“I carried on”: former Supreme Court Chief Justice Beverley McLachlin speaks at U of T

Only female Chief Justice discusses lack of female leadership, childhood admiration of Queen Elizabeth II

“I carried on”: former Supreme Court Chief Justice Beverley McLachlin speaks at U of T

You can tell that the Right Honourable Beverley McLachlin did not leave her lawyer days behind her on the Supreme Court bench.

On February 28 at the Isabel Bader Theatre, the former Chief Justice and only woman to hold that role delivered her speech to a full house about the barriers that weigh women down on the career ladder to leadership.

The event was hosted by the Munk School of Global Affairs and Public Policy as part of the Women and Leadership series of the David Peterson Public Leadership Program. David and Shelley Peterson and former Supreme Court Justice Frank Iacobucci were in the crowd.

Speaking from both her 17 years of experience as Chief Justice and the numerous statistical reports and studies she cited, McLachlin outlined her argument in a logical manner.

First, she established the central question that her argument addressed.

[A New York Times Magazine] article… says that from the 1970s to the 1990s, women made serious progress in the workplace, achieving higher positions,” McLachlin said. “And then — there are numerous studies showing this — the progress stalled… So why, and what can we do about it?”

She then went on to highlight a popular counter-argument that women have an innate lack of drive or ability. She rebutted this claim with examples, including a study conducted by Harvard Business School Professor Rosabeth Moss Kanter that concluded that a lack of ambition or competency in women was not a self-imposed barrier to leadership.

Finally, she brought attention to and provided solutions for the five fundamental barriers she would be examining that night: absence of role models, overt discrimination, subconscious bias, marriage and parenting, and pay inequity.

When she addressed the lack of role models, McLachlin recounted her childhood fascination with Queen Elizabeth II.

“As a little girl, I made my parents buy the Saturday edition of the Toronto Star every week, which offered extensive coverage of the royal wedding and coronation. And I would spend my weekend cutting out the photos and pasting them in my scrapbooks,” she said. “In hindsight, I came to the view that perhaps, I was craving some sort of role model… I think the fact that I was so mesmerized by this person, this young woman, attests to a deep longing that was inside me.”

McLachlin also saw a need to reject discrimination in its overt and subconscious forms, which mires the careers of women.

McLachlin herself experienced discrimination throughout her career. In 1968, when she was 23 years old, she was a married, Gold-Medal-winning law graduate from the University of Alberta seeking apprenticeship at a firm. When she interviewed at the first firm on her list, the interviewer asked her out of curiosity why she would want to work. After all, she was married.

Nevertheless, McLachlin concluded that the barriers could be and must be removed.

“Every time a woman is appointed or promoted to an important position, a powerful message is sent: women can do this,” she said. “I will never forget the mothers and fathers bringing their little girls and sometimes their little boys forward to me… how proudly they would say, looking directly into the eyes of their little daughter, ‘This is our Chief Justice.’”

When asked by The Varsity if she ever felt like she didn’t have the luxury to fail as a pioneer in her position, McLachlin said, “One fails at many small things… And I think that’s an important facet of leadership too. You have to be strong, you have to [get] through.”

“Many times during my career I really felt inadequate and discouraged, but I never allowed myself to think that failure was an option. And I carried on.”

Supreme Court ruling preserves individual privacy rights in public spaces

Former high school teacher found guilty of voyeurism for photographing students as a result

Supreme Court ruling preserves individual privacy rights in public spaces

In a landmark decision, the Supreme Court of Canada ruled on February 14 that individuals are entitled to a reasonable expectation of privacy in public spaces. This decision comes from the case of Ryan Jarvis, a former Ontario high school teacher, whom the Supreme Court found guilty of voyeurism after he secretly videotaped students.

The court’s ruling set the precedent that one’s “reasonable expectation of privacy” can no longer be purely based on one’s location, but instead as a “totality of circumstances” that vary on a case-by-case basis.

In other words, Canada’s highest court ruled clearly that taking photos with sexual intent and without consent in public spaces — which could ostensibly include University of Toronto libraries and residence buildings — can be a criminal act, and individuals in these spaces may be entitled to a reasonable expectation of privacy.

Canadian Civil Liberties Association’s intervention

Jarvis was charged with voyeurism for using a camera concealed in a pen to secretly videotape the cleavage of female students and a female teacher in a high school in 2010–2011.

He was acquitted of the charges by a lower court, and this decision was upheld by the Ontario Court of Appeal. However, a single dissenting judge on the appeal court created the opportunity for the Canadian Civil Liberties Association (CCLA) to bring the case to the Supreme Court.

The CCLA’s mission is to protect the civil liberties of individuals in Canada.

Explaining why the CCLA stepped in, Dr. Brenda McPhail, Director of the CCLA’s Privacy, Technology, and Surveillance Project, wrote to The Varsity that it “intervenes in cases to stand up for rights and freedoms, and in the Jarvis case, there was a clear need to stand up for privacy rights.”

The lower courts acquitted Jarvis, explained McPhail, because “part of the voyeurism offence requires it to happen in circumstances that give rise to a reasonable expectation of privacy.” While the trial judge found that Jarvis had violated students’ privacy, he was not convinced that the videos were filmed with sexual intent. But the Court of Appeal later ruled that, since there were security cameras in the school, there was no reasonable expectation of privacy for the students and the teacher.

The CCLA “felt strongly that this was wrong,” continued McPhail. It held the belief that it would be “deeply problematic to say that because someone might be legally using a security camera, their decision to do so wipes out the privacy rights of everyone in the vicinity.”

Why the courts arrived at different decisions

U of T Faculty of Law Associate Professor Vincent Chiao, who specializes in criminal law and justice, explained that the lower courts arrived at a different decision than the Supreme Court because they have different functions.

“There’s a distinction between two types of questions that courts will decide.”

The first is a “question of fact,” explained Chiao, while the second is a “question of law.” As its name suggests, the first establishes the facts, such as, “Where were you at 3:00 pm on Tuesday?” The second determines the courts’ interpretations of the law.

In this case, the question of law was, “What is a reasonable expectation of privacy?” said Chiao. The lowest court is concerned with questions of fact, but the Supreme Court is concerned with the question of law.

Interpreting the Supreme Court’s view of the case that led to its unanimous decision, Chiao said that the court viewed the privacy of a school as “public for some purposes, but private for other purposes.”

“So it’s public in the sense that they might expect to be seen by other students or teachers, but private in that they would not expect to be recorded for purposes of sexual gratification. I’m going to think that’s the nature of the disagreement between the two courts.”

Takeaways of the case for university students

A main takeaway for university students, said Chiao, is the idea that legal definitions of common terminology often differ from everyday usage.

Chiao noted that while Jarvis’ actions may be creepy and reprehensible, the Court of Appeal may not have found them relevant to privacy rights.

Jarvis wasn’t “sneaking into the girls’ changing room” or a private area in the school; he was “in public spaces interacting with the students in a way that he normally would have,” except for the voyeuristic recording.

While immoral, Chiao noted that it’s not really a matter of privacy in the everyday use of the term.

That said, Chiao noted, “It seems like a pretty sensible outcome on the Supreme Court’s view.” If the Supreme Court acquitted Jarvis, it would affirm that teachers may be allowed to secretly take pictures of students for sexual gratification. The court’s definition of privacy ensured this would not be the case.

“Privacy is something we need and deserve, it is a human right,” wrote McPhail on the case. “Students need to be in schools to get an education, and [schools are] places we as a society say our young people need to be safe.”

US Supreme Court Justice Elena Kagan visits U of T Faculty of Law

American jurist discusses Kavanaugh hearings, judicial system with Justice Rosalie Abella

US Supreme Court Justice Elena Kagan visits U of T Faculty of Law

A U of T Law-hosted conversation between Elena Kagan, Associate Justice on the Supreme Court of the United States, and Rosalie Abella, Canadian Supreme Court Justice, focused largely on the state of the American judiciary, as well as the recent controversial hearings of US Supreme Court Justice Brett Kavanaugh.

The event took place at the Jackman Law Building on November 12 and was livestreamed on YouTube.

Abella began the conversation by asking Kagan, “I think it’s on everybody’s mind who watched the recent hearing: Do you like beer?” referring to Kavanaugh’s repeated phrase during the Senate proceedings — eliciting a laugh from the audience.

Kagan dodged the question and the discussion moved on to comparisons between the two judicial bodies of Canada and the US. Kagan noted that although confirmation hearings allow the public to get to know the process and the nominees, they have some problems.

“It seems good to me from the perspective of transparency of governance, people [senators] taking their constitutional role seriously and having an opportunity to see a person, and to try to figure out what kind of justice she or he would be, and in the abstract, I think that’s a good thing,” said Kagan.

“In the concrete, it’s a little hard to watch any of these hearings and think they accomplish all that much.”

In Canada, justices are appointed by the governor general according to the prime minister’s recommendation, unlike in the United States, where the president nominates a person who must be subsequently confirmed by senators.

Kagan also said that in previous years, many nominations to the US Supreme Court have had wider bipartisan support, noting that judges received support from members of a party that did not nominate them. More recently, debates have become more politicized and divided.

“I do think there’s room for people to listen to each other and try to find common ground and try to find areas of compromise,” said Kagan. “The way to find agreement and the way to find consensus, is not to keep talking about those big questions, because you’re just going to soon run into a wall, but to see if you can reframe the question.”

Kagan noted that after Justice Antonin Scalia’s death, the court worked very hard to not come under gridlock and get stuck with tied votes by only having eight members. In the two-year period, Senate Republicans refused to consider Judge Merrick Garland, a nominee of President Barack Obama.

During the Q&A session, law student Teodora Pasca told Kagan that she “almost regretted” asking her question, but she said that she and many people she knew in the legal profession watched the Kavanaugh hearings “with a little bit of pain in our hearts.”

“I’m wondering what you think the role of the Supreme Court is,” she asked, “and how it can be considered legitimate in its treatment of women who have experienced violence, when you have not one, but two justices who have been levelled with credible accusations, and the appointment process has put them forth.”

The two justices referenced are Kavanaugh, who has been accused of sexual violence by Christine Blasey Ford, Deborah Ramirez, and Julie Swetnick; and Clarence Thomas, who was accused by Anita Hill in 1991.

Kagan replied, “You’re right, you should not have asked me that question, and I’m sorry to say that but there are some questions that — I’m part of this institution, I care about it a lot, I care about my colleagues a lot and that’s something that I’m not going to be talking about.”

Disclosure: Teodora Pasca was The Varsitys Comment Editor from 2016–2018.

Trinity Western loses Supreme Court case on religious freedom v. LGBTQ+ rights

U of T campus group LGBTOUT acted as intervenors on case

Trinity Western loses Supreme Court case on religious freedom v. LGBTQ+ rights

The Supreme Court of Canada has ruled against Trinity Western University (TWU) in a case that pits religious freedom against LGBTQ+ rights. TWU is a BC-based evangelical Christian university with a satellite campus in Ontario that was denied accreditation for a proposed law school by the law societies of BC and Ontario on the grounds that TWU discriminates against LGBTQ+ people. On June 15, the Supreme Court ruled 72 in favour of the law societies.

The case arose over a covenant agreement that all TWU students have to sign, which binds them to a code of conduct that specifically requires students to abstain from “sexual intimacy that violates the sacredness of marriage between a man and a woman.”

“The community covenant is a solemn pledge in which members place themselves under obligations on the part of the institution to its members, the members to the institution, and the members to one another,” reads Section One of the agreement on the school’s website.

“TWU reserves the right to question, challenge or discipline any member in response to actions that impact personal or social welfare.”

As a result of the university’s community covenant agreement, concerns about the personal safety and open access of LGBTQ+ students were raised by various groups, including U of T campus group Lesbians, Gays, Bisexuals, and Trans People of the University of Toronto (LGBTOUT).

On November 30, 2017, a two-day hearing for the case was held by the Supreme Court against the university. LGBTOUT, which is the longest-standing LGBTQ+ group in Canada, travelled to the Supreme Court to act as an intervenor on the case, arguing that the law school “would harm prospective LGBTQ+ students, who would be effectively barred from TWU just because of their sexual or gender orientation.”

An intervenor on a Supreme Court case is meant to provide perspective to the matter and may be brought in at the discretion of the court.

In a statement released on the group’s Facebook page, LGBTOUT called the ruling “fantastic news.”

“There is no place for LGBTQ+ discrimination in the legal profession or in Canadian society. LGBTOUT is thrilled with this news and victory for our community, especially as it comes during Pride Month!”

Judges Suzanne Côté and Russell Brown were the only judges that sided with TWU, arguing that judicial intervention should be more limited when it comes to approving law programs.

“While, therefore, the [Law Society of BC] has purported to act in the cause of ensuring equal access to the profession, it has effectively denied that access to a segment of Canadian society, solely on religious grounds. In our respectful view, this unfortunate state of affairs merits judicial intervention, not affirmation.”

This is not the first time TWU has faced the Supreme Court over grounds of religious freedom. In 2001, the British Columbia College of Teachers refused to accredit their teacher training programs due to the discriminatory nature of the community covenant.

After the court’s ruling, it is uncertain whether TWU will continue its plans for its proposed law school as the Law Societies of British Columbia and Ontario refuse to accredit their law degrees.

LGBTOUT to intervene in Supreme Court case

Campus group heads to Ottawa for case concerning discrimination, religious freedom

LGBTOUT to intervene in Supreme Court case

Campus group Lesbians, Gays, Bisexuals, and Trans People of the University of Toronto (LGBTOUT) is headed to the Supreme Court of Canada on November 30 to act as an intervenor on a court case involving Trinity Western University.

The university’s law school was denied accreditation from the Law Society of Upper Canada and the Law Society in British Columbia, which cited discrimination due to the school’s policy requiring students to sign a covenant forbidding homosexual acts. Trinity Western subsequently appealed the decisions; the BC law society’s decision to refuse accreditation was overruled by the BC court of appeals, but the Ontario Court of Appeals upheld the Law Society of Upper Canada’s decision. As a result, the case will now go before the Supreme Court of Canada.

LGBTOUT was approached by lawyers involved in the case to ask them to act as intervenors. An intervenor on a Supreme Court case is meant to provide perspective that the two parties involved do not bring to the case. In this instance, LGBTOUT was deemed to help bring the perspective of LGBTQ+ students.

LGBTOUT is the longest-standing student LGBTQ+ group in Canada. “We are an LGBT student group, so we’re hoping that our arguments that we make show that LGBT students’ voices are being represented,” said Gaby Garcia-Casanova, the group’s Public Relations Director.

Richard Moon, a law professor at the University of Windsor who specializes in religious law, argues that, if there are a limited number of potential law school positions in Canada and a whole law school’s worth of positions are available under the condition where they would be required to sign the covenant, then there may be a basis for discrimination.

The most relevant precedent to this case was Trinity Western’s teaching school. The British Columbia College of Teachers refused to accredit the teacher training programs on the same basis as the Law Society of Upper Canada — that the covenant was discriminatory. In this earlier case, the Supreme Court ruled in favour of the university.

Moon believes that Trinity Western will base a large portion of their argument on this earlier ruling.

For its application, LGBTOUT was required to compile all of its arguments into a factum that they submitted to the Supreme Court in the form of an application.

Initially, its request to leave to intervene was denied. Chief Justice Wagner overturned the decision and released a statement explaining that it had come to the decision that its perspective should be included in the hearing.

The hearing, scheduled to be held from November 30 to December 1, will determine whether Trinity Western has the freedom to receive accreditation with the covenant in place or if the Law Society of Upper Canada is correct in its claim that the policy is discriminatory.