Talking Rights & Freedoms with the CCLA’s Michael Bryant
Walk five minutes east from Eglinton subway station past city arteries exposed by crazed LRT construction and take a left at the lights. Nine floors up, you’ll find seven people in seven offices working carefully and conscientiously to protect rights and freedoms that most of us probably take for granted. Those seven people – five directors, an articling student, and a fundraising manager – form the Canadian Civil Liberties Association, and Michael Bryant is their general counsel.
If you picked up a newspaper between September 2009 and June 2010, you probably already know who Bryant is. A former Liberal MPP for St. Paul’s and Attorney General for Ontario, Bryant was involved in a driving altercation with bike courier Darcy Allan Sheppard one August evening in 2009. Sheppard died at the scene and Bryant was charged for killing him. Allegations of criminal negligence and a media frenzy lasted until the prosecution dropped all charges against him ten months later for “no reasonable chance of conviction.”
Bryant has written an honest book on the incident, entitled 28 Seconds. However, rather than explore his past, I wanted to talk about the present and future. I found Bryant sitting in his windowless office, Reggie the terrier at his feet, surrounded by framed moments from a political past. Headlines mark the Ipperwash Settlement and his upset election to provincial parliament, a snapshot captures him smiling next to Jean Chretien. Curious readers at Osgoode can get a glimpse of Bryant outside Room 2002 in the upper left corner of the 1992 graduating class composite- just above the guy with the great moustache.
Bryant, who used to box recreationally and still holds himself like a fighter, uses plenty of combat metaphors – court challenges are always ‘fights’, and injustice requires you to ‘punch back’. To continue the practice, one could say that 2019, Bryant’s first full year at CCLA, was a year of many bouts and even some knockouts. McFarlane v Ontario precipitated the reform of Ontario’s sexual education curriculum, (“although we lost in the court we won in the legislature,” says Bryant); CCLA v Canada ended solitary confinement as we know it (“probably the most important litigation success we’ve had in a long time”); R v Le saw the Supreme Court affirm that the carding by Toronto police of five young racialized men constituted arbitrary detention; and, in Kosoian v STM, the Supreme Court awarded $20,000 to a Montreal woman arrested and fined for the deplorable act of refusing to hold a handrail in a metro station.
Ongoing cases include the fight against Quebec’s religious symbols ban (CCLA is currently seeking leave to appear before the Supreme Court)- a legal challenge launched last fall against the carbon tax stickers mandated by Doug Ford’s Provincial Conservatives; and a legal challenge against Quayside, the planned neighbourhood on Toronto’s east waterfront proposed by Google-affiliated Sidewalk Labs and referred to as a “dystopian, Google, smart city” by Bryant.
Concerning Quayside, Bryant is optimistic- “I think we’re gonna win this one.” That’s positive news for those of us who grew up swimming at Cherry Beach or throwing rocks at abandoned buildings on Commissioners Street. It’s also good news for those of us worried about the steady creep of big data into the fundamentally personal minutiae of our lives. “The fight over privacy and Quayside is about surveillance. It’s about people being watched by people in power- in this case, in the absence of any legislation.” And CCLA can’t demur because “this is a case about rights and freedoms- day to day privacy, liberty, and the right to be a face in the crowd.”
But efforts to cancel the contract between Waterfront Toronto and Sidewalk Labs reveal a paradox at the heart of CCLA’s work. In defending the civil liberties of Canadians – your legal rights against unjust governmental interference – CCLA sometimes has to ignore the will of the people it seeks to protect. A slight majority of Canadians support the proposed smart city and an overwhelming majority have accepted the age of surveillance capitalism into their pockets and homes through smart phones and smart assistants like Alexa or Google Nest. So surely, in a city addicted to complaining about the rent, shouldn’t the construction of thousands of new ‘affordable’ or ‘below market rate’ units by a trendy tech giant be welcomed?
These contradictory spaces are exactly where Bryant sees CCLA as necessary. “If it’s unpopular we should be there. If nobody else is standing up for rights and freedoms, we should be there.” His tough talk is also accompanied by concrete recommendations for protecting those rights and freedoms. “One thing that we could just make as a clear starting place for the future of smart cities is that no data collected through a smart city program will be provided to the police without a warrant under any circumstances. Ever.”
Bolstered by a semester of criticizing the adversarial system and with a fresh week of ELGC coursing through my veins, I pushed Bryant on his support for increased litigiousness, American-style. Doesn’t that just mean everybody ends up suing everybody else?
Bryant retorted that “we seem to take some pride in the fact that we’re less litigious than the United States. I don’t think that’s anything to brag about, that they fight for rights more than we do. That’s what it amounts to. There’s very thin jurisprudence around freedom of religion, not a lot of jurisprudence around cruel and unusual punishment, and almost nothing on the gender equality guarantee at section 28 of the Constitution. Nobody benefits from that.”
It seems unavoidable that more litigation comes hand-in-hand with more lawyers, a change that Bryant thinks would especially benefit legislatures across the nation. “Don’t think it’s a coincidence that you’ve had ministers flout the constitution in Canada in 2020 because we have less lawyer-first ministers. I don’t think that any lawyer Prime Minister would tell an Attorney General what to do with a prosecution like Justin did. And you wouldn’t have an Ontario lawyer Premier who thought that Parliament trumps the Charter of Rights when in fact it’s the other way around. But that’s just a sign of the times.”
I felt additionally obliged to ask an Osgoode silver medallist and former Supreme Court clerk his advice on how to achieve academic success. Bryant’s response was practical. “Pace yourself. What does that look like? I don’t know. Just pace yourself.” Elsewhere, Bryant has attributed his success at Osgoode to writing three practice exams for every one actual exam, because “exam writing was a skill and, like any other skill, something you had to practise.” His only law school regret was taking Tax – “I didn’t need to take tax. I didn’t want to take tax.” But no one is immune to peer pressure, especially from a Supreme Court justice.
“McLachlin said, ‘you should probably take tax’. She admitted it wasn’t her forte. But the truth is that the tax cases were written by Frank Iaccobucci, and McLachlin wasn’t going to go anywhere near them. You know, maybe I misheard her. Maybe she said, ‘eat flax’. Anyways…”
Throughout its almost six-decade existence, CCLA has found itself opposing progressive organizations and presumed allies such as the Women’s Legal Action Fund (over obscenity provisions in the Criminal Code) and the Council of Canadians with Disabilities (over R v Latimer). This phenomenon reflects the evolving nature of civil liberties advocacy to Bryant, for “civil liberties has been fragmented into specialities.”
Some symptoms of fragmentation are evident even within his own staff. “We might have our equality director appalled by a law whereas our free speech director is not. But we have to work it out internally. And then we deliver that decision to the courts. That is a value that we can bring and that we will always bring.” Ultimately, a group focussed on one right or issue allows for the enunciation of that right or issue “loud and clear. And as an organization that supports free speech, we can’t have a problem with that.”
Leaving CCLA’s office, you get a sense of how small it is for an organization whose work spans from Trois-Rivières to Tuktoyaktuk. The furnishings are minimal and the décor is sparse- much like your first apartment during university may have been. But, on closer inspection, the 18” by 23” frames adorning the walls hold copies of the Charter of Rights and Freedoms in all sorts of dialects and alphabets. The ideas contained in those pieces of paper and guaranteed to every person in Canada are constantly in need of protection, exploration, and improvement. Anyone interested in helping out that effort – through fundraising, admin, or legal research – is welcome to get involved. Just walk 5 minutes east from Eglinton subway station and take a left at the lights.
n.b. the author has volunteered for about a year at CCLA and likes everybody who works there.