Can a court issue a notice of constitutional question on its own motion?
That question is currently before the Nova Scotia Court of Appeal in an adoption case that has implications for women’s reproductive choices.
The court heard an appeal on March 30, 2017 from the decision of a Supreme Court Family Division judge to address whether a biological father – unidentified in the case at hand – has the constitutional right to be notified of an application to put a child up for adoption. Background information is reported in an earlier decision, but identifying details are subject to a publication ban under the province’s Children and Family Services Act.
Under that law, a biological mother signed an agreement with the Minister of Community Services to put her child up for adoption. The prospective adoptive parents then filed a Notice of Proposed Adoption. This is a routine proceeding, and all involved likely expected the court to issue the adoption order without question. It didn’t turn out that way. The court was concerned that the biological father was not involved.
There is no right to sue for “involuntary parenthood.” That’s according to the Court of Appeal for Ontario in PP v DD, which upheld a lower court decision to toss out a father’s lawsuit against his former female sexual partner for making him a parent before he wanted to become one.
The decision helps prevent tort law from being used to control women by making them pay – literally – for the consequences of their reproductive choices.
I wrote about the lower court decision last year, arguing that it was the right call for women’s reproductive autonomy.
Let’s back up and recall the facts: PP, the male plaintiff (a doctor), and DD, the female defendant (who also worked in health care), had a brief sexual relationship in 2014. PP understood that DD took birth control pills, so they did not use condoms. DD became pregnant and informed PP, who suggested that she have an abortion. DD decided to have the baby, born in early 2015.
Like many Canadians, I knew that Donald Trump could get elected on November 8, 2016 – I just didn’t think he would. (I dressed up as a Hillary Clinton campaign volunteer for Halloween, after all.) After much cathartic crying, hugging, and talking it out, I placed myself in the camp of those who want to use the election results as a catalyst for increased community involvement. I want to make sure we in Canada strengthen our defences against the kind of intolerance, racism, and misogyny that won the election south of the border.
Most lawyers I know are already incredibly generous with their time and impressively involved in their communities, but as my favourite podcast Another Round reminded me last week, there’s always more we can all do in our own spaces. So without further ado, some ideas, in case you too are ready to start feeling a little more helpful and hopeful, and a little less helpless and hopeless:
It was a relief to learn that Prime Minister Justin Trudeau chose someone from Atlantic Canada to fill the vacant spot on the Supreme Court. As I have argued, it would have been constitutionally questionable – and politically problematic – for him to do otherwise. Assuming all goes smoothly, Justice Malcolm Rowe will become Newfoundland and Labrador’s first Supreme Court judge within the next few weeks.
This milestone is worth applauding. So is the preservation of regional representation on the Supreme Court. But – and there’s always a ‘but’ with judicial appointments – what about diversity?
Because of that nagging question, there’s something unsettled about this appointment. Justice Rowe, it must be stated, is yet “another white male,” when the Supreme Court already has four of them. #SCCsowhite is a hashtag for a reason.
Would I have liked to see a woman nominated, to give the Court a majority of women judges? Of course. I would have been even more thrilled if the PM had chosen the court’s first indigenous jurist, or the first SCC judge of colour, or the first openly queer Supreme Court justice. (And unlike the Globe and Mail editorial board, I don’t see “demographic variety” and competence as either/or criteria – there were surely qualified candidates who weren’t white men, and their diverse backgrounds would have only enhanced their competence.)
My relief about maintaining regional diversity was, then, mixed with disappointment about not advancing demographic diversity. (With a nod to Leonid Sirota for the helpful “regional diversity” and “demographic diversity” terminology.) To quote my original post on the revamped appointments process: “The essential goal of enhancing diversity on the Supreme Court can work in tandem with the need to preserve regional representation.”
I thought we could have both this time. And we certainly can, with future appointm
The wine-loving woman has become something of a stereotype, at least in certain corners of North American pop culture. Picture Scandal’s Olivia Pope – trained as a lawyer – and there’s probably a large glass of red wine in one hand and a big bowl of popcorn in the other. It’s no different in the real-world legal profession, where events for women lawyers often feature wine as the focal point.
That’s just the way it is, I thought.
And then I read this article by Kristi Coulter, which went viral over the summer (be warned: it contains lots of swears) and woke me up to the connection between the pressures that professional women face, and the social pressures to drink. Coulter wrote, “there’s no easy way to be a woman, because, as you may have noticed, there’s no acceptable way to be a woman. And if there’s no acceptable way to be the thing you are, then maybe you drink a little. Or a lot.”