Author: Student

Meeting Susan Ursel, the Asper Centre’s next Constitutional Litigator-in-Residence

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By Sara Tatelman

When you walk into the waiting room at labour law firm Ursel Phillips Fellows Hopkinson LLP, you’re greeted by large black-and-white photographs of Canadians at work and, in silver sans-serif type mounted on the back wall, an unattributed quote: “The philosophers have only interpreted the world. The point is to change it.”

As we sit down, senior partner Susan Ursel readily tells me the photographs were taken by Toronto documentarian Vincenzo Pietropaolo, and the quote is from Karl Marx.  “[Partner] Gary Hopkinson is our resident philosopher … and he came up with that one,” she says. “It seems so apt because we don’t want to just study the world — we are actually here to contribute to it.”

Ursel, who will serve as the Asper Centre’s Constitutional Litigator-in-Residence for the 2018-19 year, has tried to change the world since she was in high school. “I used to picket my local Dominion store and ask people not to buy grapes and to support Cesar Chavez and the United Farm Workers in their struggle for recognition,” she says. “… I could see how difficult it was for some people to make their own way, to be successful, and we see it even more today. And I just thought, that’s a kind of work that I can see applying myself to … and feeling that I’m adding something to the world. And that became my pole star and what I followed all the way through undergrad and then law school.”

Throughout her career, Ursel has represented a wide variety of unions and individuals on labour, employment and human rights issues. Recently, she intervened for the Canadian Bar Association in Trinity Western University v. The Law Society of Upper Canada. “I think it’s problematic to view any rights in an absolutist way, and I think we have to be very careful about the concept of religious freedom,” she says. “… We’ve prided ourselves on being welcoming to everyone, and when an institution asks to be recognized in the public square, which is what Trinity Western is asking, … [it must] engage with everybody.”

Ursel’s long history of advocating for LGBTQ+ rights — including in Egan, which confirmed sexual orientation as a prohibited ground of discrimination under the Charter, and in XY, which established it’s discriminatory to require trans folks to have sex reassignment surgery before they can change their sex designation on their birth certificates — stems from her own experience as a lesbian lawyer who came out in the 1980s.

“There weren’t a lot of us,” she says. “And the ones who were out in the legal profession belonged to something called the Other Lawyers Association. We didn’t have email. We had telephone trees and letters in brown paper wrappers with no identifying marks on the outside to invite each other to parties.”

One year, Ursel hosted a Christmas party for other LGBTQ+ lawyers. “I couldn’t get the guys to leave!” she remembers, laughing. “They were so happy. … There was no place to go and be themselves and talk amongst their peers and they were having just a really wonderful time. I remember thinking, ‘They’re not going home. I’m going to find some of them on the living room floor tomorrow morning.’”

At the Asper Centre this fall, Ursel will co-teach the constitutional litigation clinic. This typically involves intervening on a Charter case at the Supreme Court, and preparing an advocacy brief on another constitutional issue.

Ursel is especially keen to meet and mentor students. When she was in law school at Osgoode Hall, she took a constitutional litigation course that was “absolutely formative” for her career. While the professor was more conservative than Ursel, she gave very specific feedback on students’ ideas and arguments, and wasn’t stingy with praise.

“That kind of affirmation from somebody with a different viewpoint than you has so much power,” Ursel says. “So I know I’m going to meet people from all walks of life in this program, with all different viewpoints, but I’m hoping I can give them something of what [my professor] gave to me. Even if I don’t see it exactly the same way as you, I will tell you when you’re doing a good job. I will tell you what I think you can do better. I will engage with you on tough issues and talk about them because I care passionately about them and I want the next generation to care passionately too, and to engage in the kind of civil debate we have in this country.”

Sara Tatelman is the Asper Centre’s 2018 summer research assistant.

Procedural delays prevent constitutional answers in B.C. Medicare case

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By Sara Tatelman

It is a truth universally acknowledged that a first-year law student in possession of a jam-packed schedule must be in want of an excuse to skip Legal Process class. But as we see in Cambie Surgeries Corporation v. British Columbia (Attorney General), both ignorance and careful manipulation of the smallest rules of civil procedure lead to months- and even years-long delays before pressing constitutional questions will be answered. So 1Ls, skip at your peril.

Cambie Surgeries centres on British Columbia’s ban of most private healthcare. The plaintiffs – two private clinics owned by Dr. Brian Day and four patients – argue the unconstitutionality of three provisions of B.C.’s Medicare Protection Act: prohibition of private duplicate insurance, limits on extra billing, and preventing doctors from being paid by both the provincial Medical Services Plan and directly by patients. They argue that by preventing private billing, the province forces patients to suffer as they languish on waiting lists. They allege this infringes their s. 7 Charter right to security of the person, and the fact that some residents have access to expedited private medicine through workers’ compensation and government-run auto insurance infringes other British Columbians’ s. 15 equality rights.

The trial began in September 2016, was adjourned in April 2017 partly due to the plaintiff running out of funds and partly due to inefficient presentation of evidence, and re-commenced on April 9, 2018.

Between February and April 2018 alone, British Columbia filed eight interim motions. Seven sought to strike parts of various witness’s affidavits, while one sought to enforce Cambie Surgeries’ compliance with a previous disclosure order.

Such evidentiary disputes aren’t new: in an April 2017 interim judgement, Justice John Steeves noted that half of the 70+ days of the trial had been devoted to argument over expert witnesses. In an interview with the Canadian Press, Dr. Day said the government delays were an attempt to bleed him dry and force him to abandon his suit.

Between March and May 2018, Steeves J. released 11 interim judgements responding to the parties’ very particular quibbles. Most of the motions sought to strike expert witness affidavits in whole or in part. Steeves J. assessed the impugned statements one by one, concluding that some are admissible because they derive from the witness’s direct experience and observations while others are inadmissible because they include hearsay evidence or opinion.

The line between description and argument can be fine: stating that many patients will deteriorate as they wait for treatment is admissible, but stating that surgery gets more challenging the later it occurs is not (2018 BCSC 759 para 11). Similarly, in another judgement, some comments that might be described as opinion were held to be admissible descriptions of the physician’s work, such as his statement that efforts made at the hospital will be insufficient to meaningfully reduce his waitlist (2018 BCSC 760 para 26).

In another motion, British Columbia sought to enforce Cambie Surgeries’ compliance with a previous order. Specifically, Cambie Surgeries hadn’t produced documents it had been ordered to, and allegedly redacted 55 documents without any explanation. It also failed to list documents it didn’t have in its possession or control, as well as to include any information about privilege, all of which violates the Supreme Court Civil Rules. Steeves J. ordered Cambie Surgeries to provide unredacted copies of certain documents, an amended list of all relevant documents, and an affidavit from Dr. Day that all relevant documents have been disclosed. “… The amended list of documents will comply with the Rules by indicating the documents or classes of documents for which privilege is claimed,” Steeves J. said. “Following discussions and argument I think counsel now understands what that means.”

It’s been almost two years since the Cambie Surgeries trial began, and while a CanLII search yields nearly 50 interim decisions, we’re nowhere near a final judgement. Maybe that’s because British Columbia is disputing the smallest points in the hopes that Dr. Day, drained of his assets and mortgaged to the hilt, will slink away, taking his Charter challenge with him. Maybe that’s because Cambie Surgeries’ lawyers are making disclosure mistakes that would cost them points on a 1L Legal Process exam. Whatever’s causing the delays, and whatever one’s thoughts on privatized medicine in the Canadian healthcare system, it’s clear that the complexities of civil procedure aren’t helping the country get an answer to an important constitutional question.

Sara Tatelman is the Asper Centre’s 2018 summer research assistant.

Susan Ursel chosen as Constitutional Litigator-in-Residence for fall 2018

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The Faculty of Law’s David Asper Centre for Constitutional Rights is pleased to announce that lawyer Susan Ursel will be the Asper Centre’s Constitutional Litigator-in-Residence for the fall 2018.

Ursel, a Toronto-based employment and human rights lawyer, will be teaching constitutional advocacy in the Asper Centre clinic during the fall term. Drawing upon her extensive experience from her constitutional, human rights and administrative law practice, she will mentor students on the case files that they will be working on in the clinic.

“Susan Ursel’s wealth of litigation experience and work in the human rights field, especially in seeking equality rights, will add an exciting dimension to the clinic this coming term,” says executive director Cheryl Milne.

Susan Ursel says, “I am very much anticipating the exciting and fascinating work with the Asper Centre this year. Constitutional issues and litigation have been a passion of mine for many years and I am honoured to be doing this work with the Asper Centre which is renowned for its constitutional expertise and for its exceptional educational programs. My thanks to the Centre for inviting me to work with them.”

Selected responses to R v Comeau

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By Sara Tatelman

Beer remains imprisoned by provincial borders. In 2012, Gerard Comeau of Tracadie, N.B. was fined nearly $300 for bringing 15 cases of beer and three bottles of spirits from Quebec to New Brunswick. His battle against the law behind that fine has finally wound its way up through the courts.

Last month, in the final word on the matter, the Supreme Court of Canada reversed the trial judge’s decision and found constitutional s. 134(b) of the New Brunswick Liquor Control Act, which limits the amount of extra-provincial Canadian alcohol individuals can bring into the province. The Court determined laws that aim to curtail the inter-provincial passage of goods, whether directly through tariffs or indirectly through fines, violate s. 121 of the Constitution Act, 1867, which states that all items manufactured in any province must be “admitted free” into the other provinces. But laws with different aims that incidentally curtail such passage do not violate s. 121. In this case, the Court noted the legislation aims “not to restrict trade across a provincial boundary, but to enable public supervision of the production, movement, sale and use of alcohol within New Brunswick” (para 124). Furthermore, the impugned provision targets black market bourbon and Fredericton-brewed rotgut, as well as cheap Quebec beer and crisp Okanagan Pinot Gris. So the liquor limits are byproducts of another regulatory scheme, and therefore permissible.

Before addressing the constitutionality of s. 134(b), the Court “deliver[ed] a benchslap to the trial judge” for disregarding its 1921 decision in Gold Seal Ltd. V Attorney-General for the Province of Alberta, as Professor Leonid Sirota of the Auckland University of Technology Law School wrote on his blog, Double Aspect. Based on the Bedford and Carter exceptions to vertical stare decisis, the trial judge ignored precedent because of a new historical assessment of the intent behind s. 121. The Court determined this wasn’t sufficient, since “the underlying social context that framed the original legal debate [must be] profoundly altered” (para 31) and such a re-assessment doesn’t do so.

Ironically, Sirota argues, the Court doesn’t uphold Gold Seal either. In that decision, outright tariffs on inter-provincial trade are banned. But post-Comeau, provinces could impose tariffs as long as they’re rationally connected to a regulatory scheme with a non-trade objective. “So much for stare decisis,” he writes.

In a commentary in the National Post, Professor David Schneiderman of the University of Toronto Faculty of Law notes it’s unsurprising the Court gives little weight to the historical context, “to some imagined framing moment derived almost exclusively from the pen of a single British draftsperson.” That is, under the “living tree” interpretation of the Constitution, purported intentions don’t matter all that much.

Professor Malcolm Lavoie of the University of Alberta Faculty of Law argues in a CBC column that the Court could have reached a fairer balance between federal and provincial powers by simply mandating a test more robust than rational connection, such as a test of necessity. “Under this approach, the government of New Brunswick would have had to establish that its prohibition on outside liquor was truly necessary to achieve objectives relating to public health and safety, a much higher bar than the one the Court applied,” he writes.

Furthermore, Lavoie points out that the Court’s interpretation of s. 121 renders it obsolete: under s. 91 of the Constitution Act, 1867, interprovincial trade is a federal head of power. That is, it was already impossible for provincial governments to directly impose tariffs on goods coming in from other provinces.

In the Toronto Star, Dr. Maria Banda, a visiting fellow at the University of Toronto Faculty of Law, has a more positive view of the decision. Comeau ensures that provinces with higher environmental or health standards, for example, don’t risk “being dragged down to the lowest common denominator by those with lax or inexistent regulations,” she writes.

This decision will likely reverberate throughout the country, including in Alberta and British Columbia’s pipeline dispute. Those provinces should see Comeau as a warning “that they’re not going to be able to rely on their own jurisdiction under the Constitution to do things that will either interfere in federal jurisdiction or will interrupt the free flow of natural resources that is normally supposed to occur without discrimination between provinces,” Professor Carissima Mathen of the University of Ottawa Faculty of Law, said in an interview in Maclean’s.

For his part, Schneiderman argues it’s now less likely Alberta’s Bill 12 will be held to be constitutional. The principle aim of the bill, which requires government permission to export petroleum resources, is “to economically harm a recalcitrant province for interfering with Alberta’s ability to get its oil to port,” he writes. And under Comeau, that cannot be countenanced.

So is it time to #FreeTheBeer, #FreeTheGrapes and #FreeTheOil?

Sara Tatelman is the Asper Centre’s 2018 summer research assistant.

Outside the Four Corners of the Charter

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By Catherine Ma

 

Asper Centre Constitutional Law Symposium, Panel III: Outside the Four Corners of the Charter

The afternoon panel of the Asper Centre’s October 20th 2017 Constitutional Law Symposium for Canada’s Sesquicentennial, titled Outside the Four Corners of the Charter, included papers that reflected on the development of Canadian constitutional law beyond the Charter. The panel featured Eric Adams, an associate Professor at the University of Alberta, Faculty of Law; Professor Richard Stacey from the University of Toronto, Faculty of Law; and University of Toronto Law Professor David Schneiderman. The panelists’ respective papers explored the Bill of Rights, the duty to consult Indigenous Peoples, and unwritten constitutional principles. Professor Lorraine Weinrib from the University of Toronto, Faculty of Law moderated.

Professor Adams began the session by presenting his paper, entitled “Writing Rights: the Canadian Bill of Rights in Canadian Constitutional History” and arguing that the Bill of Rights holds an important – and often overlooked – place in constitutional law. He acknowledged that the Bill of Rights largely lacks jurisprudential value, as the Supreme Court of Canada has rejected most legal arguments invoking the Bill. Further, in the only case where the Bill of Rights was successfully argued, R v. Drybones, the SCC expressly said that the Bill of Rights only renders legislation inoperative, if the legislation subjected groups to harsher treatment on its prohibited grounds. Drybones is also notable for the dissent by Cartwright CJ, who stressed that the Bill of Rights does not permit courts to invalidate laws in conflict with the Bill – an assertion that is diametrically opposed to his earlier statements in other Bill of Rights cases. Despite admitting these limitations, Professor Adams declared that the Bill of Rights is important for changing public “imagination” and dialogue around constitutional law, which ultimately enabled the Charter of Rights and Freedoms to arise.

Professor Stacey, drawing from his paper entitled “Honour and Sovereignty: How Democratic Accountability Shapes the Duty to Consult Indigenous Peoples” questioned the extent to which the Crown can delegate its duty of consult Indigenous Peoples. He noted that in Haida Nation, the SCC stated that the Crown may delegate procedural aspects of consultation to industry proponents seeking a particular development. This statement makes “no sense” since the Crown effectively would be delegating its duty to consult Indigenous Peoples to the industries whose work is undermining Indigenous rights. So, would the Crown need to be involved in consultations between Indigenous Peoples and industry proponents? If so, how much Crown involvement would be required? Professor Stacey answered his own questions by situating the duty to consult in a broad understanding of reconciliation. For him, reconciliation means harmonizing two “paradoxically opposed” perspectives: The belief that Canada has enjoyed sovereignty over Indigenous Peoples since Confederation, and the view that many Indigenous Peoples never surrendered their sovereignty to the Canadian state. This conception of reconciliation suggests s. 35 of the Constitution Act, 1982 should be a framework to restore self-determination to Indigenous Nations – and guarantee Indigenous Peoples’ meaningful participation in decisions affecting them.

Professor Schneiderman in his presentation titled “Unwritten Constitutional Principles in Canada: Genuine or Strategic?” contended that the SCC acts strategically when invoking unwritten constitutional principles in its decisions. He elaborated the SCC does not intend for unwritten constitutional principles to guide jurisprudence in constitutional law; rather, the SCC appeals to these principles in order to “get out of a jam” and “escape from its legitimacy problem.” In Reference Re: Secession of Quebec, the SCC applied the principles of federalism, democracy, constitutionalism and the rule of law, and protection of minorities in order to disavow unilateral secession and found a constitutional duty to negotiate when a province wishes to secede from Canada. Yet, in BC v. Imperial Tobacco Canada Ltd., the SCC rejected appeals to the rule of law; and in Quebec v. Canada, the SCC similarly rejected the idea of cooperative federalism. This behaviour suggests that the SCC is acting rationally to secure their desired objectives.

The audience was interested in the nuances of the panelists’ arguments. They questioned if public imagination influenced the Bill of Rights – or if only the Bill shaped public opinion, other ways that sovereignty might manifest for Indigenous Peoples, and whether unwritten unconstitutional principles have strength due to their actual content or the fact that these principles are unwritten. Other questions linked ideas from the different papers together. Such questions included: Is the Honour of the Crown an unwritten constitutional principle that guides s. 35 jurisprudence?

Catherine Ma is a 2L JD Candidate at the Faculty of Law and is also a co-leader of the Asper Centre’s Indigenous Rights student working group.