Law Times

Law Times • June 18, 2018 Page 7 www.lawtimesnews.com May their memory be a blessing BY DORON GOLD T his Lawyer Therapist column to which I've been honoured to contribute since 2013 isn't about me. I may occasionally make ref- erence to myself as a therapist or as a for- mer lawyer or student, but the purpose of these musings is to humbly inform, enter- tain and affirm the reader about issues of human vulnerability, mental health, ad- diction, self-judgment, compassion and their intersection with membership in the legal profession in Canada. Now that I've said that, I want to talk about me for a second. I'm very sad. Very sad, indeed. Anthony Bourdain is dead, the appar- ent victim of a suicidal act that ended his otherworldly life. To be clear, he didn't "commit suicide." You commit a crime. And suicide is no crime, no matter how tragic and painful and even hurtful to some. If I must refer to it, I'll allude to his completed suicide. It may be a technical- ity, but it's one I consider important. Either way, he's dead. He killed him- self. Hanging, we're told. His friend, Eric Ripert, the lovely multiple Michelin star chef (for whom my wife says she has con- sidered leaving me) was the unfortunate person to have found him in his hotel room, unresponsive. By my humble esti- mation, a deeply talented, thoughtful and profound a person as has ever walked the earth ceased to exist. Something we can- not comprehend compelled him to end his own life. He has an 11-year-old daughter who one cannot imagine will ever recover fully from this trauma. He has a force of nature girlfriend, the actor and artist Asia Ar- gento, who, after a lifetime of traumatic experiences — not the least of which was alleged abuse by Harvey Weinstein — is forced to endure yet further agony. Pain begets pain begets pain. There's no shortage of it in the world, some compre- hensible, some not at all. If the uncomputable nature of one suicide weren't enough, the spectacularly creative and original designer Kate Spade took her own life recently as well. She, too, leaves behind a grieving daughter as well as a husband. As I think of her, my mind then goes to per- haps the favourite performance artist of my lifetime, Robin Williams. I loved him since Mork from Ork made this little boy laugh and feel a little better about himself. Is there something about outsized talent that leads to an inability to cope with life? Is Icarus afoot? I've heard a few people desperately reaching for explanations, trying to un- derstand the unfathomable. Some of that is based in fear for ourselves or those we care about. For some, it's an intellectual exercise. Still others take voyeuristic in- terest in this age of celebrity and personal dramas aired for public consumption. Here's my take: Life can be hard. Mental illness can make it harder. Loneliness and self-judgment can make it unbearable. Isolation and myopia can be fatal. This, to me, isn't about ge- nius or celebrity or talent. It's about basic humanity. Per- haps some are more suscep- tible to depression or suicide than others, but life presents its myriad and various chal- lenges to each and every one of us and we all sometimes have difficulty coping. Not every- one finds it so hard to cope that they consider ending their lives, but more do than you would think. I've been known to say that suicide is rare and pervasive. By a wide margin, most people don't so much as attempt suicide . . . and too many do. It's not an amoral, selfish act. It's the act of a desperate person in agony, seeking relief from intolerable pain, sometimes even, in a perverse bit of self-delusion, seeking others' relief from having to deal with us any further. Simply put, it's the extreme act of a person reaching for a per- manent solution to a temporary problem. So, here I thought I was writing about my feelings and, instead, I guess I'm writ- ing about all of us. This profession of ours is full of brilliant, talented, thoughtful souls, strong and accomplished and no less vulnerable to pain and sadness than any other less famous or "successful" souls. Giants like Gerald Le Dain, Or- lando Da Silva, Michelle Hollins, Patrick LeSage. All, as it turns out, human beings like the rest of us, susceptible to the vicissi- tudes of life and the impact that those have on our mental health and quality of life. In fact, a recent study from the University of Toronto suggested a greater incidence of depression among "successful" lawyers, meaning those with more prestigious, higher-paying, higher-workload jobs. So, after all of this, can we once and for all dispense with the myth that people who are depressed or anxious or addicted or who succumb to suicide are weak or of bad character? Do we ever say that about cancer patients? Can we stop falling into the Darwinian fallacy that those who avoid the most daunting mental health challenges are just stronger than others? Can we allow that, in whatever station one finds oneself in life and career, we're all ultimately the same? The ultimate commonality among all of us is that we all have our stuff to grapple with. The less we judge — ourselves or others — and the more compassion we show — to ourselves or others — the better off we'll be. If you're struggling, don't suffer alone. Reach out to a loved one, a clergyperson, a therapist, a helpline, a friend, a colleague, your local Lawyer Assistance Program or anyone who will listen with kindness. You're not alone. May their memory be a blessing. LT uDoron Gold is a registered social worker and a former practising lawyer. He works with lawyers and law students in his role as a staff clinician and presenter with the Member Assistance Program as well as with members of the general public in his private psychotherapy practice. He's avail- able at dorongold.com. Tribunals should consider Charter claims BY HASSAN M. AHMAD A bout the Charter, Pierre Trudeau poig- nantly remarked, "I saw the Charter as an expression of my long-held view that the subject of law must be the individual hu- man being; the law must permit the individual to fulfil himself or herself to the utmost." Ostensibly, the Charter expanded an individual's ability to seek civil remedies against the state. Nevertheless, its drafters did not delineate the spe- cific forums in which such a claim could be brought. Rather, s. 24(1) was left to state that "[a]nyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of com- petent jurisdiction . . ." The provision's open-ended wording calls for a competenz-competenz inquiry to determine which venues are, in fact, a court of compe- tent jurisdiction. Since the Charter came into force, numerous Su- preme Court decisions have considered what consti- tutes a court of competent jurisdiction sufficient to award Charter remedies. In Mills v. The Queen, the court held that a court or administrative tribunal was a court of competent jurisdiction for the purposes of s. 24(1) merely if it had jurisdiction over the person, subject matter and remedy sought. Slaight Communications Inc. v. Davidson, a 1989 decision, took an even broader stance by concluding that any exercise of statutory discretion is subject to the Charter and its values. Subsequently, in a trilogy of cases highlighted by Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), the court concluded that specialized tribunals with both the expertise and authority to decide questions of law are best positioned to consider Charter remedies related to their statutory mandate. In 2010, the Supreme Court in R. v. Conway was again asked to consider whether an administrative tribunal can render Charter remedies. Conway con- cerned the Ontario Review Board's jurisdiction to hear allegations of Charter violations against a criminal ac- cused when he was detained in a mental health facil- ity. The court appeared most concerned with devising a scheme where individuals could systemically bring Charter claims in the most accessible forum available. The court aimed to avoid bifurcating proceedings in which statutory breaches fall under the jurisdiction of administrative tribunals and Charter claims under Superior Court jurisdiction. The court consolidated its previous decisions and devised a new approach to Charter claims before administrative tribunals. It out- lined a two-part test to determine when an adminis- trative tribunal can render a Charter remedy. The ini- tial inquiry is whether the tribunal can grant Charter remedies generally. This inquiry considers whether the tribunal has the implicit or explicit mandate to decide questions of law. If the initial inquiry is answered in the positive, the tribunal is a court of competent jurisdic- tion and can consider and apply Charter remedies in matters properly before it. The second inquiry then is whether the tribunal can grant the particular remedy sought under its statutory scheme. Conway authorizes administrative tribunals to award Charter remedies so long as they can decide questions of law and have the statutory authority over the remedy sought. Under that rubric, provincial hu- man rights tribunals should be able to award Charter remedies. Confoundingly, the Human Rights Tribunal of Ontario has ignored Conway and refused to consider Charter claims outside of those alleging that the Human Rights Code breaches a Charter provision. For instance, in Hendershott v. Ontario (Community and Social Services), a 2011 decision issued less than six months after Conway, a tribunal arbitrator held that "[w]ith respect to the Charter, the complainant is not challeng- ing a provision of the Code itself under the Charter and therefore my jurisdiction is limited to adjudicating this matter in accordance with the provisions of the Code." Cases after Hendershott have concluded that the tribunal does not have the jurisdiction to hear stand- alone Charter claims, e.g., claims outside of those asserting that the Code violates the Charter. The tribunal's decisions rejecting its jurisdiction over these claims all cite back to Barber v. South East Community Care Access Centre, a decision rendered prior to Conway. Therefore, the tribunal has ignored Conway's con- solidated approach to Charter claims before admin- istrative tribunals and persisted in jurisprudence that contradicts the Supreme Court. This has resulted in what the court was trying to avoid — a bifurcated sys- tem where statutory claims are brought before admin- istrative tribunals and Charter claims brought before Superior Courts. The tribunal would be a welcome fo- rum for applicants contemplating stand-alone Charter claims as it does not have costs consequences. Pursuant to Conway, administrative tribunals can and should consider stand-alone Charter claims. Any- thing less restricts an applicant's ability to access Char- ter remedies by forcing them to commence claims in Superior Court, an approach that may result in costs consequences. Compensatory, equitable or punitive damages claimed through s.24(1) are remedies over and above what the statutory schemes of some admin- istrative tribunals provide. Conway's consolidated test is ripe to be applied by administrative tribunals across the country rather than the restrictive approach previously taken toward stand- alone Charter claims. Arbitrators are duly qualified (and obligated under Conway) to undertake Charter analy- ses to determine violations and damages remedies. This is corroborated by the tribunal's pre-Conway jurispru- dence that allowed arbitrators to determine whether the Code is in violation of the Charter. In the end, restrict- ing a tribunal's ability to adjudicate stand-alone Charter claims falls short of its purpose of identifying the indi- vidual as the subject of the law able to fulfil himself or herself to the utmost. LT uHassan M. Ahmad is a human rights lawyer and doctoral candidate in the Faculty of Law, University of Toronto. u SPEAKER'S CORNER COMMENT The Lawyer Therapist Doron Gold

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