Sarah is in her early 20s, a single mother to an energetic 5-year-old. If you were to meet her, you would be struck by her unassuming presence and kindness. You would never suspect that Sarah is waging an extraordinary legal challenge against the Alberta government that may reshape Canadian law.
Sarah spent much of her childhood and teenage years in government care. The abuse and neglect that led to Sarah’s apprehension only continued in the province’s care and she developed alcohol and drug dependencies to manage her trauma.
However, at the age of 19 and with a young daughter in tow, Sarah was determined to change her life. As a former child in care, she qualified for a government program that entitled youth in her circumstances to wraparound emotional and financial supports until the age of 24 to aid their transition to independent adulthood. Through the assistance of a dedicated social worker, who is Sarah’s only form of stable emotional support, she managed to pursue higher education with the aim of becoming an Indigenous liaison, creating an alcohol and drug free home for her daughter, and stopping engaging in sex work, an industry she was forced to enter as a child but continued to return to against her wishes because she considered it to be the only skill she had to support her family.
Sarah’s strength and determination, and the assistance she received through the provincial program, allowed her to overcome the structural barriers that were stacked against her from birth. Unfortunately, a new government in Edmonton decided to truncate access to the benefits to the age of 22, and refused to grandfather Sarah and other former children in care under the initial version of the program with the changes. They would have less time than they were originally promised to acquire the skills and capacity needed to become self-reliant adults.
Although Sarah has made significant strides to achieving independent adulthood, she remains in a fragile place and is not positioned to be in the world on her own at the age of 22. She fears that if the legislative changes are to take effect, she will revert back to alcohol and drug use, return to survival sex work, and perhaps lose her daughter to the same system she survived.
With no other options, Sarah decided to take the government to court, asserting that the legislative amendments to the program would breach her Charter rights. Sarah hoped that the law would provide a solution, some justice to her and the hundreds of other young, vulnerable Albertans who would be affected by the changes.
However, the challenge for Canadian law is whether it is capable of recognizing the value of Sarah’s life to shield her from the harms she will experience through the denial of supports.
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The law is a public space that occupies a conceptual and physical space within our society. It consists of the rules that we are to live by and the institutions that ensure we do, and governs all aspects of our lives. It defines the ability of the state to intrude in our lives, regulates the relationships we have with others, and informs our actions from birth to death.
However, although the law encompasses us all, it was not designed with all of us in mind. It has always skewed towards particular interests. At Canada’s founding, the law reflected a White, male, heterosexual, Christian worldview. The ability to vote, marry, or purchase property depended on whether you belonged to this group. If you didn’t, you were excluded from the law and denied access to the most basic entitlements of our democracy. And through exclusion, those who do not belong were told that their lives mattered less than those in society who were able to shape that public space in their own reflection.
As time went on, a richer, more representative sense of democracy took hold in Canada, and the law came to also embody that transformation. Divorce, child custody, and matrimonial property laws came to recognize that women hold and deserve equal status before and under the law. Individuals of the same sex were permitted not only to marry but also have families. Courts accepted that Indigenous people lived in complex, distinct political communities that held exclusive ownership to the lands that became this country, and in many instances, retained those rights after Canada was established.
For some this has been a welcoming trend, as the legitimacy of our legal order depends on it reflecting the people, experiences, and aspirations of those who make up this country. That a young, Indigenous woman from the west who grew up in government care can find her place in that realm as much as a Bay Street banker who never questioned his ability to access or be reflected in the law.
However, for others, these developments are unwelcome. The democratization of the public space that is law threatens their understanding of and position in this country. The societal progress achieved through the law represents a departure from tradition, denigration of certain values, and undermines their status in society. They decry “judicial activism” and champion “the rule of law” but mean other things by those words. They promote a hollowed, limited understanding of the law that is premised on a narrow conception of justice that reflects their own self-interest.
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I practice law on behalf of people who have historically been or are currently excluded from the law. The precariously housed, prisoners, drug users, survivors of sexual violence, and others who are more often than not racialized or Indigenous, and in most cases, unable to hire a lawyer to advance their interests through the law.
I act for Sarah in her legal action. In the parlance of the law, I “speak” for her in the legal realm. However, that doesn’t mean I can fully understand or convey her experiences and aspirations to a court. Instead, my job as a lawyer is to do my best to translate Sarah’s lived experience into the law, and then navigate the law and legal process on her behalf towards the objective she desires.
One of the major challenges in Sarah’s lawsuit is whether the law recognizes her claim. Specifically, whether she can even turn to the courts when the government cancels a program that people in her circumstances depend on to live safe and sustainable lives. Although an initial court found that it may, the question is before a special panel of the Alberta Court of Appeal, as it challenges our traditional understanding of the law or raises issues never before considered.
As Sarah’s conduit to the law, I facilitate access to this public space in the hope that it will deliver to her some semblance of justice, and that over time, the law will bend to the reality of people like her. That they will be able to access the law with greater ease and familiarity, and have their stories be accepted and reflected within the law as its own.
This broader pursuit around ensuring that the law accommodates the most marginalized and vulnerable in our society isn’t about ends but rather about realizing the democratic ideals that are foundational to this country. Canada is a multi-juridical country, encompassing the English common law, French civil law, and various Indigenous legal orders, that is also subject to a bilingual and multicultural framework. We live in a dynamic, ever-evolving, diverse society. Binding ourselves to a rigid, static conception of the law that reflects a narrow worldview does not further our commitment to the robust democratic ideals that we claim to hold. Ideals that reject the bankrupt notion that justice permits the will of the majority to terrorize the disenfranchised, whether they be women and girls, racialized and queer people, Indigenous communities, people living with opioid use disorder, or former children in care who simply want a fair chance at a life that is better than the one they were born into.
We must embrace an understanding of the law that recognizes the dynamism and diversity of the society it governs, and that as a public space, it is meant for us all and not the privileged few.