RULE OF LAW REPORT VOLUME 3, ISSUE 4 DECEMBER 2020 A PERSONAL REFLECTION ON RUTH BADER GINSBURG Beverley McLachlin 2 ONTARIO’S CHIEF JUSTICES CALL FOR REINVESTMENT IN LEGAL AID AT COURT OPENING CEREMONY John Schofield 5 COURT CITES ‘PREJUDICES’ TO BLACK TENANTS IN OVERTURNING LANDLORD’S EVICTION BID John Schofield 10 WRONGFUL CONVICTIONS: MUCH WORK REMAINS TO BE DONE Ron Dalton and Kirk Makin 15 JESSOP FILE: IT IS NEVER TOO LATE TO CORRECT A WRONG Bhavan Sodhi 18 A PERSONAL REFLECTION ON RUTH BADER GINSBURG The Right Honourable Beverley McLachlin served as chief justice of Canada from 2000 to mid-December 2017. She now works as an arbitrator and mediator in Canada and internationally and also sits as a justice of Singapore’s International Beverley McLachlin Originally Commercial Court and the Hong Kong Final Court of Appeal. She chairs the Action published in Committee on Access to Justice in Civil and Family Matters. The Lawyer’s Daily, © LexisNexis It is autumn. I am in the Gatineau Hills north of Ottawa. The leaves are Canada Inc. red and gold, and the views spectacular. The occasion is lunch in a country restaurant called Les Fougères. Across the table sits John Roberts, chief justice of the United States. To my left is a small woman with dark, pulled-back hair and an intense gaze — Ruth Bader Ginsburg. The occasion was a visit between three members of the U.S. Supreme Court and the Supreme Court of Canada. Three years into my term as chief justice, I invited the late Chief Justice William Rehnquist and two colleagues to come to Ottawa. We had a wonderful visit. That was the beginning of an exchange between the two courts that led to reciprocal visits every three years. This particular year, it was our turn to host. As we shared the wonderful views, Ruth turned to me and asked, “What is the history of women’s rights in Canada?” That question launched the table of judges on a discussion of how the law has advanced the position of women in society. 2 I told the story of the Famous Five — the five Alberta women who fought what is now known as the “Persons Case” all the way to the Judicial Committee of the Privy Council, to obtain the 1929 ruling in Reference re: British North America Act, 1867 s. 24, [1929] J.C.J. No. 2 that changed the law for Canada and the Commonwealth — henceforward women would be considered “Persons,” capable of holding public office. I related how, in 1939, Queen Elizabeth the Queen Mother stated that it was fitting that she, a woman, should lay the cornerstone for the new Supreme Court of Canada building, for it is through the law that the position of women has been advanced. Perhaps, I added, the Queen Mother had the Persons Case in mind. In the hour or so that followed, we discussed the impact of the human rights I, for one, beg to differ. acts that were passed across Canada in The central value on which the ’50s and ’60s, and the Charter of Rights and Freedoms which was adopted in 1982. Ruth Bader Ginsburg These laws, and the jurisprudence that flowed from them, had led to momentous grounded her life and legal changes in the position of women in philosophy — equality Canada. Ruth Bader Ginsburg listened with intense for all – will not become concentration, head bent, nodding, from time to time posing a question or offering irrelevant, so long as a comment. The advancement of women’s personal characteristics rights in our two countries had taken a different course because of our respective like gender and race countries’ different constitutional frameworks, but the signal issues — voting are used as ciphers to rights, the right to hold public office, the impose and perpetuate right of women to equal treatment under the law, the fight for equal pay, and the disadvantage.” right of women to control their bodies — were the same. Ruth Bader Ginsburg was a woman of intellectual commitment and passion. She cared about many things, but the central, defining passion of her life was the advancement of the position of women — and by extension other disadvantaged 3 groups — in her society. As a professor and advocate, she worked tirelessly to cast the inequalities that held women back in legal form, and time after time, against the odds, she won. She laid out her propositions with ineluctable clarity and compelling logic. As a justice, she followed the same practice. Whether for the majority or in dissent, she crafted her words carefully and powerfully. At the end of the day, equality was simple — we are all human beings, and we should all have the same rights and opportunities. Causes come and go. Some say the fight for gender equality is passé and that it is time to move on to new causes. Some whisper that in a changing society, Ruth Bader Ginsburg’s judgments — often in dissent — will lose their power to persuade and influence. I, for one, beg to differ. The central value on which Ruth Bader Ginsburg grounded her life and legal philosophy — equality for all – will not become irrelevant, so long as personal characteristics like gender and race are used as ciphers to impose and perpetuate disadvantage. And the care and power with which she crafted her judgments will never cease to resonate. Ruth Bader Ginsburg had the vision to see what was right — equality for all — and the will to pursue that vision against all odds. She advanced the rights of women and the disadvantaged in America, and beyond. We are all her beneficiaries. 4 ONTARIO’S CHIEF JUSTICES CALL FOR REINVESTMENT IN LEGAL AID AT COURT OPENING CEREMONY Two of Ontario’s top judges have urged the provincial and federal governments to reinvest in legal aid at a time when the COVID-19 pandemic has left many John Schofield Originally Ontarians at their most vulnerable. published in “It is, quite frankly, a false economy to think that cutting these vital services The Lawyer’s Daily, © LexisNexis saves money,” Ontario Court of Appeal Chief Justice George Strathy said Canada Inc. during the annual Opening of the Courts of Ontario ceremony, which was held virtually on Sept. 22 and broadcast on the Court of Appeal’s YouTube channel. “When litigants are unrepresented and unsupported,” he added, “the justice system slows to a crawl, valuable resources are drained, and other cases are held back. More important, the most vulnerable members of society, those whom our justice system purports to protect, are further victimized because their playing field is uneven.” Chief Justice Lise Maisonneuve of the Ontario Court of Justice echoed that call. “Even more than before the pandemic arrived,” she said, “legal aid in this province needs to be properly funded to ensure that the most When litigants are at risk in our society are served, unrepresented and particularly in light of the move unsupported,” he added, “the to virtual proceedings, which many vulnerable litigants may justice system slows to a crawl, be challenged to access due to valuable resources are drained, limited access to telephones or and other cases are held back. Internet. Without the support More important, the most that legal aid is intended to vulnerable members of society, provide, justice may be out of their reach in this new reality.” those whom our justice system The government of Premier Doug purports to protect, are further Ford cut Legal Aid Ontario’s victimized because their playing budget last year by 30 per cent, field is uneven.” or $133 million. This year, LAO 5 has warned that the economic impact of the pandemic and interest rate cuts could leave the organization with as much as a $70-million hole in its 2020-21 budget due to reduced funding from the Law Foundation of Ontario. This year’s Opening of the Courts event also featured remarks from Chief Justice Geoffrey Morawetz of the Superior Court of Justice, Attorney General Doug Downey, Law Society of Ontario treasurer Theresa Donnelly and Anne Turley, senior general counsel in the federal Department of Justice’s Litigation Branch, who was representing federal Justice Minister David Lametti. Physically distanced and separated by plastic barriers, the three chief justices presented their remarks to an empty Courtroom 2 at Toronto’s Osgoode Hall as their speeches were broadcast to attendees on YouTube via Zoom. Other speakers also joined on Zoom. With the attorney general tuned in, Chief Justice Morawetz also called on the province to implement a new model of courts administration that would give Ontario’s court system more control over its limited resources. He pointed to examples such as the Supreme Court of Canada, the federal courts and the British Columbia courts. “This issue remains a top priority for the court,” he added, addressing Downey directly. “I am eager to have further discussions with you so that meaningful, transformative and permanent change can occur, in keeping with the constitutional and institutional independence of the court, and which will extend beyond your term and mine.” In his own remarks, Downey was noncommittal, sounding a note of fiscal conservatism as the provincial budget faces unprecedented pressure amid the pandemic. “While we must make important investments to strengthen our justice system, we must do so prudently, carefully and in a transparent and accountable manner,” he said. “Decisions on where and how to invest resources are not always simple, nor should they be, and we are committed to making the right choices, smart choices, for Ontarians and its justice system and its partners.” All three chief justices spent a significant portion of their speeches paying tribute to fellow justices, government