The Power of Perspectives

The Canadian Bar Association

Jennifer Taylor

The Supreme Court

Justice Abella's unified theory on constitutional supremacy and reconciliation

By Jennifer Taylor October 22, 2018 22 October 2018

Justice Abella's unified theory on constitutional supremacy and reconciliation

 

In the recent case of Mikisew Cree, the Supreme Court of Canada had a fresh opportunity to engage with constitutional principles affirming Indigenous rights and determine how the duty to consult applies during the legislative process. Instead, the decision seems like a regression for reconciliation.

Mikisew Cree has been well summarized and critiqued elsewhere. With four separate sets of reasons, the court ultimately dismissed the appeal on jurisdictional grounds. But a majority of the court held that federal Ministers do not owe a duty to consult Indigenous groups when developing legislation that may adversely impact their rights.

Only one set of reasons presents a unified theory of how constitutional supremacy and reconciliation affect the law-making process. These are the reasons of Justice Rosalie Abella, with Justice Sheilah Martin concurring. They agreed with the majority on the jurisdictional issue, but disagreed on the duty to consult.

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The Supreme Court

On TWU, the SCC made the right decision for LGBTQ+ rights

By Jennifer Taylor June 22, 2018 22 June 2018

On TWU, the SCC made the right decision for LGBTQ+ rights

 

The Supreme Court of Canada’s decision in favour of LGBTQ+ rights in last week’s pair of Trinity Western decisions is welcome news, even if the split reasons are somewhat untidy. In Law Society of British Columbia v Trinity Western University and Trinity Western University v Law Society of Upper Canada the majority found it was reasonable for the two law societies to deny accreditation to TWU’s proposed law school because students there are required to agree to a Community Covenant, which effectively prohibits sexual relationships outside heterosexual marriage.

Here are five takeaways from the rulings (focusing on the BC reasons).

1. Law societies have an essential gatekeeper role in ensuring equitable access to the legal profession

Law schools are “the first point of entry to the legal profession” (see Justice Malcolm Rowe’s concurring reasons). For this reason, law societies can insist on equitable access to law schools as the training ground for the lawyers that they will eventually regulate. This is part of a law society’s statutory mandate to uphold the public interest in the administration of justice.

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Women in politics

Answering the call: Advice for women thinking about running for public office

By Jennifer Taylor June 18, 2018 18 June 2018

Answering the call: Advice for women thinking about running for public office

 

“We need more women in politics” has become a louder refrain since the 2016 U.S. presidential election. The data suggest women are taking this mandate to heart – not only in the U.S., where record numbers of women will run in the upcoming midterm elections, but in Canada, where organizations like Equal Voice are holding workshops and leading campaigns to encourage more women to run for elected office.

Claudia Chender is one woman who answered the call. A lawyer and graduate of UVic Law, Chender is the New Democratic Party (NDP) member of the legislative assembly for the Nova Scotia riding of Dartmouth South, where I live. She was elected last spring.

I sat down with her to talk about her first year in politics and get some advice for women thinking about making the leap. (Full disclosure: I canvassed for Chender a couple of times during the campaign.) Here is what I learned.

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The CBA and the #MeToo campaign

MeToo: Something new to say, or a new way to say it

By Jennifer Taylor February 12, 2018 12 February 2018

MeToo: Something new to say, or a new way to say it

 

Sexual misconduct by men against women is a tale as old as time. What’s new is how two related movements—Me Too and Time’s Up—have quickly become cultural shorthand for telling this story, and proven to have real consequences for those who commit sexual misconduct. The labels Me Too, with its sense of solidarity, and Time’s Up, with its sense of urgency, offer a framework for talking about, and acting on, the complex and longstanding problems of workplace sexual harassment, sexual assault, and gendered power imbalances.

It’s a moment of reckoning.

For lawyers especially, it means reckoning with uncomfortable issues. Like the fact that the justice system doesn’t always provide satisfactory consequences when sexual misconduct occurs. (Or offer much in the way of preventing sexual misconduct before it happens.)

The justice system as traditionally understood doesn’t always find the truth, either, which is one reason Me Too and Time’s Up have been driven by media reporting rather than court proceedings.

These movements prioritize truth. In the justice system, truth is often competing with other values.

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Reproductive rights

There’s no Charter problem with Canada Summer Jobs

By Jennifer Taylor January 22, 2018 22 January 2018

There’s no Charter problem with Canada Summer Jobs

It seems self-evident in 2018 that an anti-abortion organization should not receive federal government funds to hire summer students. And yet, the guide for the Canada Summer Jobs program—which requires applicants to attest that the proposed job and their organization’s core mandate respect reproductive rights—has caused an outcry. It’s even prompted an application for judicial review by Toronto Right to Life (TRTL) on the basis that it may infringe the Charter-protected “freedom of conscience and religion of organizations that consider abortion to be immoral” and potentially the Charter’s freedom of expression and equality guarantees as well (to the extent that organizations even have Charter rights, which is debatable).

But the attestation’s opponents are minimizing an essential question: what about the Charter rights of women, like the right to autonomy over their own bodies?

Opponents like Brian Bird emphasize that the Supreme Court of Canada’s landmark decision in R v Morgentaler — a ruling long celebrated as a victory for Canadian women — did not “constitutionally guarantee unrestricted access to abortion in Canada”, as if that provides a complete answer to the question. It doesn’t.

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