Constance B. Backhouse

• University of Ottawa

Canadians know Claire L’Heureux-Dubé as one of Canada’s most celebrated judges. Internationally heralded as an icon for her legacy of human rights jurisprudence, she also became a controversial lightning rod for her strongly worded opinions that could provoke anti-feminists and homophobes alike. Much of what is publicly known about Claire relates t...

Harry Arthurs' Law & Learning report of 1983 documented the low productivity of academic legal scholars in Canadian law schools. It recommended creating distinct streams for the academic study of law and professional legal education. This paper discusses developments to the legal scholarship landscape twenty years after the report. Positive changes...

Female victims of sexual assault have traditionally found their courtroom testimonies assailed by legal rules requiring corroboration. This article examines the historical roots of the doctrine of corroboration, using a case study based on R v. Sullivan, a trial for “carnal knowledge of a girl under 16” that took place in Perth in 1912-1913. Drawin...

This article is a first-person memoir from a co-author of the first Canadian book on sexual harassment. It attempts to recount, from one individual’s admittedly partial memory, some of the events that surrounded the early feminist efforts to eradicate sexual harassment in the workplace. It tracks the events that culminated in the publication of Con...

Beatrice Irene Tisdale was a deaf woman who was born in Saskatchewan in 1918. In August 1942, an acquaintance drove Ms. Tisdale to a secluded area and raped her. This article discusses the sexual assault trial of Joseph Probe. The court's inability to accommodate Beatrice Tisdale's language of testimony, and legal professionals' attitude toward the...

Constance Backhouse's discussion of the Viola Desmond Case of mid-1940s Nova Scotia highlights how a colour-bar was established in some areas of Canada; and how race-based segregation was challenged in the courts, media, and society at large. The case involved charges brought against Viola Desmond, a biracial businesswoman who was considered “colou...

On March 30 1910, a Québec City notary named Plamondon gave a lecture describing Jewish residents as morally debased, parasitic, and a threat to Christians. As a result, residents vandalized and assaulted numerous Québec City Jews. Benjamin Ortenberg and Louis Lazarovitch launched a defamation suit against Plamondon. They claimed Plamondon harmed t...

This is a reproduction of a speech given by Professor Constance Backhouse at the Law Society of Upper Canada Convocation (call to the Bar) on September 30, 2002. She described a number of people whose legal career upheld or challenged discrimination, and concluded by asking students to reflect on how future historians would judge their legal career...

This article examines the careers of Ontario women lawyers who went to law school from the 1970s to the 1990s and self-defined as feminist. The three decades saw a “revolution of numbers” – a dramatic increase in the critical mass of female and feminist lawyers. The author interviewed forty-five women who are self-identified feminists and graduated...

This essay was written several years after the Chilly Climate Report ("The Chilly Climate for Faculty Women at Western: Postscript to the Backhouse Report" – available on SSRN at http://ssrn.com/abstract=2263352) was completed as a retrospective summary of the highly volatile and contentious debate that was occasioned by the release of the Backhous...

On November 12, 1986, the University of Western Ontario was awarded the Employment Equity Award by the Ontario Women's Directorate. It was the ensuing public celebration of Western's achievements that inspired this essay, which came to be known as the Backhouse Report. Constance Backhouse was one of many women on campus who believed that the award...

The state's legal authority to detain individuals within insane asylums in early twentieth-century Canada was deeply influenced by factors of gender, class, and race. Violet Hypatia Bowyer, a working-class, white woman who was just twenty-two years old in 1928, was initially incarcerated in Ontario for leading a "dissolute" life. Wrongly diagnosed...

The authors, a collective of feminist legal scholars from Carleton University and the University of Ottawa, reflect on which works have been most influential to their scholarship. The article describes over 60 influential feminist works and mentions the contributions they made to the field. Many of the works consider the intersectional experience o...

This paper was part of a conference about “legal professionalism”. The article demonstrates how the history of Canada's legal profession has been marked with power, exclusion, and dominance, rather than civility, community or collegiality. The profession has obstructed Black, Jewish, Aboriginal and female individuals from practicing law. The Law So...

In 1907, Mary Ann Burton launched a complaint of rape against Joseph Gray in London, Ontario. Judicial decisions and literature at the time claimed that rape was “an accusation easily to be made”, despite the common knowledge that rape was underreported. Mary Ann Burton's case sets no legal precedent; she was treated with suspicion and hostility, a...

This paper attempts to pull together ideas expressed by numerous law professors who are concerned about an apparent transformation in Canadian legal education provoked by reductions in university budgets, increasing demands for governmental control over universities, privatization of funding, hierarchical ranking of law schools, the cult of consume...

In April 1939, the Supreme Court of Canada ruled that "Eskimos" were "Indians" within the Canadian constitutional framework. Though a renowned anthropologist testified to the "racial distinctness" of "Eskimos," the all-white judges of the court struggled to define "race." The case arose out of a jurisdictional dispute over whether the provincial or...

In 1922, Joseph McAuliffe was accused of raping Mollie Meadows in Bunbury, Australia. The court struggled to make sense of conflicting testimonies, gendered expectations, and changing ideas of consent and sexuality during the “roaring twenties”. Meadows testified she was forcibly raped, but McAuliffe testified that sex was implicitly promised to hi...

In June 1902, an Aboriginal man named Gus Ninham was brutally beaten to death by a group of white, working-class men outside London, Ontario, Canada. Professor Constance Backhouse contextualizes the incident by examining the uneasy relationship between the Onyota'a:ka and white peoples in the area. The murder and ensuing trial received extensive me...

This article chronicles the prosecution of two Chinese men under a 1912 Saskatchewan statute forbidding “Chinese” men from employing “white” women. The “Act to Prevent the Employment of female labour in Certain Capacities” was motivated largely by anti-immigration and racist attitudes, and white workers' concerns about the competitive pricing of Ch...

This article discusses the prosecution of women who procured abortions from 1900 to 1950. The mothers involved were typically single and working-class, and frequently came to the attention of the criminal authorities when their attempts to induce miscarriage endangered their own lives. Two case studies are considered.Emma Agnes Kilbourne was crimin...

Emily Howard Stowe is generally recognized as the first white Canadian woman to practice medicine in Canada. Less is known about her role as one of the first doctors to be tried for attempting to procure an abortion in nineteenth-century Canada. That she was the target of a well-publicized prosecution in Toronto in 1879 was no accident, however, fo...

In nineteenth-century Canada, women's property was transferred to their husbands upon marriage. The common-law rule disadvantaged women, particularly those abandoned by their husbands. This article chronicles the development of married women's property rights in the nineteenth century. The introduction of legislation that began to reform this field...

The author provides a detailed account of nineteenth-century Canadian views of marriage and divorce. In the first part of the article, the author discusses the conceptions of, and attitudes towards, marriage and how they differed in rhetoric and reality. In the second part, the author examines the legislative and judicial responses to marital break...

This paper analyzes the legal response to infanticide perpetrated by Canadian mothers in the nineteenth century. Despite legal prohibitions against contraception and the termination of pregnancies, courts were remarkably lenient toward mothers in cases of infanticide. The author discusses the judicial treatment of the criminal offence of “concealme...

The History of nineteenth-century Canadian Law reveals that legislators and social reformers took three distinct approaches to the problem of prostitution. They attempted to regulate the trade in sexuality through a Canadian Contagious Diseases Act which sought to control venereal disease in prostitutes. They attempted to prohibit the commercial sa...

Professor Backhouse suggests that before the nineteenth century abortions and birth control were largely considered private matters. However, beginning in the early nineteenth century and continuing until the Criminal Code of 1892 there were several waves of legislation which Professor Backhouse traces and analyses that made abortions and birth con...

In 1978, Fleck Manufacturing Plant was the site of one of the most notorious and bitter strikes in Ontario labour history. The strike, which occurred shortly after the employees unionized, illustrates the precariousness of labour disputes between employers and unions in the early stages of their relationship. This work focuses on first contract arb...

Ellen Rogers and Mary Hunt were publicly derided, mocked, and dismissed, when they steadfastly insisted on justice after being gang raped by four men. On December 13 1858, a gang of fifteen men broke into their home and sexually assaulted them. The home in which the violence occurred was known to be a “house of bad repute”, and the women were consi...

The author compares two early twentieth century criminal cases, one Australian and one Canadian, involving carnal knowledge of a child. The cases illustrate the parallel development of the doctrine of corroboration in sexual assault cases in the two countries – a doctrine which was based on the belief that the testimony of women and girls in such c...

This article compares Canadian and American law as it applied to the crime of rape. The countries' rape laws have notable similarities, given their common origin in English law and similar socio-cultural climates, but significant differences also exist. Both countries codified a spousal exemption in the 19th century, and have only recently begun to...

This text is a revised, written version of remarks delivered on September 29, 2000 at York University at the launch of York Stories: Women in Higher Education, edited by the York Stories Collective, and published in Toronto by TSAR Publications, 2000. Professor Backhouse praised York Stories as going beyond the work she co-authored (Breaking Anonym...

The tort of seduction was based in feudal notions that certain people could hold property interests in other people – namely masters with a proprietary interest in servants. In nineteenth-century Canada, the tort was so narrow that it related almost exclusively to fathers' suing men who seduced their daughters for loss of services. Though fathers'...

This article considers the life and career of Gretta Wong grant, the first woman of Chinese heritage to become a lawyer in Canada. Called to the bar of the Law Society of Upper Canada in 1946, she came from a prominent Chinese-Canadian family in London, Ontario. The article discusses Gretta Wong Grant's family background, education, marriage to a w...

Bell v Flaming Steer Steak House (1980) was the first sexual harassment decision issued by a human rights tribunal in Canada. Ontario adjudicator Owen Shime decided that sexual harassment constituted sex discrimination as prohibited by the Ontario Human Rights Code. This case comment examines the process by which the tribunal reached its conclusion...

The author discusses conflicting justifications for anti-combines legislation and labour relations legislation, and how these two areas of law interact to impact business competition and labour unions. Part B considers American jurisprudence, which espouses both anti-combines policies and collective bargaining laws. American courts have addressed t...

The author explores how Aboriginality, racialization, gender, disability, class, and sexual identity may affect one's ability to obtain justice in the Canadian legal system. The Canadian justice system has historically given disproportionate access to white, non-immigrant, able-bodied, affluent men while marginalizing others. Today, Canadians would...

Canadian jurisprudence in cases involving child custody, rape and prostitution throughout nineteenth century illustrates that the judiciary espoused a rigid view of women's role as subordinate in families and society. Judges also embraced a double-standard in expectations of women's and men's sexual morality. Judicial decisions were not merely a re...

This article recounts the arrest and trial of Viola Desmond, who in 1946 violated a rule imposing racial segregation on Blacks. It goes on to describe Desmond's unsuccessful attempt to have that conviction overturned in the Supreme Court of Nova scotia, the first known challenge brought by a Black woman in Canada against a racial segregation law. T...

This paper describes a court case that was buried in Canadian legal archives for fifty-six years. In 1942, Carrie Best brought a civil action for damages against a Nova Scotia theatre, claiming that the owners were enforcing a racially-segregated seating policy. The action was ultimately dismissed. Dr. Best, an African-Canadian who was a teacher, j...

Canadian Supreme Court Justice Bertha Wilson reportedly never self-identified as a feminist. Why have people like Justice Wilson, whose legal work has inspired social justice advocates, been reluctant to identify as feminists? Are Canadians today prevented from describing Justice Wilson as a “feminist judge” because she did not label herself a femi...

Recently, Clara Brett Martin, Canada's First woman lawyer, has been revealed to have been anti-semitic in her ideology and practices. Constance Backhouse profiles the information that has recently been discovered about this anti-semitism, attempting to locate it within the context of wider anti-semitism in the early 20th century Canadian society. S...

(Cette oeuvre est seulement disponible en anglais. Un résumé français suit.)In this article, the author examines the history and employment practices of the University of Western Ontario, winner of the Ontario government's "Employment Equity Award" in 1986. She documents the University's historical and current patterns regarding the hiring, tenure,...

In this final chapter (chapter 28 of "Sexual Assault Law, Practice, and Activism in a Post Jane Doe Era"), Constance Backhouse returns to the very questions posed by Jane Doe’s activism and the Garneau Sisters who followed her: what is a feminist response to sexual assault? As a historian, Constance looks back at harsh sentencing laws for convicted...

Les poursuites engagées contre Louis Auger, le député fédéral le plus jeune au Canada, représentent un épisode retentissant et scandaleux de l'histoire de la justice canadienne. Accusé de viol sur la personne d'une jeune Franco-Ontarienne de 17 ans dans son bureau à la Chambre de communes, Auger a essuyé la colère d'un groupe acharné de juges et de...

This article begins with a description of a 1912 statute in Saskatchewan, which prohibited male Asian employers from hiring white women. It canvasses the sources of support for this new law and the response it evoked from the Asian community. Yee Clun, a Regina restaurateur and leader of the local Chinese community, challenged the legislative prohi...

La femme et la sante: controverse grandissante Examen des limites et des dangers dans le domaine des soins de la sante tels qu'administres aux femmes cana-diennes. In Ontario hospitals, student interns and residents routinely practise internal pelvic exam inations on anaesthetized women patients. These patients, who are in hospital for gyneco~ogica...

2 Himani Bannerji, one of Canada's leading anti-racist theorists, writes that the word "identity" has recently become a "common word in our political vocabulary." She notes that "the passion of naming" extends beyond the individual to a "historical" and a "collective" process. She queries: "Who experiences this gesture as positive, as that of creat...