Doctoral students from global law schools gather for ATLAS Agora

PhD students from law schools around the world will take their scholarship to the next level in June as they gather for the 13th annual ATLAS Agora Summer School at Osgoode.

The unique event, which has been run since 2008 by the Association of Transnational Law Schools (ATLAS), will bring together 21 doctoral students from June 2 to 9. Along with Osgoode, the participating law schools or law faculties will include Bar-Ilan University Faculty of Law in Israel, the Charles University Faculty of Law in the Czech Republic, Erasmus School of Law in the Netherlands, the University of Antwerp Faculty of Law in Belgium, the Sutherland School of Law at University College Dublin in Ireland, Université de Montréal Faculty of Law and the Faculty of Law at the University of Graz in Austria.

The theme of this year’s event is “Interdisciplinary and Public Facing Approaches to Legal Research.”

“This year’s ATLAS Agora is unique because all of its components are designed to help grad students ‘become’ well rounded academics,” said Professor Saptarishi Bandopadhyay, who is serving as this year’s ATLAS Agora director.

“The goal is to equip future grad students to see themselves as full-fledged academics and scholars in the real world,” he added. “We want to encourage them to think broadly about their specific legal questions, to encourage them to seek funding, to produce research that is of relevance to both specialist audiences and the general public, and to teach them to read the work of their peers critically but supportively.”

During each day of the Agora, the doctoral students will participate in an interdisciplinary seminar, PhD dissertation workshops and a professional development/knowledge dissemination seminar. Nine Osgoode faculty members are among those leading the seminars: Professors Jeffery Hewitt (Law and Indigeneity), Patricia McMahon (Legal History), Barnali Choudhury (Private Law and Climate Change), Rabiat Akande (Law & Religion), Emily Kidd White (Law and Emotion), Jennifer Nadler (Law and Philosophy), Deborah McGregor (Grant Applications) and Allan Hutchinson (Writing Essays/Op-Eds).

One of the highlights of this year’s Agora will be the PhD dissertation workshops, which are modelled on workshops organized at Harvard Law School, said Bandopadhyay. The students were asked to submit a paper of up to 8,000 words in advance and to read the papers of those in their group. Each workshop session will include four students and one faculty chair. Each paper will be discussed for approximately 30 to 35 minutes. Osgoode faculty leading the workshops will be Professors Craig Scott, Karen Drake, Dana Scott, Faisal Bhabha and Bruce Ryder.

Scott, who serves as associate dean, academic, and who co-created ATLAS in 2006, said ATLAS Agora was the first event of its kind for law school doctoral students and remains unparalleled in the international law school community.

“It was an Osgoode initiative, but we needed the five original partners to sign on,” he recalled in an email. “I am not aware of any similar doctoral consortium arrangement still.”

Due to complications related to the COVID-19 pandemic, Atlas Agora Summer Schools were cancelled in 2022 and 2020 and the 2021 event was held online.

 

Grad hopes scholarship will help inspire Indigenous youth

Photo of Justin Thompson outside Osgoode building with ivy in the background
Justin Thompson

Justin Thompson ’23 hopes a major scholarship he recently won will help inspire other Indigenous youth to reach for the stars.

The member of Nipissing First Nation near North Bay, Ont., who will officially graduate from Osgoode in June, was recently named a recipient of the $10,000 John Wesley Beaver Memorial Award. John Wesley Beaver was a former chief of the Alderville First Nation in eastern Ontario who served as a fighter pilot in the Second World War and rose to become a high-ranking executive at Ontario Power Generation. The scholarship is offered annually by Ontario Power Generation through Indspire, a national Indigenous charity that invests in the education of First Nations, Inuit and Métis people.

“Indigenous students want to see someone like themselves who is achieving things,” said Thompson. “So getting the award helps to show that anything is possible for Indigenous students and the sky is the limit.”

Thompson, who is the first in his immediate family to attend university, said the award also represents for him one more sign of hope that Indigenous youth and their communities can look forward to a brighter future after many generations of suffering under colonial oppression. His own great-grandmother, Agnes, was a residential school survivor.

In 2014, for example, his community enacted its own constitution, effectively supplanting the federal Indian Act, with its history of injustice. In addition, Nipissing First Nation is currently developing its own citizenship law, which will allow the community to decide who is a citizen and not the federal government. Alongside these developments, he added, the community is enjoying better times economically and is eagerly awaiting the results of the Restoule case, a landmark case currently before the Supreme Court of Canada that could see members of the Anishinaabe Nation in Northern Ontario win better compensation for the lands they agreed to share with the Crown under the 1850 Robinson Huron Treaty.

“We’ve seen all these exciting changes,” said Thompson. “So I want to play my part in helping my community become more sovereign and to exercise its rights of self-determination, loosening the grip of the Indian Act.”

Even as a teenager, he said, that desire drove his decision to become a lawyer. The scholarship has helped him to realize that dream, he added. In July, after completing his bar admission exams, he will begin articling in the Toronto office of Olthuis Kleer Townshend LLP, one of Canada’s leading Aboriginal law firms.

As an aspiring Indigenous lawyer, Thompson said, Osgoode was his first choice of law school after he completed undergraduate and graduate studies at Trent University in Canadian and Indigenous studies. His graduate research there focused on the issue of Indigenous over-incarceration and the lasting impacts of the Indian Act related to the criminalization of Indigenous individuals.

“I came to Osgoode specifically for the Indigenous Intensive,” he said. “And the Indigenous faculty here have been an amazing source of support.”

The only program of its kind in North America, the Intensive Program in Indigenous Lands, Resources, and Governments (IPILRG) explores the legal issues related to Indigenous Peoples and Indigenous rights through the combination of a rigorous academic experience with challenging placements in Indigenous, Aboriginal or environmental law.

“The Intensive was my favourite aspect of law school,” said Thompson. “It was a bit disrupted by COVID, but (Professors) Amar (Bhatia) and Jeff (Hewitt) made sure we had all the support we needed.”

As an Indigenous law student, Thompson said, other highlights of his Osgoode experience included participating in the Kawaskimhon National Aboriginal Moot and his leadership roles with the Osgoode Indigenous Students’ Association (OISA).

“We took on a lot of important initiatives,” he said, citing in his third year the association’s ReDress Week event, its Moose Hide Campaign against domestic and gender-based violence and its Orange Shirt Day, which featured guest speaker and Osgoode alumna Kimberley Murray, the federal government’s Independent Special Interlocutor for Missing Children and Unmarked Graves and Burial Sites associated with Indian Residential Schools.

Third former dean appointed to the Court of Appeal for Ontario

Photo of Deans MacPherson, Monahan and Sossin
Former deans (L-R) James MacPherson, Patrick Monahan and Lorne Sossin.

Justice Patrick Monahan has become the third former Osgoode dean to be appointed to the Court of Appeal for Ontario, joining Justice Lorne Sossin and Supernumerary Justice James MacPherson.

Federal Minister of Justice and Attorney General David Lametti announced the appointment May 15. Justice Monahan replaces Justice I.V.B. Nordheimer, who became a supernumerary judge effective September 1, 2022.

An Osgoode graduate and, later, a faculty member for more than two decades, Justice Monahan served as dean of the law school from 2003 to 2009. He went on to become provost and vice-president academic of York University from 2009 to 2012 and deputy attorney general for Ontario from 2012 to 2017. He was appointed to the Superior Court of Justice of Ontario in 2017.

Justice MacPherson was dean from 1988 to 1993, while Justice Sossin’s term stretched from 2010 to 2018.

The three former deans share the Court of Appeal bench with 10 other Osgoode graduates, including Chief Justice of Ontario Michael Tulloch ’89, the province’s first Black chief justice. Other graduates include Justice David Brown ’05 (LLM), Justice Steve Coroza ’03 (LLM), Justice William Hourigan ’90, Justice Alexandra Hoy ’78, Justice Peter Lauwers ’83 (LLM), Justice Sarah Pepall ’83 (LLM), Justice Gary Trotter ’90 (LLM) and Justice Benjamin Zarnett ’75.

Osgoode graduates have served at every level of court across Canada, including the Supreme Court of Canada, where three graduates are current sitting judges: Justice Malcolm Rowe ’78, Justice Andromache Karakatsanis ’80 and Justice Michelle O’Bonsawin ‘14 (LLM), the high court’s first Indigenous justice.

 

IP Innovation Clinic to benefit from $300,000 Ontario grant

Photo of Professor Pina D'Agostino on white background

A new $300,000 grant from the Ontario government will better equip Osgoode students to thrive in the province’s burgeoning knowledge economy.

The funding from Intellectual Property Ontario (IPON) will benefit the IP Innovation Clinic, Canada’s largest pro bono IP legal clinic and part of the law school’s comprehensive intellectual property and technology law program.

“With these resources, we can serve many more clients who do not have money to pay for expensive legal fees,” said Professor Pina D’Agostino, the founder and director of the IP Innovation Clinic. “We are also able to train many more law students to be IP and business savvy to protect key assets in the disruptive tech economy.

“The IPON funds,” she added, “will be invaluable to help scale the many successes of the IP Innovation Clinic working with Ontario’s startups.”

The grant will help create two new staff positions – an assistant director for the IP Innovation Clinic and a business development and commercialization manager for York University’s Office of the Vice-President Research and Innovation (OVPRI). It will target researchers especially in the areas of artificial intelligence, automotive and medical technology.

The IP Innovation Clinic operates in collaboration with Innovation York, which also supports researchers. The Osgoode student volunteers who staff the clinic, known as Clinic Fellows, are supervised by lawyers from Norton Rose Fulbright Canada LLP, Bereskin & Parr LLP and OWN Innovation. Guided by their lawyer mentors, Clinic Fellows provide legal information support to inventors, entrepreneurs and start-up companies and learn about common early-stage IP and business issues facing actors in the innovation ecosystem.

Intellectual Property Ontario (IPON) is a provincial agency that provides IP support and services directly to clients and postsecondary institutions to help Ontario businesses and researchers innovate and grow.

In a written statement, Minister of Colleges and Universities Jill Dunlop said this latest grant advances IPON’s mandate to provide Ontario post-secondary institutions and innovators with the funding, tools, knowledge and connections they need to harness the value of their IP.

Professor Pina D’Agostino to co-lead historic York research initiative

Photo of Susan Boehnke, Queen’s University with York University’s Giuseppina D’Agostino, Doug Crawford and Gunnar Blohm, Queen’s University.
D’Agostino, second from the left, with (L-R) Queen’s neuroscience researcher Susan Boehnke, inaugural scientific director Doug Crawford of York and inaugural vice-director Gunnar Blohm of Queen’s.

Professor Pina D’Agostino has been named the inaugural vice-director of a pioneering, $318-million,  interdisciplinary research initiative geared to ensuring that cutting-edge technologies like artificial intelligence (AI) are used for the benefit of humankind.

Announced April 28, the historic, seven-year project will also include six other Osgoode professors as members: Professors Valerio De Stefano, Karen Drake, Jeffrey Hewitt, Deborah McGregor, Roxanne Mykitiuk and Jonathon Penney.

The project, to be called Connected Minds: Neural and Machine Systems for a Healthy, Just Society, will receive $105.7 million in federal government support through the Canada First Research Excellence Fund (CFREF), with $82.8 million of that going to York and $22.8 million to Queen’s University, its institutional partner on the project. York will contribute an additional $126 million over the life of the project, with further contributions committed by other collaborating partners.

Osgoode’s legal experts will join thought leaders from eight of York’s Faculties and three of Queens’ to focus on how emerging technology is transforming society and how the identified risks and benefits for humanity can be balanced.

Dean Mary Condon congratulated all seven Osgoode faculty members for their involvement in the project.

“The legal expertise, innovative thinking and leadership experience of our faculty members, led by Professor D’Agostino, will make a critical contribution to this important research,” she said. “As we confront the rapid rise of powerful and potentially disruptive technologies like AI, our legislative and legal responses will help determine if and how they contribute to society’s well-being.”

Associate Dean, Research & Institutional Relations, Trevor Farrow also welcomed the news. “Pina has been an innovator at Osgoode and York for years,” he noted. “It’s really great to see the work of all of these Osgoode faculty members getting so much well-deserved attention and recognition.”

D’Agostino was also recently appointed by the Ontario government to the board of directors of the Toronto-based Ontario Centre of Innovation, which supports startups and helps commercialize research developed by Ontario colleges, universities and research hospitals.

Internationally renowned neuroscientist Doug Crawford, the York Distinguished Research Professor in Neuroscience, has been appointed as the inaugural scientific director for Connected Minds, while Sean Hillier, director of York University’s Centre for Indigenous Knowledges & Languages, will serve as inaugural associate director.

A key structural component of the program is an Indigenous-led focus. The project will employ an overarching decolonization, equity, diversity and inclusion (DEDI) strategy and will feature a dedicated Indigenous research space on York’s Keele Campus.

 

Professor Trevor Farrow joins Canada-U.S. meeting at Supreme Court to advance access to justice

Photo at Supreme Court of Canada of steering Committee of the Action Committee on Access to Justice & U.S. Office for Access to Justice
Members and staff from both organizations posed for a photo in the Supreme Court of Canada chambers. L-R ATJ public affairs specialist Lauren Lambert, Catherine McKinnon of Justice Canada, Trevor Farrow, Justice Andromache Karakatsanis, Director of the U.S. Office for Access to Justice (ATJ) Rachel Rossi, ATJ senior advisor Jesse Bernstein, steering committee member Meredith Brown and Hasna Farah of Justice Canada.

Members of two national organizations spearheading efforts to improve access to justice in Canada and the United States met at the Supreme Court of Canada on April 27 to advance co-operation and renew their shared commitment to the cause.

The day-long event at the Supreme Court of Canada building in Ottawa brought together members of the U.S. Department of Justice’s Office for Access to Justice and the steering committee for Canada’s Action Committee on Access to Justice in Civil and Family Matters – including Professor and Associate Dean, Research & Institutional Relations Trevor Farrow.

The action committee is chaired by Supreme Court of Canada Justice Andromache Karakatsanis. Chief Justice of Canada Richard Wagner serves as honorary chair.

“Both organizations are very active in working to improve and promote innovations in access to justice at the local level and through shared global partnerships and collaborations,” said Farrow, who also serves as chair of the Osgoode-based Canadian Forum for Civil Justice (CFCJ).

“During the meeting,” he added, “we explored shared interests and initiatives with the Office for Access to Justice, which was re-established under the administration of President Joe Biden.”

Farrow has been involved with the Action Committee on Access to Justice since it was established in 2007 by former chief justice Beverley McLachlin. He played a key role in the writing of its 2013 report, Access to Civil & Family Justice: A Roadmap for Change.

The report defined nine fundamental goals to improve access to civil and family justice in Canada, including addressing everyday legal problems, making the courts work better, improving funding strategies and building capability and innovation in the justice system.

“The action committee’s work has been at the centre of a growing movement around access-to-justice research and reform, which lines up directly with the UN’s sustainable development goals,” he said. “It’s regarded as a leading collaborative voice around the world in its efforts to promote people-centered justice.”

The mission of the U.S. Office for Access to Justice, according to its website, is to “help the justice system efficiently deliver outcomes that are fair and accessible to all.”

Known by the acronym ATJ, it works “within the Department of Justice, across federal agencies and with state, local, and tribal justice system stakeholders to increase access to counsel and legal assistance and to improve the justice delivery systems that serve people who are unable to afford lawyers,” notes its website.

The world is running out of time to negotiate a global pandemic treaty

Photo of Osgoode PhD candidate Roojin Habibi
PhD candidate Roojin Habibi

Roojin Habibi is a research fellow at the Global Strategy Lab and a PhD student at Osgoode Hall Law School. Dr. Clare Wenham is an associate professor of global health policy at the London School of Economics.

Member countries of the World Health Organization are currently negotiating a new pandemic treaty in an effort to prevent a global health crisis like COVID-19 from ever happening again. But after the global mayhem and injustices of the pandemic, these negotiations are fast becoming a battleground for broader political tensions.

Nearly everyone would agree that egregious global inequalities were laid bare by COVID-19. While wealthy countries enjoyed timely access to quality vaccines, diagnostics and treatment, poorer ones were largely left to fend for themselves, even at the height of the global health crisis. To prevent another pandemic, countries need a new blueprint for global co-ordination and collaboration. The verdict is still out, however, on what that blueprint should look like.

Pandemic injustices have not only spurred demands for equity and solidarity in the WHO’s draft treaty, but also for countries with varying levels of development to accept “common but differentiated responsibilities,” or CBDR. While some entities see CBDR as the key to achieving health equity among the world’s nations, others, including Canada, view it as a divisive and unworkable concept in global health law. This impasse, reflected in the recently leaked version of the WHO’s pandemic accord, should not be an excuse for inaction. The stakes are too high and the need for solidarity is too urgent.

To be sure, the principle of common but differentiated responsibilities is longstanding in international environmental law. It rests on four key ideas: First, that the world faces a common danger (i.e., climate change) that must be thwarted by collective efforts; second, that some countries have less capacity than others to fend off this danger; third, that some countries are more vulnerable than others to the effects of the danger; and finally, that some countries have a greater historical responsibility for the problem, mainly due to greenhouse gas emissions.

In a nutshell, the principle holds that those with greater culpability, capability, and less vulnerability must step up and take a more significant role in addressing the shared threat of climate change.

These same ideas may apply to pandemic prevention, preparedness, and response. New and emerging pathogens pose a common danger to the world. Poorer countries with weaker health systems are less capable of detecting these pathogens or mitigating their spread. These same countries, which often do not have robust health systems, are also more vulnerable to the impact of an epidemic or pandemic, as was evident during COVID-19. Their disproportionate outbreak vulnerability is, moreover, a product of historical trajectories, such as colonialism, and global neoliberal policies, such as structural adjustment programs (used, for example, by the International Monetary Fund as requirements for loans to developing countries) which eroded long-term investments in health systems. It seems only fair, then, that the countries that carved out these legacies should bear greater responsibility for their outcomes.

The current draft of the pandemic treaty references common but differentiated responsibilities in its preamble, guiding principles, and Article 4. For many countries in the Global South still reeling from the impact of COVID-19, these references do not go far enough, and further mainstreaming of the concept is needed. Conversely, for many high-income countries, it goes too far, as they argue that pandemics pose a universal threat to all countries, and all countries should bear equal responsibility for it.

Whilst wholly applicable to the global health space, tensions over the principle of CBDR could presage the unravelling of negotiations, which are already running behind schedule (the WHO first began considering this type of treaty in December, 2021). Perhaps countries are trying to force a circle into a square peg. Perhaps what they need instead are bespoke solutions and bespoke language adapted to the domain of global health.

The tenets of CBDR are not all that foreign to global health diplomacy. Seventy-five years ago, the world came together, with common aims, to address the differential challenges of achieving global health equity. In that spirit, they established the World Health Organization and recognized in its constitution that “unequal development … in the promotion of health and control of disease, especially communicable disease,” poses a “common danger.”

Today, as countries negotiate a new pandemic treaty, they must channel that same historical will to collective action. With just one year left to negotiate the agreement (a timeline stipulated by the World Health Assembly when first embarking on the treaty), it’s time for countries to say yes to working together with the greater aim of capacity-building for developing countries, and collective financing for pandemic prevention, preparedness and response.

Let us not squander this opportunity to build a shared understanding of principles that can guide us toward a safer, healthier, and fairer future.

(This article was originally published in The Globe and Mail on April 24, 2023.)

OsgoodePD program keeps lawyers, executives on cutting edge of ESG legal issues

An image of a lush city in the background of a dessert, and a logo of Osgoode professional Development

As the temperature rises on global heating, corporations are facing another potential danger: any attempt to misrepresent their environmental record could pose a serious legal risk, according to the co-directors of an Osgoode Professional Development (OPD) certificate program.

Allegations of so-called greenwashing pose a significant reputational hazard for businesses that over-promise and under-deliver on their environmental performance, especially as disclosure requirements intensify around a company’s carbon emissions, said Jason Kroft, co-director of OPD’s cutting-edge certificate program in ESG, Climate Risk and the Law, which will be offered next beginning Sept. 21.

ESG, which stands for environmental, social and governance, is a system for measuring the sustainability of a company or investments.

Kroft, a partner with Miller Thomson LLP, is co-chair of ESG and carbon finance with the Toronto-based law firm and co-leader of its structured finance and securitization practice. The program is also co-directed by Sarah Keyes, the CEO of Toronto-based ESG Global Advisors, and Lisa DeMarco, senior partner and CEO with Resilient LLP of Toronto.

“If ESG is on the minds of business leaders, it should be top of mind for those that advise and support such business leaders, including lawyers, accountants, consultants, management, government and many others,” noted Kroft.

“Attendees of this program,” he added, “will benefit from learning core substantive areas of law and policy related to ESG and will hear from leading experts on topics of interest in a range of relevant disciplines.”

ESG issues such as climate change and diversity, equity and inclusion are now front-of-mind in global capital markets, said Keyes. “With investors’ increased demand for transparency on ESG performance,” she added, “companies are responding to a growing flurry of policies, regulations and reporting and disclosure standards.”

As more investors engage in ESG-related activism, corporate directors are feeling the heat in the form of shareholder proposals, proxy voting and even litigation. Earlier this year, for example, the board of oil giant Shell plc was sued in a landmark UK court action for alleged mismanagement of the company’s climate strategy and its transition to a low-carbon economy.

“It’s important for corporate directors to pay attention and ensure they understand how ESG and climate change apply to their oversight role,” said Keyes.

Environmental issues also feature prominently in OsgoodePD’s part-time Professional LLM in Energy and Infrastructure Law, which includes core courses addressing changing legal trends in energy regulation and environmental protection.

International report co-authored by Professor Trevor Farrow explores community legal services for better access to justice

Professor Trevor Farrow and cover of international report on community-based justice services

Community legal clinics, paralegal services, social workers and others assisting those who cannot easily access legal help are effective ways of narrowing the gap in accessing justice that’s prevalent across the globe, says Professor Trevor Farrow, co-author of a new international report released today.

The report, Exploring Community-Based Services, Costs and Benefits for People-Centered Justice, is a review of recent studies conducted by researchers in Kenya, Sierra Leone, South Africa and Canada to understand how effective grassroots support systems are in alleviating, if not eliminating, barriers to justice.

The research is part of the Community-Based Justice Research (CBJR) project, funded by Canada’s International Development Research Centre (IDRC). The Osgoode-based Canadian Forum on Civil Justice (CFCJ) played a lead role in co-ordinating the project.

According to Farrow, the inaccessibility of legal services is a common issue, be it in Kenya, Sierra Leone, South Africa, Canada or the rest of the world. In fact, the United Nations has identified access to justice as a global crisis that – through its Sustainable Development Goals (SDGs) – requires collective efforts and shared solutions, he said.

According to earlier research from the CFCJ, approximately 50 per cent of adult Canadians will experience a legal problem in any given three-year period. “Like the rest of the world, there is an access-to-justice crisis in Canada,” noted Farrow, who also serves as chair of the CFCJ. “Law and legal issues are everywhere, but very few people can afford legal help.”

Grassroots-level support can help change this situation for the better, said CFCJ Senior Research Fellow Ab Currie, who also co-authored the report.“Getting access to trained social workers at drop-in shelters, support workers at community centres, paralegals, religious advisors and many others who work and interact with people where and when they most need help, are primary goals and benefits of community-based justice,” explained Farrow. “The core idea is to find ways to get legal services and law-related help to people in the places that they live and work, and to identify – and ideally avoid – legal problems or to help address them before they get worse.”

“Generally, there’s a benefit to having these services in the community and the recent research indicates that the cost-benefit analysis is positive for these community justice services,” he added. “There are also non-financial benefits of trust, access and awareness when it comes to supporting local help for local communities.”

South African justice researcher Busiwana Winne Martins agreed. “Because support workers are close to the community, they understand their problems and socio-economic conditions,” she said. “They share the same geographic space and culture and can negotiate plural legal systems and determine how to straddle the formal law and traditional African customary law.”

“People who work in the grassroots justice structures, especially community-based paralegals, are able to translate difficult legal and bureaucratic language into frames that local people can understand and help them to resolve their justice issues, added Martins, who works with the Centre for Community Justice & Development in Pietermaritzburg, northwest of Durban.

Farrow agreed that managing problems within a community and with the help of community members is often simpler, quicker and allows for community values and interests to be part of the process. “Community justice initiatives can provide exciting opportunities for innovative and inclusive problem-solving that allows for important justice options and strategies,” he said.

To help solve the access-to-justice crisis, Farrow added, “community-based justice provides significant and exciting opportunities for meaningful assistance – in addition to numerous other options and processes, including strong legal institutions.”

The addition of access to justice to Goal 16 of the United Nations SDGs, which calls on all nations to work toward equal access to justice by 2030, is a significant driver for action, according to the report.

For more York University news highlights, go to News@York.

Flagship event attracts leading scholars, lawyers to review Supreme Court’s key decisions of 2022

Jamie Cameron speaking at Con Cases

The Supreme Court of Canada (SCC) heard only 15 per cent of the 478 leave-to-appeal requests that it received last year – or about 30 cases in total, Canada’s leading constitutional law conference was told April 14.

“Is the court hearing enough appeals and is it hearing the right appeals?” Osgoode Hall Law School Professor Emerita Jamie Cameron told those attending the law school’s 26th annual Constitutional Cases conference. “That’s something that I think is an interesting question.”

For the first time since the pandemic, the law school’s flagship conference was held in person at Osgoode Professional Development’s downtown Toronto campus, bringing together about 100 of Canada’s foremost constitutional lawyers, law professors, judges and law students to discuss the SCC’s most significant decisions of 2022 and trending issues related to the country’s highest court. About 250 also attended online.

“It’s always a wonderful, rich buffet of patterns, trends and issues emerging from the Supreme Court of Canada’s jurisprudence from the prior year,” said Osgoode Professor Ben Berger, who co-organized the conference with Professors Sonia Lawrence and Emily Kidd White.

Cameron noted that 73 per cent of the Supreme Court’s total of 53 rulings in 2022 were related to criminal law, including two landmark decisions that struck down consecutive life sentences for those convicted of first-degree murder (R. v. Bissonnette 2022 SCC 23) and the Criminal Code‘s statutory restriction on the defence of  intoxication for those who commit violent offences while in a state of self-induced intoxication (R. v. Brown 2022 SCC 18).

She said the court’s decision in Bissonnette, which restored the prior rule of 25 years of parole ineligibility for those convicted of first-degree murder, affected about 18 of Canada’s most notorious convicted mass murderers, including Quebec City mosque killer Alexandre Bissonnette.

“The decision was controversial for the families of victims,” she noted, “who responded by stating that this meant that ‘every life does not matter.’”

Overall in 2022, said Cameron, Justices Russell Brown (currently on leave), Andromache Karakatsanis and Sheilah Martin ruled most often in line with the Charter of Rights and Freedoms, while Chief Justice Richard Wagner and Justice Michael Moldaver, who retired in 2022, voted least often with the Charter. Justice Moldaver was replaced in September 2022 by Justice Michelle O’Bonsawin, the high court’s first Indigenous judge.

In the conference’s traditional Laskin Lecture, named after former chief justice and Osgoode alumnus Bora Laskin, guest speaker Dame Linda Colley, a prominent professor of history at Princeton University, reviewed some of the key ideas behind her 2021 book The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World (Liveright Publishing Corp.) The lecture was co-sponsored with the York Centre for Public Law and Public Policy.

Panel discussions, which included some of Canada’s pre-eminent constitutional scholars and lawyers, tackled topics such as scrutinizing the Supreme Court with digital technology, the reach and range of judicial review, and police powers and the exclusion of evidence.

Originally spearheaded by former Osgoode dean Patrick Monahan, who currently sits as a judge with the Ontario Superior Court of Justice, the conference helps constitutional scholars and lawyers track general trends across cases that cover wildly different areas of law, said Lawrence.

“All constitutional cases – explicitly or implicitly – provide answers to critical questions about the institutional competence of courts versus legislatures,” she added. “Constitutional cases in Canada also have been part of how we have grappled with fundamental questions raised by the way this country was created, with respect to both our federal system and our founding on Indigenous lands.”