NEWSLETTER – September 2013

Heather Michelin, President
Allen Mendelsohn and Larry Markowitz, Editor(s)

President’s Message

Heather Michelin

Dear Colleagues and Honourable Judges,

This fall marks the 65th year since the Lord Reading Law Society was established.  I am privileged to be at the helm of the Society for the 2013-14 season, supported by a first-rate Executive and Board of Directors who volunteer their time and effort to ensure that the Society’s future is a bright one. 

Our annual Alan B. Gold Advocacy Lecture will take place on Thursday, October 3rd, 2013 and it promises to be an enlightening evening.  We are honoured to welcome The Honourable Mr. Justice Guy Gagnon of the Court of Appeal of Québec, who will address us on the topic of “Has the adversarial system in Quebec reached its limits?”.  Our application for CLE accreditation has been approved for one hour of CLE credit. The dinner invitation can be downloaded here, or we encourage you to reserve and pay online. We would like to thank Davies and Irving Mitchell Kalichman for the generous sponsorship of the evening.

The annual Henry Steinberg Memorial Lecture will take place on Thursday, November 14th, 2013 when we will welcome a distinguished panel of three judges from the Municipal Court of Montreal. The Honourable Morton S. Minc, President Judge, will address the Society, together with the Honourable Nathalie Haccoun and the Honourable Richard Starck.  An application for CLE accreditation will be submitted, and I encourage you to mark the date in your calendar and take part in this interesting evening. 

The Society counts on your membership dues to continue its activities, and we strongly encourage you to renew your membership for the current season if you have not yet done so. You can download the membership form, or we encourage you to register and pay your membership online.  If you are a law student, please contact the Society for special instructions.

The Society has a rich and storied history, is deeply engrained in Montreal’s legal landscape and continues to evolve.  I invite you to be part of the Society’s future and its continued success and to personally experience the warmth and collegiality of a Lord Reading Law Society dinner-meeting.  I look forward to seeing you at the opening dinner on October 3rd and at other meetings throughout the 2013-2014 season. 

Sincerely,
Heather Michelin

Madam Justice Marie Deschamps: “Public Interest Advocacy in Constitutional Litigation”

Larry Markowitz

In keeping with the Lord Reading Law Society’s reputation as one of the premier venues for speaking engagements in Montreal’s legal community, the Society was honoured to welcome recently-retired Supreme Court of Canada Justice Marie Deschamps on June 3rd.  She spoke to us about “Public Interest Advocacy in Constitutional Litigation”.

Despite her recent retirement from our nation’s highest court after 10 years (and 22 years in total as a judge), Madam Justice Deschamps is by no means idle these days. She is now teaching at McGill University’s Faculty of Law, as we learned in an informative introduction by her former law clerk, Maître Valerie Scott, who described Madam Justice Deschamps as having “un esprit sain dans un corps sain”.

In a well-structured dissertation, Madam Justice Deschamps explained to us how the definition of who has standing to bring a case before the courts “in the public interest” has evolved over the history of our country, particularly since the advent of the Canadian Charter of Rights and Freedoms in 1982.

The basic difficulty in gaining status to bring a case based on “public interest” has traditionally been that the plaintiff must have suffered an “exceptional prejudice”.

Smith v. The Attorney General of Ontario, [1924] SCR 331

Madam Justice Deschamps began by citing this 1924 Supreme Court Case, in which an Ontario-based activist named John T. Smith wished to challenge the validity of the Ontario Temperance Act.   Mr. Smith was not prosecuted under the Act. He had merely attempted to ordered whiskey from Quebec, where the sale of alcohol continued to be permitted. Yet he yet still wished to challenge the act’s validity “for the public good”.

“He has no other foundation for his action against the Attorney General than that he wrote several dealers in Montreal requesting each of them to supply him, in Toronto, with such liquors, by shipment from Montreal, in the province of Quebec, and their respective refusals on the ground that doing so would be illegal.

The respondent had taken no steps in such matter, nor threatened to do so. Nor had any one on his behalf done so.“

While Mr. Justice Duff of the Supreme Court was sympathetic to the plaintiff’s arguments, the Court still refused Mr. Smith’s application for standing, since to allow a person who had not suffered an exceptional prejudice or been directly affected by the issue at hand risked opening the floodgates to many more public interest court challenges.

Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138

The next case cited by Madame Justice Deschamps was the challenge to the Official Languages Act by another activist, Joseph Thorarinn Thorson, in this 1974 case. In his analysis, Mr. Justice Laskin, who had not then yet been named Chief Justice, stated that the Thorson action was based on a UK law that allowed a citizen to challenge a law for “public nuisance”. However, the Official Languages Act was being challenged based on Canada’s constitutional division of powers, which differs from the unitarian structure of the United Kingdom. However, the Supreme Court nevertheless granted standing to Mr. Thorson as “The citizenry [has the right] to constitutional behaviour by Parliament” and Mr. Thorson was a member of that citizenry:

“A question of alleged excess of legislative power is a justiciable one and it is open to the Court, in the exercise of a discretionary power, to allow a taxpayer to have such a question adjudicated in a class action – being in effect a class action by a member of the public – when the question otherwise could be immune from judicial review because there is no person or class of persons particularly aggrieved and because of the unwillingness of the Attorney General to institute proceedings or of the Government to direct a reference.“

Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265

In this subsequent case, Mr. McNeil wished to challenge the film censorship law of the province of Nova Scotia on the basis that it constituted criminal law, a subject matter upon which only the  federal government was empowered to legislate. The Amusement Regulation Board of Nova Scotia had prevented the infamous film “Last Tango in Paris” from being shown in theatres and Mr. McNeil was not happy about this.

Mr. Justice Laskin, by then Chief Justice of Canada, justified his ruling by reasoning that there was no other practical way for Mr. McNeil to challenge the Amusement Board’s ruling:

“[M]embers of the public arguably also had a direct interest. It arose from the power given to the Board to determine what members of the public may view in theatres or other places of public entertainment. In view of the fact that there was no other way in practical terms to subject the challenged Act to judicial review the Court was justified in the circumstances in exercising its discretion to grant standing to the respondent.”

Slowly but surely, a uniquely Canadian framework was being developed to determine who could bring a court challenge in the public interest.

Minister of Justice (Canada) v. Borowski, [1981] 2 S.C.R. 575

Borowski is a landmark Supreme Court of Canada decision on the standard for allowing public interests to gain standing to challenge a law. The Court developed what is known as the “Borowski Test” for public interest standing.

In this case, an application was made by an anti-abortion activist named Joseph Borowski, who wished to challenge the constitutionality of the Criminal Code using the Canadian Bill of Rights, a quasi-constitutional law that predates the Canadian Charter of Rights and Freedoms.

Applying the principle in Thorson, the Supreme Court found that Borowski had standing to challenge the law, reasoning that a plaintiff seeking to have law declared invalid must demonstrate either that they are directly affected by that law or that they have a genuine interest as a citizen and there is no reasonable and effective alternative means to challenge the law.  Mr. Borowski was found to meet this latter requirement, as it would be difficult to bring such an issue to court without having an interest group make a challenge.

The court laid down three criteria:

  1. Is the question a serious one?
  2. Does the person have a genuine interest in the issue?
  3. Has it been demonstrated that there is no other practical means by which to bring the case before the court?

Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607

The first case on standing in the public interest following the introduction of the Canadian Charter of Rights and Freedoms in 1982 was Finlay, a division-of-powers dispute in which the plaintiff challenged the right of his home province of Manitoba to deduct a portion of his social security allowance.  The Court refused him standing, on the basis that this was a matter for the legislator rather than the judiciary.

Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236

The test to determine standing in the public interest was later re-articulated more narrowly in the Canadian Council of Churches decision, in which Mr. Justice Peter Cory did a thorough review of the test’s factors, which he articulated in the following manner:

  1. Is there a serious issue raised as to the invalidity of legislation in question?
  2. Has it been established that the plaintiff is directly affected by the legislation or, if not, does the plaintiff have a genuine interest in its validity?
  3. Is there another reasonable and effective way to bring the issue before the Court?

Canada (Attorney General) v. Downtown Eastside Sex Workers United against Violence Society, [2012] 2 S.C.R. 524

All of this brings us to the procedural aspect of the Downtown Eastside Sex Workers case, the substance of which is still before the Court. In 2012, the Supreme Court considered whether the group known as the “Downtown Eastside Sex Workers United against Violence Society” should be granted public interest standing to bring this case before the courts.

The objects of the group include improving conditions for female sex workers in the Downtown Eastside area of Vancouver.  The group launched a Charter challenge against the prostitution provisions of the Criminal Code.

In its decision on this question of standing, the Supreme Court held that there was basically no other efficient way to bring the case before the courts than to allow the plaintiff group to bring the case.

The key question for the court was whether allowing the case to be brought by the activist-plaintiff was a “reasonable approach”.

In determining whether to grant standing in a public law case, the Court considered the by-now-familiar three factors, which it articulated as follows: 

  1. whether the case raises a serious justiciable issue;
  2. whether the party bringing the case has a real stake in the proceedings or is engaged with the issues that it raises; and
  3. whether the proposed suit is, in all of the circumstances and in light of a number of considerations, a reasonable and effective means to bring the case to court.

This third factor has often been expressed as a strict requirement that a party seeking standing persuade the court that there is no other reasonable and effective manner in which the issue may be brought before the court.  However, the decision in Downtown Eastside Sex Workers introduced some nuance to this rule, stating that this third criterion would be better-expressed as requiring that the proposed suit be, in light of the circumstances, a “reasonable and effective means to bring the case to court”.

Sources of Law

After concluding her review of the relevant jurisprudence on public interest standing, Madam Justice Deschamps ended her speech by mentioning that an important source of the evolution of public interest advocacy in Canada is the bi-juridical nature of our legal system:

  • The Civil Law tradition has traditionally been less open to allowing public interest challenges before the courts. In fact, it was only in 2008 that the courts in France were finally allowed to decide whether a law is valid.
  • Common Law jurisdictions Australia and New Zealand, on the other hand, more resemble the United Kingdom, where courts are more open to allowing citizens to challenge any “public nuisance”.

Other interesting comparisons are to India and Israel, where it is relatively easy for citizens to gain direct access to their country’s highest court to challenge a law’s validity. As an illustration: Some 50,000 cases are heard annually by The Supreme Court of India, while well over 10,000 cases are heard each year by the Supreme Court of Israel.  Thus the relative paucity of public interest cases permitted in Canada raises an interesting discussion on the topic of access to justice in the public interest.

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In recognition of her years of service to the Canadian justice system and her longstanding devotion to the Lord Reading Law Society, Madam Justice Carol Cohen presented our guest speaker with an honourary lifetime membership to the society “on condition [she] promise[s] to come back”.

Lord Reading Members Honoured at the Barreau

Allen Mendelsohn

The Society is pleased to recognize the honours bestowed by the Barreau du Québec on some of our family for their many years of service as members of the Barreau or as Advocatus Emeritus, and we wish all the recipients a hearty Mazel Tov.

  • Society member Jonathan Robinson, on 60 years;
  • Past President Alan Stein, on 50 years;
  • Members and past members Edward Druker, David Schatia, Martin Bogante, on 50 years;
  • Society Board Member Eric Maldoff and The Hon. Joseph Nuss on being named Advocatus Emeritus.

News from the Mishpuchah

Mazel Tov

  • To Past President Ted Goloff on the birth of his granddaughter;
  • To Past President Ron Levy on the marriage of his daughter in Mallorca, Spain;
  • To Hanne Ellingsen on the birth of her son Levi.

Get Well

  • To Past President Ian Solloway following his recent surgery.

Condolences

  • To Society Board Member Elliot Lifson on the loss of his father Mac;
  • To the family of Justice Roger Baker.
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