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.

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.

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 26^th 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.”

Seven Osgoode professors are the recipients of 2023 York University Research Awards.

Professors Giuseppina D’Agostino, Valerio De Stefano, Philip Girard, Steven Hoffman, Poonam Puri and Dayna Scott were presented with their awards at a special celebration on campus April 12, along with Professor Emerita Mary Jane Mossman.

The annual awards, which honour the outstanding achievements of York researchers over the past year, were presented in part by York University President and Vice-Chancellor Rhonda Lenton and Vice-President, Research & Innovation Amir Asif.

“Here at York, purposeful research defines us,” the two leaders said in a written message. “As the university prepares to take its research enterprise to the next level – as outlined in the strategic research plan currently in development for 2023-2028 – we know York’s biggest strength is its people, whose unwavering commitment, excellence and creativity is the key to pioneering new approaches to society’s most pressing, 21^st century challenges and advancing the United Nations’ Sustainable Development Goals.”

Osgoode Associate Dean (Research & Institutional Relations) Trevor Farrow commended the award recipients for their accomplishments.

“It was a real pleasure to honour and celebrate the exciting research that has been happening this year at York, and in particular the great work of our Osgoode colleagues,” he said. “Congratulations and thank you to all of them for their efforts and their very impressive achievements.”

D’Agostino was honoured with a York University Research Award for being named one of Canada’s Top 25 Most Influential Lawyers for 2022 by Canadian Lawyer magazine.

De Stefano was recognized for being named the Canada Research Chair in Innovation, Law and Society in June 2022.

Puri’s award was in recognition for receiving the Peter Dey Governance Achievement Award from the Governance Professionals of Canada in November 2022.

Girard was recognized for being presented with the David Walter Mundell Medal for excellence in legal writing from the Ontario government in March 2022.

Hoffman received a York Research Award for being elected as a Fellow of the Royal Society of Canada in September 2022 and for leading a successful, $2.5-million SSHRC Partnership Grant for research into a global framework for sustainable antimicrobial drug use and preventing the proliferation of drug-resistant bacteria. Hoffman holds the Dahdaleh Distinguished Chair in Global Governance & Legal Epidemiology.

Mossman was awarded for being honoured with the Women’s Law Association of Ontario’s President’s Award in June 2022.

Scott was recognized for her work in leading a successful, $2.5-million SSHRC Partnership Grant for a six-year project exploring novel approaches to strengthening Indigenous jurisdiction and sovereignty over hereditary lands and waterways. Scott is cross-appointed with the Faculty of Environment & Urban Change and holds the York Research Chair in Environmental Law & Justice in the Green Economy.

On March 30, the Vatican announced that it was repudiating the doctrine of discovery that has been used to justify the colonizing European powers’ assertions of sovereignty and land acquisition in the Americas. This doctrine was supported by a series of decrees, called bulls, issued by Pope Alexander VI in the 1490s. In the centuries since those bulls, the doctrine has been relied on by judges of the Supreme Courts of Canada and the United States – as recently as 2005, by the latter. Hopefully, its dismissal by the Vatican will encourage today’s judges to follow suit.

The Church’s statement, which says that the doctrine of discovery “is not part of the teaching of the Catholic Church” and rejects the argument that the doctrine’s basis can be found in papal bulls from the 1450s and 1490s, is a significant step in the right direction. But it is only a step – and a problematic one at that, as its carefully worded repudiation of the doctrine provides a distorted vision of the historical context.

While it is true that these documents were issued to Portugal and Spain after they “discovered” West Africa and the Americas, the bulls nonetheless provided papal approval for their colonizing ventures. Instead of being decrees produced “in a specific historical period and linked to political questions” that “have never been considered expressions of the Catholic faith,” as the Vatican’s statement claims, they were in fact part of a deliberate, centuries-long Church mission to Christianize the whole world, by war and enslavement if necessary. This effort was actively pursued from the time of the first Crusade in 1095 up to and including the bulls authorizing colonization of the Americas in the 1490s.

And though the Church claims that the bulls were “manipulated for political purposes by competing colonial powers in order to justify immoral acts against indigenous peoples that were carried out, at times, without opposition from ecclesiastical authorities,” the Vatican is wrong to depict itself as being so passive. The bulls empowered Portugal and Spain to further the Church’s Christianizing policy by forcibly acquiring the lands of Indigenous peoples and subjecting them to the control of the Catholic monarchs of these countries.

The 1455 bull Romanus Pontifex, which relates to West Africa, is one document mentioned in the statement. In that bull, Pope Nicholas V asserted that, as successor of St. Peter and vicar of Christ, he had a responsibility to Christianize the world. Toward this end, he authorized King Alphonso V of Portugal “to invade, search out, capture, vanquish, and subdue all Saracens and pagans whatsoever, and other enemies of Christ wheresoever placed,” seize their property, and “reduce their persons to perpetual slavery.”

The 1493 bull Inter Caetera, authorizing Spain’s colonization of the Americas, starts by asserting that the highest-ranking work of the pope is that “the Christian religion be exalted and be everywhere increased and spread, that the health of souls be cared for and that barbarous nations be overthrown and brought to the faith itself.” After praising King Ferdinand and Queen Isabella for recovering “Granada from the yoke of the Saracens” and for discovering lands previously unknown to Europeans, Pope Alexander VI’s decree purports to grant the Catholic monarchs “all rights, jurisdictions, and appurtenances, all islands and mainlands found and to be found, discovered and to be discovered,” west of a line in the Atlantic Ocean from pole to pole 100 leagues west of the Azores and Cape Verde Islands. The stated purpose of this grant is religious – namely, to spread the Christian faith and convert the inhabitants of these distant lands.

This bull, unlike Romanus Pontifex, does not include powers of conquest and enslavement. But another 1493 bull, Eximiae Devotionis, did grant the Spanish monarchs all the rights and powers given to Portugal by previous bulls. Moreover, as is well known, the Spaniards viciously engaged in war and conquest, though more in pursuit of riches than conversion of the heathen.

It is thus disingenuous for the papacy to claim today that these bulls “were manipulated for political purposes by competing colonial powers.” They were part of a deliberate religious policy aimed at subduing and converting non-European peoples to Christianity.

So while it is good that the Vatican has repudiated the doctrine of discovery, the Catholic Church is still not taking the responsibility it should for what was done to the peoples of Africa and the Americas. To be meaningful, Church statements should acknowledge its role in colonization, rather than provide distortions of history in an attempt to reduce its own responsibility.

(Published in The Globe and Mail, April 4, 2023.)

A new online application developed by the Refugee Law Lab at Osgoode Hall Law School could provide lawyers with the critical legal data they need to improve their odds of winning refugee protection for their clients.

The Refugee Law Lab Portal (RLLP), which launched March 27, provides easy-to-access legal analytics derived from all Immigration and Refugee Board (IRB) decisions and judicial reviews of IRB judgments by the Federal Court.

Professor Sean Rehaag, director of the Refugee Law Lab, said the portal’s legal data can be used by lawyers to create “targeted” legal arguments, just as a doctor would use targeted medications to treat a patient’s unique symptom profile.

“When lawyers appear before decision-makers, they often don’t know who the decision-maker is until they walk into the room, so this can give them a quick way to understand some information about the decision-maker,” he said.

“If you know you have someone who is never going to grant refugee protection, then your job as a lawyer is to get a review,” he added. “By contrast, if you have someone who’s very sympathetic, you might just want to let the process roll through without interruption to keep the decision-maker on board.”

Rehaag said that subjective decision-making by refugee adjudicators is a reality, but he hopes data provided by the portal will help level the playing field for lawyers.

“From my perspective,” he said, “the key takeaway is that we need to have safeguards for this kind of decision-making to prevent the worst outcomes for refugees.”

“This can contribute to efforts to create those safeguards,” he added, “and help lawyers develop strategies to deal with the subjectivity of decision-making.”

Those worst outcomes would include the recent drowning deaths of eight migrants as they attempted to cross the St. Lawrence River into the United States.

The Refugee Law Lab plans to continue expanding the portal to provide additional information, including cases that decision-makers most often cite in their decisions. Rehaag said he also hopes that the legal data will help stimulate additional research into Canadian refugee law by other organizations.

Unlike high-priced legal data bases, Rehaag said, the Refugee Law Lab Portal is committed to keeping the information accessible, offering it for free and in easy-to-understand formats while at the same time protecting privacy.

“I think it’s a good example of taking academic funding for research and transforming that research so it’s more accessible and useful for practitioners,” he said. “Lawyers are not always comfortable engaging with data.”

The three-year portal project, which is currently in its second year, is funded by the Law Foundation of Ontario, while the Refugee Law Lab receives its funding from the Social Sciences and Humanities Research Council (SSHRC).

Rehaag said most of the work in creating the Refugee Law Lab Portal has gone into compiling the data, including developing a sophisticated, cloud-based Internet scraping tool to continuously extract data from Federal Court dockets.

Despite ongoing controversy about the use of content warnings or so-called trigger warnings in university teaching, not one Canadian university is requiring its professors to provide them to students when teaching potentially sensitive content, according to a participant in a recent Osgoode panel discussion on the topic.

Michelle Miller Stafford, an assistant professor at Toronto’s OCAD University who conducted research on content warnings in the Canadian post-secondary context said most faculty members she and her research partner surveyed were in favour of providing warnings in order to respect the dignity of students – despite a 2015 policy statement by the Canadian Association of University Teachers (CAUT) opposing them.

The panel discussion on content warnings in legal education and their potential impact on academic freedom took place via Zoom on March 13, 2023, and was moderated by Osgoode Professor Faisal Bhabha.

A full recording of the event is available here.

The CAUT statement, which is similar to one issued by the American Association of University Professors (AAUP) in 2014, was re-approved in November 2022. It reads, in part, ““institutional policies that require or suggest that academic staff include trigger warnings as part of best practices in teaching interfere with the academic freedom of faculty to choose their own course materials and teaching methods.”

Panellist Benjamin Bellet, a PhD student in the Department of Psychology at Harvard University who has conducted research on content warnings, said a meta-analyis of studies that he and a colleague undertook concluded that the warnings do not change how people respond emotionally to potentially disturbing content, but can themselves cause short-term anxiety.

In response to warnings, he said, people generally do not take steps to avoid the content. But he said more research needs to be done on the effects of content warnings on survivors of post-traumatic stress disorder (PTSD).

In welcoming the panellists, Dean Mary Condon said the topic is timely for all post-secondary institutions but has particular resonance for legal education.

“Much of the data that we teach in the context of our courses and our classes is data such as court cases, where there already is an adversarial nature to the matters that are under discussion,” she said. “So within that framework, it becomes quite important to think of the importance and the value of content warnings.”

The panel discussion was organized by Osgoode’s Standing Committee on Teaching and Learning, Osgoode’s Equality Committee and the office of the Associate Dean (Students). Rounding out the panel was Ummni Khan, an associate professor in the Department of Law and Legal Studies at Carleton University and Kevin W. Gray, a lawyer and legal scholar who teaches at Fordham University and is the editor of the 2022 book Normative Tensions: Academic Freedom in International Education (Rowman & Littlefield).

A virtual learning tool co-developed by Osgoode Professor Stephanie Ben-Ishai is offering a glimpse into how technology could help transform the teaching of law.

Ben-Ishai, who developed the technology in partnership with Western University law professor David Sandomierski and a team of software developers, is already using the virtual learning tool to help teach contract law to her students. The project was supported by a $100,000 grant under the Ontario government’s Virtual Learning Strategy initiative.

“We’re trying to see if we can leverage technology to offer something better than the Zoom experience and to mimic the classroom, as well as the client experience,” she explained.

The audio-visual technology, called Teaching and Learning Law in the Metaverse, anticipates potential responses to questions and pushes students to come up with questions themselves, providing automatic feedback along the way.

Ben-Ishai said she and Sandomierski applied their significant experience in teaching contract law to optimize the technology and the learning experience for students. She said Sandomierski dedicated his PhD thesis to the ways contract law is taught. But the technology could be used to teach many other aspects of law, she added.

“It could work in different areas where the teacher is trying to achieve an experiential component,” she said.

“Most of law is about the lived experience,” she added. “We’re trying to move away from a fact-pattern based exam experience to have the student deeply understand the material, define the problems and figure out what resources to use.”

Ben-Ishai said the virtual learning tool does not make use of artificial intelligence because AI can’t teach students to conceptualize problems and address people’s lived experience.

After completing user testing and quality-assurance work in February, the research team submitted the virtual learning tool to the Ontario government’s eCampus Ontario site for open access and will continue to pilot the technology in the classroom.

Osgoode Dean Mary Condon welcomed the new technology, saying law students will benefit the most from Ben-Ishai’s innovative research.

“I am delighted to see colleagues with a deep understanding of their scholarly field create meaningful tools that enhance the student experience,” she said. “As contract law is a first-year subject, JD students will be introduced early to the possibilities this technology offers.”

Ben-Ishai said that she and Sandomierski have had a longstanding collaboration, but they began working in earnest on their virtual learning technology at the beginning of the COVID-19 pandemic, focusing on how they could add an experiential element to improve online learning.

“The metaverse has the potential to integrate creative curriculum development with experiential learning in a way that is not possible on Zoom or in a bricks-and-mortar institution,” they wrote in their proposal to eCampus Ontario. “As the metaverse evolves we will likely see transitions away from exclusively traditional forms of university and law school education.

“The project we are creating,” they added, “enables learners to pose questions, define their own goals, and collaborate with peers, their clients and professors as they acquire and build the knowledge base.

Ben-Ishai said that creating the legal virtual learning tool may have been difficult without provincial funding because of the high cost of developing such technology at the pilot stage.

Since launching its Virtual Learning Strategy (VLS) in December 2020, the Ontario Ministry of Colleges and Universities has invested $57 million in more than 395 projects led by the province’s universities, colleges and Indigenous institutes. The VLS is aimed at significantly expanding options for traditional and life-long learning through the accelerated use of both online and hybrid learning.

JD students showcased the depth of their research during a day-long symposium recently, presenting significant papers on issues ranging from migrant workers and child soldiers to Canadian companies that commit human rights violations abroad.

The March 23 event, hosted by the Osgoode Hall Law Journal, featured papers by six students in Osgoode’s juris doctor program and was held at Osgoode’s Helliwell Centre.

“I want to congratulate the students who are presenting their work today,” Associate Dean (Students) Karen Drake said in a written message.

“It is not easy to write a research paper that makes a significant contribution to a legal topic and to present your work publicly,” she added. “We are very fortunate at Osgoode to be able to benefit from such high-quality student research and from an event such as this that gives us access to that research.”

Kicking off the event, student Naomi Santesteban presented research exploring how the enactment of Canada’s Temporary Foreign Worker Program “has created a unique form of violence experienced by migrant workers that is not adequately captured by the country’s anti-human trafficking framework.” Acknowledging that violence can be multifaceted and that each person’s experience of violence is unique, Santesteban then analyzed the often-ignored racial dimensions of violence, as well as gender-based violence and bodily violence. She concluded by reflecting on the significance of the topic in the context of future social justice activism and the work of Parkdale Community Legal Services.

In her paper, student Anisha Nag explored how children accused of international crimes are sometimes denied refugee protection, arguing that children cannot meet the test for exclusion under Article 1F(a) of the Refugee Convention because their actions cannot be described as voluntary. Making a defence of infancy available to children, she argued, would accord with Canada’s international legal obligations towards children.

Student Madeleine Worndl explored in her paper how lawmakers in Canada could make Canadian corporations more accountable for human rights violations carried out in foreign jurisdictions by enacting due diligence provisions within Canadian federal and provincial corporate statutes to require corporations to prevent and account for human rights impacts in their global operations.

The symposium’s afternoon session focused on research related to criminal law and access to justice. In the fourth paper of the day, student Alicia Cooke presented research focusing on the predominant interrogation method used by Canadian police, known as the Reid Technique, arguing that it has a propensity to elicit unreliable confessions leading to wrongful convictions and should be entirely prohibited.

In his paper, student Jonathan Carlson drew on the experiences of defence counsel and access-to-justice research to shed light on the barriers to justice that continue to be faced by Indigenous persons being sentenced, resulting in their continuing overrepresentation in the justice system.

Finally, in her paper, student Joeley Pulver explored the access-to-justice crisis faced by self-represented prisoners, looking at the lack of resources available to them and the lack of regulated standards of access in Canada. She concluded with a series of recommendations on how federal, provincial and territorial legislators could increase access to justice for self-represented prisoners.

The students’ papers will be published in the Osgoode Hall Law Journal, which has provided an interdisciplinary forum for legal innovation and provocative approaches to legal knowledge since its inception in 1958.

All the business around Justice Russell Brown’s leave from the Supreme Court of Canada has many different dimensions and implications. Apart from the question of whether he will or should return to the Supreme Court, one issue that is occupying commentators is what this means for the handling of cases presently before the court.

Differences of opinion focus on whether the Supreme Court should sit as eight (and allow for the possibility of a tied vote) or as seven (and face the dilemma of whom to leave out). This is a pressing issue, especially in regard to an important case to be heard this week on federalism and environmental legislation.

However, within and behind this debate is the much more fundamental matter – the relation between constitutional law and politics. In particular, whether sensitive and contested issues of federalism are being decided in line with the dictates of constitutional law or by reliance on partial political stances and values.

The central bone of contention seems to be that the Albertan Justice Brown is considered to be a strong proponent of provincial rights and was almost certain to rule against the constitutionality of the federal government’s wide-ranging legislation to tackle pollution problems. So, if there is to be a bench of seven, the identity and federalism leanings of the justice who sits out the case is treated as a matter of some delicacy and importance.

The premise on which this debate is based is troubling for those who maintain that constitutional law should and must trump constitutional politics. Traditionally, it is usually insisted that the legitimacy of the Supreme Court rests on its capacity to transcend political contestation by acting with measured, rational and non-ideological level-headedness. Judges deal in principles, not politics.

The received wisdom is that, while there are underlying and sharp ideological differences between different governments about climate change and the best response to be made, there exists a deeper and more unifying commitment to the idea that the Canadian Constitution stands apart from prosaic politics. While Prime Minister Justin Trudeau and his provincial colleagues play politics and get their hands dirty, Chief Justice Richard Wagner and his puisne associates are expected to keep their hands clean of any political dirt.

But the general acceptance that Justice Brown is pre-disposed to be pro-provincial and that some of his colleagues, including Chief Justice Wagner, are more than likely to be pro-federal has massive ramifications. Any notion that these judges are somehow neutral and impartial goes out the window. They are involved in the same ideological game as their political counterparts.

The fact is that, while courts may well be impartial between the competing claims of the present federal and provincial governments in terms of party-politics, they are not and cannot be impartial as between competing visions and versions of federalism. Although viewed as being more technical than political, federalism disputes involve deep-seated and contested accounts of governmental arrangements, social values, institutional power and democratic accountability.

So, while courts and legislatures may have different discourses, different styles and different legitimacies when talking about a fair allocation of governmental powers between the federal and provincial governments, they are no less political for that. In other words, judges can hide their views, but they cannot avoid making political choices.

The whole debacle over Justice Brown’s absence draws attention to this state of affairs. Perhaps inadvertently, but still revealingly, the ensuing debate has demonstrated that the judges do have politics and that, more significantly, they do rely on them to animate their decisions and reasonings. Otherwise, why would it matter who sits and who doesn’t?

Both judicial sides of the federalism debate can claim support for their positions; the doctrines of constitutional law are so capacious, so inconsistent and so accommodating in their reach and substance that they can confer a necessary baseline of legal validity on either a pro-provincial or pro federal approach. Understood this way, the Rule of Law becomes little more than the Rule of Five; the stance that garners the support of five judges wins.

None of this is to suggest that the judges act in bad faith or are decidedly manipulative in fulfilling their judicial duties. It is that there is no way to engage with and resolve federalism issues in a way that can claim to be acting in the neutral and detached way that the judges and their traditional allies suppose. Constitutional law is politics. And Canadians need to appreciate that.

(Published in the Globe and Mail, March 20,2023)