Here are my three most important legal cases that I think we will be seeing the political and legal ramifications from for years ahead.
The first case is the Supreme Court of Canada decision in Trinity Western University v. Law Society of Upper Canada 2018 SCC 33. This case is important because the court used the concept of “Charter values” to uphold the law society’s decision to deny Trinity Western’s Law school accreditation in Ontario.
I know what Charter rights are. Charter rights are written down in black ink on white paper for everyone to see and read. There is a right to free speech. The right to associate. The right to have a lawyer. These are legal rights that the state can’t take away from you without due process. Even that’s a right. Section 7. I understand what these rights mean even if I am not entirely sure what they are going to look like after the court applies them to any given situation.
Values? Values are what society prefers on any given day; e.g., we used to prefer feudalism. Then our values changed. Do you think the court thinks we can revert to feudal values? I am not a fan of the living tree metaphor for our Charter. All it means is that one day the tree bears cherries but the next you are sucking on lemons.
I fear the court will begin using Charter values to uphold or turn down any constitutional case that does or does not fit with its social justice leanings.
The second is the Ontario Court of Justice criminal case R. v. Lachowski  O.J. No. 5988. A preliminary hearing judge ended the proceeding by committing an accused to trial, in the middle of his lawyer cross-examining the complainant, because the Crown argued that the complainant was being revictimized by the questions even though the judge found nothing improper with them.
This case is more fallout from the rightful acquittal of Jian Ghomeshi. Instead of recognizing that criminal cases are adjudicated on a case-by-case basis, the social justice left have adjudicated that the entire criminal process is not working.
The case also is a product of the #MeToo movement’s demand to believe the complainant.
Complainants have a right to be heard, but they do not have a right to be believed. Do you know who said that? Retired Chief Justice Beverley McLachlin. Her exact words: “No one has the right to a particular verdict but only to a fair trial on the evidence.
I know a Crown I wished had read that quote. Last month, a young, woke female prosecutor called me an antiquated white male because I said the standard of proof for sexual assault cases was beyond a reasonable doubt. It wasn’t the ageism, racism, or sexism of her comment that shocked me but that the prosecution of my client’s case was in the hands of a person who so embodied a wrongful conviction waiting to happen.
The third case is Justice Edward Belobaba’s decision to strike down the law halving Toronto’s city councillors to 27 (Toronto (City) v. Ontario (Attorney General) 2018 ONSC 5151). Premier Ford’s threat to invoke the notwithstanding clause was a shot over the bow of social justice warriors that the concept of parliamentary sovereignty has not been forgotten.
We, lawyers, are too quick to dismiss political decision making as a form of societal consensus making. Canada has benefited from having hot-button issues publicly debated in Parliament, such as abortion, the death penalty and same-sex marriage. These ideas are still hot-button issues in the U.S. because that country has let their judges tell them what is socially acceptable.
So thank you, your honour, for reminding us that Ontario is for the people.
The original article was published at The Lawyer’s Daily and can be seen here.