Constitutional Law

Careers in Constitutional Law

Posted on by Tal Schreier

by Kylie de Chastelain

Many students are fascinated by the constitutional issues they engage with in the classroom and the Asper Centre regularly receives questions about how to work towards a career in Constitutional law. To help address these questions, the Asper Centre hosted a panel discussion on February 12th, 2020, entitled: “Careers in Constitutional Law.”

Four brilliant lawyers were invited to share about their experiences in constitutional law practice. Emily Chan, a staff lawyer at Justice for Children and Youth, was joined by Sinéad Dearman, an Associate at Olthuis Kleer Townshend LLP; Geetha Philipupillai, an Associate at Goldblatt Partners; and Padraic Ryan, Counsel at the Constitutional Law Branch of the Ministry of the Attorney General of Ontario. Each panelist spoke about the realities of long-term litigation, working with rotating governments, and the complexities of constitutional law. The panelists’ career experiences are detailed below, followed by a round-up of their best advice for aspiring constitutional lawyers. As you’ll see, there’s more than one path towards working in constitutional law.

Emily Chan

Staff Lawyer, Litigation and Community Development, Justice for Children and Youth

Emily Chan’s day-to-day work is very diverse, ranging from privacy law to human rights matters and constitutional law issues. Her official title is “Community Development Lawyer” – a role which suits her passion for advocacy and community organizing. Initially, Emily never planned on having a litigation career; preferring research and writing to public speaking and debate. Despite this, litigation now comprises a significant portion of her practice.

Emily has represented Justice for Children and Youth before the Supreme Court of Canada on a number of interventions. Notable among these are Prime Minister of Canada v Khadr, 2010; an intervention about Omar Khadr and the rights of children who are found in armed combat overseas, and Kanthasamy v Canada, 2015; a case that considered the best interests of a minor who sought refugee protection in Canada on humanitarian grounds. Interventions such as these frequently involve Charter-based challenges – as was the case in Khadr, where Emily’s arguments on behalf of Justice for Children and Youth focused on Khadr’s section 7 Charter rights to life, liberty, and security of the person. Ultimately, Emily’s work – while not exclusively constitutional – does involve a significant amount of constitutional law; proof that a career in constitutional law doesn’t have to be “all or nothing.”

Sinéad Dearman

Associate, Olthuis Kleer Townshend LLP

Sinéad was called to the bar in 2018 and was a member of the Indigenous Law students Association while at the University of Toronto’s Faculty of Law. She works in child protection law and represents a variety of First Nations governments in matters relating to child welfare and custody. This work is demanding, and Sinéad spends approximately 75% of her time travelling to remote First Nations communities across Ontario, where she meets with band governments and stakeholders and represents them in child welfare cases. In addition to child protection work, Sinéad has appeared before the Canadian Human Rights Tribunal, suing the Canadian government for discriminatory underfunding in public services (see: First Nations Child and Family Caring Society of Canada v Canada, 2019). Sinéad also works in Indigenous law-making; helping First Nations to refine and uphold their legal traditions and advocating for their inclusion within the broader Canadian legal system.

Sinéad believes that in order to practice Indigenous law, and constitutional law more broadly, you have to be able to show up in “mind, body, and spirit.” The work requires more than intellect; it requires being present and involved beyond the law. For Sinéad, this has often meant being in ceremony with her clients and becoming involved in the community beyond what might be expected in a non-Indigenous lawyer-client relationship.

Geetha Philipupillai

Associate, Goldblatt Partners

Geetha was also called to the bar in 2018, and one month later found herself working on the high-profile case involving Premier Ford’s reduction of Toronto City Council seats (see: The City of Toronto v Ontario (Attorney General), 2018). Although Geetha does not generally practice in labour law, the case presented an opportunity to represent union clients with a vested interest in the structure of Toronto’s city council. It was valuable, she said, to have the opportunity to work on a constitutional case, even if it was not in a practice area she typically engages with. In general, Geetha’s day-to-day work at Goldblatt involves employment law, civil class action suits, and claims from LawPro; the company that provides Ontario lawyers with professional liability insurance. Geetha’s work with LawPro frequently involves defending lawyers against claims of negligence.

In addition to all of this, Geetha, who was an Asper Centre Clinic student, served as pro-bono junior counsel to the Asper Centre on the Morris intervention. This case is challenging criminal law sentencing with respect to systemic racism and specifically anti-black racism. The Asper Centre’s intervention focuses on the need for substantive equality in sentencing and the corresponding rights engaged by s. 15 of the Charter. For Geetha, working in constitutional law has meant making the most of the opportunities that come her way. Although her legal work is not exclusively constitutional, she has chosen to make this an area of focus in her career.

Padraic Ryan

Counsel, Constitutional Law Branch, Ministry of the Attorney General of Ontario

Padraic always knew that he was interested in constitutional law and litigation, and endeavoured to work in government jobs instead of full-service Bay Street firms as a result. As a member of the Constitutional Law Branch, Padraic’s work is exclusively constitutional. In essence, he supports branches of the ministry that have constitutional questions or claims before them. Typically, these claims relate to statutes or policies that are being challenged, and while Padraic’s work involves a significant amount of litigation, he also provides advice to government ministries facing this kind of claim.

The work is full of variety, and Padraic says that one of the best parts of his job is the constant learning. In this kind of work, you never feel as though you’ve “specialized” or “mastered” a particular area of law – instead, you’re constantly learning about statutes you never knew existed and consulting with government ministries across a broad range of practice areas. By way of example, Padraic says he has worked on fire code prosecutions, labour relations issues, and interventions relating to federal immigration law. The challenges of government work are ever-present, he says, and dealing with election cycles, changing governments, and funding constraints can make his job very interesting. For those interested in a diverse range of legal issues that all engage constitutional law, a government position like Padraic’s might be the perfect fit.

Career Tips for Aspiring Constitutional Lawyers

  • Take a variety of courses. Emily advises that you take a variety of courses while you’re in law school because constitutional questions can arise in “any area of law.” Having a bit of knowledge across practice areas is helpful, because you simply can’t anticipate all the areas of law you might end up working in. Emily pointed to her own experience, noting that although she doesn’t practice refugee and immigration law, much of her constitutional work has involved Charter-based advocacy for refugee children and youth. Having the legal context that comes from a bit of coursework experience is highly valuable.
  • Have a demonstrated interest. All the panelists agree that, when it comes to hiring, it’s nice to see an applicant with a clear interest or passion. Whether it’s through your extra-curriculars, course selection, non-law school activities, or the organizations you belong to, make sure to highlight what you are interested in. Padraic emphasized that this doesn’t mean you must do every single extra-curricular related to constitutional law; but it’s good to be able to show participation in at least one or two constitutionally-related activities if this is something you are hoping to practice later on. The Asper Centre offers some fantastic ways to get involved, including: The Constitutional Law Clinic, Student Working Groups, and Summer Fellowship Program.
  • Consider administrative law. Geetha and Padraic suggest that administrative law is a great area of focus for constitutional-law hopefuls. Administrative law contains many of the same legal themes as constitutional law, and has the advantage of being highly marketable in the legal world. Geetha emphasized that administrative law can also be useful in practice because often constitutional challenges are brought by people who are unable to finance protracted litigation. When you understand administrative law well, you are better able to advise clients as to their strategic options and help them to achieve their goals without engaging in costly litigation.
  • Remember that your law practice will likely be diverse. With the exception of Padraic, who works in a role exclusively devoted to constitutional law, none of the panelists focus solely on constitutional work. Instead, constitutional law is simply one of many practice areas they engage in. Remember that it is rare to find a full-time job in constitutional law. Instead, think about adjacent practice areas that you are passionate about, and jump at the chance to do constitutional work when you can.
  • Don’t worry if the path isn’t straight. Sinéad says that while law school can be challenging intellectually, mentally, and emotionally, do your best to stick with it. Remember that law school and legal practice look very different, and being a young lawyer is nothing like being a young law student. Rely on the routines and activities that make you feel good and give you a sense of meaning beyond law school, and try not to get caught up in comparison and competition. As Padraic says, it’s better to think about the kind of work you want to do, and where you think you’ll fit best career-wise than to spend time trying to “check boxes” for the sake of it.

Kylie de Chastelain is a 1L student of law at the University of Toronto and the current Asper Centre work-study student.

Courts Without Cases: The Law and Politics of Advisory Opinions

Posted on by Tal Schreier

By Kylie de Chastelain

The Asper Centre recently hosted Professor Carissima Mathen, author of Courts Without Cases: The Law and Politics of Advisory Opinions (2019), for a dynamic Constitutional Roundtable about her new book, with Professor Lorraine Weinrib as discussant.

Professor Mathen’s book, described by Professor Weinrib as a “milestone” in Canadian Constitutional writing, explores the under-studied but vitally important institution of Supreme Court references. References are opinions given in the absence of a live case. They are put forward to the Court by the executive branch and the opinions that result are called “advisory opinions.” Those who have studied constitutional law will be familiar with references, but what many don’t realize is that some of Canada’s most important judicial decisions did not emerge from cases, but from references. Same-sex marriage, assisted human reproduction, Senate Reform, Quebec secession and patriation are only some of the landmark opinions that have emerged from references. In Professor Mathen’s words, each constitutes an important “constitutional moment,” and yet, references have remained chronically unexplored by legal scholars. Mathen has sought to change that through her book, which is the first focused examination of references in Canadian legal scholarship.

References are not uniquely Canadian but the way they are handled by our judicial system sets Canada apart from other Anglo-American countries. In South Africa, Israel, India, and numerous European countries, specialist “constitutional courts” address a variety of issues through references. As Professor Mathen emphasized, what is notable about the Canadian context is that the Supreme Court performs “both an adjudicative and an advisory function.” This function was enumerated in the Supreme and Exchequer Court Act, which created the Supreme Court of Canada, in 1875.

Professor Weinrib suggested that the reference phenomenon was institutionalized “by accident,” but that it was much needed, in part because Canada’s formal written constitution was initially fragmented and incomplete. In particular, the lack of a domestic amending formula made it very difficult for the federal government to govern. The reference function allowed federal and provincial governments to raise questions and discern the legal elements of political issues before bringing them back to the legislature; effectively using the court to establish a guiding framework for the nation’s development. This dynamic also allowed the executive to pre-emptively explore important legal issues before a case emerged and a decision was handed down in a conventional trial.

However, in the present day, Professor Mathen has argued that references and advisory opinions pose two potential problems with regard to Canada’s federal system. The separation of powers is essential to how the Canadian state operates, but by vesting courts with the ability to do more than adjudicate cases, references might be viewed as extending the judicial function beyond its optimal boundaries. In addition, because references can only be put forward by the executive branch, they arguably align the judiciary and the executive and exclude the legislature, even though the issues addressed in references are often very salient to the legislative context. Further, this arrangement could give the impression that the court is subservient to the executive; threatening the idea that the judiciary is independent. Courts are expected to address the references put forward to them, but as Professor Mathen explained, the Supreme Court is not always so accommodating.

On several occasions, the Supreme Court has refused to engage with the references put to them by the executive. Sometimes, the Court has rejected the requests outright, and in other cases it has re-interpreted the questions asked. By way of illustration, Professor Mathen pointed to the Patriation Reference, where the executive asked whether there was a constitutional problem with amending the constitution without provincial consent. In its opinion, the Court divided on its interpretation of the question, exploring whether all provinces – or only some provinces – had to agree with a constitutional amendment in order for it to pass.

Most interesting in Professor Mathen’s view is the fact that the Supreme Court has never explained why it sometimes chooses to refuse reference requests. Section 53(4) of the Supreme Court Act stipulates that the court has a duty to hear and consider all references, but despite this, the Court reserves the right to ignore references outright or to ignore sub-questions in a given reference, as it did in the Same-sex Marriage Reference.  Here, the Court refused to answer Question 4 of the reference, which asked if the opposite-sex requirement for marriage for civil purposes was consistent with the Charter. ostensibly because it was concerned about any “confusion” that could emerge if it answered in the negative.  More specifically, the Court stated that it would “exercise its discretion” not to answer the question, in part because the federal government had “stated its intention to address the issue of same-sex marriage legislatively regardless of the Court’s opinion” and that answering Question 4 could potentially undermine the government’s “stated goal of achieving uniformity in respect of civil marriage across Canada” if it answered the question affirmatively. Mathen suggested that the Court’s refusal to answer demonstrates the intention of the Court to retain first and foremost a legal role, as the chief constitutional arbiter, and the primary interpreter of its norms.

Here lies a final and fascinating point about Supreme Court references: they are not legally binding. References are only advisory and technically co-exist with treatises, textbooks, and other scholarly legal works that have no authoritative control over judges and their decisions. But practically speaking, we do not treat references in this way. As Professor Weinrib pointed out, references serve an incredibly important function in establishing norms. Indeed, we treat references as legally binding decisions; they are taught in law schools alongside other case law, and are treated by legislatures and governments with the same gravity as a binding Supreme Court decision. This could be, as Professor Weinrib suggested, because references sometimes feel more methodologically sophisticated; more conceptual and holistic. References help to develop a rule of law that reflects fundamental constitutional principles from the outset. This is undeniably a strength of the dynamic that exists in Canada.

Ultimately, Professor Mathen has produced an accessible and engaging account of the reference power in Canada, which, for all its curiosities, is undoubtedly an integral aspect of Canadian judicial practice and legal development.

Kylie de Chastelain is a 1L student of law at the University of Toronto and the current Asper Centre work-study student.

 

Recapping Brandon Garrett’s Constitutional Roundtable on Wealth, Equal Protection, and Due Process

Posted on by Tal Schreier

by Kylie de Chastelain

On Wednesday, October 2nd, 2019 the Asper Centre hosted Professor Brandon Garrett for a Constitutional Roundtable titled “Wealth, Equal Protection and Due Process.”

Professor Garrett presented work from a recent paper exploring “equal process” – a term he coined to describe the intersection between the Equal Protection and Due Process Clauses in the United States Constitution. “Equal process” claims have already arisen from Supreme Court and lower court cases where the main issue is wealth inequality, but courts have been wary of engaging with constitutional issues on a cumulative or intersectional basis. Garrett argues that the “equal process” approach should be more widely implemented to help address a series of pressing civil right issues, including the constitutionality of fines, loss of voter rights or driver’s licenses, and detention for inability to pay cash bail.

To illustrate the damaging effects of “punishing the poor,” and the need for an “equal process” approach, Garrett presented findings from a compelling empirical research study he conducted at Duke Law’s JustScience Lab. The study examined driver’s license suspensions in North Carolina from 1996-2018. In North Carolina, licenses can be suspended for a failure to pay traffic tickets or failure to appear in court. Many states have similar legislation. However, in North Carolina, as elsewhere, insufficient public transit options make driving a necessity. The loss of one’s license can have substantial material effects on livelihood and employment.

Garrett and his team found that approximately 1 out of 7 driving-age individuals in North Carolina currently have suspended licenses, for a total of 1,225,000 active suspensions. Of these, 827,000 are for a failure to appear in Court, 263,000 are for a failure to comply with orders to pay traffic fines or court fees, and 135,000 are for both. This data was further analyzed against race and class metrics to find that driver’s license suspensions occur disproportionately in low-income and non-white populations. In other words, license suspension and legal procedure of this kind punish people for poverty; something the Equal Protection Clause explicitly aims to prevent.

Historically, U.S. courts have been unwilling to examine constitutional issues such as these in creative ways, preferring to examine constitutional matters in isolation. This clause-by-clause tactic, Garrett argues, fails to adequately address the complex issues arising from poverty. An interdisciplinary approach yields better results.

For example, in Bearden v Georgia, 461 U.S. 660 (1983), a man who was sentenced to probation and ordered to pay $750 in fines but could not afford to do so eventually had his probation revoked. The Bearden Court explicitly merged Equal Protection and Due Process analyses in this case, noting that a classic procedural approach – where fine amounts are automatic regardless of ability to pay – was inherently unjust. Instead, the Court examined why the man could not pay and explored whether alternative measures could equally serve the state’s interest. Implementing a delayed payment plan, reducing the fine, or ordering time in public service could all fulfill requirements for punishment and restitution without unduly compounding the effects of poverty in this man’s life. Like this, the “equal process” approach could empower courts and litigators to raise joint claims and establish more just modes of penalty.

In this way, Professor Garrett argues, Bearden provides courts and lawyers with a strong basis for raising and trying joint claims. Adopting an “equal process” approach could empower courts to re-examine their objectives and interests in handing down punishment to society’s most vulnerable.

Following Professor Garrett’s presentation, Professor Vincent Chiao offered his comments and insight into the Canadian context. R v Boudreault, 2018 SCC 58 is a recent notable case where the Supreme Court of Canada struck down the mandatory victim surcharge provision of the Criminal Code on the basis that it was unconstitutional. As Chiao noted, the Court’s analysis in Boudreault did not focus on due process or equality but on gross disproportionality and cruel and unusual punishment as per s. 12 of the Charter.

The decision in Boudreault marked a clear departure from R v Tinker 2017 ONCA 522, where the Court reinstated victim surcharges against appellants on the basis that they were “rationally connected” to aims regarding remedy for criminal activities and accountability to victims. In Tinker, s. 12 arguments addressing cruel and unusual punishment were dismissed. But in Boudreault, as in Bearden, the Court acknowledged that victim surcharges compound the effects of poverty, effectively creating ongoing debts that are impossible for offenders to repay. Chiao emphasized that although the result in Boudreault was encouraging, Professor Garrett’s “equal process” approach could help elucidate intersectional, equality-focused jurisprudence in Canada moving forward.

Kylie de Chastelain is a 1L JD student at the Faculty of Law and is the current Asper Centre work-study student.

Selected responses to R v Comeau

Posted on by Student

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.

Constitutional Roundtable with Akis Psykgas

Posted on by Tal Schreier

by Ryan Howes

On January 31, 2018, the Asper Centre Constitutional Roundtable Series hosted Athanasios (Akis) Psygkas, Lecturer in Law at University of Bristol and Visiting Scholar at the University of Toronto. His presentation was titled: “The hydraulics of constitutional claims: Four models of democratic constitutionalism and same-sex marriage.” Professor Brenda Cossman, Director of the Bonham Centre for Sexual Diversity Studies, joined as discussant.

There are many actors involved in constitutional interpretation. Psygkas identified a bottom-up process of constitutional evolution wherein multiple actors raise claims with constitutional implications. To articulate this “hydraulics” process, he conducted a case study of the legal recognition of same-sex marriage in four countries: the US, Spain, the UK, and Ireland.

In Obergefell v Hodges, the US Supreme Court held that the Fourteenth Amendment of the US Constitution requires state to issue marriage licenses to same-sex couples. The decision focused on liberty. Justice Kennedy, writing for the majority, provided a list of social actors (“central institutions in American life”) that contributed to the evolving debate of constitutional interpretation regarding same-sex marriage and argued that this debate had now reached a stage of deliberative maturity that permitted the Court to channel this into constitutional law.

In Spain, same-sex marriage was recognized through the legislature, beginning first at the regional level before being formalized in national legislation. In further contrast to the US, the petitions that were put forth in support of legalizing same-sex marriage focused on equality, not liberty. When challenged, the Spanish Constitutional Court stated that it cannot remain “aloof from social reality” and cited statistics concerning Spanish attitudes toward same-sex marriage in making its decision to recognize same-sex marriage.

In the UK, the process to recognize same-sex marriage was largely legislative and proceeded in stages. First, homosexual activity was decriminalized for persons over 21 years of age in 1967. But this provoked some backlash: legislation prohibiting promotion of homosexuality remained in place until 2003. Civil partnerships were created in 2004, which permitted homosexual couples legal recognition. Formal recognition of same-sex marriage came into effect in 2014. Throughout these stages, there was no electoral manifesto concerning same-sex marriage; rather, the process occurred organically through public consultations and hearings at the committee stage of the legislative process. The debate continues in Northern Ireland, where a married, English same-sex couple is challenging the state’s refusal to recognize their marriage.

The Republic of Ireland has direct citizen involvement in constitutional change through referendums, especially when change concerns fundamental laws, like constitutional amendments. The consensus in Ireland, however, had long been against recognizing same-sex marriage. This social attitude had influenced how politicians and the judiciary interpreted relevant legislation and articles of the Irish Constitution, especially Article 41, which concerns family. In 2013, a referendum on same-sex marriage was conducted and by a 62% approval vote brought the 34th Amendment of the Irish Constitution into existence, granting same-sex marriage legal recognition.

Each of these four examples demonstrate the varied systems and means through which social actors influence constitutional interpretation and change. The predominate direction of influence was bottom-up.

Professor Cossman argued that in Canada same-sex marriage recognition was a predominantly court-centric process, with Charter dialogue dominating the arguments. Parliament responded to Supreme Court of Canada (SCC) rulings by changing legislation. This process began with the SCC ruling that the common law definition of marriage as between one man and one woman violated section 15 of the Charter (Halpern v Canada). The Same-Sex Marriage Reference soon followed in 2004. This appears to be an exception to the hydraulics process that Psygkas observed in the four countries discussed. Although there were many activist groups active at this time, the Canadian experience of recognizing same-same marriage appears to have been more of a top-down process and did not exemplify the same hydraulics process Psygkas observed elsewhere. The SCC interpreted the Charter and Parliament followed. Invariably, some bottom-up processes were at play in the Canadian same-sex marriage debate: our Charter is young and reflects Canadian values, and our judges are, after all, from the citizenry.

Psygkas argued that the driving force in this “hydraulics” process is a bottom-up demand for a specific constitutional position within complex institutional structures; the exact form it takes varies depending on the constitution and the institutions present. What implications does this have for when we observe social backlashes or rising sentiments that we perceive to be moving our society in the wrong direction? Current political preoccupations with the so-called “populist” wave are perhaps an instance of this process.

Ryan Howes is a JD Candidate at the Faculty of Law and is the Asper Centre work-study student.