Some Reflections on What Makes the Senate Independent

One of the many stirring responses to the U.S. travel ban came from a familiar, strong voice. Newly appointed Canadian Senator Ratna Omidvar published an op-ed in the Globe and Mail calling on Canada to lead a global response to the refugee crisis, including immediately opening the door for all those caught in the US ban to be welcomed in Canada. This position stands in stark contrast to Liberal Government policy and it is not clear if Ratna Omidvar is writing as the long-standing activist for the protection of refugees she has been (and she remains a visiting professor at Ryerson’s Global Diversity Exchange), or as the Senator for Ontario that she has now become.

This kind of independent voice in the Senate is heartening – and clearly can be linked to Prime Minister’s Trudeau’s efforts to stimulate independence among Senators – both by dissolving the Liberal Senate caucus (making all formerly Liberal Senators independent) and by instituting a new merit-based appointment process. So, what will a “modern and independent” Senate look like – and how will it differ from the partisan model it is replacing? In this post, I offer some reflections drawn from comparisons with independence as it is understood in other parts of our political and legal system, and drawn from the Senate’s own history.

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Damaging the Charter: Ernst v. Alberta Energy Regulator

This post was originally published by thecourt.ca on January 20, 2017.

In a fascinating, divided, and ultimately underwhelming start to 2017, the Supreme Court in Ernst v. Alberta Energy Regulator, 2017 SCC 1, grapples with the availability of Charter damages in the face of a statutory bar to civil litigation against a public regulator. Continue reading “Damaging the Charter: Ernst v. Alberta Energy Regulator”

What’s in a Plan?

On January 9, 2017, Osgoode Hall Law School’s Faculty Council unanimously approved in principle the Law School’s next Strategic Plan – “Access Osgoode, 2017-2020.” This new Strategic Plan aims at progressive, future-oriented goals and aspirations, as well as a commitment to Osgoode’s rich history and tradition. The “Access Osgoode” Plan commits the Law School to advancing five specific themes and goals:

1) Accessibility;
2) Community Engagement;
3) Experiential Education;
4) Reconciliation with Indigenous communities; and
5) Research Intensification.

Planning can be a long and winding road – at Osgoode, we began the process for the “Access Osgoode” Strategic Plan over 18 months ago, by assessing the outcomes of Osgoode’s previous Plan, “Experience Osgoode” and included a range of retreats, town halls, roundtables, research and multiple drafts. Students, staff and faculty collaborated on the development of Osgoode’s Plan, which in turn builds on other University Plans (including York’s University’s Academic Plan and other strategic initiatives). So, now what? Where does a Plan take us? How can this amount to more than words on a page? That is the question to which I devote some reflections in this post.
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Marie Henein, Universities and the Sounds of Silence

I was sitting with Marie Henein at a dinner this weekend, discussing the debates her speaking tour at several Canadian Universities have sparked. While Michael Goldbloom, the Principal of Bishops University, notably wrote in defence of that University’s invitation to Marie Henein to speak, I was reminded that too many leaders in the legal and academic community have simply remained on the sidelines.
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Designing Administrative Justice

With so much roiling around us, I am reluctant to confess that the design of administrative tribunals has been top of mind this month, but there it is. I have been revising a paper on the topic, forthcoming in the Windsor Yearbook of Access to Justice. I presented on the topic as part of CLEBC’s Annual Administrative Law Conference a couple of weeks ago, and recently have participated in training and education retreats for two different tribunal reform initiatives. Why are so many people in the administrative justice community turning to design to cure what ails administrative law decision-making? Below, I explore the possibilities and limits of design thinking to reinvent administrative tribunals, discretionary decision-making schemes, and even public inquiries. The discussion below builds on earlier forays in posts from last year exploring the intersection between law and design on “Justice By Design”  and “Legal Education by Design”

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What York Needs in a New President

York is in the midst of a search for a new President. As we have seen at peer Universities throughout Canada (and elsewhere), this process may hold both promise and peril. In light of the importance of this leadership role (and the fact I am neither a member of the search committee nor a candidate), I wanted to share my reflections on the 5 areas of strength I believe York needs most in a new President , which I also shared with the Chair of the search committee when asked for my input over the summer.

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Institutions, Constitutions & Connections!

On September 26th and 27th, Osgoode welcomed back one of its most accomplished graduates – Asher Grunis, who retired as President of the Supreme Court of Israel in 2015. In the 1970s, Dr. Grunis spent several years studying at Osgoode as a doctoral student, ultimately completing a dissertation on the Freedom of Assembly in Canada. The Symposium focused on how we institutionalize constitutional ideas, and included spirited discussions on judicial appointments, how best to protect minority rights in a democracy, the role of a notwithstanding clause, and the role, more broadly, of the Judge.

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The Long and Winding Road to Diversity and Inclusion on Canada’s Supreme Court

[This comment piece first appeared on August 9, 2016 on the IRPP/Policy Options site at http://policyoptions.irpp.org/magazines/august-2016/the-supreme-courts-long-road-to-transparency-and-inclusiveness/]

Prime Minister Justin Trudeau has hailed the new approach to Supreme Court appointments unveiled last week as “open, transparent and…a higher standard for accountability.” While devils may lurk in some details, the proposals promise a more transparent and inclusive appointments process, and for this reason alone they are significant and welcome.  The changes are also intended to create a more diverse and inclusive Supreme Court. The focus on diversity as an important characteristic of the Court (and its justices) deserves more attention, as it engages the complicated relationship between geographic representation, professional accomplishment, knowledge and analytic ability, demographic background, bilingual capacities, personal attributes and temperament, and experience. Continue reading “The Long and Winding Road to Diversity and Inclusion on Canada’s Supreme Court”

Law School as Social Innovation

I have just finished an eventful week of talks and touring in New Zealand (or, Aotearoa, as it is known in the Maori language), culminating in an address in Wellington at the Australasian Law Teacher’s Association (ALTA) annual conference on the idea of Law Schools as social innovation. I heard from a number of Australian, New Zealand, and South Pacific colleagues about the challenges Law Schools in that part of the world face, from too many Universities chasing too few students, to the bifurcation of legal education between traditional LL.B. programs and emerging J.D. programs, to the rise of managerialism and a fetish for research performance metrics, to the search for Reconciliation with Indigenous peoples through legal education. Some of these dynamics are distinct to the Australasian model, while others resonate more broadly. Similarly, the reflections on legal education as social innovation I shared are dynamics in many ways particular to North American legal education, but which include elements I believe to be relevant more broadly. Below I summarize the points I expressed.

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20 years later – Reflections of a 1996 Call on Change!

This month marks 20 years since I was called to the Bar in 1996. As it happens, we are marking the 20th anniversary of milestones in the legal community with far greater significance, and I want to highlight just a few of those as they reflect the many ways in which the legal profession of today is different and better than the one I joined almost a generation ago.

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