R. v. O'Connor,  4 S.C.R. 411
The accused was charged with a number of sexual offences. During trial, the accused requested that the Crown produce the entire files of the four claimants medical, counseling, and school records. He claimed it would be relevant in making full answer and defence. The trial judge ordered the Crown to produce the relevant documents, but they failed to do so. Crown counsel submitted that uninhibited disclosure of medical and therapeutic records would re-victimize the complainants and suggested that the disclosure order exhibited gender bias. The trial judge noted the Crown had unacceptably limited the scope of disclosure to only those portions of the records relating directly to the incidents involving the accused, resulting in the full therapy records not being disclosed to the defence until just before the trial. The trial judge stayed proceedings.
The main issue before the court, for the purposes of our analysis, was whether the appropriate procedure to be followed when the accused seeks production of documents such as medical or therapeutic records that are in the hands of third parties was followed?
The court reaffirmed that once information was obtained by Crown it needed to be disclosed to defence. However, recognizing the sensitive nature of these third party records the Supreme Court of Canada (SCC) created a five step analysis in which neither defence nor Crown would obtained the private information prior to a judge determining its relevance.
When the defence seeks evidence from third parties (i.e. counselors) the onus is on the accused to demonstrate that the information is likely to be relevant. "Relevance” means if evidence is useful to the defence. The test for relevance is based on the judge being satisfied that there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify.
The judges (Lamer C.J. and Sopinka J) weigh the competing interests of both the accused and complainants. They establish five factors to consider when determining the appropriateness of production and disclosure of third party documents. These factors are as follows:
- The extent to which the record is necessary for the accused to make full answer and defence;
- The probative value of the record;
- The nature and extent of the reasonable expectation of privacy vested in the record;
- Whether production of the record would be premised upon any discriminatory belief or bias; and
- The potential prejudice to the complainant’s dignity, privacy, or security of the person that would occur from the production of record.
In addition to creating the above five stage analysis, the court held that while the Crown’s conduct was shoddy and inappropriate, the non-disclosure did not violate the accused’s right to full answer and defence. No judicial stay was granted for the accused.
Natural Law Theory
The theory of natural law, a universal concept, is based on the idea of morality being inherent in law, as the two are intertwined. The source of natural law originates from a “higher power”, which is presumed to be a non-human source, such as God, nature, and/or reason. Since natural law is inherently linked to morality, it is claimed to be universal and unchanging, but allows for the variation, based on the diversity and variety of human affairs and the ever-changing state of society. One of the founding fathers of the natural law approach was St. Thomas Aquinas, who helped distinguish it from eternal law. According to St. Thomas Aquinas, both sources of law originate from God, but eternal law is pure, raw, unaltered law. In contrast, natural law requires the law to pass through the minds of humans, and through the application of reason and rationality, then crafted towards the common good. Essentially, God has granted humanity with reason, allowing us to devise laws, which reflect our morality and allow us to achieve the common good.
Natural law theory sets out criteria for determining the validity of a law, based on the following four elements that must be satisfied/present:
- Must be directed to the common good.
- Must follow practical reason (reasonable steps leading to the common good).
- Must be made by valid lawmaker (ruler within community, who hold this position by reason of the natural order)
- Must be promulgated.
So if laws do not have these characteristics, they are deemed invalid/illegitimate.
Application to Case
In the case R v O’Connor, the main issues are based on the Crown’s duty to disclose evidence as well as the appropriate procedure for when third parties are requested to produce personal documents that may be relevant to the case.
An issue that quickly becomes apparent is based on the competing values between the parties involved - the protection of privacy and dignity of the victims (production of their personal information) balanced against the duty of the Crown to disclose information and the right for the accused’s ability to make full answer and defence.
A natural law theorist may interpret the common law, and in this case the test for when third parties need to produce relevant information, as the interpreting and modifying the law (as humans devising ways to achieve the common good). It would not be equitable nor fair to heavily favour either competing interest (privacy vs. duty to disclose). Natural law states that this would be God’s law as it passes through human’s minds and is rationally crafted into laws to govern these competing interests.
Enshrined in our Charter of Rights and Freedoms is the guarantee of a variety of rights, with limitations only imposed by section 1. In this case, the appellant is arguing that section 7 of the Charter is being violated as the accused is not being afforded the full defence possible by not having access to the therapeutic records of the victim. However, the prosecutor for the Crown claims that the victim would have to “re-live” the traumatizing experience and would be a violation of their privacy and detrimental to their dignity.
The test established in this case for the production of records in the possession of third parties was designed to reconcile these two competing interests. To determine whether this test should be considered a valid source of law, the four elements must be present (as mentioned above).
The first step of the test is whether the law is directed to the common good. Here, the common good is directed at the good of the community, rather than specific individuals. A goal in law is to maintain a stable and harmonious society; the order that is imposed by law is necessary for the common good. The test established in this case fulfills this requirement, as it strives to balance the rights of both victims and their privacy/dignity with the accused and their right to a full defence. In this case, the law and test established allows the accused to obtain third party information if it is necessary for their defence, but also incorporates the extent of privacy involved for the victim.
The test helps safeguard against harm done to the victim by determining whether the production of the records would be premised on any discriminatory belief and the potential prejudice to the complainant’s dignity, privacy, or security of the person that would occur from the production of the record. The onus is on the accused for convincing the judge that the information is relevant. The judge being satisfied that there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify determines if evidence is relevant. After relevance has been established, the judge balances the competing rights based on the five factors mentioned above. The common good motivates this test - protecting both interests of parties and establishing compromise for a case-by-case basis. Since this test could potentially apply to anyone in Canada (whether victim or accused), it is must aimed at the common good for the community (our entire nation).
These competing interests and ultimate compromise help satisfy the second element of a valid law under the natural law approach, which requires reasonable steps being made towards achieving the common good. An “all or nothing” approach that favours either party would not be ideal given the delicacy and importance of both the right to a full defence and the security of personal documents.
The third element is a bit more ambiguous and controversial when applied to the outcome of this case. It asserts that valid laws need to be made by valid lawmakers. While judges of the SSC can be viewed as “rulers” in establishing the common law, St. Thomas Aquinas would argue that they do not possess the same level of authority that legislators do. So while this may not be preferable, the judge can still be viewed as a valid lawmaker. A natural law theorist would argue that a judge must apply the written law as long as it does not contradict the natural right. In this case, the judges were applying the Charter to help develop a reasonable solution that would protect both parties interests. This test demonstrates that the judges, who are valid lawmakers, applied the written law (Charter) appropriately and took the reasonable steps necessary in achieving this outcome.
The fourth element regarding a law being promulgated is the belief that laws need to be written or accessible to the public which it governs. In the context of this case, it could be argued that the common law decision in this case both follows the principle of promulgation and does not. On one hand, common law decisions are made available to the public if searched for and our society recognizes and affirms the authority of the judiciary and common law that is established. On the other hand, it can be seen as contradicting certain Charter rights, which are much more commonly known. This may mislead and blindside parties involved, in which limits have been placed on individuals' Constitutional rights.
WHAT ST. THOMAS AQUINAS TO JURISPRUDENCE
The basis for legal positivism is the separation of morality and law; in this sense, it distinguishes itself from natural law theory as the moral content of law is considered completely separate (the "separation thesis"). The historical foundation of legal positivism is based on the validity of laws coming from their sources and creation, not their merits or value. However, more modern legal positivists would argue that law is inherently moral.
One of the founding theorists for legal positivism was John Austin, who establishes a general framework over the origins of law. He claims that laws are commands issued by the “uncommanded commander”, i.e. the sovereign. These commands are issued by superiors to subordinates, and are enforced by sanctions. The sovereign can be viewed as someone that is obeyed by the majority, and can either be an individual or group (e.g. Parliament). His view on law and morality was that the subordinates had the moral obligation to obey all valid laws, whether or not they were moral, and that the law itself is a standard of justice. While lawmakers may strive for congruence with morality, it is not a necessary element in a valid law.
When new laws are introduced, they must be consistent with the rule of law making jurisdiction. This is determined based on the “pedigree” test – based on what the origins of the rule being introduced is, and if it is consistent with the rules of the system. This "pedigree" test requires a law must be created according to the rules of the system, so a modern example would be how a bill is passed through Parliament and all the necessary steps taken for it to eventually become a law. Austin argues that judges are subordinates, imposing limited authority delegated to him/her by the state authority - Canadian Parliament.
In summary, Austin would require a valid law to depend on:
- A command,
- Issued by a sovereign (a determinate and common superior to whom the bulk of a given society are in a habit of obedience or submission to) and,
- Imposed by sanctions.
In comparison to St. Thomas Aquinas' validity of law depending on:
- Common objective,
- Reasoned steps leading to the common objective,
A more modern legal positivist who refined this paradigm was HLA Hart and his theory of the rule of recognition. He rejected the theory that laws are simply “commands” and viewed laws as human artifacts. Hart separated laws into two categories: primary rules and secondary rules.Primary rules are based around telling citizens what they can and cannot do. These rules are concerned with regulating the conduct of the people they govern. Secondary rules are used to change and modify rules, helping to establish and clarify what the rules are. This distinction between primary and secondary rules essentially display the difference between substantive (primary) and procedural (secondary) law.
Hart’s rule of recognition states that valid laws need to be recognized by officials within the legal system, and these officials - judges - need to consistently apply these criteria (e.g. the common law and the Constitution) and believe that they are obligated to apply these valid laws. Hart states that laws do not have to be moral to be considered valid and that officials can still apply them, but that disobedience of the governed people is warranted if a law is truly immoral. This is in sharp contrast to what a natural law theorist would believe, such as St. Thomas Aquinas, who would argue that the law has to be aimed at achieving the greater good. They would agree that disobedience by the public is warranted if the law is immoral, but would disagree with the positivist view that laws do not have to be moral. However, Jeremy Bentham (a utilitarian philosopher) would completely disagree with the natural law approach, claiming it is "nonsense upon stilts".
Application to the case
The case of R v O’Connor deals with issues that revolve around competing Charter interests. Since Canadian society and our legal system is a constitutional democracy, the Constitution Act, 1982 reigns supreme and thus the common law must reflect and be consistent with it. Applying Austin's classic positivism theory to this case, many complications and difficulties arise. According to Austin, the legislature (Parliament) is the sovereign whereas judges are being delegated power with limited authority over the decisions they can make, so they would be classified as a "subordinate". So this theory struggles to explain how judges can adopt and apply common law, rather than just legislation, as they are "subordinates" making commands. Austin also states that the sovereign cannot be bound by law, (as a condition of law's validity is that it be a command issued by a sovereign to a subordinate), yet in Canada, our constitution explicitly binds the sovereign (rule of law). The case R v O'Connor is a perfect demonstration of how the Constitution/Charter control the decision making process of judges, since there are competing interests between the parties - both involving valid, protected rights under the Charter (s.7 applying to both parties). Thus, the judge's decisions, as having delegated authority from the sovereign, are limited through the rule of law and constitutional supremacy.
This case would establish what Hart claims is a secondary rule, as we are slightly modifying the rules and clarifying how the Charter rights should apply for the duty to disclose, yet also respecting victim’s privacy rights. It could also be argued that the duty to disclose, in certain circumstances (such at the case at bar), imposes primary rules on the Crown to follow.
LOOK AT HOW LEGAL POSITIVISTS WOULD LOOK AT JURISPRUDENCE.
Positivism intertwines law and morality; each law is created with an underlying moral. This is unlike HLA Hart’s Separation Thesis which is based on the belief that law and morality are separate rule governed systems. HLA Hart see’s laws as human artifacts, that are not dependent on moral content. The separation from morality is not a requirement, more often laws and morals can run parallel.
Society follows laws not out of fear of punishment but because they create stability and effectiveness. There is a belief we “ought to” to follow laws not because we are morally obligated to but because of their effect. HLA Hart compares laws to rules of a game, you follow them because they are recognized rules. However, they differ from games and etiquette because they are universally recognized and backed up by a legal system.
The majority of people in that society need to recognize and have a belief that they “ought to” follow that law because law needs to be rooted in the rule of recognition. This must also be done on a regular and consistent basis. If the majority is not following the law consistently then it is not a valid law. It is important to note that they are separate here and often run parallel but if there is a conflict then there is a decision to make. Individuals may be guided by their conscience and they may deviate from the law and follow their moral obligations may be disobeyed.
The Rule of Jurisprudence
Rule: all laws have a settled core of application The Common Law deals with the exceptions to this rule, something about the facts of the case fall within the penumbra. These are refused to “hard cases”. Judges draw on the rule-governed practice to decide “hard cases” which part of the factual situation falls outside the settled core. Judges are not creating law, they are drawing on rule practices which are separate from law, to decide the case. These rules of practice that may look like morality, but are not morality, run through the entire body of law and the legal system. These are similar to the principles present in Dworkin’s Theory. This is what leads to consistent law making in courts.
These rule governed practice are the principles of justice which includes justice in the administration of law, and principles of fundamental justice, but again not morality.
R v O'Connor
The case of R v O’Connor looks at the right to a full answer and defense and the right to privacy and looks at how people cannot be legally deprived of these rights except in accordance with the principles of fundamental justice. These values run through our legal system. This case can be considered a hard case, because it’s factual situation falls within with penumbra outside the settled core. The rule governed practice must be applied to the right of privacy and the right to a fair trial. Then the rights are balanced against each other to come to a decision.
The victims in this case have the right to privacy and psychological integrity free from state interference. The accused has the right to a full answer and defense. However, as both rights cannot be fully followed at the same time, there is a conflict. This conflict is the part of the facts that fall outside the settled core and in the penumbra. If the accused requires records of an extreme private nature to the victim, neither right could be satisfied fully at the same time. There then needs to be a balancing by the judge to come to a decision.
The Rule-governed practice shows that fundamental justice requires a fair balance between the rights of the competing parties. It is here that the judges develop their analysis in which they weigh the competing claims. The five-stage analysis created by the courts is fact dependent, and should be use on a case-by-case basis. This 5 stage would be applied slightly different to each case because in balancing the rights of two completing parties, this totality of circumstance analysis creates an opportunity for an outcome based in fairness and fundamental justice.
Critique of Separatism - Lon Fuller
Fuller has four main critiques of the separation thesis.
The first is the social acceptance of legal rules depends on grounding in morality. Hart believes that in order for a law to be in the rule of recognition the majority of society believes there “ought to” be a reason to follow it. Fullers argument is the only reason the majority of society would believe that is based in majority.
His second criticism is that law has an inner morality. Law is more than label. Law has to act like law and a legal system has to be “coherent, rational, and consistent and a requirement to be known and a capable of explanation” Fuller believes this is the inner morality of law because the purpose of all of these tends towards.
The third criticism is that immoral laws cannot actually be explained by the separation thesis, which means there is no adequate explanation for a general obligation to obey a law.
Fourth, he criticizes the core and the pnemubra theory of judicial interpretation. Fuller does not believe in the core of settled meaning or the penumbra. This means to Fuller laws are always interpreted in context and with reference to the purpose of the rule and the good it was meant to establish. Hard cases to Fuller are those where the purpose is uncertain or there are completing purposes in play.
Application to R v O'Connor
In our cases, the issue of competing rights to Hart falls in the penumbra. Fuller would consider the competing purposes in play which would decided by the good the laws were meant to accomplish, because it is the external morality and the internal morality of laws. Judges are creating law and Hart says they are not creating law they are merely interpreting issues in the penumbra.
Fuller and Hart disagree on the definition of morality. Hart believes morality could be extra notions of hat out to be it could potentially be bad and therefore dangerous to the source of law. Where as Fuller defines his morality as inner morality that is based on logic and rationality. He states, “when men are compelled to explain and justify their decisions their effect would be to pull those decisions towards goodness.” Means through explaining the morality that is in law you ensure that it is at its optimal goodness.
Law as a System of Rights
Theology of Ronald Dworkin
R v O’Connor, can be considered a “hard case” through the perspective of Ronald Dworkin’s theory, Law as a System of Rights. Dworkin’s approach classifies “hard cases” as cases that do not adhere to any rules or the result is flawed if the rules were followed. In these cases the judge must use principles to guide his reasoning to the only right answer. Principles are a part of the law and cannot be created because they already exist; they just need to be recognized by the judges.
Principles are legal obligations and are not discretionary. The principles in this case would be the underlying protection of the victims from having to expose information touching on their biographical core and the principles of fairness. The conflict relevant in this case is the balancing between one’s privacy rights and the right to make a full answer and defence. The judge must use principles to come up with the one answer.
Features of Dworkin’s theory can be identified in the reasoning of the majority in the case of R v O’Connor. The majority court ultimately used principles to balance and decide the overriding rule in this case. The court implied the rule of privacy, from section 7 of the Charter, the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice, as the right answer in case”. They found this principle to be of greater importance than the principle pertaining to a fair and full defence. The court found the protection of the victim from unnecessary harm and stress to override the principle in regards to a fair and full defense.
The court identified difficulty of such timely delays in the delivery of previous disclosure. The majority acknowledged that the Crown claims to have inadvertently forgotten to disclose the records as she had “dreamt” she had done it. The Court recognized the Crowns conduct as “shoddy and inappropriate but found that it did not offend the principles of fundamental justice.” When balancing the rights of two parties it is necessary to consider the history of each separately because the principles must be weighed out of past policy. In this circumstance both rights were already pre-existing. This is directly in accordance with Dworkin’s theory. Policy is better left to Parliament but when the principle and policy do not align the court steps in. According to Dworkin, when deciding whether the stay of proceedings was a violation of the accused section 7 charter rights, the crown had to balance competing policy considerations and relevant principles that would influence the rights of the accused and integrity of the judicial system. Any decision made by the court must be guided by relevant principles and policy considerations that define the legal system. Judges’ discretion is limited in this way as Dworkin refers to it as “ weak discretion”. According to Dworkin, the judges were justified in deciding that this case was not case in which a stay of proceedings was mandated. Policy considerations such as, the integrity of the judicial system and the importance of confidence from society in the judicial system should be given a more weight when balancing the competing principles.
From the analysis above, it is clear that Dworkin would have approached the case of R v O’Connor in a similar way as the majority decided and he would have yielded the same outcome. . Implementation Dworkin’s theory resulted in the issues pertinent to society being taken into consideration and use to amend flawed law. The court found that in order for disclosure two requirements must be met. (1) It must be established that the records are relevant in regards to the case, and this must be done without seeing them; and (2) After balancing the interests of both side the judge must decide whether they shall be disclosed.
Liberty and Paternalism
John Mills theory, Liberty, interprets the law as the moral code for society, which has been established to regulate human behavior, while at the same time implementing a system of Individual liberty. While Mills favours the presumption of individual liberty and individual rights, he acknowledges that in cases interference to rights and freedoms can be justified. This justification arises when on a limitation are required to prevent the harm of others, whether that be society as a whole or a specific or potential group of people. We can see the court in R v O’Connor grappling with these ideas of liberty, as they try to justify infringement on the accused’s section 7 rights.
The accused argues that non disclosure of the victims entire medical, counseling and school records was a violation of his section 7 Charter rights, since non disclosure of these records could ultimately impact his right to full answer and defense. The SCC reaffirms judicial precedent that the Crown is required to disclose all evidence and material they obtain to prevent a section 7 Charter right breach. The court agrees that the Crown’s conduct, by not disclosing the records, was shobby and inappropriate, however, taking into consideration the seriousness of the crime and the implications it could have on the victims self esteem and safety. However, the acknowledge that there exists situations in which the accused would not be entitled to all the information/documentation he deems ‘necessary’. These situations arise when the documentation is of such a personal nature that it would violate privacy rights of victims. Here the court balances the interest of society and the protection of victims. For this reason the court develops a new procedure. Here, the judge would first consider the importance of the information before it was distributed to the crown, because the crowns duty to disclose information is extremely important in protecting the rights and liberties of the accused. This new procedure allows the judge to decided which information can be disclosed to the crown and the defense, this allows the judge to weight the liberty and security of the victim and balance it against the rights and liberties of the accused. Therefore, in serious cases where there is a serious harm to the victim and others in society, the right to disclose information may be weighted against the accused.
We can see the court adapting Mills theory by using harm to society as a basis for justifying their decision. According to Mills, the only legitimate justification of infringements on individual rights is infringement based on the harm principle: restriction of individual liberty to prevent serious harm to others. While, the court in this case ruled that there was no infringement on the accused’s rights, they used the harm principle to reach this conclusion. Disclosure of the records would not only have caused strenuous amounts of stress on the victim, who would have to relieve her traumatic experience, furthermore, the judgment of this case could potentially have adverse side effects on future victims. By infringing the rights of one, harm to society was ultimately prevented. According to the dissenting judgment, because this was a breach of the Crown’s duty, non disclosure of the records would be a serious infringement on the accused’s section 7 charter rights. The dissent in this case interpreted the non-disclosure as having adverse effects on the accused’s ability to prepare for trial, which also violated the fundamental principles of justice, ultimately harming society sense of fair play and decency. Interestingly, we can see the dissent adopting some of mills principles in their judgment as well. Since the dissenting judges did not perceive the disclosure of the records as being harmful t other in society the infringement on the accused liberty was not justified. This is analogous to mills ideas, unless there is some perceived harm to society, infringement cannot be justified.
The dissent concluded that the Crowns conduct was outside the scope of their prescribed authority and therefore a stay of proceedings was justified. This reasoning is analogous to Mills ideas of authority; according to Mills government authority should be subject to limits to prevent anarchy and dictatorship. The dissenting opinion also disagreed with the majorities judgment in developing a new procedure for disclosure of information.
Accordingly we can see the dissent endorsing Mills principles in their approach to limit the crowns power by suggesting that a stay of proceedings would have been the appropriate course of action.
Where Mill’s theory allowed the limitation of individual liberty solely when it is necessary to protect the potential harm to others, Paternalism proposes the idea that society should also protect harm that is done to oneself. According to Mills, harm to one does not need to be protected; individuals have the liberty to act as they like, the state should not interfere with ones autonomy.
As mentioned above, Mill’s theory justifies limitation of individual liberty solely when it is necessary to protect the potential harm to others, rejecting the idea that harm to one self does not need to be protected. Paternalism proposes the idea that society should also protect harm that is done to oneself. Comparing these two approaches its clear that the present case is more consistent with the ideas proposed by mills versus paternalism. Unlike, paternalism the case does not focus on its attention to protecting harm that is done to one self, instead focus on the court in this case balances the interest and the security of the victim with the liberty of the accused to determine that limiting the autonomy of the accused would be justified to protect the interest of the victim and other potential victims in society.
Law as Efficiency
Economic theory defines laws and the development of legal rules as developing towards efficiency. The purpose of law moving towards efficiency is to achieve and facilitate the maximization of social wealth. Wealth according to economic theory is not merely money, but all measureable satisfaction.
Although, the economic theory tends to focus on individual transactions between two people, emphasizing market transactions and transactions between individual parties achieving maximization of wealth. We do see some of the main ideas expressed in this theory adopted by the court in R v O’Connor. According to the theory, the common law has developed to give judges considerable power to protect rights, transactions, and establishing procedural rules to increase efficiency.
In R v O’Connor, wealth is the protection of sexual assault victim. To protect the rights of the victim and potential victims in society, the court not only infringed the accused’s section 7 Charter rights, but furthermore, a new procedure for information disclosure was developed. The court established this new procedure as a way strike a balance between the two competing interest, those of the accused and the victim. According to the courts ruling, these new procedures were for societies benefit, where victims and potential victims rights were at risk the disclosure process would be weighted in their favor. According to the economic theory, impacting the rights of the accused was a small cost to pay for a bigger benefit to society.
According to the Economic theory rights are conferred to individuals and these right and liberties need to be protected, however, rights are only recognized to the extent that it is efficient to recognize them. Enforcing someone’s rights might be costly to society and therefore limiting these rights might be justified as a benefit to society.
Accordingly, R v O’Connor had a right to a fair trial and the right to disclosure of records from the crown. However, the cost associated with allowing R v O’Connor to enjoy his full set of rights, was extremely high. Not only would this decision been extremely fatal for the victim who would have to bare the burden of having her terrific experience disclosed to others, but this decision could have also affected future victims of sexual assault. If we look at the courts decision as implementing a cost benefit analysis we can see the economic theory of wealth and benefit maximization emerging. The wealth in the present case would be protection of sexual assault victims, infringing the rights of a wrongdoer in order to maximize this wealth would be in accordance with the economic theory, this decision would allow the court to achieve and facilitate wealth maximization.
The dissenting opinion can also be understood from the economic perspective. According to the dissenting judgment the disclosure of documents was not a serious impact on the victim and the crowns duty to disclose out weighted any other needs. This can be interpreted from the perspective of the economic theory, in which the cost of allowing the crown to disregard their duty to consult would be a cost on the society as a whole, which would not lead to the maximization of wealth. Allowing the crown to disregard their duty would open the possibility of allowing the crown to dishonor their obligations in later cases, which would ultimately weight against efficiency and be a cost to society. Thus while the rights of the victim would need to be protected, infringing those rights can be justified by the cost associated with allowing the crown to dishonor their obligations.
Similar to legal realism, feminist theory is not a single school of thought but is a cluster of related views with a common core. Therefore, feminist theory rejects the abstract theories above. Instead of looking at an overarching abstract theory guiding and governing law, feminist theorists focus on the diversity of the theology derived from the actual lived experiences of women, keeping in mind that not all women have the same shared experiences. It is through this lens that it examines law. Feminists note that women have traditionally been silent subjects in law. Law is traditionally thought of through the aspect of the ‘reasonable man’ and the strength of patriarchy. Women are generally noted only when they are the subject of law and the discussion is about them. Feminists ask how this impacts women.
Common Core Belief
The core belief of all feminist groups is that the world, as understood today, is structured by patriarchy: the systematic domination of women by men (or minorities by the majority). Patriarchy represents the power that one group holds and wields over another. Feminists argue that this is so engrained in today’s society that it structures virtually all of social reality, including law. The belief is that patriarchy is disadvantageous for women and therefore is detrimental for society's growth and improvement. Feminists study how this can be changed to better the lives of women (which, again, would be beneficial for everyone). It is here, in the mode of challenging and reforming the traditional “value” (patriarchy and the system that flows from it), that feminists diverge into different subgroups.
Liberal Feminists are the classic feminists that believe there is nothing wrong with Dworkin’s theory and the principles that accompany rules in law but they argue that patriarchy created subordination of women and “blocks” which prevent women from participating in all aspects of society, including the economic and political sphere. They argue that removal of the blocks would bring about “equality.” This is largely where liberal feminists differ from other subgroups who argue that more is required than mere removal of blocks to create equality. But to the Liberal Feminist equality is defined as “equal opportunity”. They hold the belief that “gender blind laws”, no blocks, no privileges, will achieve what is necessary. The Modern Liberal Feminists, however, recognizes the diversity in the lived experiences of women (i.e. motherhood) and acknowledges that these need to be recognized and provided for in order to maintain the accessibility of “equal opportunity.” They also recognize, that once the blocks are removed (removing the formal inequality) informal inequality that is experience by women in the public sphere.
Liberal Feminists would likely be more accepting of the majority holding when compared with other subgroups of feminism because of their acceptance of Dworkin’s principles and fundamental justice. They would therefore have less difficulty in understanding the majority's approach in balancing the two rights recognized by the Canadian legal system: the right to full answer and defence and the right to privacy.
Marxist Feminists, similar to the general Marxist, believe that societal problems are rooted in the capitalist system. When capitalism emerged all the the working class has to sell was their labout, for feminists the focus is on the de-valuing of the “private” work sphere (home-based labour) because in capitalism this labour is considered economically useless. Women's work in the home has been de-valued because it does not created capital like man labour in the public sphere. Like Marxists, Marxist feminist, believe change will come when capitalism ends.
Unlike Marxists feminists, Postmodern Feminists reject the idea that there is a meta-theory which explains or would fix the problem of patriarchy. They believe that there is no single solution to female oppression. There are multiple solutions that must respond to, not the abstract category of women, but the actual, real, lives of women. They argue that women are often thought of in society as the ‘other’ unless they take on what is known as male characteristics. Women who are capable of taking on these characteristics are the exceptions. This could not and should not be the norm. Instead what needs to be done is women need to overcome their embarrassment of the 'otherness'. Postmodern Feminists believe the 'otherness' is something that should be embraced and celebrated as part of being a woman. What needs to be demanded of the law is an entrancement of this same ‘otherness.’ In addition, the question needs to be asked, how law can do thing and help women with this achievement?
Relational feminism argues that women are socialized differently from men and this produces a different moral perspective when it comes to relationships. Like the Postmodern Feminist, Relational Feminists argue that is not something that needs to be overcome. Instead the public sphere must change to be more like the relations women have. Patriarchy and male relations have an emphasis on autonomy of the individual’s protection, like in Paternalism and the belief in the individual's autonomy. This is not how women are raised to look at their relationships. Women cannot separate themselves from their relationship (i.e. with family, children) because they are embedded in these relationships. Autonomy is therefore useless for women and not actually good for society. Women will never be the rational autonomous man, and this should not be the goal. Society should embrace the view of relations that women have been raised to have. The social and legal world should adapt to this new way of thought. It would be beneficial for men and women.
Radical Feminism argues that patriarchy is so deeply rooted in society that change will only be achieved through fundamental changes in the basic structures of society. The fundamental ideas of what it is to be male or female need to change and socialization of the younger members of society needs to reflect that. There is a focus on the social construction of gender within patriarchy. They argue that it is impossible to understand what female-ness is without first, fully, dismantling patriarchy. In addition, the biological reality of women needs to be given significance in law. For example, law needs to recognize the work of raising children and the relationship that develops between the mother and the child.
McKinnon’s feminism: Law as a male power
McKinnon, an influential feminist theologist, argues that law is the site which protects the center of patriarchy by making it invisible and legitimate in its adoption of the “male point of view”. Law does not need positive law to dominate women, it does this through its very structure. This is present in the role of the judiciary, which upholds patriarchy in its precedence. Rights are an illusion: a way to uphold the male autonomy (or domination of women) in the cloak of “freedoms” or “rights”. She argues that women need to demand actual equality through law as part of changing the state’s relations to women and women’s relations to men. There are two main steps in achieving this. First, is to claim women’s concrete reality. This is similar to the Relational Feminist view: embrace the reality of women (the otherness). Second, is to recognize male power over women that it embodied in law.
Application to R v O’Connor
The result of R v O’Connor was a five-stage analysis that allows for a case-by-case balancing act between a victims privacy rights and an accused right to full answer and defence. As earlier mentioned the court then looks at principles, ideas of justice and/or moral to make the decision of whether or not the information is relevant and should be disclosed to the defence. While Liberal Feminism accepts Dworkin’s principles ruling together with law, feminism in general would not agree with the holding in this case.
The court recognizes the necessity to severely limit the disclosure of third party information and place a “onerous” burden on the accused to prove that the records are “logically probative” to an issue at trial. The dissent would have limited this process further taking the primary view point of the victim. However, feminists would argue that the restrictions and recognition of problems which could arise out of disclosure of these documents is not enough. Yet it is all the courts, in the current legal system, are capable of doing. This is because the legal system is designed with patriarchy as its centre. To feminists the fact that a five stage analysis allowing this information to be disclosed would demonstrate the deep-rooted patriarchy in the legal system.
The 'right' to full answer and defence and the 'right' to privacy are Charter grounded rights. But, as McKinnon would argue, the Charter is part of the legal system, which cloaks patriarchy. The 'right' to full answer and defence or the 'right' to privacy are rights created and determined by the traditional male lawmaker and by a legal system steeped in the power of patriarchy. McKinnon and other feminists would ask; why is the 'right' not to be victimized or re-victimized mentioned by the court? This is analogous to the examples McKinnon discusses in her article: how ‘freedom of expression' is used in the patriarchal legal system to uphold the legality of pornography, an industry detrimental to the health women. Or, when the 'right to privacy' is used to protect batterers who act out behind closed doors. Feminists would argue that although there is no law allowing for the victimization of women, this case would demonstrate how the legal system itself, is set up in a way that makes that possible.
The diversity in views of feminists create a diverging view of jurisprudence, however, the common core of rejecting patriarchy remains the same. Feminists are committed to dismantling patriarchy and improving the lived reality of women’s lives.