"Law is always political"

CBA National sat down with Teagan Markin, an associate with Borden Ladner Gervais LLP in Toronto who was recently awarded the CBA’s Viscount Bennett Fellowship. The Fellowship will help support Markin in her graduate studies this fall at Harvard Law School, where she will explore progressive constitutional law principles that support substantive equality, freedom of expression and the protection of public health.

CBA National: How did you come to develop an interest in constitutional law?

Teagan Markin: It grew out of my undergraduate in environmental studies, looking at legal solutions to a collective problem about what to do with our finite resources and achieving sustainability. So, I decided to go to law school and, in first year at Dalhousie, took a public law course. We learned about Section 15 of the Charter, how the law is made, what governs our relationships with each other and the government. It felt like getting the key to the world. At the same time, I got involved in social justice issues. I was very active in the Dalhousie Feminist Legal Association. Being introduced to social justice, while at the same time learning how the world is governed through laws and principles and doctrine made me want to pursue constitutional law.

N: You’ve stated that your goal as a legal scholar is to embrace the political nature of law. Some people might object to that. How do you see the relationship between legal norms and our social and political values?

TM: It’s interesting that there are people who believe that the law can just be neutral legal principles to be applied without looking at values. That’s not been my experience. I can’t think of a single lawyer who would go into court without thinking of the equities of their case and how to create a narrative that shows that justice is on their client’s side. Law is not just a means in and of itself, it’s always been a means to an end, and that end is deciding how to justly determine disputes. I’ve always seen law as determining what we have access to, and what rights we have. The law is embedded with values, and the courts would agree. Public policy arguments go far in legal analysis — not just at the Supreme Court of Canada, but in all courts. I’m not saying we should have judges making purely partisan calls based solely on a results-determining basis. But I do think we need to explore how to make room to develop more progressive laws and principles while maintaining legal reasoning, certainty and good judicial decision-making as important values in a democracy.

N: At the same time, we rely on the law for stability in how society governs itself. Is there a tension there with wanting to advance a certain progressive agenda through the courts?

TM: I’ll push back a bit against the narrative that progressive legal reform is necessarily activist and value-based, whereas more conservative viewpoints are not. It’s a false narrative because law is always political, and to some degree, activist. What we need to think more broadly is how a judge applies values and how values should be considered in legal decision-making.

N: You’ve also said that we live in a time where relationships between individuals and the state are being renegotiated on an individual, national and international level. What do you mean that?

TM: We're in the middle of a transition period in which, as a collective society, we’re coming to understand that a lot of our systems and institutions don’t just treat individuals unfairly based on discriminatory grounds; they’re actually embedded with inequality. These legal structures perpetuate the inequality because, to a certain degree, that’s what they were designed to do — to achieve certain outcomes and leave a lot of marginalized people out of the equation. And so a number of movements over the past several years have been watershed moments in equality—there was the Me-Too movement, Occupy Wall Street, and last year, the Black Lives Matter movement resulted in global protests. These have all moved the needle in terms of people recognizing that certain groups are not equal because our systems aren’t designed to meet their needs and to uphold them as truly equal.

N: How are these movements any different than earlier feminist and civil rights movements?

TM: Those movements were looking for formal equality — the right to be treated the same as the ruling class — and the idea was that individuals should have the same opportunities. We still have that today, but there is a broader conversation about structural inequality and the structural changes needed. It’s a big challenge because, when you’re criticizing institutions and structures for being embedded with inequality, you can’t just apply a straightforward individual rights analysis. You have to look deeper and be willing to move the machinery that governs our society.

N: How does one go about changing institutions?

TM: That’s a great question that we’ll all be asking ourselves for years to come. It’s going to take a multifaceted approach. We don’t get to the point where we are today without grassroots organizations, without people in the streets and community movements. As a lawyer and scholar, I view it as taking the baton from a social movement into the law and making sure that that momentum and appetite for change isn’t completely stifled by saying, “Well this is the system that we have, this is what the law is saying, and there’s really nothing we can do about it.” Change happens through legislation, too, but also by looking at our constitutional principles and making sure that we are willing to examine them and move them as necessary to make room for that conversation.

N: A lot of people today worry about the state of our institutions – their relevance, their ability to ensure stability. Is there a risk of throwing the baby out with the bathwater?

TM: I agree that institutions are important. Our whole system of governance is about living together peacefully and taking into account that people have different views and opinions. Institutions are very important for good governance and protecting us against tyranny. I wouldn’t advocate for dismantling all of them, but we need to be critical about what they are designed to do: Is the reason a good one and is it fulfilling that reason, or does it need to be either dismantled or reformed?

N: Another issue we’re all struggling with, it seems, is how to set limits on freedom of expression. This is playing out currently with the debate around the new broadcasting bill, and notions of censorship and regulation of free speech between private versus public institutions. Where do you see that conversation heading?

TM: The private/public divide of freedom of expression is going to be a major issue that we’re going to have to work through, sooner or later. Even though the broadcasting bill is really about Canadian content and those sorts of obligations as a broadcaster, there are big implications over whether it's direct or indirect government regulation of free speech on these social media platforms. The other side of that coin is that lack of government regulation isn’t a particularly wonderful system either, because the platform that most people use to exercise their free speech rights are not really subject to any free speech requirements. You see that when someone gets deplatformed, and then they complain and everyone says, “Facebook doesn’t owe you the right to free speech; only the government does.” It seems to me that social media companies have an interest in having it addressed sooner than later, because they’re struggling with how to ensure there are fair policies and free speech on their commercial platforms designed to generate advertising revenue.

N: Any final thoughts on how we need to think about equality as we emerge from the pandemic facing new challenges?

TM: Yes. We can’t just keep doing the same thing and applying the same laws as if they weren’t designed in a particular context and for a particular reason. I also think the pandemic is a very interesting case study in this and is going to be a sort of radicalizing event. As a young feminist person, I used to think that we’ve just been struggling against history and that’s why women are held back in their careers and in social or political participation – because everyone is just trying to get up to speed. But the pandemic came along and threw us into a loop, and what we saw was the replication of historical inequality and prejudice. First, the burden of domestic work and childcare went immediately back to women. They left the workforce in huge numbers. Also, the working class was left behind. It was this idea that “yes, they’re around and they’re essential, and they’ll go to work, and how do we protect everyone else?” It was alarming to see that, when we had a chance to meet a problem knowing that there’s inequality in our system, we just threw at it the exact same system which produced that very inequality. That’s why we need to embrace the political nature of law and engage with it, because until we do, we’re just going to continue perpetuating these inequalities that most people would agree should have no place in law.

This interview was edited and condensed for publication.