Shifting legal ground
SOCIAL JUSTICE REVOLUTION HAS TAKEN LAW SCHOOLS. THIS WON’T END WELL.
What is a law school for? According to the University of Windsor, revolution. Earlier this month, Windsor’s law school released a statement on the jury verdict that acquitted Saskatchewan farmer Gerald Stanley of the second- degree murder of Coulton Boushie. According to the statement, the Canadian legal system is oppressive. “Canada has used law to perpetuate violence against Indigenous Peoples ,” it states, “a reinvention of our legal system is necessary.”
The statement reveals how legal education has lost its way. One could be forgiven for thinking that the purpose of law schools was to train lawyers to understand legal principles and to think logically and critically. Instead, some law schools portray themselves as political actors working for a cause. At Windsor’s law school, “we strive toward social justice. We take that commitment seriously.” Indeed they do. So do other law schools in Canada, some more explicitly than others. Social justice means defeating oppression and righting historical wrongs — by favouring or blaming people as members of groups, and by undermining Western legal principles such as the rule of law, equal application of the law, presumption of innocence, and freedom of expression, thought, conscience and religion.
Numerous criticisms have been levied at the all- white jury verdict in the Stanley case. Some have advocated limiting an accused’s right to peremptory challenges in jury selection. These objections are short- sighted. All accused have a limited right to dismiss potential jurors. As criminal defence lawyer Sean Robichaud explained to Canadian Lawyer magazine after the verdict, Indigenous people are over- represented as accused persons in the criminal justice system, and curbing peremptory challenges to ensure that juries represent victims would prejudice their interests.
There is an old saying that at any trial there are four versions of the truth: what the prosecution says, what the accused says, what the jury finds, and what actually happened. I have no idea what transpired at that farm in Saskatchewan. But Windsor’s law professors seem to know — an impressive feat, since they were neither at the scene nor in the courtroom to hear the evidence. Due process exists, in part, to protect us all from the selfrighteousness of mobs.
One might expect Justin Trudeau and his ministers to jump on ideological bandwagons, but it is telling when law schools want to ride along too. Windsor’s says that “the law’s response to Coulton Boushie’s death is tragic, unnecessary and unacceptable.” Boushie’s death was indeed tragic and unnecessary, but the law’s response was not. Even the lawyer for Boushie’s family, Chris Murphy, said that “based on the evidence, the submissions made and the charges that the judge gave to the jury, a route of acquittal was a possibility.”
Human history is rife with oppression. Women were oppressed when only men could own property, slaves when they had no right to liberty, Indigenous people when they were forced to attend residential schools. Oppression results when some people do not have the same legal rights as others. But today’s law schools resist the idea of equal application of the law and openly advocate progressive policies. For instance, when Trinity Western University, an independent religious institution that receives no government funding, proposed to open a law school, the established schools urged provincial law societies to ban TWU’s graduates on the grounds that its community coven- ant did not reflect progressive values. The law societies in Ontario and B.C. obliged. The Supreme Court’s decision on TWU’s challenge of those decisions is pending.
L aw schools may not need to preach revolution much longer. If you haven’t noticed, the tipping point is near. Courts and academics are transforming the Charter of Rights and Freedoms from a roster of fundamental liberties into a social- justice charter that justifies curbing individual freedoms instead of protecting them. The words of section 15(1) of the Charter, which guarantee that “every individual is equal before and under the law,” suggest that the same rules should apply to everyone. However, the Supreme Court has held that the law can nevertheless treat people differently if doing so produces equal outcomes, and that treating people the same — for instance, requiring the same qualifications from a minority job applicant as from others — might even violate section 15(1) if it produces unequal results.
Section 35(1) of the Constitution Act 1982 entrenches varying rights for different groups of Aboriginal people. Courts may impose more lenient penalties on Indigenous accused pursuant to the Criminal Code and the Gladue principles, under which “the circumstances of Aboriginal offenders” may be taken into account. New rules require those accused of sexual assault to disclose information to the prosecution, such as emails sent by the complainant to the accused, so as to limit the ability of the defence to cross-examine (violating the principle that the burden of disclosure lies upon the Crown rather than the defence). The Law Society of Ontario has begun to compel its members to expressly acknowledge an obligation to promote progressive values. Individual liberties are no longer fundamental. Everyone is not subject to the same rules. The legal ground is shifting.
Not all law professors endorse the path that we are on, and fortunately they can still choose what to teach in their own courses. Not all lawyers or judges agree either. Many have kept their heads. Give them credit for thinking for themselves. After all, they probably went to a Canadian law school.