Constitutional Law – Law is Cool The law school blog and podcast from Canada Wed, 30 Sep 2015 13:10:01 +0000 en-US hourly 1 1338880 In Memorandum: Wendy Babcock (1979-2011) Thu, 11 Aug 2011 01:54:38 +0000 Law students like to think the have it rough.  But some of us have it rougher than others, especially those of us that took the less traveled road to law school.

This evening The Star announced that Wendy Babcock was found dead yesterday in her home.   Wendy would have entered her third year of law school at Osgoode Hall this Fall.  She gained notoriety given her background as a homeless teenage prostitute (she would say “sex worker”) before entering law school.

Third-year students expressed frustration today after Toronto area articling position offers closed when many were still waiting for a job.  Wendy recently asked me whether she should consider changing her name for law firm applications, because she was apprehensive about what law firms would think about her background.   The Eye Weekly once did a piece on her entitled, “All that she can’t leave behind,” and I responded that her experiences were what made her special.

Knowing the advocacy work that I’ve been involved in she also questioned my career path, asking me why I wasn’t practicing human rights law.

Wendy will live on in memories, and through the social media footprint she’s left behind (her “memoranda”).  Coincidentally, I just viewed this TED video earlier today:

Here are some of the sites you can find out more about Wendy:

Wikipedia Page

Facebook Fan Page

CBC Interview

Personal Blog

From the Stroll to Law School


Wendy Babcock – a site created post-mortem by her friends

And finally, here is her last note posted on Facebook, giving us some insight into a controversial subject currently being deliberated by the Supreme Court of Canada in Bedford v. Canada:


Can A Person Be A Sex Worker Rights Activist While Not Enjoying Sex Work Themselves? (ROUGH DRAFT)

by Wendy Babcock on Wednesday, 03 August 2011 at 19:28

I have to get something off my breasts… er… I mean chest. At the risk of offending the pro sex positive feminist movement (which I have no inclination of doing) I have to admit that as a sex worker rights activist, and more so a former sex worker, I have never enjoyed sex work. In fact I am remorseful that sex work is how I lost my virginity, I regret that at 15 I entered sex work, and I despise the fact that I learned about my sexuality through sex work while the majority of other girls my age were discovering theirs in the school yard – usually with kids their own age.

For me, sex work was something I did to survive to get me through the years when I was homeless and too young for a full-time job, general welfare, youth shelters, and food banks. I did NOT engage in sex work because I wanted to express my sexuality, bring pleasure to others, or any of the other reasons pro sex feminists have for engaging in sex work. Not that I’m condemning them for their choice or suggesting that their decision was not a well thought out choice to engage in sex work. I’m just saying that my reasons for being involved in sex work were different. How could I have gone into sex work for any of those aforementioned reasons without first discovering my own sexuality – let alone be comfortable with it? Hell, I never even kissed another person before I headed out to my first call in Mississauga to meet a business man who would pay me money for my virginity. I did not enjoy sex work as a teenager nor did I enjoy it as an adult. There was always the fear of a bad client, a broken condom, and the judgment of johns regarding my appearance (which includes having a few too many of them comment on my stretch marks, cellulite, and a whole slew of other insecurities that unfortunately we as woman must deal with – thanks to the airbrushing of models in magazines like Vogue, Glamour and Maxim), which would be reviewed and commented on by many “johns”. I didn’t enjoy the stigma, the fact that I had to hide my profession for fear of being socially isolated, teased, and worse – arrested.

Had I enjoyed sex work I wouldn’t have quit doing sex work and taken a job that didn’t require me to be sexual with the people I serviced when the opportunity presented itself. Yet I still consider myself to be a sex worker activist, one that promotes the decriminalization of prostitution. And do I think that not getting pleasure from sex work diminishes or sets the sex worker rights movement back? Hell no, in fact I believe it enhances it. Yet our voices are not heard in the sex worker rights movement, as it is universally falsely believed that current or former sex workers who dislike their previous or current occupation have no place in the sex worker rights movement.

I remember when I first got involved in sex worker rights and was a naively impressionable young woman. I did a talk show for AM 680 (the Bob Oakley Show) and when I mentioned that I didn’t like sex work myself I was chastised by fellow activists. “How will anyone understand why decriminalization is important if you keep telling interviewers that you don’t like sex work?” “Don’t tell people you don’t like sex work, if you want to do that you have no business speaking for sex worker rights” and “You are discounting everything other sex worker rights activists are saying!”

Stunned and not wanting to upset anyone as I felt really passionate about the need to decriminalize sex work I kept my mouth shut about my true feelings and instead pretended that sex work was this revolutionary way for me to reach my true sexual potential. And please don’t get me wrong, it is for some sex workers, for those sex work can be freeing, empowering, and a slap in the face to the misogynistic notion that men are the ones with the sexual power and women should just submit.

However, not all of us sex workers feel this way. In fact in my 8 years of working with street involved sex workers very few expressed that this was the way they felt as many of them were survivors of violence, ripped off by clients, faced arrest and were harassed on a regular bases. Many of them did not feel represented in the sex worker rights movement. This is an absolute shame as if anyone, ANYONE should feel they belong in the sex worker rights movement it’s the street sex workers who face the brunt of criminalization, social isolation, stigma, and discrimination. Yet, when sex worker rights are talked about it is usually the overtly privileged sex workers, the high end sex workers, the ones who chose sex work as a legitimate occupation over other employment choices that they could have made. These are the sex workers who work in safer environments, the ones who work independently who don’t have to give any of their earnings over to a boyfriend or agency, the ones who work from their own or shared establishments, the ones who have the luxury of choosing where, when and who they work with. These do not tend to be the sex workers who see sex work as their only means of survival – who don’t have (or are not aware) of other employment options. So then, why if it is street involved sex workers who feel harshest effects of criminalization not heard when it comes to the question of sex worker rights and decriminalization?

I can’t answer that question, for I do not know the answer. What I do know is that we, while acknowledging my own privilege at having my voice heard in this movement, as allies for the sex worker rights movement have an obligation to our brothers and sisters who face a much higher rate of isolation than us must embrace sex workers that do not feel that they would stay in sex work if given the opportunity to be employed in another profession.

Back to my question, Can A Person Be A Sex Worker Rights Activist While Not Enjoying Sex Work Themselves? I say, ABSOLUTELY! Just because a person does not enjoy sex work does not mean that they have nothing to add to the decriminalization debate. Since when does not liking your job mean that you can’t (or shouldn’t) speak up against the barriers that make your trade MORE unenjoyable – even distasteful? Personally, I believe that any debate about sex worker rights should be more diverse than just between the people who utterly despise the profession and want it criminalized to the people that love their profession and want it decriminalized to include the people who neither like it nor avoid it but can justifiably see that things still need to change. There is nothing worse than hating your job and feeling like you have no voice in changing things. Worse still, if you hate your job, the isolation, stigma, criminal records, and other legal repercussions (such as fearing custody of your children, ability to retain status in your chosen country, etc.) does nothing to assist those sex workers who would prefer to leave the profession. I may have disliked providing sexual services for money but that shouldn’t disclude my voice (or others) that the laws that keep sex workers working underground. Personally I think ALL voices need to be heard. What do you think?

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The monarchy in Canada Sat, 16 Jul 2011 18:33:51 +0000 The recent royal visit offers a good chance to talk about monarchy in Canada. Besides just being nice Canadians, the people who greeted the newly married royal couple were often ecstatic, filled with genuine love for the two people, one of which has done nothing of significance while the other has never been heard of until recently. Despite a minimal role in Canada, the monarchy seems to enjoy support here, and the republican groups occupy the margins of our political discourse. But the history of the Canadian democracy is the history of overcoming the monarchy. All the good things we are proud of: the rule of law, democratic elections, and civil rights—emerged despite the monarchy and often out of conflict with the monarchy. Today, Canada’s democracy is the fruit of the monarchy’s defeat. The royals have zero power in this country. The Queen is Canada’s head of state only on paper, and many people don’t know or remember that this is the finale of a centuries-long fight between the people and the monarchy. But besides the remaining formal royal footprints on our political system, there are other, more substantial remnants of monarchy in the Canadian government and legal system.

The less monarchy we had in Canada, the more democracy we had. The history of Canada’s democracy is the history of pushing back the monarchy until it was reduced to a rubber stamp for our democratically elected legislators. It is the triumph of the Canadian democracy that the Royal Assent is a formality. Monarchs have not always been as likable as the young couple from London, UK. In 1776, the US Declaration of Independence called the British rule “absolute Despotism.” Five centuries earlier, English nobles forced their king into signingphoto by Alex Jilitsky on Flickr Magna Carta—a historic document that granted civil liberties and limited the royal power. Magna Carta, a blueprint for modern democratic constitutions, came about in spite of the monarch. The barons basically fought with the king for their rights. That’s the role of the monarch in our democratic tradition: give up more and more power to the people as the royal vigour increasingly declines.

The era of the strong monarchy also represents the backward times of racism and religious discrimination. The monarchy itself remains discriminatory: no Catholics and no bloodline outsiders. If any Canadian institution used the rules of succession to the British throne, the public would ostracize that institution and the courts would probably stop the practice. But the Ontario Superior Court of Justice refused to apply anti-discrimination provisions of the Charter to the rules of succession to the British throne. In 2003, Justice Rouleau of the Superior Court essentially recognized the British throne and the Queen as a foreign institution governed by foreign rules inherited by our constitution (O’Donohue v. Canada, 2003 CanLII 41404 (ON SC)). Since we can’t change the foreign rules and we can’t change our constitution, we are stuck with the discriminatory foreign monarchy.

Some of the best things about Canada are the rule of law, civil liberties, and a democratically elected legislature. The view that the monarchy somehow links us to the English legal and political tradition that gave us all those things is quite absurd. We owe much of our legal and democratic tradition to England, but that tradition emerged in England despite the monarchy. Democratic rights and the independent judiciary were a concession by the monarchy in favour of powerful land owners, first, and the general public, later. Besides, much of our Canadian democratic tradition is completely domestic, and some was borrowed from the US. While we have two Constitution Acts, the UK doesn’t even have a written constitution.

When we see the royal couple on TV, we should remember that they symbolize an institution that fought long and hard against civil liberties, the rule of law, and a democratic legislature. That institution has completely lost its power as a result of this conflict. The people and the democracy have won. For some reason, we still allow the royals to live in palaces and act out a fairy tale at our expense.

But there are other dangers in the monarchy fetish, especially in its recent revival. Our government still retains some qualities of the monarchy. Generally, these powers of the Prime Minister and the Cabinet are called the royal prerogative. These are the powers that the monarchy has always enjoyed but that do not come from the constitution, an act of parliament, or the common law. These are basically the powers that the government has not surrendered to Parliament or to provincial legislatures. This is, for example, the power to have foreign relations. When the courts reviewed the Prime Minister’s decision not to request the repatriation of Omar Khadr, government lawyers argued that his decision was an exercise of the royal prerogative and not subject to Charter scrutiny. The courts have rejected this position (Canada (Prime Minister) v. Khadr, 2010 SCC 3).

Besides the royal prerogative, the government has a wide array of powers that give it discretion in making decisions. Discretion means the government is less accountable about the rules and reasons it follows in making a decision. Often we want to give the government discretion for the sake of efficiency, but the courts must be able to control the limits of discretion and to overturn obviously unreasonable decisions. This is how the rule of law works.Photo by The Queen's Hall on Flickr

Fascination with the monarchy can produce or can be a symptom of a lower expectation of accountability from the government. We may defer to the government more and more. The danger is when we start treating the government as a benevolent ruler. Governments are made of people, and people are corrupted by unaccountable power. The history of democracy in the UK and in Canada was a history of people taking the power back from the ruler.

The ceremonial formality of the Queen also breeds constitutional uncertainty, for example, when the Prime Minister prorogues Parliament so often that some parts of the public genuinely expect the figurehead governor-general to refuse to cooperate. She of course, did cooperate and that was the right thing to do from the legal standpoint, but the potential for a crisis exists.

Do we even need a head of state? It is an inheritance from the Middle Ages, when every nation had a powerful ruler. Modern democracies have leaders but they should be professional officials hired for a limited term, and nothing more. Prime ministers should not generate patriotic fervor. They must be professional politicians who embody certain popular political platforms. Let’s hope that prime ministers cannot mess up too much, and fortunately we have the ballot and the independent judiciary to hold them and their ministers to account. A foreign figurehead doesn’t really figure in this equation.

Pulat Yunusov is a Toronto litigation lawyer.


(Post sponsored by AdviceScene)


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Federal Securities Regulation: The Saga Continues Mon, 18 Apr 2011 17:34:39 +0000 The concept of Federal Securities Regulation in Canada is perennial. It keeps on coming back, most recently via a reference to the Supreme Court of Canada. Pundits will talk, industry insiders will cross their fingers and hope for a favourable ruling, yet I doubt very much the story will end here.
It seems likely that securities regulation is permissible under various head of power in the Constitution. However federal regulation makes no sense if all of the provincial regulators remain in place. There is nothing to be gained gain by adding yet one more layer of regulation. The entire point of the exercise is to unify nationally so as to simplify. The real issue is whether the federal government can succeed in accomplishing this (whether through the Courts or through other channels).
Given the historical absence of federal legislation and the obvious connections with property and civil rights, it seems unlikely (in my opinion) that the SCC would declare, at the request of parliament, that suddenly all that was once provincial is now exclusively federal. This would be a massive restructuring of the federal-provincial power balance, something that the SCC would likely be very reluctant to “ordain” from the bench. Instead, the Court would likely hold that there is significant room for overlap. I wrote a research paper called “Constitutional Complexities Involved in the Implementation of a Federal Securities Regulation Regime in Canada: The View from 2009” that explores this topic in greater detail.

If this view is correct, then the real issue is political. It would be up to the Federal Government to negotiate with the provinces to ensure that regulation becomes unified and not multiplied. This would be difficult, to say the least. Arguably, with Ontario on-side the Feds could go “go it alone” and let the other provinces face the screams of protest from their local investment communities. Meanwhile, the possibility of the London Exchange buy-out adds yet another complicating factor to the politics. This might not be a “Canadian” industry for long.
My prediction: Regardless of the outcome of the reference to the SCC, this issue is far from settled.

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Intervenors for Insite Sat, 19 Feb 2011 07:40:16 +0000 IHRA joins International Coalition Intervening to save Vancouver Safe-Injection Site:

An international coalition of harm reduction experts — comprised of the International Harm Reduction Association (IHRA), the Canadian HIV/AIDS Legal Network, and CACTUS Montréal — has today been granted intervener status to appear before the Supreme Court of Canada to support Insite, Vancouver’s supervised injection site, against the Canadian government’s attempts to shutter it. […]
Adding insult to injury, a 2009 provincially funded report acknowledging the benefits of safe-injection sites and calling for their implementation was recently revealed to have been suppressed for a full year by Quebec’s Minister of Health. Despite this climate of resistance, CACTUS has announced its intention to open a supervised injection site in Montréal later this year.

SCC on Funding Orders Fri, 18 Feb 2011 20:55:03 +0000 Funding orders must be exceptional, says the Supreme Court:

‘For the first time the Supreme Court has ruled that superior courts are empowered to order governments to fund public interest litigation before statutory courts and tribunals. […]

Brodsky suggested that “if governments don’t want the courts to attempt to deal with the problems that have been created by cuts to access-to-justice programs, then governments need to address the gaps themselves.”

She told The Lawyers Weekly “the possibility of obtaining an interim cost award can never replace the Court Challenges Program, or civil legal aid programs, that have been decimated in places like B.C. The limitations of the case-by-case cost-seeking approach are underscored by the decision in Caron in that the court confirmed that interim cost awards must be ‘highly exceptional.’ However, in reality, the circumstances in which the absence of public funding works a serious injustice are not highly exceptional. Such circumstances have become very ordinary in Canada.”’

Case Comment – Gomboc Decision, 2010 SCC 55 Sun, 16 Jan 2011 17:52:25 +0000 Here is a link to my website for a case comment on the Gomboc that will be published in an upcoming issue of RegQuest.

Enjoy the reading.

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Julian Assange: Why the world needs WikiLeaks Sat, 11 Dec 2010 19:14:59 +0000 For video click here

Azar Nafisi, New York Times Best Seller Author Discusses Baha’is’ Human Rights Violations in Iran Wed, 08 Dec 2010 06:15:03 +0000 Azar Nafisi is the author of the New York Times 117-week bestseller, Reading Lolita in Tehran. In this video she discusses the widespread violations of Baha’is’ human rights in Iran as well as her personal experience with Baha’is in light of the baseless accusations that they bear. Ms. Nafisi is not a Baha’i.

click here for the video

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Ryan Venables – Case Comment: UFCW Local 401 v. Old Dutch Foods [2009] ALRBD No. 56. Sat, 27 Nov 2010 10:34:54 +0000 Follow the case comment link to the full case comment done by Ryan Venables

Talk Local on Project Samosa Thu, 07 Oct 2010 11:30:37 +0000 Talk Local on Rogers TV with Sonia Chin discussed Project Samosa, the terrorism arrests this past summer. The guest is Ibrahim Hindy, a Toronto resident and local leader, who shares the impact of the arrests on him and his fellow Canadians.

He claims that 74% of those arrested on terrorism in Canada have the charges dropped, and wonders whether this approach to anti-terrorism properly reflects our Charter values.