*Originally published on 10 February 2017, re-published due to technical issues
The election of Donald Trump as President of the United States of America was a shock to many. After all, it is difficult to imagine someone less qualified for the job who would also be able to achieve the feat of winning a presidential election (thanks in part to the archaic presidential election system, i.e. the electoral college). He has no experience in politics and the actions of his team over the past two weeks suggest that he also has very little clue on how the administration he is leading actually works. This could be characterised as incompetence, and in part it is, at least in terms of how to effectively implement his policies. Nevertheless, one should be careful to claim that all of the chaos and failure coming out of the White House is due to incompetence. I say this because in so doing I fear one would continue perpetuating the same mistake a considerable amount of people did over the last year, that is to not take Mr. Trump seriously, both as a candidate/President, and as a threat. And a threat he is. The chaos he creates is probably more representative of his personality, megalomaniac/narcissist, and ideology, a form of nouveau fascism, than solely of his incompetence. The recent Muslim ban is a great example. I think it is important to take Trump seriously, especially if we wish to craft effective paths of resistance.
The legal profession is not the most diverse of profession. For the longest time it was reserved for white cis men with enough financial mean to survive legal training. It has slowly opened its door to white cis women (although there are still issues, especially in the private sector). It is still very white and cis-hetero normative however. There are probably many causes for the homogeneity of the legal profession (financial barrier to access the profession, hiring biases in large firms, the image of the profession, etc). The Law Society of Upper Canada (LSUC) is at least currently considering ways to increase diversity in the profession. While the LSUC is far from having control over all the factors affecting diversity, it does have the power to accredit law schools, and law schools are often viewed as the true gatekeepers of the profession. This power is, however, rarely used as new law schools are a rare thing. Trinity Western University (TWU), a private university that caters to evangelical Christians, is the most recent university so seek accreditation. TWU has an infamous covenant that all students are required to sign. This covenant forbids sexual intimacy except between married heterosexual couples. This unsurprisingly shocked many people including benchers (the decision-makers of the LSUC). Accrediting TWU seemed, at the very least, to go against diversifying the legal profession. The LSUC ultimately rejected TWU accreditation because of its discriminatory covenant. A law suit ensued, pitting equality against freedom of religion. Days before Toronto Pride, the Ontario Court of Appeal (ONCA) upheld the decision of the LSUC. In this post, I shortly expose additional background on the case. I then explore the decision’s treatment of the LSUC’s decision making power. I finish by looking at the ONCA’s approach to the balancing of rights.
For those who are unaware, the Toronto Pride Parade was on 3 July this year. Usually the parade is pretty uneventful for the erudite. It can be a fun and colourful event (and has some significance when it’s your first), but it’s pretty repetitive (especially the one in Toronto). Same floats, same corporations pretending to care, same organisations, etc. This year, however, something pretty significant happened during pride. No, I’m not talking about Prime Minister Trudeau’s participation in the parade (I couldn’t care less about that in all honesty). Nor I am talking about the 34 years too late apology by the police for the Toronto bathhouse raids in the 80s (what about reparation?). I’m talking about the Black Lives Matter (BLM) protest during the parade. The group, composed largely of black queer people – supported by other people of colour and indigenous people (POCIP) – stopped the parade for 25 min to make demands to Pride Toronto. The demands were mostly more inclusion of POCIP in pride. One, however, shocked a great many people: the removal of the police as participants in pride events. The executive director of pride accepted the demands, only to backtrack in part the next day. We will see how things progress, but I doubt BLM will simply give up (thankfully).
Last week the British Columbia Court of Appeal decided to allow the Attorney General’s appeal to the constitutional challenge of the assisted suicide prohibition: the Carter case. This case featured two persons named Gloria Taylor and Lee Carter. Both suffered from intractable and progressive diseases, and wished to have the option of physician assisted suicide when their life would become intolerable (they both passed away before the appeal was rendered). However, s 241(b) of the Criminal Code makes aiding or abetting a person to commit suicide a crime. Ms. Carter and Taylor challenged the constitutionality of the section alleging a violation of their right to life, liberty and security of the person, and of their right to equality. One of the major hurdles they faced was that a similar issue involving the same section of the Code was challenged on similar grounds and had been decided by the Supreme Court of Canada in the past. In Rodriguez, the plaintiff lost her appeal to the Supreme Court by a close 5 to 4 vote. Nevertheless, the trial judge, Justice Smith, found that she was not bound by the Supreme Court ruling because this case raised three new grounds: (1) the right to life was not at stake in Rodriguez; (2) two principle of fundamental justice did not exist at the time of Rodriguez, overbroadness and gross disproportionality; (3) the majority did not consider s 15 (equality) in its entirety in addition to the fact that recent Supreme Court decisions changed the applicable test. She found in the plaintiffs’ favour and declared the section unconstitutional with a grace period of one year for the government.
This section outlines possible course of actions to remedy the over incarceration of Aboriginal people through a reform of Aboriginal sentencing. In all circumstances, it is suggested that the government should at least enact an exception to mandatory minimum sentences for Aboriginal people if the circumstances warrants it in order to fully allow sentencing judge to implement s 718.2(2) of the Criminal Code. It is also suggested that a reform of Aboriginal sentencing should be accompanied with other socio-economic measures to properly deal with the over incarceration of Aboriginal people. More importantly, I acknowledge the fact that I am not Aboriginal and do not speak in Aboriginal people’s name. In the end effective and long-lasting solution will have to emanate and/or receive the accent of Aboriginal people in order to be legitimate and to further decolonisation goals.
I rarely use social media to talk about myself. I talk about my ideas and my work, but not about me as an individual and certainly not about my feelings. But a lot has happened to me since I left the Federal Court and went back momentarily to the school bench. The events of the past months have forced me to reflect on some aspects of my life and of myself; some of which are worth sharing.
Before exposing my reflections I think it is useful to summarize the events that led me to them. In August 2011 I started working for the Federal Court. Shortly after, I moved in with my partner. I entered this new phase of my life (working full time and living with one’s partner) already exhausted from 5 years (for three different degrees) of law school and part time work to pay for my education. I’m not trying to attract anyone’s pity; after all I come from a progressive upper middle class white family. But such experiences are subjective and I felt exhausted. The smart thing to do would have been to take some time off to write and read until I could apply to a PhD program (I didn’t have time to apply during my tenure at the court) since there was no need for me to go back to school or work at a job I hated. But no, I had to enroll into another master program and manage a plethora of activities at the same time instead. The program ended up much less interesting than expected (partly because I am intellectually insecure and thus cannot admit that I could be intelligent without the schooling to prove it) and, instead of being enjoyable, fueled my stress and exhaustion further. It negatively affected my whole life. I reached the breaking point a few weeks ago and dropped everything. And now I feel great! But why did I go through all of this in the first place?