LGBT+ rights, race and sex discrimination, and medical assistance in dying are big social justice issues law students want to explore. They’re also the specialized research topics of three LLM alumni and a PhD grad who returned to the Equality Rights and the Charter class this term to discuss their work with current students. The guest lecturers were invited by Professor Bev Baines, Law’73, a feminist constitutional expert who taught all four and supervised three of them in their graduate work.
“The visitors not only added diversity of subject matter to this year’s seminar by explaining what interested them when they took the Equality Rights course but also by illustrating how to write an essay for the course,” says Baines. “They also role-modelled a range of different options for legal work: practice, litigation, doing human rights advocacy, serving in administrative capacities, working as a notaire in Quebec, and teaching law.”
James McCarthy, LLM’17, a lawyer with Ryder-Burbidge Hurley Foster in Kingston, presented “The Right to Be ‘Out’?” on January 13. His paper examines whether equality rights relating to sexual orientation include that right.
“This question was inspired by a human rights decision from Quebec, which found that firing an employee for coming out as gay to a client did not constitute discrimination,” he says. “I make the argument that, while courts had little opportunity to pronounce on this issue directly, the right to be out is necessary to giving full effect to equality rights for the LGBT+ community. This question has implications for questions about the content of equality rights in the Canadian Charter of Rights and Freedoms.”
The paper is one McCarthy originally wrote for the course three years ago and has continued to update. He completed his LLM with a specialization in political and legal thought, focusing on comparative constitutional law. Following his graduation, he clerked for the Honourable J.C. Marc Richard, Chief Justice of New Brunswick’s Chief Justice, assisting with research on cases before the provinces highest court.
Stephanie Simpson, LLM’19, Queen’s University’s Associate Vice-Principal (Human Rights, Equity and Inclusion), visited the class of her former master’s supervisor on February 3. She presented on her LLM thesis, “Giving Shape to Silences: Exploring the Impact of Section 15(1) and Human Rights Jurisprudence on Achieving Racial Justice, 2009-2018.”
“More than 30 years since the coming into force of section 15(1) of the Charter, and a decade since the overhaul of the human rights tribunal system in Ontario, there remains little to be found in Charter or Ontario human rights jurisprudence addressing the broad range of harms experienced by racial equality seekers in Canada,” she says.
“I employed critical race theory, as well as theories of ‘democratic racism,’ to examine key section 15(1) and Ontario human rights race discrimination decisions. My paper argues that ongoing adjudicative ‘silences’ regarding race are perpetuated by preferences for narratives of direct racism and by legal tests that fail to discern the contours of contemporary, and often structural, racial realities.”
As it turned out, the paper Simpson wrote for Baines’ class was the first draft of what would become her LLM mini-thesis after additional, extensive work.
Frank Catalano, LLM’18, a practising notary in Quebec, presented “Competing Rights in the Context of Medical Assistance in Dying (MAiD)” on February 24. He focused on competing rights interpreted as the contest between Section 15 equality rights and Section 1 proportionality arguments under the Canadian Charter.
“I discussed the facts, the parties’ arguments and legal issues that the trial judge analyzed in the Truchon & Gladu case from Quebec,” he says. “The focus of the case was medical assistance in dying in Canada and Quebec, specifically, whether the notions of ‘reasonable foreseeability’ in the Criminal Code of Canada and end-of-life in the Quebec legislation were constitutional. Justice Christine Baudouin declared that they were not.”
He concentrated on the Court’s Section 15 and Section 1 (justification) parts of the judgment and made critical comments on the arguments made by the Attorneys General of Canada and Quebec with respect to the various issues as well as the evidence presented.
Catalano’s presentation stems from “A Time and Manner to Die: A Study of Physician-Assisted Dying in Canada,” the LLM thesis he wrote under Baines’ supervision in 2018, before the Truchon & Gladu ruling. His thesis is available through Stauffer Library.
Kerri A Froc, PhD’16, an Assistant Professor at the University of New Brunswick Faculty of Law, spoke to the class via Zoom on March 2. She presented on her doctoral thesis, “The Untapped Power of Section 28 of the Canadian Charter of Rights and Freedoms.”
“Section 28 has the power to block the operation of the Section 33 “notwithstanding clause” when it is invoked in legislation that discriminates on the basis of sex or otherwise results in unequal rights being afforded to men and women (such as legislation that disproportionately limits women’s religious freedoms compared to men’s),” she says. “This is the issue in the Hak case challenging Quebec’s Bill 21 that is likely to be heard before the Supreme Court of Canada.
Baines was Froc’s PhD dissertation supervisor.
“The range of these graduates’ activities complemented the work of one other visitor, Senator McPhedran, who role-modelled effective political work and advocacy,” says Baines. On January 20, McPhedran spoke about Bill S-3, which addresses the status of Indigenous women and children, and the Descheneaux case.
“I think the current students benefited from the challenges all the visitors presented and that was obvious in the insightful questions the students posed to the visitors,” says Baines. “Many of this term’s seminar participants are integrating features of the visitors’ presentations into their own presentations and papers for the course.”