By Alexandra Wong, 2L
What brings you to the position of Constitutional-Litigator-in-Residence at the Asper Centre?
I’ve followed the establishment of the Asper Centre since the beginning and I have come as a guest to the class before. I’ve also taught in this area in Saskatchewan where I held the Ariel Sallows Chair for a couple of years. I did classes on test case litigation and I used to teach in the constitutional litigation course here, so for me it’s just a following up on my association with U of T, which is longstanding, and my interest in the teaching part of constitutional litigation, as well as the doing part.
Many of us in our first year constitutional law class learn an equal amount about federalism as we do about Charter rights and freedoms, and I know that some people find the former a little bit dry. Why do you think students should be interested in constitutional law? How would you describe the actual practice of constitutional law?
Just recently in the Ontario Court of Appeal, when we were doing a case that was all about rights under section 7 and section 15 of the Charter and international covenants, there was an amazing question from the presiding judge: “Well, who has constitutional jurisdiction over these things?” It was posed to Cheryl Milne [Asper Centre executive director] and she listed that the federal government has jurisdiction because of its responsibilities for the following, and the province has jurisdiction because of its responsibilities for these other subject matters. It was excellent. You never know when this is going to come up.
In other areas, like Indigenous law, it doesn’t come up just ‘by the way’ – it’s integral to the topic. More and more people who do corporate law, who do commercial law, who do mining law, and all kinds of other areas of law have to know about this, because there is always divided jurisdiction between the provinces and the federal government. It has a lot of practical effects.
Why did you decide to practice constitutional litigation?
I was interested in constitutional law even as a law student, and it was because of the division of powers issues. We didn’t even have the Charter then. I became fascinated by Quebec’s aspirations for control over broadcasting and that’s what I did my graduate work on.
There isn’t a lot of call for constitutional lawyers outside of government service but I came to teach here at U of T when I first finished and was called to the bar. It was then that I got involved in the efforts to entrench a Charter in the constitution. Of course, once the Charter was entrenched in the constitution, there was lots of litigation to do. Since that time, I’ve done many cases in the Supreme Court on constitutional law, and no more than four of them have been division of powers cases, but all the others have been Charter cases.
What was the most memorable case you have worked on?
One of the most memorable cases I’ve worked on was the Andrews case. I was counsel to LEAF [Women’s Legal Education Action Fund] in Andrews, and there had been many cases up to that point where all kinds of parties were arguing the meaning of section 15, including my very favourite : aluminum pop can manufacturers arguing that it was against section 15 to subject them to a different regulatory regime from the regime that applied to steel pop cans.
We had the sense as we were working on this case that it was a make-it-or-break-it case. With all the work we had done to get equality rights into the constitution, if we didn’t get the right decision from the Supreme Court of Canada, we might as well just pack up and go home. The tension involved in the case was incredible, and the arguments were very, very interesting. The Ontario government made a good argument in that case—
I think one of the high points of government advocacy in section 15 cases. Then there was the long wait to decide what the court was going to say. I remember I was away on vacation and somebody sent me the decision. I was holed up in the office of the little lodge where I was staying, getting the pages, one after the other as they came off the fax machine. And we won! It was the most amazing experience because it was the beginning of the rest of our lives as people, as citizens, who could rely on Charter and section 15 rights. It was an awesome case.
What would be the most memorable moment in your career outside of the courtroom?
It was in the restaurant at the Prince Edward Hotel in Charlottetown. I was there with my clients, the Native Women’s Association, and a bunch of women from the National Action Committee were also there. The government leaders were having the final meeting for the Charlottetown Accord. We had earlier received the decision from the Federal Court of Appeal that allowed Native Women’s Association to have a seat at the table. It was a constitutional violation for us not to be at the table. We wrote to Joe Clark and he ignored our letter.
We showed up and we were sitting in the coffee shop at the Prince Edward Hotel as all of the bigwigs went through the lobby with the cameras rolling, and the lights on them, and I think they had a piper. It was just really something. There were all of our erstwhile allies and, of course, our foes, who didn’t want us at the table, and we sat in the coffee shop, outside of history, even though we had this decision in our favour. It was a terrible moment, but it was an amazing moment, as well, because history was being made. Our next step was to try to cancel or hold up the referendum on the Charlottetown Accord, which was unsuccessful, but the people of Canada voted the Accord down.
Those turbulent times of constitution-making were very exciting, but I don’t think I’ll ever forget sitting in that coffee shop watching all those guys—all those guys, and a few women go by—when we had actually had a decision that our rights require that we be at the table. And the Minister of Justice of Canada just ignored it.
You’ve been deeply involved in human rights advocacy and you played an instrumental role in guaranteeing gender equality in the early development of the Charter. How did you see the Charter at that time and the role it could play? Did these expectations line up with what you have experienced through your career?
I think there was much more of an expectation on the part of all of those who argued for the entrenchment of the Charter that it would play a stronger positive role than it has been allowed to do. For example, I think that trade unions who argued in favour of entrenchment of freedom of association did not in a million years believe that the Supreme Court of Canada would hold that freedom of association did not guarantee free collective bargaining because the Minister of Justice at the time said that it would include free collective bargaining. There was a period of over 20 years when the lawyers and the trade union movement in Canada were just stunned, and outside of the constitutional protection that they had worked so hard to gain.
I think there was an expectation that governments would pick up their task under the Charter and actually do things. I know that advocates for persons with a disability and advocates for women expected that, once the Charter had been put into effect, the government’s willingness to put into place programs that would support them and assist their efforts to enter the mainstream would be done. There was no doubt that it had to be done. The same with persons who were suffering disadvantage for various other reasons, because of race, because of financial stringency, and all kinds of things.
The idea that government would not allow the Charter to influence its day-to-day policy making was not even contemplated. Section 32 was put into the Charter, and it was intended by section 32 to ensure that the Charter bound the government in all of its activities, not just when it was taken to court, but when it was legislating and doing all the other things the government does. It just never occurred to anyone that they would down tool in such a wholesale fashion, and have to be forced to do the necessary thing by being sued. We had to sue them again and again and again. That was the biggest stunner for me and for a lot of people— the extent to which we led the horse to water, but we could not make it drink. It refused to drink, so we just had to keep after it.
You recently intervened on behalf of the Colour of Poverty Coalition at the Ontario Court of Appeal on Tanudjaja v Attorney General (Canada), a novel Charter challenge regarding housing rights. You spoke about substantive equality, which has been key in interpreting s. 15, and how it could be recognized as a principle of fundamental justice under s. 7. How do you see the continued development of equality rights or of Charter rights in general? What do you think are the most pertinent and pressing issues that still need to be developed through the courts in Canada?
I think that with some of the sections of the Charter, including 15 and 7, the courts have been fairly superficial in the way they have looked at things. This may be because cases have come to them in piecemeal fashion, with this section here, that section there, two sections of a particular statute there. There hasn’t really been any deep thinking done on the overall meaning of the new rights of the Charter – I’m thinking not about the political and legal rights, but the equality rights, the social rights sections of the Charter.
The courts have really not been interested in going there and I think as an advocate, one of my tasks is opening that up. I think it’s really key that we get the court thinking across these lines of the different sections. That’s why we argued that 7 and 15 had to be brought closer together. We can’t just see these sections as silos. They have to be made to work together. The court will do that with some of the sections but they won’t do it with others. I think we need to reimagine the Charter as a holistic document and start connecting the Charter to other more fundamental legal principles and approaches.
For example, by connecting section 15 to section 7 I hope that we would get a result like the court got in the Baker case, where Mavis Baker was complaining she had been discriminated against on the basis of her race and family status, but the court actually looked at the exercise of discretion by government decision-makers. It was all part of the way the government mistreated Mavis Baker. I think we need to go deep and see the connections between the sections and between the Charter and some of the older and more established form of calling government to account for its action.
Why do think courts are so reticent to talk about equality issues and section 7 issues in a more holistic way?
For one thing, I don’t think they have any guidance. When you look at the way they’ve interpreted section 15, it’s kind of a common law section on discrimination, like a common law human rights code. They fasten onto the term ‘discrimination’ because they have case law that tells them what discrimination means and they can do all these riffs on discrimination like the case law that culminated in Law, and now they’re trying to retreat from Law, and they’re making that factor and another. They never have the chance to think it through from the beginning to the end.
The other thing I think at work is that the court, for all that there is the Charter, and it is entrenched, and the court has said in its various decisions that this is a whole new era in state accountability, when you actually look at what the court has been doing, the court has impinged upon parliamentary supremacy very, very little in the years since the Charter has been passed. They still haven’t weaned themselves from parliamentary supremacy and I think one of the factors at work is that they’re really concerned that if they make too bold a move against parliamentary supremacy and don’t respect enough the power of Parliament they will get their knuckles rapped, or their faces smacked, or they’ll get punched in the nose. We have only to look at what the present Prime Minister has done to the Chief Justice about the Nadon appointment to know that those are not imaginary worries that some government would take after the court in a very big way if it did what the government considered to be getting out of line.
They’re concerned and one of the reasons they’re out there is because government has not taken up the Charter. As advocates we have to be drumming it into governments that they have to take the Charter into account in their legislative programs and their policy programs, because all of the business relating to the Charter in the past 30 years has been judicial business. Most of the things about the Charter are a citizen or group of citizens complaining to a court that the government has got it wrong. It’s not the government saying “Oh, we have Charter obligations here, let’s explore how we can implement them.” The rubber is always hitting the road in the courts. The courts feel exposed and under pressure because of the Charter, in a way that they shouldn’t have to feel exposed and under pressure—because governments aren’t doing their job.
What advice would you have for students who are interested in constitutional law and litigation?
Get as much of it as a student as you can, because your best opportunities to get yourself training are in law school, at the graduate level, and through internships. If you go to a big firm, there aren’t that many cases coming in with constitutional elements to them and most of the programs for articling and junior lawyers in big firms aim to expose you to as much of the firm’s work as possible. Front-end load your constitutional work while you’re a student. Take up all the opportunities as you can to do that.
There are certain areas of law that will get you more constitutional work than others. Criminal law, ironically, is a huge area for constitutional law. You have to choose another area or two to work in. Professional discipline and poverty law are other areas where you get quite a lot of constitutional law. Or you could always keep on at your studies and teach. Some people go and work for the government. It’s not always a great place to go if you are very pro-Charter. It’s a good place to develop skills and depending on your political orientation, it might be a place where you’re quite happy to stay. There are a lot of really fine government lawyers and it would be quite a good opportunity to train with any one of them.
I think you really have to take as much in as you can while you’re a student and then pick your area of law very carefully. Do a tour of the horizon and see where you’re likely to run into it. Not many of us hang up our shingles and say we’re constitutional lawyers—we’re usually something else besides.
