Kerri A. Froc is an Adjunct Research Professor and Postdoctoral Fellow at Carleton at Carleton University. The focus of her postdoctoral research is the history and philosophical underpinnings of the right to equality under section 15 of the Canadian Charter of Rights and Freedoms. She is also writing a book, arising out of her doctoral research, on gender equality and reviving Canada’s “equal rights amendment,” Charter section 28. She will join the University of New Brunswick Faculty of Law as Assistant Professor in July 2017.
Dr. Froc received her Ph.D. from Queen’s University (2016), her Master of Laws from the University of Ottawa (2009); her Bachelor of Laws from Osgoode Hall Law School, York University (1996); and her Bachelor of Arts from the University of Regina (1993, with distinction). Her research has appeared in publications such as the Canadian Bar Review, the Review of Constitutional Studies, the Canadian Journal of Parliamentary and Political Law, and in the anthologies Feminist Constitutionalism and Advancing Social Rights in Canada. She lectures and writes on issues concerning theories of constitutional interpretation (including originalism), access to justice, reproductive rights, rights of political representation, and complex rights violations experienced by working women, poor women and racialized and Indigenous women, among others.
Before completing her Ph.D., Dr. Froc spent 18 years as a lawyer, first as a civil litigator in Regina, Saskatchewan; as a staff lawyer for the Women’s Legal Education and Action Fund (LEAF); and then as a staff lawyer in the areas of law reform and equality at the Canadian Bar Association (CBA). She is a member of the bars of Ontario (2005) and Saskatchewan (1997).
Industry Expertise (5)
Areas of Expertise (10)
Queen’s University: Ph.D., Law 2015
The focus of my research was the history, interpretation and application of section 28 of the Canadian Charter of Rights and Freedoms, in relation to women’s constitutional claims. I successfully defended and deposited my dissertation in December 2015, and my degree was conferred in June 2016.
University of Ottawa: LL.M., Law 2009
The focus of my research was women’s multiple rights claims under the Canadian Charter of Rights and Freedoms.
Osgoode Hall Law School, York University: LL.B., Law 1996
University of Regina: B.A., Political Science 1993
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Media Appearances (5)
The Liberals killed a bill promoting gender parity in politics. They were wrong.
Why the arguments against a bill that would have penalized parties for failing to run equal lists of male and female candidates don’t make sense.
Kerri Froc, a postdoctoral fellow in the department of law at Carleton University, where she specializes in gender rights under the Charter, assessed each of the government’s constitutional objections to the bill at the request of Maclean’s. The government argued, for example, the proposed law could create problems under Section 3 of the Charter, which ensures the right to be qualified for membership in the House of Commons, but Froc says the “obvious answer” is this law would do nothing to impede that: parties could run whomever they want; they would just have to pay a fine if their slates were lopsided in gender.
And on a deeper level, Froc says a Section 3 challenge is a non-starter because the point of the bill is to correct an existing disadvantage for women. “To the extent that men would be seeking to use Section 3 so that they can continue to receive party nominations in disproportionate numbers—to allow systemic bias in their favour to continue—this is essentially asking for the court to allow their Section 3 rights to continue to ‘count more,’ ” she says.
Froc describes another of the government’s contentions—that the bill could infringe on people’s right to association—as “on fairly thin ice,” because there’s nothing to suggest a male candidate would be prevented from joining with others to promote a common goal. And concerns that the bill could interfere with freedom of expression if— as the government suggests—someone wanted to start an all-female party, is “far-fetched,” she says. “There might come a day where an all-woman party is formed, runs a slate of all female candidates, and then constitutionally challenges legislation meant to benefit women, but not in my lifetime,” Froc said.
“I don’t regard any of the concerns as fatal to the bill, as having sufficient merit to warrant the government blocking the bill,” she concluded. “If the government truly believes ‘it’s 2016,’ then it should get on with it and use the tools at its disposal to remove systemic barriers to women’s equal electoral participation.”
The unintended consequences of Canada's "Equal Rights Amendment"
The 180 - CBC
Section 28 of the Canadian Charter of Rights and Freedoms was supposed to be a game changer for women. It reads: "Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons." But lawyer, Trudeau Foundation scholar, and Queen's University PhD candidate Kerri Froc says it has been used to hurt women's rights instead of advance them
A basic right
Canadian Bar Association online
“Courts are always not too far ahead and not too far behind our cultural norms – look at the change that occurred in judicial decisions on same-sex marriage,” says Kerri Froc, a postdoctoral fellow at Carleton University. “They evaluate constitutional arguments based on judicial common sense – whether they are ‘off the wall’ or ‘on the wall,’ ” she adds in an email, citing Yale law professor Jack Balkin.
Russell Williams’s pension: New twist in sex assault victim’s fight for damages
Toronto Star Newspapers online
The argument is “the government is interfering with her ability to recover those damages by blocking access to his pension,” says Kerri Froc, a lawyer doing her doctoral thesis at Queen’s University on women’s constitutional issues. She is not involved in the case but has been following it closely.
This makes the government “complicit in her suffering,” Froc says. “If someone can’t afford to get counselling because they’ve been raped then the harm continues.”
This would violate Massicotte’s Section 7 Charter rights to “security of person,” Froc argues.
Russell Williams clings to his pension
Rare exceptions do exist. Pension earnings can be awarded to ex-spouses in divorce proceedings, for example, or diverted to cover unpaid child support. “The problem, however, is that there are no further exemptions,” says Kerri Froc, a lawyer and Ph.D. candidate at Queen’s University who specializes in women’s constitutional rights. “What of a case, like Williams, where the pension-holder intentionally inflicts physical and psychological damage? The kind of injuries experienced by sexual assault survivors are such that it may have an impact on their income-earning potential. They may also require funds for treatment and, in any event, they have a right to be made whole, so far as a judgment can do that. Why should their need to recoup those losses be treated as less deserving than a rapist’s need for his pension?”
Research Grants (4)
SSHRC (Social Sciences and Humanities Research Council of Canada) $81,000
Vanier Canada Graduate Scholarships
Vanier Scholarship $150,000
Pierre Elliott Trudeau Foundation
2012 and 2015
University of Toronto Faculty of Law Review $500
This dissertation is the first comprehensive examination of the history, interpretation, and potential application of section 28 of the Canadian Charter of Rights and Freedoms, guaranteeing rights and freedoms "equally to male and female persons." It seeks to answer two questions: first, why, despite women being only marginally successful in advancing Charter claims involving gender equality, courts have so profoundly marginalized section 28; and second, whether and how section 28 might be transformed into a fully effective constitutional provision in accordance with its original, feminist meaning. The dissertation approaches these questions first by examining flaws in the existing interpretative approach to Charter adjudication, arguing instead for a new approach that structures consideration of a provision’s original meaning and legislative history. It then demonstrates the wealth of resources history has to offer in relation to construing the meaning of section 28. At its core, section 28 was meant to require courts to view rights through a gender equality lens and channel judicial discretion towards transformative interpretations of rights that support the eradication of women’s subordination. The dissertation relies on cultural theories and theories of feminist geography to demonstrate how the liminal spatiotemporal location of section 28’s feminist framers in the patriation process became embedded in section 28’s meaning. Ultimately, section 28’s liminality led most courts to construct the provision as a “threat.” Through a forgetting of the work of its feminist framers, they applied section 28 in a manner that perverted its meaning and ultimately attempted to consign it to desuetude. In the end, this dissertation demonstrates that properly interpreted, section 28 could fundamentally reshape how rights are adjudicated, ensuring the Charter delivers on its promise of guaranteeing Canadian women’s equal personhood in fact.
Obviously, the normalization of misogyny, racism, and xenophobia didn’t start with Trump. But, he is emblematic of the fragility of social progress. The “doublespeak” of a powerful figure turns sexual assault into “locker room talk,” calling out bigotry is again delegitimized as “political correctness,” and trading upon dehumanizing stereotypes of historically denigrated groups like refugees becomes “unconventional” politics once that candidate wins. As Gloria Steinem once remarked, there was a time when wife battering and sexual harassment was “just called life.”
Now, in 2016, discriminatory behaviour is “just called politics.” As the process of normalization kicks into high gear with “softball” interviews on 60 Minutes and his imminent inauguration, there is a risk a “subtle amnesia” sets in and it could be called nothing at all.
Closer to home, this normalization process is significant for the right to equality guaranteed in the Canadian Charter of Rights and Freedoms. There is a disquieting tendency in section 15 jurisprudence for the Supreme Court of Canada to rely on the notion of discrimination as an aberrant, irrational phenomenon.
Originalism is a body of theories about constitutional interpretation that gained popularity in the United States in the 1980s. These theories maintain that the meaning of constitutional provisions is fixed at the time of framing and ratification and that the popularly understood meaning of the words at that time (or the original intentions of the drafters) is authoritative.
Pet custody: No laughing matter when it comes to women’s equality
BY KERRI FROC January 3, 2017
Pet custody: No laughing matter when it comes to women’s equality
Right before the December holidays, a Canadian judgment denying an application for pet custody, Henderson v Henderson, captured the attention of the national and international media (including People magazine and the Washington Post). The treatment of the issue in Henderson, like very many of the pet custody cases, was, at turns, somewhat humorous and derisive, implying that the parties were locked in legal battle because the pets were substitute children (“not unusual in such a situation” because the couple was childless).
To date, there have been another dozen or so cases concerning the ownership, possession and visitation of pets in Canadian family law proceedings...These cases hint at the fact that legal rules about and justiciability of “who gets the pets” post-separation have special importance for women who have suffered abuse, and therefore they are matters of serious consideration for family law courts. Nevertheless, no Canadian court has overtly acknowledged this relationship. The law has not caught up with social science research, which has for years documented the connection between treatment of pets and intimate violence against women.
In this article, the author posits that the principles of fundamental justice present tantalizing possibilities in the quest to use constitutional law to ameliorate the real conditions of disadvantage and subordination faced by women. As a way out of the stultified comparative analysis in equality cases and a section 7 analysis that has often been impervious to gendered relations of domination, she proposes a new use for the right to substantive equality represented in section 15(1) of the Canadian Charter of Rights and Freedoms: as a principle of fundamental justice. Using the examples of the 1988 decision in R v. Morgentaler,  1 SCR 30 and subsequent abortion litigation and proposed legislation as a case study, she addresses the questions of the difference it would make to have substantive equality recognized as a principle of fundamental justice in granting women equal access to Charter rights. Without recognition of substantive equality as a principle of fundamental justice, state regulation and coercion of women through their reproductive capacity is normalized and made invisible, reducing justice to procedural fairness, and accommodating perceived physical and mental frailties, individual needs and personal morality. Further, women's unique subordination through forced pregnancy defies ready comparison under a section 15 equality analysis. Incorporating substantive equality would mean an interpretation of "fundamental justice" based upon understandings of ethical social relations, self-determination and inclusion in community, conceptions that find support in the existing section 7 jurisprudence and would satisfy the test in Re BC Motor Vehicle Act,  2 SCR 486 to be recognized as a "basic tenet of our legal system." This legal recognition would constitute an acknowledgement of what is most fundamental to women.