 Wonderful. So we might as well get started. Welcome to our second lecture in the Dalhousie Health Law Institute Health Law and Policy Seminar Series. I'm Sheila Wildman. I'm the Associate Director of the Health Law Institute. We're grateful to convene with you in person today as well as also folks online in Nygma G, the ancestral and unceded territory of the Nygma people. We pay respect to the indigenous knowledges held by the Nygma people and the wisdom of their elders past and present. We honor and acknowledge also the histories, contributions, and legacies of African Nova Scotians who have lived in this territory for over 400 years. Our speaker today is Professor Martha Jackman. Professor Jackman has for decades been among the most important innovative scholars and strategists of domestic and international human rights law with a focus on challenging the state's role in creating and perpetuating structural injustice through a focus on socioeconomic rights. Professor Jackman joined the University of Ottawa Faculty of Law in 1988 and has held a variety of leadership positions there and on national bodies such as the National Association of Women in the Law and the Women's Legal Education and Action Fund since then. As a scholar, activist, and lawyer, she has participated in both spectacular human rights wins and a couple spectacular fails and has contributed not only through her academic writing, but as counsel for equality seeking litigants in some of Canada's most important human rights cases, engaging equality as well as security of the person and the interaction of those, including Eldridge and Chowli. In her hands and those of others, I think it's fair to say that even the fails come off as carefully written postcards to a more enlightened future. Professor Jackman's legal advocacy has been celebrated in numerous ways including a 2007 Law Society of Upper Canada Medal and a 2015 CBA Touchstone Award. We're so lucky to have her join us to share her experience and imagination on how law may be harnessed unwilling as it may be to projects of transformative social change. Please welcome me in joining Professor Jackman. Please join me in welcoming Professor Martha Jackson. Thanks so much Sheila for that very generous introduction and it's really great to be here in Halifax, one of my favorite places, not least because my fellow traveler, Vince Calderhead, who I'm sure many of you know, has done some amazing work from here. So as I tell all of my students in all of my classes, law generally and the charter in particular are indeed a tool and terrain not only for social justice but also for social injustice and sometimes all four things at the same time. And how law and the charter operate in relation to health and access to health care is of course no exception. From the very early years of the charter, there were promising examples of charter rights being deployed to promote access to health and to determinative health rights. Morgan Taller, which of course continues to be very relevant here in the struggles you're having around access to abortion, and Eldridge in particular as Sheila mentioned, one of the earlier cases that I was involved in and actually almost the only win quite some time ago. But there have also been disheartening examples of the charter as a source of health wrongs. And the most egregious example of course is Shauli and again, maybe sour grapes, I was involved in that spectacular loss. After the hearing, I actually thought Justice Deschamps was going to rule in favor of the Quebec government. So really called that one wrong. But aside from Shauli, there have been multiple determinant social determinant of health related claims that have either been struck before they've even been argued that have been lost and where appellate courts, including the Supreme Court of Canada in particular have refused leave to appeal, including in some big cases here in Nova Scotia. So in my remarks today, I will examine the charter as a source of health rights and health wrongs. And I'll do that in three parts. First, I will very briefly remind you how section seven and 15 operate as a basis for right to health claims. Second, I will talk about how the Charter rights claims in rights claim in the Toussaint v. Canada case, or in the case of Cambie surgeries from BC, charter wrong claims have been framed and assessed on doctrine and evidence. And then finally, and probably fairly briefly, I will examine the significance of those two cases for other emerging health and determinant determinants of health related claims. In particular, the issue that I know many of you are working on, including Sheila, the issue of decriminalization and safe supply of drugs. So first, if your first year charter course is a ways away, section seven and 15 is a source of access to health care claims. As you remember, section seven guarantees a right to life, liberty and security of the person, and requires any a violation of those rights to be in accordance with the principles of fundamental justice. And again, as you may remember from your first year charter course, the Morgan dollar case around access to abortion, show Lee around access to private care, in sight in relation to access to safe injection services, and Carter in relation to access to medically assisted death were all primarily grounded in the section seven guarantee. Section 15, of course, an even more promising history and text section 15 guarantees equal protection and benefit of the law without discrimination on both enumerated and analogous grounds. And as I mentioned, the Eldridge case, which was a really important victory where the BC, the Supreme Court of Canada recognized that failure to ensure access to interpretation services for the deaf within the single pair system was discriminatory. An important case relying on the section 15 equality guarantee. And both sections seven and 15 were relied on by the claimants in the can be surgeries case and in the two same case, however, the rights claims in the two cases were formulated very differently. In can be surgeries, the appellant Dr. Brian day relied on the show Lee case to argue that all of the restrictions in BC health and hospital insurance registration legislation on access to private care were unconstitutional. The trial court, and this was a litigation that went on in terms of motions and countermotions for about a decade before it got to trial. But it did eventually, it was eventually heard on its merits. Dr. day had acknowledged that he was engaged in illegal billing practices, and he argued that that was okay because the regime was unconstitutional. And happily the trial judge in can be surgeries disagreed with him. The court did agree with Dr. day that delays in access to health care. Where in a context where the single pair system had an effective monopoly was a violation of some patients right to security of the person because people can become more ill on waiting lists. But the trial judge as was the case and show Lee at trial and at the court of appeal the trial judge found that any violation of security of the person that resulted from the single pair monopoly was not did not violate the section seven principles of fundamental justice it was not arbitrary because those restrictions are designed to protect the viability of the single pair system and to ensure that in British Columbia access to care is based on need and not ability to pay. And the BC court of appeal agreed with the trial judge although the court of appeal did find that in addition to security of the person violations the there were potential right to life violations in terms of people dying on waiting lists. But again the BC court of appeal agreed with the trial judge and indeed with the lower courts and show Lee that restrictions within provincial health and hospital insurance legislation based on the conditions of the Canada Health Act designed to prohibit or to restrict private duplicative care were not arbitrary or grossly disproportionate. And again the court of appeal agreed that these provisions including the provision on double dipping private health insurance were designed to protect the single pair system and the important value that people in British Columbia have access to care based on need and not ability to pay. I had hoped that Dr. Dave given up he announced when he lost at the court of appeal that he did plan to appeal. And so in the end I called the AG lawyers and indeed apparently last week Brian Day did file his leave to appeal motion. It's not on the Supreme Court site yet but no doubt it will go through the process in show Lee both the trial and appellate judge ruled against Dr. show Lee and on the evidence and the Supreme Court granted leave. So the fact and can be that the trial judge and court of appeal ruled in favor of the government on the evidence I don't think will necessarily dictate the outcome of that need to appeal and I do actually expect the case to make its way to the Supreme Court of Canada. In the now to say case which is also a long ongoing case is now to say he was a arrived in Canada in 1999 on a visitor's visa from Granada and stayed on without being able to regularize your immigration status. She is also relying on the show Lee case in her charter challenge but she is arguing that the exclusion of undocumented migrants from access to publicly funded federal health care under the interim federal health program violate section seven and section 15. And as you may remember the I F HP is the program that former Prime Minister Harper cut back in terms of even a refugee access unsuccessfully attempted to cut back. But he was emboldened to do that by the federal court ruling in Tucson in 2010 where the federal court agreed on the evidence that being excluded from federal health benefits when she had no ability to pay for care herself and when because of a number of chronic heart health conditions including diabetes meant that she was at actual imminent risk of death in the absence of of access to care. The federal court in two 10 agreed that her exclusion from the federal from federal health insurance benefits violated her right like right to life and security of the person but the federal court found that that violation was in accordance with principles of fundamental justice since it was rational for the Canadian government to deprive undocumented migrants of access to health care in order to discourage illegal migration and the court of appeal upheld the trial judgment in 2011 but even went further and it cast some doubt on causality and suggested that the harms the health harms that Miss Toussaint had experienced were due to her own bad choices and the court of appeal also agreed that the exclusion of undocumented migrants from federal health insurance coverage was rational and not a violation of principles of fundamental justice because Canada legitimately did not want to become a healthcare healthcare safe haven. Miss Toussaint then appealed to the United Nations Human Rights Committee under availing herself of the optional protocol to the ICCPR she argued that her right to life was violated by the federal government's exclusion of undocumented migrants from access to care and her right to equality based on migrant status and not surprisingly the UNHRC agreed with her and issued views in 2018 to the Canadian government recognizing that Canada had violated Miss Toussaint's right to life as well as her right to equality under articles 6 and 26 of the international covenant on civil and political rights and the committee recommended both that Canada provide damages to Miss Toussaint for the harm she had suffered which included amputation of a limb pretty much blindness and a stroke that had severe consequences for her in addition the committee told Canada it needed to amend the interim federal health program to ensure that people were no longer subject to discrimination based on their migrant status Canada waited a bit but eventually in 2019 told the committee that it couldn't agree with its views and in fact it disagreed with the committee's interpretation of the international covenant and that I really loved I imagine myself writing to Chief Justice McLaughlin to tell her that I disagreed with her interpretation of section 7 of the charter but in any event Canada declared that it wasn't planning to take any measures to respond to the views of the committee and so Miss Toussaint turned to the Ontario courts and in October 2020 she brought a challenge in the Ontario Superior Court to Canada's failure to respond to the views and she she challenged the failure to provide her with the damages that the committee had recommended and also the failure to implement the systemic remedy that the UNHCR had recommended in its views she relied again on Xiaoli and the idea in Xiaoli that delays in access to care violated the right to life and to security and were fundamentally unjust in her section 7 principles of fundamental justice argument she argued that it was arbitrary to exclude undocumented migrants in fact it was a false economy discriminatory and also violated the international customary rule of pacta soot servanda which requires countries to implement their international treaty obligations in good faith she also is relying on section 15 and the argument that exclusion from the continued exclusion from federal health benefits and the refusal to implement the views with the committee violates section 15 based on migrant status and she argued under admin law principles that the Canadian government's decision was was unreasonable yes no problem thanks not surprisingly in the fall of 2021 the Attorney General of Canada brought a motion to strike uh Ms. Toussaint's claim and they the government basically took issue of all with all of it they said it was raised due to Cata because the federal court had already decided against her um her damages claim uh was out of time views of international bodies and in fact international Canada's treaty commitments in general are non-binding domestically and the charter laws settled uh in terms of immigration status as a prohibitive brown and access to health care is a section 7 right in august uh the Ontario Superior Court Justice Perrell dismissed the Attorney General's motion to strike and again on all grounds he disagreed that there wasn't a reasonable cause he found that it was not obvious that the raised due to Cata applied he found the law to be unsettled uh and uh he struck uh sorry he struck he dismissed the motion. AG Canada quickly turned to the Ontario Court of Appeal and brought a motion to stay Justice Perrell's uh ruling which the court granted although it is uh promising an expedited appeal of the stay uh sorry the appeal of Perrell Justice Perrell's decision so going forward what is the significance of how these claims uh were framed or are being framed and how they are or were assessed in terms of the charter as a source source of both health rights and health wrongs so first in terms of the framing and assessment of uh the section 7 claims in the two cases as I have written and I think some of you uh may have read in course assignments uh show Lee the legacy of show Lee and indeed the earlier a Supreme Court decision in Gusney is a double standard both doctrinal and evidentiary as between the treatment of the claims of the advantage and the disadvantage under the charter doctrinally the way this has played out is that in contrast to the claim of the advantage those who could afford private care and show Lee where the Supreme Court focused very much on the right to life and security violations that were being alleged in that case rather than focusing on actual claims uh and deprivations of life and security in determinants of health related claims uh brought by disadvantage groups the courts including the Supreme Court of Canada have consistently characterized claims there are section 7 rights claims as demands for freestanding rights that don't exist in the charter so in the Toussaint case with the federal court and federal court of appeal Ms Toussaint's right to life and security claim was mischaracterized as a demand for access of freestanding right to health care anywhere anytime in Tanuja just a case some of you may be familiar with the Ontario Tanuja case where the claimants challenged Ontario and Canada's inaction in relation to homelessness and invoked the harms to life security of the person inequality that resulted from government action and inaction in relation to housing inadequacy in striking the claim the superior court mischaracterized Ms Tanuja and the other plaintiff's claim as a claim to a freestanding right to housing and in fact in Gosne the court that uh the majority of the court effectively characterized Louise Gosne's claim that cutting social assistance benefits by two thirds for those under 30 so that people were trying to survive on roughly $150 a month and again the violations of life and security of the person that resulted in Gosne the trial judge and the Supreme Court of Canada characterized Ms Gosne or mischaracterized Ms Gosne's claim effectively as a claim to a freestanding right to social assistance so instead of looking at the right to life and security claims one court after court has mischaracterized the charter rights claims of disadvantaged groups relating to determinants of health and Justice Perrell's categorical rejection of this approach in uh Toussaint in the motion to strike in Toussaint is the most significant aspect of that decision and if you'll forgive me I'm going to read from paragraph 134 of his judgment because it was just such sweet sound to hear this and basically what he said was in a dog whistle argument that reeks of prejudicial stereotypes that immigrants come to Canada to milk the welfare system Canada mischaracterized Ms Toussaint's charter claim as a right to an optimum level of health insurance and a purely socioeconomic right which is outside the guarantees of the charter in Justice Perrell's uh summation this is a fallacious straw man argument and as Justice Perrell put it at paragraph 138 of his judgment Ms Toussaint's claim is not a claim for free health care but for publicly funded health care in circumstances where a right to life is demonstrably and not just theoretically at risk that was absolutely out of character for the Canadian judiciary and really really important that the claimants were able to convey to Justice Perrell and Justice Perrell heard the degree to which this mischaracterization of determinants to health claims as freestanding socioeconomic rights claims to things that aren't in the charter rather than life and security claims which are entrenched that was really really important in the can be case because essentially Dr. Day was claiming a right to private care to private funding and care Dr. Day throughout insisted that he was not actually claiming a freestanding right to health care but rather was alleging violations to life and security of the person and what is interesting about the can be judgment both the trial judgment and the court of appeal judgment is that the courts did accept Dr. Day's characterization of the claim as being not a freestanding right to private health insurance claim although it really was that is a right to life and security claim but in contrast to Shaulie the courts were very attentive to the right to life and security claims not only of the claimants but of those individuals not before the court who would be too poor or too ill to afford private health insurance and the can be court recognized that the introduction of even small scale duplicate of private insurance and care would create a discriminatory second tier of healthcare and BC that would adversely affect access to healthcare for those unable to afford or to qualify for private insurance and that that consideration was found throughout the judgments more significantly and this is something we try to argue and show you but we're unsuccessful in doing the court of appeal and can be recognized that if a parallel system of health care private health care which Dr. Day was demanding as a matter of charter right if a parallel system was allowed to emerge patients waiting for public care who are unable to pay for private care would also have a section seven claim that their rights to life and security were being violated by undue wait times so that was again a very significant aspect of the the can be surgeries decision at an evidentiary level the show Lee and earlier Gus night cases also created another double standard between advantaged and disadvantaged claimants and between disadvantaged claimants and government defendants at an evidentiary level disadvantaged claimants are consistently held to a very high standard of proof relative to advantage claimants and government defendants their evidence is often discounted as was the case in Gus Lane or out now ignored which was the case in show Lee and in the Tucson case in can be in contrast to show Lee the trial and court of appeal were also highly attentive to the harm to the rights of disadvantaged people at both stages of their section seven analysis and the court consistently weighed in the importance of ensuring access to care based on need for the rights of disadvantaged people in British Columbia and that unlike in show Lee led the court to conclude that restrictions on private insurance and care respected principles of fundamental justice because they protected access to care based on need rather than ability to pay as I mentioned in the Tucson case the federal court and federal court of appeal relied heavily on stereotype rather than evidence in finding against Miss Toussaint and not surprisingly the AG Canada relied heavily on the federal court and federal court of appeal judgments in Toussaint in defending against this new claim against Canada's failure to implement the views of the UN committee and in the court that I read Justice Perot called out the federal government for its reliance on stereotypes rather than evidence now whether the Toussaint claim is ultimately struck or allowed to proceed whether the court of appeal and ultimately the trial court if the case is actually heard on its merits adopts the rigorous the same rigorous approach to the evidence as the trial court did in Gusley pardon me in Cambie and in and in show Lee remains to be seen aside from the framing of the evidence and and of the actual claims there's another aspect of these decisions that remains of overarching concern and that is the consistent hostility of the courts including the Supreme Court of Canada to positive rights claims in the Cambie case the section 15 claim was not pursued it was very weak and day dropped it but the section seven analysis is pretty interesting in that perhaps one could say an obiter but in paragraph 338 of the court of appeal judgment the court of appeal suggested that when the province assumes monopoly power over the provision of medical services it is under a constitutional duty to insert to ensure that health services are provided in a timely fashion fashion based on need rather than ability to pay so what the court in can be recognized was what we are doing in show me which that was that if people who could afford care had a section seven right surely people who couldn't afford care had a section seven right to care as well in to say the in granting the stay the court of appeal really focused on the individual damage claim and did not really even allude to the systemic claim certainly at the trial level justice parole rejected the ag's suggestion that it is settled law that section seven does not impose positive obligations on governments but it remains that judicial hostility to positive obligation claims is a major if not the greatest hurdle to determine social determinant of health related claimants not just under section seven but as the tenor Georgia case demonstrated more problematically even under section 15 there is hostility which is a a textual guarantee of positive obligations even under section 15 when it comes to social determinant of health related claims the courts have been hostile to the idea that governments are obligated to do anything to ensure life security or equality so the last thing I would like to address briefly is the implications of can be in to say for charter challenges to the criminalization of possession of drugs and to potential challenges to government's failure to ensure a safe supply of drugs for those who use them the decriminalized the challenge to the criminalization of possession of drugs actually is already in the works and some of you may be involved in that litigation that is an easier claim because it is a negative rights claim so it will really hinge on the court's approach to the evidence and whether the court relies on stereotype or whether it carefully examines the evidence of the multiple harms caused by the criminalization of drug possession and that will be true both for the life liberty and security of the person analysis but also in terms of the arbitrariness analysis under the principles of fundamental justice it's going to really hinge on how the courts treat the evidence are we going to get a show you to say a federal court approach or will we get a can be approached the potential charter claim both section seven and section 15 claim that governments failure to ensure a safe supply of drugs for people who use them that will also hang on the treatment of the evidence and whether courts apply the same double standard or not as between claimants and government defendants again in terms of evidence of the harm caused by lack of access to safe drugs and two evidence around who is disproportionately affected by the failure to ensure access to safe drugs but even more importantly an access to safe drug charter claim will the successor failure will hinge on how the courts frame the claim again because it is a positive rights claim the question will be whether the court examines the actual harm to life liberty and security that results from state action and inaction around safe supply or whether it adverts back to the traditional argument that there is no freestanding right to in that case drugs pharmacare in terms of sexual section 15 as I say there is a high probability of the same hostility to a positive rights claim to access to safe drugs even though even though section 15 of the Charter guarantees equal protection and benefit of the law and the Canadian health care system has all kinds of structures rules and processes in place to ensure that people who need other drugs are guaranteed safe drugs so everything from the Food and Drugs Act to the whole regime for ensuring the safety of pharmaceuticals so we all benefit from that protection of the law the fact that people who use illicit drugs don't enjoy the same level of protection by virtue of the nature of the drugs they use or the underlying health condition that section 15 claim will really hinge on the court's attitude towards positive rights and who claims positive rights as opposed to negative rights so who has access to safe drugs the provision of safe drugs and access to safe drugs through pharmacare regimes who has access to regulation of drug safety and who doesn't and more importantly why not so I would suggest that the Canby case is extremely promising especially in terms of the court's treatment of the evidence which was rigorous and which also took full account of the impact of allowing private insurance and care on people who are poor and ill and unable to buy or qualify for private care it remains though even with Canby which is on appeal to the Supreme Court so we still have that question mark that Medicare is an extremely popular program in Canada and that is not true of access to illicit drugs. I think the fate of the Toussaint case and in particular the systemic claim in Toussaint will ultimately be more revealing because in Toussaint you have the same hostility to a group that is affected and that is seeking to benefit from a pause of right and you have the same hostility to the claim itself the idea that governments in Canada have a charter obligation to provide benefits when they don't want to to groups that are unpopular so the juries out on both those cases given the appeal application for appeal in Canby and the fact that Toussaint is still fighting to be heard on the merits and is facing potential of being struck before it's even heard. So in conclusion I have to say that I remain after all these years firmly committed to the idea that the charter can function as a valuable accountability mechanism in terms of access to determinants of health including health care and while I'm not always optimistic I am absolutely convinced and there is no doubt in my mind that this is a tool and a terrain that we must continually continue to aggressively deploy and occupy and the cost of not doing so and of seeding that tool and terrain to Dr. Day and his help in my view is immeasurable. So thanks very much and I'm really looking forward to questions and I'm just I hope I didn't go over time in my own comments. Tom we've got until 20 after if we if we like to take all that time and I also have folks online here so I'm going to be watching there's about 26 folks sitting online as well so I'll be watching for their questions not going to stick up my hand from time to time I'm saying that for your benefit folks also who are online if you want to put a question in the Q&A box I will read that out folks but we can open up it up to the audience to folks have I can ask something just to get things started yeah please don't be shy don't be shy at all so one question I have goes back to this freely I think very profound but very challenging observation that you make about the reception of evidence on the part of the judiciary and I can't help but you know think as an expression of that of the very different responses to the evidence or at least in Justice Perrell's case the prospect of evidence I guess because you know he's at that early stage on his part where there's just no tolerance for some of the claims that are being made by the federal government really about the jurisprudence and the trial court judge I can't remember his name now in Gosselin so the first level judge there so much is riding on that first level judge and they're filtering of and analysis of that evidence and so I wonder if you have observations about kind of what what the strategy is in order to kind of preempt that kind of stereo the typical screen yes blocking the yeah reception of the merits of the evidence that you pointed out in so many of these cases yes well I do and it it doesn't always work but one one big difference and I've pointed this out before as well between Gosselin and then show Lee Gosselin and show Lee actually both all the way to the Supreme Court of Canada is because these cases were argued in Quebec entirely in French they were off the radar and it was only at the Supreme Court of Canada in both cases that there were any interventions and clearly those interventions were not that successful but I think what the interventions did is that they they called out you know what Justice Reeves did and and Justice Reeves actually his judgment was appalling I mean he he right in his judgment the stereotype about why are people you know complaining about inadequate assistance when the evidence shows that they spend this you know they're disproportionate smokers and they spend all their money on smoking you know and the idea that poverty is a matter of moral failing like he it's right in the child judgment but it really it wasn't that scrutinized outside of Quebec and in Chaudry was worse because all this everything was French entirely unilingual French even at the Supreme Court so that it meant that the presence of interveners was really circumscribed and by the time it gets to the Supreme Court so that Charter Committee on Poverty Issues in Canadian Health Coalition was did appear in and show Lee and in Gosselin Vince Vince and I were at the Supreme Court as well for Charter Committee on Poverty Issues you can't say anything about the evidence when you're when you can't add to the evidence as an intervener but you can certainly describe what happens in terms of the treatment of the evidence but I think as I say by by by the Supreme Court it's getting kind of late and I'm not saying this always works because in in Tenu Jaja there were several coalitions very well crafted coalitions of interveners including the Charter Committee on Poverty Issues and Justice Letter didn't care he just what he was so hostile to the claim didn't matter and it was a motion to strike so in theory the evidence isn't even relevant you're meant to assume that the evidence is proven and even assuming that he his doctrinal hostility was so great that he stuck it. Canby was a completely different kettle of fish having seen what happened to Chaudry in Canby right from the trial level groups intervener groups obtain party standing and intervener status right at trial and they were very engaged with the BC government in terms of the evidence it was it was so on the public radar and every false thing that Dr. Brian Day said was then called out in the media there were people literally attending the trial day by day in reporting the BC health coalition had a really live interactive social media presence in it and so it just the the issues around the impact of what Dr. Day was calling for on everybody else it just the court there could not ignore it the way the Supreme Court was able to do in such an unaccountable and really immoral way in my view so this is my point about about interventions in a way or the presence of non-governmental organizations and advocacy groups supporting this litigation I know we are few and far between your stretch very thin but it's really important I think to be paying attention and either to be participating to the degree possible in in the court itself in the interventions or to be you know engaged in op-eds and other forms of advocacy in the public arena and that happens so effectively in in Canby I think it's going to be very hard the Supreme Court could never pull off in Canby what it did in Chaudry it just can't happen that the media and public scrutiny is far too intense so in a weird way that has nothing to do at all with the evidence it has to do with calling out DAG for the kinds of you know what Pharrell calls you know the dog whistle arguments that are always so successful so you can't blame them for doing it their job is to win the case so calling out DAG and calling out the courts when when the rule based on stereotype as was so much the case in Toussaint rather than evidence quick follow-up and I will go to Matt and then I have one online so just my quick follow-up I just want to kind of amplify what you said and point it out particularly to the students who are here and online and and the rest of us that I asked you a question which was kind of a it was kind of a lawyerly question or it had that fake kind of pass to it like how could lawyers vast kind of like assemble the evidence in order to preempt this stuff and your response was so interesting and it reflects your your career of work and the work of many doing social justice litigation your response was to say the the audience here the forum here is much broader than the technical kind of lay nations here and so not only the intervention piece but your piece about having people in the courtroom at the first instance like it can be tweeting things or whatever it's a really it's in a sense it's an unconventional response for a classroom because you're opening up the field of apparently like you know legal treatment of this thing to the field of politics but that's absolutely the pragmatic right approach that that I understand you to be yeah well law law is politics exactly yeah and that's what always pisses me off about the crits is this idea that we shouldn't be using the charter we shouldn't be litigating you know when they join the the critic charter critics of the right the idea that the the court is not the forum like what this is all politics but I don't want to understate how brilliant and clear and keep it simple stupid your legal advocacy has to be you have to be like twice as good a lawyer as the government lawyers because of because of your uphill climb and the demands on lawyers that work on these claims to be like amazing lawyers and to deploy every legal skill that you've ever acquired including clear writing and clear speaking like you can be a government you know you can when you're even even Brian Day's lawyer like you can blah blah blah and just a dog's breakfast and they like what you're saying and they're maybe going to rule for you but if you're arguing for the claimants you you just have to be so clear and it's hard because the issues are complicated thank you all right not to have this kind of let me see thanks so much um I guess I want to talk about the drug stuff that you uh sort of included but um like you I I hope in the deeper motivation case claim um there's a lot of detail in it so should we just see and I wish some folks across the art today but um I'm wondering if you could just reflect on our elaborate a little bit more about the second case around 6 to 5 because my knowledge hasn't actually started I'm really curious if you have any questions it's kind of a technical learning question as well but around like how do I um you know we're thinking about the jurisdictional boundaries but you probably it's often sense or that's where the delivery would actually happen of course the regulator federally and the role in the future for the drugs are available on parking yeah um and there's been this change right where Canada is actually doing a thing to stop short of that yeah no it's a great question and to be honest the the decrim thing is the easier one and I have written it's it's on SSR and if you want to see it it's like a like really conventional charter analysis under section 7 and 15 why uh criminalization is a charter violation and the paper almost wrote itself you'll note that the companion piece around charter challenge to safe drugs that I just have not had the wherewithal and I'm like spitting distance to retirement and it's kind of between me and retirement I don't know but anyway because big picture the claim is that the and I would start with I would start with the federal government in part for very pragmatic reasons court challenges funding I would start with the claim that the failure the federal government's failure to the federal government's inaction which I know is tough but in regard to the safety of the illicit drug supply relative to the safety of the illicit drug supply is a section 15 violation so at the federal level we have the Food and Drugs Act and we have all the interventions of Health Canada to make sure that when I got my COVID vaccine it wasn't going to kill me notwithstanding what the uh Daniel Smith might have you believe um whereas it's there've been very you know in action or ineffectual action in terms of uh illicit supply so you start you could start with the regulatory double standard um and then the uh I mean the actual the the supply side that again is a little bit tougher because the Canada Health Act doesn't include doesn't include drugs and we still don't have a pharmacare act like I think the minute the Pharmacare Act if if the NDP and the Liberals do finally not list any multiple broken promises on that that would make it easier I think that if the decrim challenge is successful then that also in a way becomes a little bit easier because that line between but I get that like the big the really big picture claim is protecting one consume one consumer of drugs and leaving the other consumer of drugs completely out of the cold um but it conceptually it's it's I get it's a lot harder because what you really you don't want regulation you want supply it's not just the safe it's the supply and we don't we do have supply in hospital um province by province that you know I get the jurisdictional issues and and the fact that it's a focus on supply rather than regulation like I get it's really complicated and that's what I just myself haven't had time to really sit down and think okay how how to do this and partly the other case I didn't mention which is the dark shadow overall this is the Auton case where essentially Chief Justice McLaughlin said and it has to be doctrinally wrong but it's a unanimous Supreme Court judgment that when you're within the four squares of the Canada Health Act you can challenge discrimination but you can't she she basically says you can't challenge the act itself it was designed to include only acute healthcare delivered by doctors and hospitals and she basically says that is that's immune from section 15 review which can't be true but if you're trying to challenge the Food and Drug Act or the Canada Health Act from outside so the idea that Canada Health Act or the Food and Drug Act does not include um equal protection for people who consume illicit drugs the first thing the AG is going to argue is Auton so Auton will have to be reversed on that and it is wrong like section 15 like any guarantee of systemic equality tells you and and I know Vince is working on this in the in the housing access to housing for people with disabilities like the idea that you designed it so that people are institutionalized and as long as you don't discriminate against people who are in the institution there's no problem like that cannot be right but that's what Auton says so my answer is I'm sorry I don't entirely know yet and I'm and I don't know if I'm going to get to it it's as some of you know I was motivated to um decrim is not my area criminal law I've avoided like a theme for my whole career I've left it to Lishi and Kim it's like um but my niece died of the of a jug over dose and white horse my indigenous niece died and I just promised myself I would I would you know try and do something about that but it's it's really hard well I see Archie has a question Archie I'm just kind of wet and because this person online has theirs up right from the start and then I'll go to you so a question is as we increasingly see the health impacts of climate change maternal rights be leveraged for climate action by federal government a great question and the answer is absolutely yes and um the the climate challenges the charter based climate challenges are facing some of the same hurdles as other determinant of health challenges and as you know the two youth climate emergency charter challenges one got struck and one's going forward so the mother case was just argued like a couple weeks ago um and and they that is a beautiful case and beautiful legal arguments essentially that inaction governments actions and inactions around the climate emergency violate the section 7 of 15 rights of young people who are going to live with the consequences and again I think doctrinally it's really solid um but it's a positive rights case to some degree and it also is a case that's going to hinge very much on the evidence and so it will depend on the attitude of the judiciary I think judges probably are less hostile to uh climate cases than to uh right to health poverty and immigration cases just just because but yes absolutely and Natalia Shalifood and some of her colleagues um there's a an entire special issue of a recent environmental law journal that's devoted I believe to big big paper that Natalia and some of her colleagues wrote really elaborating the section 15 claim so there's a rich for a long time there was almost nothing and in the very beginning of my career I actually did write a few papers making the same arguments about environmental regulation as I did with health and then I kind of got you know knocked off track on that and not a lot happened for like 20 years and then David Boyd's done some stuff with my colleague Linda Collins and Natalia and now I think it's I think it's really really really rich scholarship emerging in that night in some ways I wish the same enthusiasm was being deployed by young scholars around poverty and other determinants of health as climate but I get the climates you know climates are really important so yes the answer is yes and go for it. I'm delighted to address this issue today about the potential of this people in Canada on decriminalization issues but in a number of areas I'm particularly frustrated by the resistance of Canadian courts who considering the input of the special record tourists on the high-risk input right to physical and mental health specifically on the decriminalization agenda because it's been since 2006 that the XRs have said that harm reduction in the decriminalization specific should be part of our understanding of the importance of international decriminalization. So it's more of a question in the exasperation why is it a problem and why are the courts in so immune to people considering international decriminalization? A great question and nice to see you the in every single case that I've been involved in since the early 90s we have argued ccpi's consistently argued international human rights norms as the interpret and necessary interpretive context for charter rights it's the court rarely even mentions it in its judgment in in to say you get hostility to the idea and basically again the AG is arguing that these these commitments have no domestic legal significance whatsoever and the response the Canadian government's response in Tuesday is really classic we disagree with your interpretation in any way we don't have to do anything. So I think it is in a sense sort of the same problem for a long time I said okay well any judge that's my age didn't even get any international human rights law wasn't even taught when I went to TOT we had public international law and nothing else so maybe they're ignorant but now I think the last decade it's not just an issue of judges not being familiar with international human rights law I think the judiciary is changing and I personally think that there's going to that is going to swing the other way as you get a greater and greater cohort of judges who are not intimidated by and in fact some of them very fluent in international norms and again my point about the interventions in both in Tenujaja and in Toussaint and I hope it'll be true in the drug decrim case as it moves into the courts more firmly that you know ESCR net amnesty like there's there's been a coalition constructed that focuses exclusively on the international human rights arguments and so they take more place you know rather than a paragraph or two in somebody's factum they're actually getting entire interventions that are that are focused on this and Toussaint will be very key because what we're arguing in Toussaint is the failure to take into account these norms is a violation of the principle of fundamental justice and the doctrine is there you know like internationally practice in Cervantes is a well-recognized norm of customary international law so even by La Mer's standard or the Kazimi standard it should be a principle of fundamental justice and so I hope that in the in the decrim case that there will be an effort not just to argue them generically in a way but to argue as a principle of fundamental justice so failure to decriminalize is not only arbitrary because it undermines your public health and safety objectives it's arbitrary it's a violation of the principles of fundamental justice because it violates the principle of practicing Cervantes which Canada has committed to to to treaties where it is it's like universally I mean the Canadian chiefs of police agree with this that's why I think the decrim one is a bit easier because society is moved in a way maybe I'm a really optimistic but I feel that it's not just you know the unanimity of international human rights bodies it's actually unanimity of Canadian public health and even criminal criminal policing bodies now but again that if that the paper that the draft paper that I have for Vanessa Grubin's harm reduction book which is available on SSRN or you can just go to my UO website and it's there with the link I do if I remember correctly I do I do refer to the international human rights norms as principles of fundamental justice that would be violated so I'm the hostility is the same the doctrinal response I think I think the pendulum is swinging I hope well that makes me optimistic so I'm used to being optimistic me too upon our time as a basic letter it's been our hostility towards and was in the closet of obligations on the state under the action of clever and the others of this great privilege could be a moment where he's accountable to their health programs to their life certifications health and social justice use of living doctrine of constitutional analysis to kind of broaden the judicial interpretation of the charter well under section 15 you shouldn't have to use living treat section 15 says everyone's entitled to equal protection benefit of the law so that's what was shocking about 10 to judge it is that the trial judge said there are no positive obligations under section 15 the court of appeal didn't rule on that spring court of Canada refused leave to appeal like unbelievable and in gas name the supreme court said we're leaving the door open so the possibility that sections seven could be invoked to claim a pause a pause of right pause of tempos positive obligations they left the door open on purpose the trial judge in Tana Jaja said there are no possible obligation bus nice says there are no positive obligations so the trial judge misread and overturned us name and the supreme court denied leave to appeal and actually a bunch of you I hate to say your first year charter prof may be telling you the customer says there are no positive obligations under section seven they didn't read the case that's not what it says but that the AG has argued this over and over and we have not called them on it and my colleagues often don't reread the case and they're teaching it and suddenly it's said a law that there are no positive obligations under section seven so we shouldn't have to talk about living tree I want to go back to the charter I got in 1982 and the legislative history of that charter section 15 is a positive rights guarantee and there's all kinds of context about section seven and positive obligations the language doesn't preclude it deprivations the language of being you have a right and you have a right not to be deprived deprivation is not and it's not as strictly it's that's a political campaign started by my dearly departed colleague professor peter holland to shrink section seven down to far less than it was and you know and cary frock has done beautiful work on this originalism like section 15 what we need is originalism not living tree so and in fact again the latest my colleague one may need my last paper pre-retirement again get it on ssrn and that's what it's called wisdom stumper living tree about section principles of fundamental justice which lemair's decision in the motor vehicle reference opened a real wide door including to the idea that international human rights norms would be principles of fundamental justice and spring quarter with his whittled it down to now it's just arbitrariness and if your objective is discriminatory so long as the means you adopt is rational it gets through section seven this makes no sense so i i i love living tree but i do not want to concede that the charter reenacted in 1982 does not include everything that i need to protect human and planetary health and well-being and the idea that we need to amend the charter it's not there that we need to read it like a living tree that should be your backup your first your first line of defense is it's already in there give me the rights that are in there well ask your professors to stop assigning it you buy it i don't know what it costs but it costs a lot tell them to sharpen roach it's cheaper and it's better any public law process still teaching that there's no positive rights obligations under section seven let us know yeah that's right lead to your feet yeah but we're we're getting close to the end of our time but i see benz had his hand up so i would love there a minute yeah he should definitely get the last word yeah we have some questions for the last but in your talk and you're thinking of the same case and just now you know when you flip up and there's a tendency and i've been there many times to say this is not to the court this is not a case this is a case of the impact on the one on the other hand yeah and vince nice to see you thanks for everything and if that's what i you heard or i said i misspoke it i what i'm saying is what we have here is is a harm to life and security that results from action and inaction and to fix it there may be a negative rights dimension there may be a positive rights dimension but i would i i hope i would never concede and i hope i'm not being heard to say that my objection to them saying you lose because you're demanding a pre-standing right to health care i'm not saying i'm not saying that the charter doesn't guarantee me a right to health care i'm acknowledging that the right to health care is not in the charter it's a right to life and security but the right to life and security entails access to health care based on need not ability to pay so it has to be publicly funded so it's more that it's more an issue of focusing on the life and security harms through action and inaction and rejecting the idea that that means you're claiming a pre-standing right it may translate into a right to publicly funded care but my claim is not a right to health care when that's not in section seven my claim is to life and security all right well there it is actually going to be a part two to this and i'm going to tell you about that uh as i have you uh join me in thanking professor jackman so thanks so much for the lecture and the conversation uh today on charter rights and wrongs and and on the role of law which includes of course reluctant courts sometimes reluctant courts as well as publics um in this project of you know ensuring equitable access to social determinants of health uh and more broadly you know distributive justice so um such important work i want to alert people to two things one is that we are having kind of impromptu fairly recently convened workshop that starts at two o'clock in the same room from two to three thirty with some folks attending martha is going to be there along with a couple of co-panelists vince calderhead who you heard from earlier today as well as david taylor a former student who has been very active in the first nation's caring society case which has a number of you know really interesting angles on systemic injustice and systemic remedies and the um the topic for our workshop is uh thinking backwards from systemic remedies in health and social litigation so you heard a little bit about the barriers to going forwards moving forwards even from the ground level of you know getting past a motion to dismiss on summary judgment so how much work there is to build up but um we're going to be thinking about the remedies design uh in these kinds of cases and you're very welcome to come again that's at two o'clock uh today um and sorry for late notice on that but it's just a smaller event and the second thing i want to tell you about is our next health law and policy lecture which is friday november fourth same time same place and we love it when you come in person but we're also very happy to have you come online and that one is professor gene pra who is the founder of the health equity and policy lab at the university of pennsylvania um oh i just recognize that i misspoke she's giving her lecture online so this one if you bring your warm body you can come and spend some time at the law school and watch your screen because this is an online lecture friday november fourth same time not exactly same place and her topic is operationalizing health justice through the health capability profile okay so please uh join me in thanking now professor jackman