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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Open Letter to Prime Minister Trudeau on Federal Appointments

[this letter was sent to Prime Minister Trudeau and Minister of Justice Wilson-Raybould on May 5, 2016]]

May 5, 2016
The Right Honourable Justin Trudeau, P.C., M.P.
Prime Minister of Canada
Langevin Building
80 Wellington Street
Ottawa, Ontario K1A 0A2

Dear Prime Minister,

Re: Governor-in-Council Appointments to Adjudicative Tribunals

We were all pleased to see the announcement in February of your intention to develop a more rigorous, open, transparent, and merit-based GIC appointments process for the federal “commissions, boards, Crown corporations, agencies and tribunals”. This is a welcome and long overdue initiative.

Your announcement and the Canadian Bar Association’s April 27, 2016 response, which we endorse, have prompted us to write to encourage you, in developing new GIC appointments processes generally, to pay particular and special attention to the processes for appointing – and re-appointing – the chairs and members of federal tribunals whose function is mainly the adjudication of legal rights disputes including, for example, the Canadian Industrial Relations Board, the Canadian Human Rights Tribunal and the Social Security Tribunal.

This is not to minimize the need for reforms regarding the appointment processes for non-adjudicative, executive-branch bodies – the regulatory agencies, Crown corporations and the like – whose functions are regulatory, administrative or management in nature. We look forward to appointment process reforms for those bodies, consistent with the rule of law, which will optimize their competence and independence, minimize their partisanship, and enhance the extent to which these bodies reflect the populations they serve.

However, as recognized in the CBA’s response, the appointment and re-appointment processes for adjudicative tribunals present a special challenge. The powers of adjudication entrusted to the chairs and members of these tribunals should manifestly respect the rule of law and rest on clear and strong principles of adjudicative independence and impartiality.

The processes for the appointment and re-appointment of adjudicative tribunal chairs and members in Canada’s administrative justice systems, and not least in the federal system, are incompatible with the rule-of-law’s adjudicative principles to the extent that they:

• are perceived to be partisan processes;
• appoint chairs and/or members at pleasure;
• expose chairs and members to arbitrary, mid-term dismissals without cause; or
• render reappointment decisions that are not transparent or merit-based and are often perceived to be arbitrary.

These deficiencies all strike at the heart of the entitlement of Canadians to an adjudication of their rights and obligations by decision makers who are, and are seen to be, independent and impartial. Their nature and justice implications were authoritatively documented in La justice administrative : entre indépendance et responsabilité, the report of a recent empirical study of Québec’s adjudicative tribunals which will serve as an invaluable reference in your planned reform of GIC appointments.

Your commitment to the development of a “new approach” to GIC appointments in the federal system generally presents an opportunity for a careful review of what is needed from a rule of law perspective for adjudicative tribunals in particular, and offers the prospect of fundamental reforms in what has been a long-neglected component of our justice system.

It is a prospect we embrace and an opportunity which we are respectfully hopeful you might seize.

Yours truly,

Professor Lorne Sossin, Dean, Osgoode Hall Law School, York University; Professor Emeritus David Mullan (Queen’s University); Professor Laverne Jacobs, University of Windsor, Faculty of Law; Professor France Houle, Associate Dean (études de 1er cycle), Faculté de droit, Université de Montréal; Professor Gerald Heckman, University of Manitoba, Faculty of Law; Dr. Ron Ellis, Q.C.

Cc: The Honorable Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada

Indigenization & Osgoode

On April 15, 2016, Osgoode held a faculty retreat led by Professor Signa Daum Shanks on Indigenization and the Truth and Reconciliation Commission attended by over 50 full-time and adjunct faculty. I want to share some reflections on this work-in-progress. The guiding principles behind our approach to Indigenization and responding to the Truth and Reconciliation Commission’s Call to Action for Law Schools has been to listen – to our students, our staff and faculty, our alumni, and the Indigenous communities around us – with listening comes reflection, and from reflection, change. Nandagikend is an Anishnaabe term I have recently learned that can be translated as “seeks to know it; seeks to learn it” – this captures well what I hope lies in store for Osgoode – and for me…

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Legal Education, Costa Rica and “Pura Vida”

This reading week, I endured the hardship of leaving the warmth of Toronto for Costa Rica, in order to meet with Dean Alfredo Chirino of the Faculty of Law of the University of Costa Rica (UCR) and explore future partnerships between UCR and Osgoode. I was joined by York colleagues Professor Martin Bunch, who leads the President Advisory Council on Environmental Sustainability and Professor Felipe Montoya-Greenheck, Director of the Las Nubes Environmental Research Centre in Costa Rica. Given the significant Canadian connections to Costa Rica, and Costa Rica’s leadership within Latin America in areas of human rights and social justice, I believe this collaboration has great potential. Continue reading “Legal Education, Costa Rica and “Pura Vida””

Reflections from A Roundtable on the Development of the Inquiry into Missing and Murdered Indigenous Women

 

On February 6, 2016, Osgoode Hall Law School hosted a remarkable Roundtable to explore issues relating to the Federal Government’s recently announced Inquiry into Missing and Murdered Indigenous Women. With the support of the Federal Government, and in particular the Ministry of Indigenous and Northern Affairs, over 40 experts participated in the Roundtable, representing Inquiry Commissioners, counsel, advocates, and participants, together with 40 observers from Government and volunteer Law Students. The insghts shared were compelling, challenging and constructive. Continue reading “Reflections from A Roundtable on the Development of the Inquiry into Missing and Murdered Indigenous Women”

Launching York University’s Syria Response and Refugee Initiative

This past week, York University’s Syria Response and Refugee Initiative was publicly launched with enthusiasm and energy. The launch includes a new website for the Initiative (which I encourage you to explore). The site has links to obtain more information on educational opportunities for students and community members, information on refugee sponsorship projects, student and other York Initiatives as well as links to each of York’s refugee sponsorship and fundraising teams. The site highlights the sustained engagement and impressive history of the Centre for Refugee Studies in responding to the global refugee crisis, as well as further advocacy and volunteer opportunities as we build toward future activities and projects. Continue reading “Launching York University’s Syria Response and Refugee Initiative”

A Tale of Two Discretions: Trinity Western University and Kanthasamy

Two important Administrative Law decisions came down this month – one from the Supreme Court of Canada and one from the B.C. Supreme Court. Each engages the enduring and vexing question of how to understand the legal limits on discretionary decisions by those authorized by statute to apply their own independent judgment. In Kanthasamy, the Supreme Court quashed a decision by a humanitarian and compassionate (H&C) decision maker involving an application by a child for an exemption to the Immigration and Refugee Protection Act. In Trinity Western University, the Chief Justice of the B.C. Supreme Court weighed in on the ongoing saga of TWU’s attempt to establish a law school. The Court quashed a decision of the Law Society of British Columbia (LSBC) to deny admission of graduates of the TWU program based on the discriminatory nature of a covenant all students and staff must agree to be bound by. In each case (although the facts and circumstances were very different) the court overturned discretionary decisions because the decision-makers fettered their discretion and failed to consider all the relevant factors they should have. Looking a little more closely at each reveals something important about why we so often get discretion wrong.

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York Steps Up to respond to Global Refugee Crisis

As the Global Refugee Crisis deepens, particularly the exodus from Syria to uncertain European shores, it is moving to see so many quarters at York University stepping up to respond. I have focused on Osgoode’s initiatives and York’s collaboration with WUSC to provide support for refugees studying at York in a previous post, but here I wish to look more broadly at the University’s efforts. York is a large, vibrant and young University, with a particular focus on social inclusion and social innovation.

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