Constitutional Law

Panel Discussion with TWU Interveners’ Counsel

Posted on by Tal Schreier

By Erika Voaklander and Solomon McKenzie

At the end of 2017 the Supreme Court of Canada (SCC) heard arguments in the two Trinity Western University (TWU) appeals. The results of the appeals may have wide and deep impacts on the legal profession and on Canada more broadly.

On January 18, 2018, the Asper Centre, Out in Law UofT, the Journal of Law and Equality, and the Christian Legal Fellowship of UofT Law co-hosted a discussion panel, showcasing counsel for interveners on the TWU appeals. The panelists were Joanna Radbord (Advocates’ Society), Angela Chaisson (LGBTOUT), Barry Bussey (Canadian Council of Christian Charities), Paul Jonathan Saguil (Start Proud/Outlaws), Derek Ross (Christian Legal Fellowship), and Chris Palliare (Advocates’ Society).

Trinity Western University is a private Christian university in British Columbia. TWU wanted to open a law school. The school provides an education founded on evangelical Christian principles. TWU’s approach to community development is expressed in a community covenant, a code of conduct that encourages its students to live by Biblical teachings. Amongst other considerations, the covenant prohibits sexual intimacy that violates the sacredness of marriage, as defined as between a man and a woman. Unmarried individuals are expected to live celibate lives. While LGBTQ students are permitted to attend the university, TWU would prohibit admission to its law school if a student refuses to sign the covenant.

The appeals involve legal challenges to decisions by the law societies of Ontario and British Columbia. Ontario decided to deny the accreditation of future TWU law graduates. The Court of Appeal of Ontario held that Law Society of Ontario’s (LSO) statutory mandate to act in the public interest entitled it to refuse to accredit TWU’s law school. The LSO refused to accredit on the basis that the covenant was discriminatory. BC, on the other hand, initially approved accreditation, but reversed this decision based upon a referendum it held with members. The BC Court of Appeal upheld the lower court’s decision to overturn this second decision.

The panel discussion explored the case, other legal precedents and wider considerations of constitutional advocacy. In their general discussion of the case, Chris Palliare highlighted that the SCC’s decision would likely hang on how the court defines and places boundaries on the freedom of religion enshrined in the s. 2(a) Canadian Charter of Rights and Freedoms. Additionally, Barry Bussey noted that this issue also turns on jurisdiction, notably whether the Law Society of Ontario has the right to bar membership.

An early fault line in the discussion was when the panelists considered the 2001 TWU v British Columbia College of Teachers (BCCT) case. Both Angela Chaisson and Joanna Radbord suggested that there have been many social and legal changes around LGBTQ+ rights since the finding in BCCT. Angela Chaisson asserted that the two cases were overwhelmingly dissimilar, involving different parties and underlying statutes, and with Canadian society having substantially progressed on LGBTQ+ rights since 2001. By comparison, Barry Bussey asserted the similarities between the two cases, and warned that a finding that essentially overturned BCCT would have a knock-on effect on evangelical and other religious communities’ abilities to continue to operate professional and educational facilities.

In considering the long-term impact of the TWU appeals, Derek Ross stated that the Court was at a crossroads in its recognition of religious communities’ freedom of association (s. 2(d) of the Charter). He warned that there could be deleterious impacts on the rights of religious communities. He noted that the Court supporting the LSO would be tantamount to finding it acceptable for state actors to quash the rights of groups externally assessed to have distasteful beliefs. Chris Palliare questioned the relevance of s. 2(d) to this case, and maintained that the analysis should focus on s. 2(a) religious freedom rights. Both Barry Bussey and Derek Ross stressed that a finding against TWU would have extensive and negative impacts on religious rights.

In considering what this ruling would mean to LGBTQ+ rights, Joanna Radbord noted that given the fixed number of law school spaces, allowing accreditation would diminish the ability for LGBTQ+ students to access law school. She also stressed that drawing evangelical students to one law school would intellectually impoverish the legal community at large, by hindering fruitful and diverse discussion. She highlighted the panel as an example of how law schools should act as meeting places of diverse worldviews. Paul Johnathan Saguil noted that he could have seen himself going to TWU at an early stage in his life, which would have had long term and negative impacts on his development. Angela Chaisson noted that the case was not necessarily zero-sum, and there could still be positive impacts for LGBTQ+ rights encapsulated in an adverse decision.

Finally, the group discussed the impact of the recent changes to the length of submissions by interveners down to 5 minutes of oral advocacy. Chris Palliare intoned that this was a mistake, stressing that the Court should accept fewer interveners, speaking for longer periods. Derek Ross noted that a greater number of perspectives was always welcome. Barry Bussey remarked that the new time limit meant that submissions had to be drafted in a strategic manner. In his preparation, he found that 5-minute submissions constituted 500 spoken words, a very limited space for nuanced reflections. Angela Chaisson agreed that fewer interveners were important, but that the SCC needs to start promoting the voices of people directly affected by the law. She questioned the validity of the court’s initial decision to grant no LGBTQ+ groups intervener status. Joanna Radbord noted the incredible role modelling that comes from having queer women as advocates before the SCC.

All the panelists stressed the importance and rewarding nature of constitutional advocacy. They underscored that interested students and lawyers should seek out pro-bono activities, actively pursue this type of work through their firms, connect to ongoing efforts through their own communities, and look to the David Asper Centre for opportunities.

Erika Voaklander is a 1L JD Candidate and member of Out in Law UofT and Solomon McKenzie is a 2L JD Candidate at the Faculty of Law and is co-leader of Out in Law UofT.

March 2, 2017 Constitutional Law Career Panel Advice for students

Posted on by Tal Schreier

On March 2, 2017 the Asper Centre for Constitutional Rights convened a Constitutional Law career panel in response to law students’ common question: How can I practice Constitutional Law?

Four distinguished panelists provided their insight and advice to a room full of eager law students about practicing Constitutional Law in their fields. The panelists were: Joseph Cheng of the Department of Justice of Canada, Nader Hasan a partner in the firm of Stockwoods Barristers, Dan Rohde a staff lawyer at the Income Security Advocacy Centre, and Cara Zwibel, the Director of the Fundamental Freedoms Program at the Canadian Civil Liberties Association.

The following pieces of advice were distilled from the panelists’ well-received presentations, in which they answered questions about their jobs, their personal career paths and their best pieces of advice to students.

  • Don’t expect to become a constitutional lawyer immediately and do not stress about not getting “the” job or articling position straight out of law school. The path to practice Constitutional Law is not always a straight one.
  • Pursue any opportunity to do pro-bono work within the firm that you are at. Sometimes this may mean working on pro-bono files in your personal time.
  • Present opportunities to do pro-bono work at your firm, assuring your principal(s) that this work will be done in your spare time; this way the “ask” of the firm is only to provide administrative or disbursement costs.
  • While large-scale pro-bono programs at the big Canadian law firms are in their nascent stage, pro-bono work in an American law firm with an entrenched pro-bono program can provide a lot of valuable experience and exposure.
  • The need to address Charter violations and challenge unconstitutional laws and government actions is unfortunately not dissipating so, rest assured if you want to work on a pro bono case, you can find a case. Don’t give up.
  • To get excellent litigation experience, which is beneficial if you are interested in becoming a Constitutional litigator, seek to do a clerkship. Do not only focus on the top courts, as you may get a more valuable experience in the Superior Court of Justice, for example.
  • Pursue extra-curricular activities that clearly demonstrate your Constitutional law passion.
  • Focus your career pursuits in the public law sphere, more specifically in a field of law that intersects most closely with Charter issues i.e. Criminal defense work, refugee law, labour law, or administrative law.
  • Expect to earn comparably less in public interest legal work than in corporate law, but to otherwise feel rewarded as being an instrument for social change.
  • Attend events where other Constitutional lawyers would attend i.e. CBA and OBA Constitutional Law chapter events, relevant CPD events and network, network, network!

In addition to the above, we urge law students to actively engage with the David Asper Centre for Constitutional Rights. You can do so in a number of ways. For example: take our upper year clinical legal education course, volunteer for one of our student working groups, or write a case comment for our Newsletter on a constitutional law case that you have an interest in.

We welcome your feedback about this event and if you have any thoughts about an event that you would like to see the Asper Centre organize, please get in touch.

 

Asper Centre’s Statement in Response to U.S. Executive Order

Posted on by Tal Schreier

The Asper Centre for Constitutional Rights shares our deep concerns with the January 27th executive order made by President Trump preventing individuals from the predominantly Muslim countries of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from temporarily entering the United States.

The Asper Centre for Constitutional Rights supports Prime Minister Justin Trudeau’s statement about Canada welcoming refugees and immigrants to our country.  We also support Canadian civil society organizations’ calls on the federal government to suspend the Safe Third Country agreement effective immediately, as sending asylum seekers back to the U.S. will put Canada in breach of its legal obligations in terms of the UN Refugee Convention and our domestic laws.

The Canadian Charter of Rights and Freedoms specifically prohibits discrimination based upon race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.  The Asper Centre for Constitutional Rights is honoured to promote our Charter as the supreme law of our land and to do everything within our mandate to ensure that our Charter is being respected.  This includes training and supporting current and future Constitutional law lawyers, who have a clear role to play in challenging this unconstitutional executive order and any other violations of the Constitution.   

The Asper Centre for Constitutional Rights supports the rights of refugees, immigrants, and dual citizens and we commit to ensuring that equity, diversity, and inclusion continues to be an essential part of our Canadian landscape.

Announcing Our Winter Term Constitutional Roundtable Series Schedule

Posted on by Tal Schreier
Focused on Canada’s 150th anniversary of confederation and the development of Canada’s constitutional and human rights from the British North America Act to the Canadian Charter of Rights and Freedoms, the series will include papers that provide an analysis of constitutional litigation throughout Canada’s history with a focus on seminal cases that have made an impact on the Canadian constitutional rights landscape.

See the attached PDF for more information.

 

Asper Centre discusses Legal Professionalism and Ethics with Law Students

Posted on by Tal Schreier

It is well-known that lawyers are bound to the highest of ethical standards arising from the Law Society’s rules of professional conduct and ethics.  While law students are officially not bound by the same rules, the standards of professionalism and ethics arguably apply to students who are in essence at the very beginning of their legal careers.

In light of the above, first year students at the University of Toronto Faculty of Law must attend mandatory Professionalism and Ethics classes, with some of the curriculum emanating directly from the Law Society of Upper Canada. Furthermore, the Faculty offers a number of elective courses that examine the complex issues entailed within the broad topic of lawyers’ professional ethics.  An example of such a course is this Fall term’s upper year elective taught by visiting professor Allan Hutchinson, a well-known legal theorist from Osgoode Hall Law School, with an international reputation for his original and provocative writings on the legal profession. This intensive course, entitled Legal Ethics and Lawyer Regulation, focused on legal ethics and the regulation of the legal profession and it examined various topics such as the lawyer-client relationship, confidentiality, conflicts of interest, the duty of loyalty and ethics in advocacy, counseling and negotiations.

On November 9, 2016, the Asper Centre’s Executive Director Cheryl Milne and the Centre’s Constitutional Litigator in Residence Janet Minor participated in a panel discussion in Professor Hutchinson’s course, in order to highlight to the students some of the ethical and professionalism issues that arise in their specific law practices.  Ms. Renatta Austin (JD 2014), a lawyer in private practice, also took part in the panel discussion.

Ms. Austin began the session by talking about the issue of lawyer competence as it relates to professionalism.  In her sole-practice, she explained how she is sometimes wary of overextending herself by taking on legal matters for which she does not have the requisite experience.  She also cautioned against taking on more than one type of matter for a client, providing an example of a lawyer she interacted with whom she observed representing both parents in a child wardship case while also representing one of the parents in a criminal matter.  She criticized this practice as cases often have different goals and paramount interests and thus taking on all of them can potentially create ethical issues.

Ms. Minor provided the class with a perspective of some of the ethical issues encountered by a government lawyer.  She spent the bulk of her lengthy legal career as General Counsel in the Constitutional Law Branch of the Ontario Ministry of the Attorney General. She discussed ethical responsibility, the role of the Attorney General and the challenges of being a government lawyer, in particular the conflict that may arise when government lawyers must defend policy or legislation that may clash with their personal opinions.  In response to a question, Ms. Minor surmised that government lawyers, while held to the same ethical and professional standards as other lawyers, are often viewed by judges differently and held to an even higher standard as they are expected to demonstrate the best conduct, provide total disclosure, always act with courtesy and not exhibit any ‘shark-like’ lawyer practices.

Ms. Milne started her presentation by discussing the various ethical issues she encountered while working as staff lawyer at the NGO Justice for Children and Youth, such as having to diligently ensure that her child clients were deemed competent to provide her with instructions. She then highlighted her unique dilemma as the Executive Director of the Asper Centre charged with promoting the work of the Centre, while at the same time acting as the lawyer of record on many of the Centre’s cases, thereby being bound by the duty of confidentiality insofar as publicly discussing the cases.  This dual role perhaps may seem confusing to students but Ms. Milne treads carefully in both roles and ensures her clients’ interests at all times.

The number and quality of questions and comments exchanged between the students and the presenters during this panel discussion demonstrated that law students are indeed engaging with these issues in a meaningful way, thus preparing to assume the professional and ethical obligations that they will ultimately owe themselves, the public and their profession.