A gathering storm

Hey all,

My constitutional law class was canceled this afternoon, which gave me the opportunity to go for a long run outside today (it's getting harder to do these days with the sun going down around 5!) As I was moving through Cedarvale Park, a narrow but fairly long park spanning from Eglinton Ave W south to St. Clair, it struck me that we still had leaves on the trees and it's already more than halfway through November - whereas the past couple years at Ottawa, we were already buried underneath a ton of snow by this point in the calendar. So on that front, I'm definitely counting my blessings, though I'm very aware that it could change any day now!

Fortunately, law school is still very enjoyable, even though as the title of this post suggests, I can definitely see the gathering storm of exams and other end of term madness building on the horizon. Even though almost all of the exams I'll write in 3 weeks won't actually count for anything unless it's to my advantage, I'm still taking them very seriously because it will be pretty much the only opportunity we have to get some good feedback on how we're doing before the real deal in April. Having said that, I think having had a couple years out of school has given me a more nuanced approach to how I approach tests and exams; when you've only ever been a student, sometimes it can seem like the world revolves around these types of academic exercises, and I'm grateful that I've had some experience to help temper that sentiment in myself, even though I'm starting to observe a bit of it in some of my new colleagues.

Speaking of academic exercises, the other major project I've been wrapping up over the past week has been my very first piece of legal writing, a case comment assignment for my small group Constitutional law class. We were given the case of Reference re Employment Insurance Act, a 2005 Supreme Court judgment that on the face of it sounds very topical given the current economic climate, but actually has more to do with the division of powers between the federal and provincial governments. As some of you may know (especially my colleague Alexandre from TBS, who is a Quebec resident and a proud father), if you have children in Quebec and are employed, you can obtain special maternity and/or parental employment insurance benefits from the provincial government, while the rest of us receive similar, though apparently not quite as generous, benefits from the federal EI system.

Quebec's separate program is fairly new and was actually quite a big deal when it first launched, because since the late 1930s and early 1940s, jurisdiction over unemployment insurance was transferred from the provinces to the federal government, meaning that provinces generally couldn't set up these kinds of schemes. The Reference was a case where the Quebec gov't, when it first passed a provincial law to establish its program, asked the Courts whether the parts of the federal EI program regarding maternity/parental benefits were constitutional (they hoped the answer would be no, of course, so they would be free to start their own program!) Their rationale was that while unemployment insurance can be broadly understood as a federal responsibility, by extending EI to also cover matters such as maternity/parental benefits, the federal government was reaching beyond the original intent of the term "unemployment insurance" and was thus stepping into matters of "property and civil rights," which is a provincial responsibility.

The Supreme Court ultimately rejected this argument by taking a "progressive" interpretation of "unemployment insurance," allowing the meaning to change with Canadian society - and upheld the federal law. Nevertheless, Quebec still got its separate program via a political agreement with Ottawa, but as a result of the decision, the rest of us can still get EI benefits from the feds if we choose to take some time off work to care for a newly-born infant or adopted child. And while I'll spare you the details of my essay, in a nutshell, I focused a lot on the broader concept of "progressive interpretation" of constitutional provisions and argued that to invoke it, it's necessary for the courts to demonstrate that they are protecting/advancing a core constitutional value such as protecting minority rights or the rule of law. Otherwise, courts could broadly reinterpret provisions of the Constitution and potentially undermine other important Canadian constitutional principles, such as federalism or popular sovereignty. If anyone's really interested, drop me a line and I'll be happy to share it, but be warned - papers about constitutional interpretation may produce side effects, including but not limited to: drowsiness, red eye, boredom, sudden loss or gain in appetite, anxiety, and in a small minority of subjects, seditious thoughts or tendencies!

Looking ahead to the next couple of weeks, after finishing up the readings for all of my classes, I'll begin preparing what law students call "summaries" - relatively short documents that endeavour to take 3 months of lectures and thousands of pages of cases and condense them into a short-form study aid that will hopefully be of use (or if nothing else, at least help put minds at ease) for the open-book exams. And in the immediate future, I'll also be taking one last pre-exam "sanity break" by visiting my best childhood friend Bill and his wife in Barrie this weekend - I think getting out of the city will do wonders for my soul right around now!

Have a great week everyone and stay in touch - I finally caved and got a cell so drop me a line for that new piece of contact info too.