Conscious Representations: Critically Interrogating the Engagements and Representations of Extralegal Discourse in R. v. J.A.

Abstract

This paper is an exploration of how (mis)representations of justice may emerge from a failure to properly engage with and critically analyze the discourse that is privileged within legal cases. It problematizes the widespread feminist approval of the verdict reached in R. v. J.A., 2011 SCC, and suggests that to truly understand the process by which law was reformed, it is necessary to consult its predecessors, R. v. A.(J.), 2008 ONCJ 195 and R. v. J.A., 2010 ONCA 226. At the trial level in particular, there was a demonstrable privilege afforded to the trial judge’s ability to make extralegal claims about J.A. and K.D.’s sexual conduct. Other ancillary bodies and professional knowledges were employed to validate the legal (re)construction of non-consensual sexual interaction, and are accordingly critiqued as advancing risk-averse politics at the expense of queer or marginalized sexualities.