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.


Fittingly, it was another Israeli doctoral student, Aviv Gaon, who suggested the Symposium and was its driving force. The York Centre for Public Policy and Law (YCPPL) agreed to host the Symposium, which was held at Osgoode’s Professional Development Centre, and the proceedings will be available as a podcast on the YCPPL website soon. Panels explored the constitutional tensions around judicial appointment, the protection of human rights, and the role of Courts in the policy process, among other topical ares of interest. While many expressed critical and divergent views, all welcomed the opportunity to learn from each other. A full program is here.
I had the honour of moderating a final panel featuring a keynote from former Israeli Chief Justice Aharon Barak, with comments from former Israeli Chief Justice Asher Grunis and current Supreme Court of Canada Justice Rosalie Abella. Barak articulated his expansive vision of the role of the Court – with no barriers of standing and constitutional doctrines which are ever responsive to the needs of society. Abella spoke of the evolving relationship between Canadians and their Charter of Rights, from enthusiastic embrace to ambivalence over judicial overstepping to a more mature acceptance of the role of rights protection in a democracy committed to the rule of law. Grunis, for his part, reiterated his core belief (and one which defined his many years on the bench, culminating in his eventful stint as Chief Justice of Israel between 2012-2015) that the role of the Court should be a minimal one, with deference to the political process as the place to resolve political conflicts.
Justices Barak, Abella and Grunis bring a remarkable 95 combined years of combined judicial experience – and 50 years of Supreme Court adjudication. Yet, I was struck (as I am sure many in the room were) by how authentically each continues to struggle with the truly vexing question of what to do when democracy “gets it wrong” – in other words, when the majority, through a Parliament or Knesset, vote for a law that is oppressive to a minority or disenfranchised group. If Courts are too timid to deploy constitutional safeguards in such circumstances, fundamental rights and freedoms and the judiciary’s credibility will be eroded, while if Courts are too bold in usurping the legislature’s role, the fundamental premises of democracy and the judiciary’s own legitimacy will be eroded.
The theme of the Symposium was how to theorize and operationalize this balance inherent in the judicial role. Underlying these discussions was another and perhaps more enduring theme of the Symposium – that of connectivity – the connections, for example, between constitutional ideas in Canada and Israel (particularly around notions of proportionality and the role of human dignity as an organizing principle); connections between the people involved in the justice system (like the moment during Irwin Cotler’s keynote, when he recalled phoning newly appointed judges while at a Holocaust memorial event in Poland, and one of those who received a call on that evenint – a judge who happened to be in the audience at the Symposium – spontaneously shared how meaningful that call was to her given the impact of the Holocaust on her family); and connections between the generations (a number of the young Israeli and Canadian academics who spoke at the Symposium are former clerks of Justices Barak, Grunis and Abella).

These connections between people and ideas are the sinews which keeps the Canadian, Israeli and global legal community vibrant, and I am proud to be part of a Law School and University where they are valued.