Latest / Podcasts By Donna Jodhan / Remarkable World Commentary Episode #96: Interview with Gail Sinclair, Retired Lawyer, Department of Justice, Government of Canada

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Remarkable World Commentary Episode #96: Interview with Gail Sinclair, Retired Lawyer, Department of Justice, Government of Canada · Podcasts By Donna Jodhan

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Podcast Commentator: Greetings, Donna J. Jodhan, LLB, ACSP and MBA invites you to listen to
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her biweekly podcast, Remarkable World Commentary.
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Here, Donna shares some of her innermost thoughts,
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insights, perspectives, and more with her listeners.
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Donna focuses on topics that directly affect the future of kids,
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especially kids with disabilities.
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Donna is a blind advocate, author, sight loss coach,
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dinner mystery producer, writer, entrepreneur,
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law graduate, and podcast commentator.
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She has decades of lived experiences, knowledge,
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skills, and expertise in access, technology and information.
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As someone who has been internationally recognized for her work and roles,
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she just wants to make things better than possible.
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Donna J. Jodhan, LLB, ACSP, MBA: Hello everybody, and welcome to another episode of Remarkable World Commentary.
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I am Donna J. Jodhan, a lifelong disability advocate and one who
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sees the world mainly through sound, touch and stubborn optimism.
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I am a law graduate, an accessibility consultant,
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offer author, lifelong barrier buster who also happens to be blind.
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You may know me from a few headline moments, as in November 2010,
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I won the landmark charter case that forced the Canadian government to make its websites
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accessible to every Canadian, not just exciting ones.
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In July of 2019, I co-led the Accessible Canada Act with more than 20 or more than two
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dozen disability groups to turn equal access into federal law,
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and most recently, on June the 3rd, 2022, I was greatly humbled by Her Late
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Majesty's Platinum Jubilee Award for tireless commitment to removing barriers.
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When I'm not in a courtroom or in a committee room or in a pottery studio,
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you will find me coaching kids with vision loss,
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producing audio mysteries, or helping to teach companies to make their
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gadgets talk back in plain language.
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Everything I do circles one goal, and this is to turn accessibility from an
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afterthought into everyday practice.
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I invite you to think of this show as our shared workbench,
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where policy meets lived experience and lived experiences sparks fresh ideas.
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Now, before we jump into today's conversation,
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let me shine a spotlight on today's guest, a change maker whose work is every bit as
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remarkable as the world that we are trying to build.
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I am pleased and I am privileged, and I am honored to welcome Gail Sinclair to
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our podcast. Welcome, Gail.
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Thank you Donna. So we are going to discuss your remarkable journey.
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Screen Reader: You know.
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Donna J. Jodhan, LLB, ACSP, MBA: And we're gonna start with Gail.
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Welcome to our world commentary.
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Before we get to the case that first brought us together,
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I want our listeners to know you.
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You retired this past December after more than three decades with the Department of
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Justice. What first drew you to the law?
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Gail Sinclair: Good question Donna. I grew up in a large, boisterous family where there were a lot of
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rules. My dad was a hero, but he'd drop bombs on Germany in World War
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Two. So there tended to be very firmly enforced rules.
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And as a middle child, as a girl, I wasn't always convinced that the
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rules were applied fairly or evenly.
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And so I just I wanted to go to law school to learn about rules and how they should be
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applied.
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Donna J. Jodhan, LLB, ACSP, MBA: My goodness, I can understand that because I too wanted to be a lawyer when I was growing
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up. But dad thought that the courtroom was only for ladies and so I did not belong
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there. But this being said, let's go to our next question.
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And you earned a law degree in both civil law,
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civil law and common law.
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And you worked in both English and French.
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You even began in French language and literature.
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How did this bilingual.
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Two legal traditions Foundation shape the lawyer that you became.
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Gail Sinclair: I think learning the traditions of our Canada's two legal systems and our two
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official languages taught me that there are more than one way to solve a problem,
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and they're all viable and they're worth exploring.
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And we have a fascinating country made up of different traditions,
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and it behooves us to know them and to apply them.
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Donna J. Jodhan, LLB, ACSP, MBA: Well, that is quite a feat in both languages.
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Oh my goodness, I didn't know this about you until now.
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Gail Sinclair: Well, I remember doing my civil law degree, which at Université de Montréal,
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which came after my common law degree, they said to me,
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well, you know, you can write your exams in English.
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And I thought, how silly is that?
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You study exclusively in the French language.
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In French is not a mortgage in English, it's a different legal system.
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So to say to us, for exams, you could write in English,
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I thought was a misapprehension.
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You know, the journey that you take, you are completely immersed in one world from
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another, and then you get to have this continual conversation with yourself and some
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professors who are interested in comparative law.
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Oh, that's so interesting that civil law does it this way,
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and common law does it this way.
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Donna J. Jodhan, LLB, ACSP, MBA: Oh my goodness. Now, you spent a career representing the public interest on some
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of the hardest constitutional questions that this country has faced.
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What did that work mean to you?
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Gail Sinclair: I it was a tremendous honor.
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It was fascinating. It was it it it schooled me in what I refer to as the quintessential
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Canadian compromise. Canada is an extraordinary country and still an
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extraordinary possibility.
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But we have so many people within and we have our two legal traditions,
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our official languages.
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And then we have our indigenous languages.
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We have people from all around the world.
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And to blend that in terms of the public interest was a tremendous honor.
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I think in a different life, I might have wanted to be run as a member of
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Parliament. A lot of my work was about section three,
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the right to vote And to be involved in these fundamental democracy issues in the first,
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you know, 30 years of of the charter was just fascinating and probing work about
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representation and democracy in, as we all know,
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democracy is more at risk in the Western world than it has been in many a year.
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And and so it was just a fascinating journey and an honor to represent the attorney
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General of Canada, which is to represent for the courts that balance between individual
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rights and what section one demands of us, which is effectively bringing to bear the
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interest other than the individual who is challenging the law or a policy.
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Donna J. Jodhan, LLB, ACSP, MBA: You know, I think it's so very interesting for me personally to,
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you know, hear you talk about this because you don't really have the opportunity to ask
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too many lawyers these questions.
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So I do want to thank you for this.
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And I think it's great.
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Gail Sinclair: I'll just add one of the cases that I was involved in from literally the Friday
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afternoon when it came in the door and I was acting from a manager at the time,
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was the litigation about challenging the opposite sex nature of marriage?
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And so I was involved in that case, probably,
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I'm guessing, seven years until the Ontario Court of Appeal,
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the second appellate court, third appellate court rendered decision,
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saying opposite sex marriage is unconstitutional.
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It's judge made law. And so we change it now.
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And a same sex marriage was conducted on the lawn of Osgoode Hall.
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That afternoon, the government went through a fascinating process of deciding how to
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respond to this, and B.C.
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Court of Appeal had rendered its judgment, but suspended.
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The the declaration, and I think Quebec had done so,
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or shortly thereafter, the Ontario Court of Appeals spoke,
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and the government decided that they wanted to accept these judgments of three of
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Canada's appellate courts.
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They were concerned about whether they could enact legislation to change the definition of
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marriage and get it through the Parliament of Canada.
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And so they took a reference to the Supreme Court of Canada.
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And that journey was an absolutely Fascinating journey,
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and I think I have just with my colleague Michael Moore,
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has written an article about the history of the reference and a good publication paying
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tribute to Peter Hall because he was our ultimate lead counsel.
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And it was just a fascinating journey.
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And I think what I saw some of my colleagues who I worked with were
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visible minorities who had it had immigrated to Canada and were in same sex relationships.
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And it was only when Canada opened up marriage to same sex couples that their
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parents accepted them in their love relationships.
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And that was very moving to me to see from the perspective of those parents looking to
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belong in Canada. When Canada said these couples belong.
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The parents accepted their their children's orientation.
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Donna J. Jodhan, LLB, ACSP, MBA: Wow. Okay. Very interesting.
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Now I'd like to turn to how we met on opposite sides of the courtroom.
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Here is what makes this day for me so very special for me.
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We first met because you were lead counselor for the Government of Canada,
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and I was the woman suing it over websites that I could not use for listeners who do
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not know the story. How would you describe that case from where you were sitting?
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And you can do so in any comfort level that you wish to.
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Gail Sinclair: I, yes, I'm happy to describe it.
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It's the case is Donna Jordan versus the attorney general of Canada.
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And it proceeded in federal court.
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And Donna had challenged effectively two websites and the
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standards, the common look and feel standards that Canada had at the time for departments
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and government institutions to respect to ensure web accessibility for the visually
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impaired. And Donna applied for a job, and I believe it was with with Statistics
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Canada through the Public Service Commission.
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And she found barriers on their websites.
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And so she started a charter challenge on the premise that these websites were not
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accessible to her as a visually impaired person,
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pursuant to section 15 of the Canadian Charter of Rights and Freedoms.
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The document that promises equality and equality on what are what we refer to as a
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number enumerated grounds specifically stated,
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and then analogous grounds that are grounds that have unfolded since the words were in
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the document in 1982. And so the ground was disability.
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And so our job in responding to this challenge was to find out where the
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government of Canada was in terms of web accessibility,
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and to have a hard look at these two websites.
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And then in turn, Treasury Board's standards at the time,
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which were the common look and feel standards.
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Standards which were informed by the web accessibility guidelines.
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I think 1.0 at the time, which had been promulgated worldwide.
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And what a journey it was.
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What, what a learning curve.
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And it was a case in which Donna prevailed.
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The federal court years down the road not only issued a declaration of
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unconstitutionality with regard to these websites at the time,
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but that, that the court issued a declaration that Websites well beyond those that
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were at issue were also inaccessible to a visually impaired person.
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And and all of a sudden, you know, the the case,
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by virtue of that judgment at first instance,
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became that much bigger because we had represented and had worked closely with
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Statistics Canada, the Public Service Commission of Canada and Treasury Board of
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Canada. And all of a sudden we were now representing,
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you know, at least 100 different government departments and institutions.
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And there was quite a hoopla because you smile.
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We cannot represent some of those entities because they have independence from the
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government. And so one of the first things we had to do when the judgment was rendered was
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to ask the court to correct and you know, only have us in effect represent those
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that we were entitled to represent.
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And so we had to get that corrected.
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But the case, by virtue of that judgment, became had had an implication far beyond the
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few websites and the few departments or government institutions at issue.
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Donna J. Jodhan, LLB, ACSP, MBA: You know, I will admit that when I first met David Baker,
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who was my lawyer facing off against you, I had no clue what the heck I was getting
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into. And even sitting here now, I say to myself,
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what, what, what did I do and why?
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I still can't catch myself at times.
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But you know, it's over now.
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And at least we got to meet each other.
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Gail Sinclair: And I am sure I know that your case, your bravery,
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your. Your persistence made a huge difference.
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And I hasten to add, I, I think at least on two occasions,
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opposing counsel who, you know, have a law degree and are engaged
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in law, but they're not necessarily litigators represented individuals.
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And I was opposing counsel and they said to me at the end of first instance,
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we didn't know what we were getting into and what a journey.
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But you were very helpful in that journey.
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And that's part of the role of a counsel for the attorney general of Canada.
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Of course, you're in opposition, you're defending the public interest.
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But at all times you're representing Canada.
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And for these individuals who are taking on these challenges,
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you want them to feel they have the right to do this and to facilitate,
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when appropriate, how to do so.
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So it's not just the the individuals taking on the charter who can feel intimidated by
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the system. But let me hasten to assure you, I have had opposing counsel tell me the same
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thing.
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Donna J. Jodhan, LLB, ACSP, MBA: Now, we actually faced off more than once.
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Okay. There is also my human rights complaint involving the Canada Border Services
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Agency. What's it like to be on the opposing side of someone who becomes a friend.
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Gail Sinclair: Well, I'm. I'm honored that you referred to me that way,
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Donna. When that that Canadian human rights complaint came in my managers made
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the link with Donna Jordan and asked me if I would take it on,
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and I readily said yes.
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And I said yes for a number of reasons.
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One, the complaint, as you'll recall, was against Canadian Border Services Agency
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and Public Health Agency of Canada because they co-developed well er can what was
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the name of the
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Donna J. Jodhan, LLB, ACSP, MBA: The, the Arrivecan app.
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Gail Sinclair: Right. The Arrivecan app.
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Yeah. And they would have developed it towards the end of it being accessible not
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only to the visually impaired, but other communities that face challenges.
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And they had failed in one aspect.
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It was accessible in other ways.
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And so when I saw that, I thought, I know, Donna,
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it's unfortunate that this happened.
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I know so much about web accessibility.
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I know less about the accessible accessibility statute that had been enacted
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by the Parliament of Canada since then, and I thought it was an opportunity.
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There would be efficiency because of everything that I had learned about web
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accessibility and the purpose of the Canadian Human Rights Act different than some statutes
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that, you know, govern litigation is I really to resolve matters without the need for
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litigation, so I thought it was a good fit.
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And as you know, we prepared for a mediation,
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everything. Everybody brought their best selves to bear,
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and we were able to solve it that day.
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And of course, with our follow up, and I was delighted and I found it very
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salutary. And I hope that was your experience as well.
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Donna J. Jodhan, LLB, ACSP, MBA: Yes. And was there any ever anything personally hard about defending the
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government in a case like mine, or was it simply the job share only what
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you're comfortable with?
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Gail Sinclair: I it it's never just the job.
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Many of us at the Department of Justice feel it's a higher calling because we are
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representing the public interest.
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It's, it's a pleasure being opposite someone that you respect and you have seen their
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courage in taking on a challenge.
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It's not difficult because it enabled me to work with Canadian Border Services Agency
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and the Public Health Agency of Canada to you know,
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identify what was inaccessible, what was accessible,
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to cajole, encourage, move things forward and to come up with more
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modalities for settlement that enabled them to do what,
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in an ideal world, they would have done such that there might not have been any reason for
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a Canadian human rights complaint.
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Donna J. Jodhan, LLB, ACSP, MBA: Now, in looking back, what did you learn in responding to my
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charter challenge?
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Gail Sinclair: I learned some fascinating things I would suggest.
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First and foremost, how incredibly empowering the internet is for the visually impaired.
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As long as there are no barriers.
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And in order to obviate creating barriers, you have to think about accessibility from
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the get go. Retrofit is harder and more expensive.
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And so there was a huge journey between from from the beginning,
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but especially after Justice Kellan of the federal Court issued his judgment with the
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declaration that went well beyond the three departments or government institutions that
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had been named in the originating process.
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There was a huge endeavor to make Canada's websites
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accessible and to overcome the barriers and to provide supports to departments of
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tremendously different sizes.
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Imagine the difference between Global Affairs Canada and,
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you know, a small entity like the lobbying commissioner.
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So tremendous sources were put in place.
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There was cajoling and carrots and sticks, but we were trying to ensure that huge
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improvements were made by the time that, 15 months from the release of the judgment
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had lapsed, because Justice Callan did something quite unusual with his declaration,
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he issued it and suspended it for 15 months.
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And during that 15 months, Canada had to make huge improvements to web
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accessibility or then he his judgment was that he would start to
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exercise power to hold the government to account.
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And this raised huge issues well beyond web accessibility and the importance of it for
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the visually impaired.
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This raises huge issues about the three branches of government the executive,
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the legislative branch and.
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The judicial branch. And when a judgment renders.
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When a judge renders a decision at first instance,
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he's what they we call functus officio, which just means he's done his job.
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It's over. The Government of Canada, the Attorney General of Canada,
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had appealed Donna's. Jordan's decision and the focus.
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The greater importance of the decision was whether it was appropriate for judge at first
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instance, to maintain a supervisory jurisdiction over the implementation of the
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remedy, especially when it had been appealed to the higher level.
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And and at that point, by the time the 15 months had lapsed,
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I think we the matter had been heard by the Federal Court of Appeals.
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So it was in the hands of Justice Collins High Court.
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And could he exercise the jurisdiction he was purporting to have when the matter was now in
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the hands of his higher brethren?
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And so this was the complexity of the issue at the higher level.
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Of course, web accessibility was there, whether there was a section 15 charter breach
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for these three websites or websites that were not at issue,
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and whether, as I said, the bigger issue became the maintaining of a
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supervisory jurisdiction over implementation of the remedy when the matter had been
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appealed.
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Donna J. Jodhan, LLB, ACSP, MBA: Wow.
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Gail Sinclair: I hope that was clear.
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It's a little tricky, and we refer to ourselves sometimes as
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charter geeks, but it was.
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Can you be in two places and accountable to two entities at the same time?
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And what issues that raises for the rule of law?
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Donna J. Jodhan, LLB, ACSP, MBA: Now, this case stretched over seven years.
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What changed in that time in the law, in the technology or in how
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people understood the issue?
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Gail Sinclair: There was a tremendous focus on web accessibility
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and for the visually impaired, but for other disability communities
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triggered by the judgment rendered at first instance.
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I work very closely with a team at Treasury Board to do everything we could to make all
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of our the websites that we were responsible for far more accessible.
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And to do it from the get go, putting resources in place.
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I think shared services was in part created as one to be able to provide resources to all
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government entities for web accessibility and for other technology purposes.
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So there was awareness, there was pressure, there was huge
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improvements. And I think, and I'm not sure,
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Donna, because it blurs, but I think we went from the world's first
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set of international standards.
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What is known by the acronym is wcaG 1.0 to wcaG 2.0.
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And the. X and the technology improved.
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And so it was a complex matrix of a whole lot of things happening,
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as we all know, with technology and raising awareness and getting people to understand.
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You build this in from the get go.
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You don't wait and then try to retrofit afterwards.
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Donna J. Jodhan, LLB, ACSP, MBA: During those years Canada adopted the United Nations Convention on the Rights of Persons
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with disabilities. What difference did that make to the litigation?
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Gail Sinclair: I think the, the UN adopting the the convention on the Rights of People with
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disabilities was another piece of this matrix of raising awareness,
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but there wasn't a national advocacy organization for the visually impaired that
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intervened in the Federal Court of Appeal just towards the end of raising the UN
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convention, and that it complemented the section 15.
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Right. And this was fascinating, because it was the only intervener that the
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Federal Court of Appeal granted a right to intervene,
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and it was about the UN convention.
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The Federal Court of Appeal wanted to know, and I had a very able Articling student or a
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lawyer in his first year of practice, who we just researched everything about the
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UN convention. And we have colleagues with Human Rights law section in Ottawa who
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Participated in the drafting of the UN convention,
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and ultimately we put forward a factum for the Federal Court of Appeal that said,
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this is a very important document.
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It's intended to do so many things.
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The UN convention did not address web accessibility because it's intended to apply
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to so many countries across different socio economic challenges,
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and many countries are just not there yet.
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And so we were able, with what are called the table,
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which is background, to understand the rights and what they were intended to mean.
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We were we were able to make the case that the convention wasn't intended to
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guarantee web accessibility.
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And this is nowhere in the judgment.
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The. In that the court didn't address the UN convention,
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and they had allowed this intervenor to put forward a factum saying it did apply.
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We put forward our factum based on this extensive research,
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saying it's a very important document, but it.
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It isn't intended to enhance the right to web accessibility explicitly.
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And so the Court of Appeal never said anything about it.
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But this is one of the interesting things about litigation.
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Much can happen and it ultimately may not have a public emanation.
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Of course, these two facta were filed and they're accessible.
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They're publicly accessible, but they had no emanation in the Federal
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Court of Appeals decision.
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Donna J. Jodhan, LLB, ACSP, MBA: Okay. In your own words.
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You have said every long case has its memorable moments.
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You have named for you and made me walk through them.
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Gail Sinclair: Absolutely. There are three that I thought of.
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We at the Department of Justice had the pleasure of working with a woman named
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Cynthia Waddell Wright, who died a few years ago.
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And so, you know, my my respect for her is is only enhanced,
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but I speak about somebody who's no longer with us to use that expression.
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And of course, your expert was Uta Treviranus,
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who's also highly respected in this field.
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And of course, the two women know each other and respect each other.
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It's interesting. I learned in working with Cynthia Waddell,
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who was both very knowledgeable and exceedingly pleasant to work with,
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that she was hearing impaired.
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And so that added a complexity for the purpose of her cross-examination.
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But one of the things we prepared Cynthia about is that she was the head of an
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organization in the United States, the International Center for Disability
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Resources on the internet.
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And it sounds like a very big organization.
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We had, of course, provided your side with the financial statements of this
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organization. And, you know, in a good year,
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maybe they raise 50,000 USD from their work raised or earned.
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And so we prepared Cynthia saying, it may well be that opposing counsel is going
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to say your organization is threadbare.
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And you've accepted to be an expert for the government of Canada because you need to
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sustain this you know, threadbare organization.
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And you, you wouldn't have done it otherwise.
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And Cynthia, when we raised this with her, she,
37:32
she laughed. And then she told us.
37:35
I'm quite private about it, but kid personal wealth because
37:45
I think a grandfather had discovered oil in California and that had turned out to be one
37:51
of the oil companies that we all know.
37:54
And and, and we said, you can be very private about that.
38:04
You can just and she told us her husband was a minister.
38:10
And so he wasn't bringing in and I and we had said,
38:14
are we right that, you know, you are the second income in your family and
38:21
by virtue of your husband's work, you can make the world a better place.
38:25
But you don't have to worry about how much income you earn for your family.
38:30
Again, she she laughed and then, you know, told us the background of this
38:35
grandfather. So we talked about how she might respond without divulging this family
38:42
history. And she thought about it over night when her and her cross examination came the
38:49
next day, and the question did come up, and Cynthia had decided that she would speak
38:56
to this family history, which she did.
38:59
And it was kind of a funny moment because I remember David Baker saying,
39:03
well, that's a horse of a different color.
39:07
Donna J. Jodhan, LLB, ACSP, MBA: Oh my gosh.
39:09
Gail Sinclair: So it's, it's, it litigation is fascinating because it's about people and about in their
39:14
complex situation and what they choose to to be forthcoming about when that isn't
39:22
necessary for them to be forthcoming.
39:25
So that was one of those moments.
39:30
Another moment was, and there's no public emanation of this,
39:36
but when we were between first instance and a decision in the Court of Appeal with that 15
39:45
months having lapsed and with the Government of Canada trying to do everything it could to
39:49
improve web accessibility, we thought we may have to do a motion going
39:56
back to the federal court, a very delicate motion to raise with the
40:00
judge at first instance, as to whether he, in fact,
40:04
had the authority to Size a jurisdiction over implementation of
40:14
of his charter remedy.
40:16
When the matter was fully engaged and had been heard by the Court of Appeal.
40:24
And the second issue that we appealed on is whether the judge,
40:29
at first instance, could purport to hold on to jurisdiction over implementation of the
40:36
remedy. And so we were in a very delicate situation where if the judge at first
40:43
instance started to exercise that supervisory jurisdiction,
40:49
we had a motion to question whether he had the authority to do so.
40:56
And you can imagine that the Attorney General of Canada doing a dance between the executive
41:04
branch and the judicial branch of Entered Canada in early decades of charter remedies
41:10
and how they should function.
41:12
We never ultimately had to file that motion because the court,
41:21
at first instance, never chose to exercise its jurisdiction that it had purported to
41:28
have. And the Federal Court of Appeal decision came down.
41:31
And so that eclipsed everything that was at issue.
41:35
And I use the verb eclipsed because I no longer use the verb trump.
41:40
But it is.
41:42
Donna J. Jodhan, LLB, ACSP, MBA: A lovely I like that one.
41:45
Okay.
41:47
Gail Sinclair: But it's just it's one of these things again,
41:49
there's no public emanation of these, these,
41:52
this process we went through.
41:56
And it was a fascinating process.
41:58
And I think the first motion of its kind that we had to draft and be respectful because,
42:07
you know, the the three branches of government.
42:10
It's absolutely foundational for the rule of law that each show respect to the other and
42:17
stay in their own lane.
42:20
And so it was a dance of emotion towards that end that never actually had to be served and
42:29
filed.
42:31
Donna J. Jodhan, LLB, ACSP, MBA: Okay.
42:33
Gail Sinclair: The third and final little memorable moment is you may recall,
42:37
Donna, that there was a judge of the Federal Court of Appeal,
42:41
Justice Nadeau. Yeah. And he was elevated to the Supreme Court.
42:45
And then there was a controversy as to whether he met the requirements of being
42:53
elevated to the Supreme Court because he needed to be a judge in Quebec for a certain
43:01
number of years. And he was a judge of the Federal Court of Appeal,
43:04
and whether that was what was intended by the requirements of the Supreme Court Act to.
43:09
Ultimately. Justice Nadal stepped down when the Supreme Court of Canada rendered its
43:19
decision. But in the interim, he had been vetted by a committee of the
43:24
House of Commons as to whether he met the criteria,
43:28
as they were understood at the time, and in terms of his charter chops,
43:33
if I may use that colloquial expression, one of the cases he put forward was the Donna
43:40
Jordan versus the attorney general of Canada case of the Federal Court of Appeal,
43:44
because he had written it and his colleagues had agreed with his judgment.
43:54
Donna J. Jodhan, LLB, ACSP, MBA: Whereas Justice Nadal today, is he still practicing?
43:59
Gail Sinclair: He he went back to the Federal Court of Appeal.
44:02
He may well have retired or be supernumerary.
44:06
Now I know. Time marches on and I hope that I,
44:13
I am sure that he is deserved his retirement or will soon be retired.
44:23
Donna J. Jodhan, LLB, ACSP, MBA: It's ticking down, but I'd like to ask this question.
44:26
I want a trial and again at the Federal Court of Appeal.
44:32
But I understand that Canada also won an important point about remedies along the way.
44:43
Can you help our listeners understand what that was and why it mattered?
44:52
Gail Sinclair: Yes I can. You are absolutely right.
44:55
The Federal Court of Appeal affirmed that there had been a breach of your section 15
45:04
right to equality by virtue of those websites not being accessible.
45:13
But in terms of the second issue that the appeal had become about,
45:19
we had questioned the right of a of a judge, at first instance,
45:27
to maintain supervisor jurisdiction over the implementation of the remedy.
45:34
And this this was a very, very new issue for Canada.
45:43
And there was one Supreme Court decision in a very different context in which the court had
45:48
deliberated on this. And this is a case called Doucette Boudreau in Nova Scotia.
45:54
And it was about French language education rights and whether there were enough French
46:02
language schools in Nova Scotia at the time.
46:08
And the court had said no, there weren't.
46:11
The Attorney General of Nova Scotia had appealed that judgment to the Nova Scotia
46:16
Court of Appeal. But in the interim, the judge at first instance was holding the
46:22
government to account for the building of the schools.
46:26
And ultimately, when this matter got to the Supreme Court of Canada,
46:31
the Supreme Court of Canada said it's to the courts to issue a judgment,
46:38
a declaration of a charter breach.
46:41
It's up to the executive and the legislative branch to implement the remedy in Canada.
46:50
We will make a different choice than they have to date in the United States of America.
46:56
They will not have the judicial branch of government oversee the implementation of
47:05
charter remedy. And that was the second big issue that the case had become about.
47:12
And on that issue, the Attorney General of Canada prevailed.
47:16
We we won that issue that the judge at first instance,
47:23
did not have the jurisdiction to maintain a supervisory power over implementation of the
47:31
remedy after the 15 months had lapsed.
47:35
I hope that's clear. It's it's it's complex.
47:42
Donna J. Jodhan, LLB, ACSP, MBA: My final question to you is this one, the Accessible Canada Act became law in 2019,
47:51
a few years after our case.
47:55
Do you see a line am connecting a challenge like mine to the law that we have today.
48:06
Gail Sinclair: I have no inside knowledge in terms of the legislative thread,
48:11
but as a Canadian and as a former Department of Justice lawyer,
48:17
I clearly see a line. Donna, your case would have raised the profile of
48:24
web accessibility for the visually impaired.
48:28
The government is intent that no Canadian be left behind,
48:33
that the hearing impaired people with neurodiversity issues.
48:39
All Canadians should be included.
48:42
How do we do that? Legislation is always the best way because that's the Parliament of
48:50
Canada speaking and developing plans and targets that must be mad and putting in place
48:58
resources to help enhance that they can be met and make Canada a more inclusive
49:08
country and be a model for the provinces and for other countries.
49:15
And so I am sure there is a line.
49:20
Your case is one of the threads of a tapestry that grows richer and more colorful and
49:28
enhances the country that we all want Canada to be.
49:34
Donna J. Jodhan, LLB, ACSP, MBA: Thank you for saying that.
49:37
Finally, if someone in our community has the bravery and temerity to stand up for their
49:45
rights, especially if they were to think of going up against a Canadian government or our
49:50
government, what words of advice would you have for us?
49:57
Gail Sinclair: Do it. Be brave. Canada needs you, too.
50:04
We. I hope I can say on behalf of the Attorney General of Canada,
50:10
we try to facilitate the journey, because these are important journeys.
50:18
And, you know, I've worked opposite many an individual who has challenged
50:29
a piece of legislation or a rule.
50:31
And, you know, Terry Jean Bedford was a woman who challenged Canada's,
50:37
you know, criminal Code provisions against aspects of prostitution.
50:42
Terry Jean is a real character and someone that I learned to admire
50:52
for her, courage, her tenacity.
50:57
And it's, it's been an honor to see individuals like that.
51:03
I can say that about Miguel Figueroa, who was then the head of the Communist Party
51:08
of Canada. He challenged the Canada Elections Act and what fascinating issues he wrote,
51:13
Canada has one of the best electoral financing system in the world.
51:18
And Miguel Figueroa took it on and made our system even better.
51:24
So be brave get educated and prevail.
51:36
Donna J. Jodhan, LLB, ACSP, MBA: Where can we go to learn more about you and what you will be doing during your
51:41
retirement?
51:44
Gail Sinclair: I so far I have no public persona.
51:48
In fact, I got off LinkedIn.
51:51
That's just because I'm recalibrating.
51:55
I hope to do some writing, and in particular on the democracy,
52:01
democracy and representation fronts.
52:05
And once I put, you know, my backside in a chair and start producing,
52:14
I will I will get a public persona.
52:17
But until I match my words with some act, I'm I'm kind of offline,
52:24
but I, I hope to earn a public persona once again.
52:31
Donna J. Jodhan, LLB, ACSP, MBA: I think that would be great to see you earn it.
52:34
And if there is ever anything I can do to help in any way,
52:39
I would be pleased and privileged to do so.
52:44
Gail Sinclair: Thank you Donna. It has been it's been a real Privilege to participate in your
52:53
podcasts. I've listened to a number of others,
52:56
and it. It sounds very worthwhile and I applaud what you're doing.
53:01
Donna J. Jodhan, LLB, ACSP, MBA: Thank you so much, Gail, for being here today with us,
53:04
and I will stay in touch with you and good luck with your retirement.
53:09
Enjoy the rest of the summer.
53:12
Beware of those seagulls.
53:16
Gail Sinclair: Hummingbirds.
53:17
Donna J. Jodhan, LLB, ACSP, MBA: Oh the hummingbirds. That's right.
53:19
The hummingbirds.
53:19
Gail Sinclair: Beware of sassy's hummingbirds.
53:24
Donna J. Jodhan, LLB, ACSP, MBA: You take care. And thank you very much.
53:27
Gail Sinclair: Take care to you. Okay.
53:29
Bye bye.
53:30
Donna J. Jodhan, LLB, ACSP, MBA: Bye. Bye, Gail. Bye.
53:34
Podcast Commentator: Donna wants to hear from you and invites you to write to her at donnajodhan@gmail.com.
53:40
Until next time.