The Power of Perspectives

The Canadian Bar Association

Jennifer Taylor

The Supreme Court

The Atlantic seat: Part of Canada’s constitutional architecture?

By Jennifer Taylor August 5, 2016 5 August 2016

 

At first, Prime Minister Trudeau’s announcement of a revamped process for appointing Supreme Court judges ticked all the right boxes. Independent advisory board? Check (and chaired by a woman, too – former Prime Minister Kim Campbell).

A less partisan, more open application process? Yes. Parliamentary scrutiny of the nominee? That too.

But what the Prime Minister’s op-ed failed to mention is that qualified lawyers and judges from across the country will be considered to replace Nova Scotia’s Justice Cromwell when he retires in September – not just applicants from the four Atlantic provinces.

This is a problem (as Nova Scotia Premier Stephen McNeil; Newfoundland and Labrador Justice Minister Andrew Parsons; and David McLaughlin, former deputy minister in the New Brunswick provincial government and former Conservative chief of staff, have all argued). It might even be a constitutional problem.

It is not written down in our Constitution Acts, or even in the Supreme Court Act, that one of the Court’s nine judges must come from Atlantic Canada (Newfoundland and Labrador has never had a judge on the Court, by the way). But that’s been the historical convention, as Emmett Macfarlane pointed out in his piece for Maclean’s.

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Work-life

Women in law: Ambition looks different for everybody

By Jennifer Taylor July 15, 2016 15 July 2016

Like fellow blogger Rebecca Bromwich, I was excited to read Danielle Groen’s recent piece for Chatelaine about women and work (featuring hometown hero Megan Leslie!) to see how it might apply to women lawyers. But it didn’t put me in “feminist fist pump” mode the way I wanted it to. So I’ve taken Rebecca up on the invitation at the end of her post and decided to offer my own thoughts.

Rebecca’s description of just getting around to reading the article as an uphill battle is all too familiar. I read it in one sitting (I think), but only after I saw the headline on social media while simultaneously cooking dinner and listening to a podcast. I had to write a note to self in my phone reminding me to read it later that night. All this after a long day of working on a pro bono access-to-justice project, drafting a motion brief, and attending a women lawyers’ networking event (a wine tasting, if you must know).

You know that meme that pictures a woman’s brain as a browser with multiple tabs open? It’s totally true, in my experience. All the tabs are always open.

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Criminal law

Unplanned parenthood and the meaning of consent

By Jennifer Taylor January 25, 2016 25 January 2016

“I don’t want to have a baby with some random girl. I waited my whole life to decide who I have a baby with.”

“...this random girl is fine doing it on her own.”

You may have heard the news already: A doctor in Ontario (“PP”) sued his former sexual partner (“DD”) for the “emotional harm of an unplanned parenthood” after DD became pregnant and decided to have the baby that PP said he didn’t want (his paternity remains unconfirmed). Justice Paul Perell of the Superior Court of Justice sensibly struck out this lawsuit in PP v DD, finding there was no chance of success for PP’s claims of fraudulent misrepresentation and sexual battery.

This is a good result for women’s reproductive autonomy, and one that accords with the holistic understanding of consent in the criminal case of R v Hutchinson – a case that PP relied on but ended up working against him.

Procedural points: Confidentiality and costs

The parties are called “PP” and “DD” after Justice Perell took the unusual step of making a confidentiality order on his own motion, reported in a companion decision. He did this, he said, to protect the child at the centre of the dispute from future “trauma” – even though neither party requested this order or apparently presented evidence on the issue. In both decisions, Justice Perell emphasized the “salacious” nature of the facts.

But based on the decisions, the only “salacious” part was that PP had the gall to sue DD for a logical biological consequence of their sexual relationship. DD’s conduct should not be painted with the same “salacious” brush (even though she may have appreciated not having her and her child’s real names splashed all over the internet).

At the end of his reasons in the main decision, Justice Perell permitted the parties to make costs submissions. However, he said his “present view” was that “there should be no order as to costs.” Surely fairness to DD, who had to respond to this frivolous lawsuit questioning her reproductive autonomy, would require that she get her costs?

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The courts

Breastfeeding as an access to justice issue?

By Jennifer Taylor December 22, 2015 22 December 2015

It might not have seemed that way – until recently, that is.

Last month, controversy erupted with reports that a Provincial Court Judge in Nova Scotia had told a mother she could not breastfeed her baby in the courtroom. This mother was feeding her four-month-old baby while sitting in the public gallery waiting for court to open and her partner’s case to be called. (News stories about the incident can be found here and here.)

Prompted in part by this column, I’d like to offer some reasons why breastfeeding should be permitted in Canadian courtrooms, unless there is demonstrable disruption to the proceedings:

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Blog

The Beckman compact: A bridge between the Secession Reference and reconciliation

By Jennifer Taylor October 6, 2015 6 October 2015

In an earlier post, I linked the Supreme Court of Canada’s Reference re Secession of Quebec to the recently released Truth and Reconciliation Commission report, arguing that the Court will inevitably be called upon to reframe Canada’s constitutional structure in a way that better reconciles the rights and interests of Aboriginal Canadians with those of the Crown and other Canadian communities. When this happens, I suggested, the Court may find inspiration in the Reference. Since then, I have had the chance to revisit Beckman v Little Salmon/Carmacks First Nation, in which the minority judgment drew a similar line between the Reference and the proper constitutional place of Canada’s Aboriginal peoples.

The reasons of Justice Deschamps, writing for herself and Justice LeBel, may help in bridging the Reference to the TRC, in future negotiations and litigation.

Beckman is generally cited for Justice Binnie’s majority judgment view that the Crown’s duty to consult exists in addition to, and independent of, the provisions of the modern treaty. In his words: “Consultation can be shaped by agreement of the parties, but the Crown cannot contract out of its duty of honourable dealing with Aboriginal people.”

Although Deschamps agreed with Binnie that, on the facts, the Crown had not breached its duty to consult, she gave different reasons. Based on Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), she held “that the common law constitutional duty to consult Aboriginal peoples applies to the parties to a treaty only if they have said nothing about consultation” in the relevant context .

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