporality of constitutional Aboriginal rights in, 143–4, 150 (see also Aboriginal rights; Constitution Act, 1982, section 35) Re B.C. Motor Vehicle Act (1985), 81 Reference Re Ng Extradition (Can.) (1991), 151 R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd. (2002), 14 Suresh v. Canada (2002), 152 United States v. Burns (2001), 151, 168n1 Vriend v. Alberta (1998), 14, 17, 25, 108, 110, 117, 125 (see also Canadian Charter of Rights and Freedoms, section 15(1); equal­ ity rights) Sweatman, Margaret, Fox, 6, 155

temporality of rights in Canadian literature, 27, 30, 42–6, 51–2, 72–3, 101, 104, 121, 123–5, 128, 141, 144–5, 147–51, 155, 163n1 torture, 49, 51, 55, 63, 66–7, 69–70, 73, 101–2, 152, 154 trials, 74–100, 127, 150–2; and Cana­ dian society, 74–5, 81–3, 92, 95–6, 99; and counter narratives, 74–5, 89–99, 150; and impartiality, 74, 82–3, 92; and improvisation, 75, 84–9, 98–9, 163n2; and justice, 75, 79–82, 87–8, 91–5, 98–9, 127; and law’s failings, 76, 80, 88–95, 97–9, 150; and lawyers, 79–80, 83–4, 86, 89, 95–6; in literature, 10, 75–7, 79–80, 87–90, 94–9, 127, 150; and narrative, 77–9, 82–4, 86, 88–91, 95–8; and procedure, 75–95, 98–9, 150–2, 163nn1–2; and representa­ tion, 76; and rights, 47, 74–6, 81–3, 85–7, 90–4, 98–100, 150–2; and sto­ ries, 75–6, 79–80, 88–91, 94–9; and testimony, 75, 77–9, 83–91, 95–9, 163n2; and truth, 74–80, 83, 85–9, 94–9, 127, 163n1. See also Atwood, Margaret, Alias Grace; Canadian Charter of Rights and Freedoms, section 11(d); MacDonald, AnnMarie, The Way the Crow Flies; Strube, Cordelia, The Barking Dog; right to a “fair and public hearing by an independent and impartial tribunal”; wrongful conviction Trudeau, Pierre, 11, 16, 138, 144 Truscott, Stephen, 76, 91–2, 97, 99 Turpel, Mary Ellen, 140–2, 151 Universal Declaration of Human Rights, 1948, 47, 154–5, 159n3

192 Index Universal Periodic Review, 12–13, 154, 156, 168n4 War Measures Act, 1927, 31, 37 Warrington, Ronnie, 77, 96 Weisberg, Richard, 5, 78–9 West, Robin, 10, 100, 102 White, Hayden, 76–7, 96 White Paper, 1969. See Statement of the Government of Canada on Indian Policy, 1969

Wiebe, Rudy: The Scorched Wood People, 8; The Temptations of Big Bear, 8, 76 Wilson, Justice Bertha, 109, 140, 166n13 witnessing and literature, 40–2, 51–2, 55, 73, 83, 89, 96–9, 153, 161n4 Women’s Legal, Education and ­Action Fund, 58 wrongful conviction, 75, 82, 88, 91–4, 99. See also legal rights; trials