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Public interest law, the limits of the courts and why we need to stop skipping leg day
63 Plays3 years ago
Human rights lawyer Avnish Nanda and labour lawyer Adam Cembrowski join us to talk about Avnish's notable public interest law cases, winning and losing in and out of court with the Alberta government as well as a wide ranging conversation on the limits of the legal system when it comes to building power for social movements and the working class.
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Transcript
Introduction and Support Request
00:00:00
Speaker
Hey folks, you're listening to the progress report on the Harbinger Media Network, and I just got a quick message before we get into what is a very good pod. We are at 440 some regular monthly donors to this independent little media project, and I would love to get it to 500 monthly donors by the end of the month.
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Promoting Harbinger Media Network
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Speaker
funding.
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Speaker
We're also one of several very good and excellent left-wing podcasts on the Harbinger Media Network, and a new episode that I want to recommend is the latest from Habib Tipliz, where Nashwa and Ryan welcome Amumalak Kakak to discuss her role as MP of Nunavut, the lingering impacts of colonialism on the north, and how that area of the country has been neglected.
00:01:00
Speaker
And that's the kind of content you'll get at Harbinger, where we're challenging right-wing and liberal corporate media dominance with a political point of view you won't find anywhere else. Get access to exclusive shows and other supporter-only content at HarbingerMediaNetwork.com. Now, on to the show.
Introducing Guests Avnish Nanda and Adam Sembrowski
00:01:28
Speaker
Friends and enemies, welcome to The Progress Report. I am your host Duncan Kinney. We're recording today here in Amiskwitchi, Wisconsin, otherwise known as Edmonton, Alberta, here in Treaty Six territory. Joining me today is a friend of the show Avnish Nanda. I think this is his third time on the show joining a couple of other three-time guests. Avnish is a human rights and constitutional lawyer based here in Edmonton. Avnish, welcome back to the pod.
00:01:51
Speaker
Thanks for having me on, Tucker. And also joining us is new guest to the pod recommended by Avnish Adam Sembrowski of Nugent Law. Adam is a lawyer with Nugent Law offices who specializes in labor and employment issues. Adam, welcome to the pod. Thank you very much. Excited to be here. So the reason why we have two law talking guys on the pod today is there are a couple of very interesting and important legal cases.
Opioid Agonist Treatment Program Discussion
00:02:17
Speaker
that these gentlemen are a part of and that are just happening in our province right now. And they know a lot more about their cases than I, so I'm just going to jump right into it. So Avnish, a big reason why I wanted to have you on are the recent developments on the injectable opioid agonist treatment program that we have here in Alberta. But before we get into the news around that, can you let our listeners know what this program is, why it's important, and then get to the details of the case and kind of what recently happened?
00:02:46
Speaker
For sure. I think most of your listeners would be aware that we're in the midst of the unprecedented opioid overdose epidemic. More than three Albertans a day are dying of opioid overdose deaths. These deaths are largely preventable. And among the folks who live with opioid use disorder, those with the most severe form of this condition, this mental condition, are more likely to die of an opioid overdose death.
00:03:12
Speaker
or experience the variety of other harms, social and health harms, from homelessness to acquiring hepatitis C or HIV. And IO, which is the injectable opioid agonist treatment program, is the only form of effective medical treatment for these folks, folks of the most severe form of opioid use disorder. And in 2018,
00:03:36
Speaker
Alberta became one of the leaders in this country when it comes to treating these folks. In most provinces, aside from British Columbia, folks with this most severe form of opioid use disorder had no treatment. The only form of way that folks had to, you know, medicate their condition was using street source opioids. That supply of street opioids is extremely toxic, extremely dangerous, and we would see a spike in overdose deaths as a result. So Alberta
00:04:07
Speaker
I was acknowledging what was happening in Alberta in terms of the opioid deaths, folks with severe opioid use disorder dying at high rates and implemented biode, injectable opioid agonist treatment. And this program worked wonders. No patient died who was admitted into the program. They were seeing transformative impacts on patients themselves.
00:04:34
Speaker
folks who had been homeless for, you know, decades had stabilized their opioid use disorder, you know, where, you know, found housing, connecting with family members, found jobs in many cases, and were living a life that they thought was previously foreclosed to them, that they never thought they'd live again because of their medical machine. So it was wildly successful. That's how I doctors distracted me, wildly successful.
00:05:01
Speaker
And then this government takes to power and starts stigmatizing these sorts of harm reduction approaches, stigmatizing those who live with severe opioid use disorder. And basically saying that our model of treating folks who live with this condition is going to go from medical science and things that actually work to simply recovery measures. Treatment programs that basically, say, try to encourage people to stop using drugs
00:05:31
Speaker
An approach that all medical researchers indicate for people with the most severe form of opioid disorder is a failure, that that approach doesn't work, that you need approaches like IOT and other sort of interventionist treatment options. So this government cut it and we had about 100 folks in the program who were benefiting from the program
00:05:56
Speaker
whose lives were now at risk once it was cut. And the experts, the doctors, everyone involved was clear, even the government experts, that if this program were cut and folks were transitioning back to street source opioids, you'd see many of them die. So we've launched this lawsuit in September and almost immediately the government backed out from its initial approach that it would shut down the program entirely.
00:06:27
Speaker
So in November, they announced that actually they would allow patients to continue to access about 50% of their treatment. So basically access to the medication itself, none of the wraparound supports. So let me just interrupt you there. So they were like, Oh yeah, this program is great. Actually, no, it's terrible. We're going to cut you off by 50% for like, what was the reason given for, for cutting it like that?
00:06:50
Speaker
there was no reason given. And, you know, part of our battle, like, I think part of the problem for the government was justifying why it would only get 50% when the evidence and the science says you need 100% to get the outcomes that you want, right? It just, it was illogical, right? It was irrational and people's lives are in the mix. So we continue to fight and, you know,
00:07:16
Speaker
We went to court for an injunction application to allow this treatment to continue while my clients fought the changes in court. And because the deadline the government proposed to make the changes was March 31st of 2021. So after March 31st of 2021, the treatment in its current form wouldn't exist. It would go into that deteriorated or that lesser form of treatment.
00:07:44
Speaker
And so we were in court in February on this, and the government then took the position that we would give 75% of the treatment. And I'm talking in kind of like layman terms. I don't want to get into the technical details about the treatment and what was being offered, what wasn't. But basically, they're saying, you won't get what we're currently offering today, but you'll get a lesser form of it, 75% of what we offered before.
00:08:06
Speaker
And for my clients, that's not good enough. For my clients, if they don't get the full treatment, there's real likelihood of death. And we had two patients in the IIT program who, once the announcement was made, kind of lost all hope in the treatment and disengaged, went back to seek source opioids and died. We had one patient who had a similar path and ended up contracting HIV. Preventable deaths, preventable
00:08:35
Speaker
requirement of HIV in that particular case, and there was real harm on my client. So we wanted the full treatment option possible.
00:08:43
Speaker
There's a bit of legal back and forth here, but I think we can cut to the case. Like you've made the case that this is an incredibly important medical treatment that your clients, if they didn't get this incredibly important medical treatment would suffer real harm. And so you're going back and forth with the government saying, we want this to continue. They're saying, no, we want to shut it down. I mean, what was the actual reason for them wanting to shut it down? Do they just don't believe that people who use drugs should continue to be alive? Was it cruelty for cruelty's sake? Like, did they even state it out loud?
00:09:13
Speaker
It was bizarre because back when the cut was announced in March of 2020, the government or the associate minister, Luan, at the time basically said that we want to get away from giving people
00:09:28
Speaker
giving people who live with opioid use disorder access to these drugs as if you know a harm reduction approach was somehow immoral or didn't achieve the intended aim which was to keep people who use drugs alive during the midst of this overdose epidemic. Then later on when we filed the lawsuit they started blaming the NDP government. They said that actually
00:09:52
Speaker
The IO program was a mess, and they needed to figure it out, clean it up, and ensure it could be accessed in an effective way by patients. Then they came up with this approach of, well, we'll only give 50% of the treatment, which didn't make any sense, given what they were seeing publicly.
00:10:11
Speaker
And then now they're saying, yeah, we always meant to, you know, our aim was always to maintain IELTS. We did not mean to cut it. If you believe that we intended to cut it, you weren't listening to us. And the funny thing is that all the journalists had the receipts, right? Like they were quite clear and they changed position every three or four months based on how the litigation was going or how the public was kind of
00:10:38
Speaker
disturbed by the reports that are hitting about patients essentially dying or being at risk of death because of this government's policy choices.
00:10:47
Speaker
Uh, yeah, classic, you know, we've always been at war with East Asia comments there. I mean, and they just did that. They did that exact same rhetorical trick when it came to the, the fight with doctors. They're like, what fight with doctors? What are you talking about? Parks too. Parks, they were like, no, we never meant to cut parks. Uh, so yeah. So some, some classic kind of UCP gaslighting and, and double speak.
00:11:11
Speaker
But ultimately, there was a happy ending to this case, even though you may have lost a recent court proceeding. Can you walk us through the kind of happy ending here? Yeah, for sure. So we lost in Corky injunction on, I believe, a Wednesday or a Thursday. And then we immediately appealed because we found a lot of errors with the court's decision.
00:11:30
Speaker
um, including framing how people who use drugs live and the choices they make. But, you know, on the Tuesday, so less than a week later, the government announces that actually they're going to maintain the treatment in its current form, that there would be no cut to the way, to the model of care, the type of care provided. So now folks will get 100% of the treatment that they were promised and they've been experiencing as of today. Problem is, is that
00:11:57
Speaker
No other Albertan who has a severe opioid use disorder was at great risk of dying because of the current opioid overdose epidemic is able to access this life-saving, life-stating treatment. So at the same time, they're saying this is essential that folks get this treatment to survive, but we're not going to open it up to other Albertans who are living in similar circumstances. So the fight's not done, but for the 100 or so patients that I represent,
00:12:25
Speaker
This is expect fantastic news, like they were crying with tears of joy because of the new of HS essentially backing down and continuing to provide this treatment. And if the government had just offered this off the hop, I imagine your clients would have been amenable to continuing at 100% the program that they used that they were on before that you would have agreed. This is all that we asked for, right? And what was, you know, very disappointing and
00:12:55
Speaker
I think terrible is that we've had at least two people die, right, former patients who disengaged after the announcement was made. And, you know, as the experts say, because of the announcement, because of the lack of trust in what this government is doing, and overdose can die. And then we have another patient, I can describe before, who acquired, you know, a serious illness, and that's all preventable. That's entirely unnecessary. So
00:13:21
Speaker
I don't know why the government had to spend a year fighting us on this. But, you know, credit to my clients, right? These are extremely vulnerable, marginalized people who sacrifice so much to take this government on in court, right? And this is not an easy thing to do. And you don't hear good stories in these types of cases, particularly with this government. So it's really remarkable what a group of people who are marginalized can do if they organize and get together.
00:13:50
Speaker
It's nice to get a happy ending for once. Anish, you were also working on another kind of, you know, I would frame it as a public interest legal case for, again, for some of society's most vulnerable people. What can you tell us about your case about youth in care and the benefits for those former youth in care?
Legal Case on Support for Former Youth in Care
00:14:11
Speaker
And what happened with that case? And
00:14:14
Speaker
what's happening currently as well as and then Adam, you can jump in at any time there once it gets to the to the part about a recent decision that actually helps everyone in Alberta when it comes to getting the government to stop doing bad things. Yeah, so I've been on the pod before talking about the SAFA challenge or the support financial assistance challenge. It's
00:14:38
Speaker
a program for former children in care or foster care in child welfare system, who once they age out, you know, they turn over 18, they don't have the capacity or the ability to function on their own as an independent adult in a healthy and sustainable manner. So for those vulnerable and marginalized youth, the government continues to provide wraparound emotional and financial supports.
00:15:05
Speaker
Initially, these supports were promised until the age of 24. So a youth and a social worker would develop a plan from the age of 18 to the age of 24, mapping out what goals they need to achieve in order to live a safe, sustainable life as an adult.
00:15:24
Speaker
And this government gets into power. And I think it was November 2019, the government announces that actually they're going to cut funding at age 22. And anyone who is in the program currently over the age of 22 will be cut off immediately. So you have folks who have built out transition plans to independent adulthood over the course of six years being told, like in the case of my client,
00:15:52
Speaker
that they have six months to achieve what they have left on their plans that would take normally two and a half years. We're talking things like jobs training, graduating from school, learning how to drive to more serious things. In the case of my client, ensuring that her drug and alcohol use recovery program was going as intended because her big aim was to
00:16:21
Speaker
create a household, she's a young daughter, where that was free from drug or alcohol use. Important things to allow people to live safe and sustainable lives, not only for themselves, but for the children. And the story of your client here is an absolutely heartbreaking one. And we will link to the podcast, the old podcast that features more details on this case in the show notes. But suffice it to say, this woman has gone through some terrible things and these supports were really helping her get
00:16:51
Speaker
her life in order, and then they were all of a sudden taken away by the government just to save a couple of million dollars on a budget line, most likely. We don't really know why they got rid of the program anyways. Exactly. For my client, as a child, she faced a tremendous amount of physical, emotional, and sexual abuse.
00:17:13
Speaker
I think as a young teenager she was sexually trafficked, ended up being rescued from that situation, but her entire life as a teenager she was involved in sex work to support herself and her family, work that she did not want to engage in to be clear, also to support a drug and alcohol disorder
00:17:36
Speaker
And it was just a very difficult existence. She's lived up until the point when she was in the FAFA program and she decided that she wanted to change her life. She didn't want her daughter, her four-year-old daughter, to grow up in the system that exposed her to so much harm. She wanted something better for her daughter. So she, you know, she stopped using drugs and alcohol. She went back to school. She stopped engaging in sex work. And she was just a semester away from
00:18:04
Speaker
transferring to the U of A to complete a Native Studies program to become a, basically, a social worker that works with Aboriginal individuals. And it was just devastating for her when she learned that this program was going to be cut. The first thing that raised her mind was, you know, I gotta drop out of school, return to sex work, because I won't make enough money to support myself and my family if I, you know,
00:18:35
Speaker
you know, transition to welfare, which is the alternative for her at the time. So she was just devastated. So she hired me. We brought this lawsuit. We sought the injunction again, which is basically in this case, allow my client to continue to access these necessary benefits while our lawsuit was being decided by the courts, while the constitutionality of what the government did here was being decided. And we won initially.
00:19:01
Speaker
So we won initially, which was big and actually pretty rare. You know, injunction requests like this are kind of Hail Mary's and we won, even though the law technically perhaps at the time wasn't necessarily with us, but we won. And then the government appealed it to the Court of Appeal. And, you know, our version of the law was accepted by the court, but the court applied it in a manner where
00:19:28
Speaker
At the last stage of the test, we didn't win. So unfortunately, my client will be cut off while she is doing the government for this change. And that's going to have real, real direct impacts on her. So we decided to appeal to the Supreme Court of Canada.
00:19:45
Speaker
to reverse that decision but also to hopefully clarify the law a bit more to allow people who are taking on the government in these charter planes particularly marginalized and vulnerable people to give them you know a better shot at winning because these are hard cases right and in the case in both cases I or Safa if the government is allowed to
00:20:09
Speaker
do what it wants while the losses are being decided by the courts. People may die. The people who bring the losses may face such serious harms that the losses may not be able to continue. So we need, I think, the Supreme Court of Canada to clarify its approach. And that's what we're hoping the Supreme Court will agree to do.
00:20:30
Speaker
Adam, you were an intervener in this case, correct? What was the reason that you were in there, and what was a positive outcome that you saw from this case? I think, so yeah, we, along with another lawyer, intervened. We were representing AUPE, and what we really wanted was, as Avanish kind of alluded to, the law was unclear. There'd been an earlier decision where the outcome of the decision left a kind of
00:20:55
Speaker
maybe harder to get an injunction application. And with the kind of law that Avnish practices, you're dealing with really marginalized populations. And these, as he said, are Hail Marys. And it's like, you need to bring an injunction. You need to get an injunction to prevent whatever harm is going to be occurring to these people, to prevent it from ever occurring. Because otherwise, maybe they can't even continue on with the lawsuit. And your lawsuit is kind of unable to get off the ground before it begins. And so we intervened on a
00:21:24
Speaker
I'll be honest, a relatively technical dry point. But the court, and this was really nice, they felt that they didn't really need to deal with our arguments because they restated the law as to what it was previous to this earlier decision. So really thanks to Avnish and him bringing this case, it's again at a point where hopefully it's easier or at least possible for individuals seeking to get an injunction to be able to get one in Alberta.
00:21:52
Speaker
And not just individuals, I mean, anyone or any person or any organization where like you can, you can make this argument that harm is happening to make, might be, might be more, more, more possible to get for this hail Mary to actually work. Right.
Organized Labor and Government Conflicts
00:22:05
Speaker
Yeah. Yeah, exactly. For somebody that, well, I'm not going to torture that metaphor anymore. Um, but yeah, these are incredibly valuable tools. Uh, and you know, maybe we'll, we can get into this more later, but.
00:22:17
Speaker
This is maybe the only kind of tool for people in the position that Avanish's clients find themselves in to get any kind of immediate remedy without waiting two, three, 10 years for a lawsuit to make its way all the way through the court and just make a final determination on it. And I mean, you're in labor law. Go ahead, Avanish. I was just going to say, just to build on that point, like
00:22:40
Speaker
You had a former youth in care, a 21-year-old Indigenous woman who lives in such kind of vulnerable circumstances, able to stop this government in its tracks, right? The entire bureaucracy, but also, you know, cabinets. That's remarkable. I don't know what other tool exists out there for an individual in my client's circumstances to do that. And that's kind of the power of injunctions and the power of the law.
00:23:07
Speaker
Yeah, and even I think just bringing an injunction, even if it fails, it can cause the other party, if it's being brought against government in a constitutional case, to kind of stop and reassess what they're doing. And so even a failed injunction application, there could be benefits to the fact that you have brought it at all.
00:23:24
Speaker
Interesting. And so, I mean, you're, you're a labor law lawyer, you're a labor lawyer there. Yeah. And there are potentially, you know, some potentially spicy legal confrontations brewing between kind of organized labor and the government, you know, we have bill 32 regulations, the, the, you know, essentially making union members check off the fact that they want
00:23:51
Speaker
They're part of their union news that go to quote unquote political activities for their consent to be signed off at, which is a big one for the current existence. The way unions are set up currently, that's a huge deal. A lot of unions are looking at that as an intro to right to work laws. We have Bill 1, the protest law that is still only theoretical. No one has been charged with it yet.
00:24:17
Speaker
Um, uh, you know, we have the specter of legislative wage cuts and let legislating workers back to work. If there is, uh, you know, if there is, is, uh, strikes there or, or the specter that you, or that you talked about when we were chatting about this before, Adam, something like legislative wage restraint, which I don't know, it seems like a kind of a legalistic way to just bring in wage cuts.
00:24:42
Speaker
Well, it holds wages or caps them at a certain level, but yeah. This government thinks it's going to be spending a billion dollars less on employee compensation next year than from this year, and they can't all get there from cuts. I think there is trouble ahead when it comes to organized labor in this province and the things that this government is doing to try and undercut them.
00:25:08
Speaker
And yeah, I realize that you're probably in a position where you can't speak too clearly about it, but I just want to flag this for our audience that like,
00:25:17
Speaker
These things are coming. Bill 32 regulations could literally come at any moment. This AUPE is an intervener in the Bill 1 Charter Challenge, which is infrastructure where any protest that takes place on infrastructure and infrastructure is defined incredibly broadly and not really well defined at all, is you get harsher penalties. Criminalizing protests, essentially, is the argument that's being made.
00:25:41
Speaker
And, you know, we've all seen, you know, back to work legislation at the federal level. We haven't seen it at the provincial level for quite some time. But this, this argument, this recent development when it comes to injunctions, I think is, you know, incredibly interesting and perhaps relevant to those upcoming legal battles. I mean, what I will say is that in 2019, in response to Bill 9, AUPE did bring an injunction application. And similar to an admonition situation, we were successful at the very first level in
00:26:11
Speaker
preventing the Bill 9 from taking effect. It was overturned at the Court of Appeal, but these are valuable and realistic tools that as individuals, organizations can all use to restrain what they view as unconstitutional government action.
00:26:32
Speaker
Yeah. And I think there's a broader question around, you know, labor and, and how much of a tool, you know, um, the courtroom should be and lawyers and the legal process should be, but there's one more case since I got two law talking guys on, I got it. I got to get your opinion and your takes.
00:26:48
Speaker
on the stuff that's happening to Pastor James Coates.
Pastor James Coates' Legal Troubles
00:26:51
Speaker
So, as I'm sure we've all seen, the news about Grace Life Church is the church just outside of Edmonton, you know, it has not been following public health orders quite brazenly, breaking them, you know, having packed services, you know, social distancing, not being
00:27:05
Speaker
followed, no one's, very few people are wearing masks. And this had happened for months now. And this eventually has led to the arrest of Pastor James Coates. Despite all this, the church is still continuing to hold services every Sunday. I await my Sunday morning news update where it's just like, yeah, the
00:27:24
Speaker
RCMP are still there at this church. And really a whole kind of like anti-lockdown, anti-mask, anti-vax protest movement has sprung up around this church and this pastor who is currently in prison, like literally in Edmonton Re-Band in a maximum security prison because he refuses to abide by the conditions of
00:27:45
Speaker
of the public health regulations. And so like, am I incorrect here? Like, could Pastor James Coates get out of prison at any time if he just was like, would sign a piece of paper that said, yes, I will follow the rules? So my understanding is ERC, it's not a max, but it is a prison. It's a remand. He, like, my understanding of why he didn't get bail was that he refused to continue, he refused to abide by public health orders.
00:28:14
Speaker
And if that's the only reason that he's been denied bail, his acceptance of that will likely result in him being granted bail. So it sounds like this is a political stand he's making. He wants to be a martyr for a particular cause, which is interesting to me because all he has to do is accept that he won't hold these mass gatherings and he should be OK.
00:28:40
Speaker
Yeah, like every other church in this province is somehow managing to deal with 15% capacity, but it's apparently against his religion to follow public health orders. This is a big deal in Christian evangelical circles. I have a cousin, I have evangelicals in my family. My cousin in BC was posting about this. This is a big deal. And there was a recent court proceeding where a judge ruled that this pastor
00:29:10
Speaker
who was accused of violating health orders was going to remain in jail. His bail would not be granted unless he agreed to abide by the conditions.
00:29:20
Speaker
And the lawyer for, you know, the pastor in this case and the church in this case is, you know, legal icon and someone who's always winning cases, John Carpe with the Justice Center for Constitutional Freedoms. You know, this person is a, I don't know, a bit of a celebrity when it comes to Alberta politics. He's a well-known social conservative activist, good friends with Jason Kenney. Jason Kenney once described him as the Rosa Parks.
00:29:50
Speaker
of Rosa Parksian in his efforts to win illegal battles. I know you're both lawyers and you're both not supposed to say mean things about your fellow lawyers, but I just wanted to drop a quote from John Carpe and from his podcast that went out last weekend that I just want you to stew in for a second.
00:30:15
Speaker
quote, there is no science or evidence. It's a slogan, a political slogan. And we've been hearing it for 11 months, science, science, science. I don't think the average person today knows any more about science today than the average person did 500 years ago. That's a John Carpe on lockdowns. And you listen to this, this man talk about, you know, his beliefs and like why he believes he's doing his right and his kind of legal and moral and ethical justification for, for taking on these cases. And it is
00:30:46
Speaker
I mean, one, it's anti-science, right? They don't believe that the tests are real. They don't believe that the deaths are real. They don't believe that the hospitals were overwhelmed in December. They just flat out to believe the facts as laid out by the authorities. And I suppose my question is, how troubling is it to you when you have huge swaths of society that are just unwilling to deal with reality?
00:31:17
Speaker
I think it's really interesting just that this pandemic and this the content that we're operating with it has resulted in a lot of these lawsuits around kind of charter rights.
00:31:31
Speaker
freedoms, things of that nature. And I'm not just talking about from folks who don't believe in science or anti-maskers or the groups that Carpe represents, but also like most of the work I've done in the last few months or last year come from a similar standpoint, right? It's all stuff initiated at the same time as the pandemic and the pandemic is exacerbating things.
00:31:56
Speaker
you know we're coming from a very different perspective right representing very different notion of not just society but also you know the rights engaged and I just think it's so interesting that both John Carpe and myself and even Adam you can be public law lawyers or constitutional lawyers but raise issues and provide perspectives that are just so radically different from each other. I just think it's so fascinating
00:32:22
Speaker
What fights do you want to fight during this particular period of time? Whether you want to represent marginalized groups or not in these battles. Yeah, I agree with what Avnish said. And I think one of the neat things about law just conceptually is Avnish and all the other lawyers
00:32:45
Speaker
They're using the exact same documents, the exact same rights to advance their causes, even though the causes might be diametrically opposed or have no overlap. And it's really about trying to develop the law in a manner that you think is going to best serve your ends and your client's ends and potentially society's ends, depending on what your belief is.
Legal Activism and Systemic Change Debate
00:33:08
Speaker
Yeah, and I have a deep admiration for the kind of law that Avnish does, like these public interest cases where you're fighting for the little guy, right? A hugely important case that you took on Avnish was the case against Habitat for Humanity. I can't remember the name of the development. Help me out. It's Carter Place. That's right. Where there were these poor immigrant families that were at risk of being turned out of their home
00:33:36
Speaker
by Habitat for Humanity, a well-known and respected charity here. And they came together, they hired you, they came together with the community. We shut down a Habitat for Humanity restore for an afternoon. Stuff came together where eventually the good guys won and Habitat for Humanity backed down.
00:33:55
Speaker
And that's like, I look at that example and I'm like, hot damn, that kicks ass, maybe I could be a lawyer. And then I am also reminded of the like, the limits of the law, right? Like, you know, the rich and powerful are able to either ignore the rules or make up the rules as they go along. And, you know, I'm generally pretty skeptical in the kind of big picture of the ability of the legal profession to really,
00:34:23
Speaker
change the world. And I suppose, you know, the question here is like, how effective ultimately is the law that you do going to be when it comes to like really making a difference? So I have this theory of kind of not change, but of the democracy that we live in, right?
00:34:49
Speaker
that there are multiple paths to getting reforms, getting transformative changes to ensure that people, particularly people in the margins, can live the lives that they want to live, right? To thrive and be who they are and all that sort of stuff. And what I've noticed is that for some communities, people who use drugs, people who engage in sex work, even migrant and refugee communities,
00:35:18
Speaker
you know, often can't find a path towards recognition and change where their interests be represented to the legislative process, right? Like, you know, for a while there, and I think to some extent today, there's no political party, even among progressive political parties, who are going to champion, you know, the rights of drug users, who people live with, you know, opiate use disorder. For some reason, just the way that our legislative system and democracy is structured, it doesn't allow for
00:35:47
Speaker
those issues, those interests to capture the public imagination, the public will of kind of electorate. But our democracy also has courts. Courts who can shift the conversation, allow these rights and interests to be recognized and to expressly and directly shape laws in order to be more effective of the whole community that we're in.
00:36:15
Speaker
And there are limits to the law. I'm the first to admit that. But there are pathways to achieving successes that are not available in the normal legislative process, where politicians may have lack of courage or willingness to take on unpopular causes. So that's where I see the value of the law, like where I want to position myself. And I think Adams is insane. Given what type of law it does, it's actually the same thing.
00:36:45
Speaker
Yeah, I agree. I think for me, law is one tool in a tool chest for making the societal change that you want. And I think you'd be hard pressed to find any lawyer that said, law is the be all and end all, and it's perfect. And you can achieve whatever kind of goal you want through it because you can't. And at the end of the day, law is human made and is subject to the humans that are making it, the humans that are interpreting it, the humans that are arguing it.
00:37:15
Speaker
But I think it has a really valuable role. And I'll circle back briefly to what I said earlier, just in contrast to the IOT case, there's an application for an injunction that's brought. You lose the injunction, but you get something out of that. So even there, if you didn't achieve through the law what you wanted to achieve and to get that final goal, at the end of the day, you're still left with a success. And this law as a tool, this was one of the tools to help get you to that success.
00:37:46
Speaker
Well, I think the thing that's missing from your kind of analysis, Anish, about why poor and marginalized people like drug users or former foster kids or whatever, why their issues are not the issues of the rich and powerful, like you're missing a class analysis, right? Quite simply, the class position of those people is not a priority for the courts. It's not a priority for the rich and powerful. There you go.
00:38:08
Speaker
uh, you know, it's not going to be a priority for the legislators and the society at large. And, and I, I think, yes, like the courts do give you an opportunity to raise issues and sometimes, you know, take small steps forward, but like, you know, and given your, your purchase, uh, as a labor lawyer, you know, there's a whole line of thinking and I'm not a wobbly, but like, there's a whole line of thinking from,
00:38:35
Speaker
uh, kind of that kind of anarchist point of view that like labor law as it currently exists, like the Wagner act and the Rand formula and these kinds of like baseline assumptions that were constructed, you know, 80 years ago to kind of ensure labor peace have ultimately defanged and rendered unions, kind of this, um, kind of like legalistic rule bound bureaucratic institution that is kind of just gradually lost power and influence ever since that legislation has come into play.
00:39:03
Speaker
Yeah, there certainly is that strand of thinking. I mean, they point to things like that there's a legislative time in which unions can strike or members of unions can strike and kind of curtailing what actions can be taken and how they can be taken and the checklist before taking any of those actions. And so, yeah, I think certainly there is that strand of thinking.
00:39:31
Speaker
you know, they're going to have all speed letter arguing that this is great. And this system is actually helping further for their goals. But you, I mean, what's, what's kind of unspoken here is that unions spend a ton of money on lawyers, right? And your law firm is one of these firms.
00:39:48
Speaker
There are a handful of these firms that specialize in this case and unions view the kind of courts as one of the biggest and best ways to actually arbitrate their differences with power and employers.
00:40:03
Speaker
And the argument that, for instance, the Wobblies would make, and that I would make too, is that you actually need to be challenging their power on the streets. The law is only as enforceable as society deems it to be. And when you look at labor conflicts from the 30s, from before, say, the Wagner Act,
00:40:26
Speaker
It was obviously a much more violent time, but Capitol was actually scared of the consequences of what would happen if they didn't agree to X demand. Commerce would be shut down. Buildings would be set on fire. There would be riots in the streets.
00:40:44
Speaker
and consequently workers were often killed by Pinkertons and other violent actors for the employers and the bosses. I'm not saying we can necessarily go back to that time, but I think what has happened in the 80 some years since those kind of legislative, legalistic means of kind of mediating labor power have come in has only been bad for workers.
Critique of the Labor Law System
00:41:04
Speaker
And that like,
00:41:06
Speaker
Ultimately, it's up to the workers to do what the rich and powerful do and write the law that benefits them and make it so essentially. I just have a thought or a critique of that approach. There is this notion of working towards transformative change.
00:41:30
Speaker
preferred or idealized version of how society should exist, right? And I think that's worthwhile. And some people do really great work on that. And really pushing the boundaries of that. But at the same time, at least in my world, or maybe even in Adam's world, when either a worker or a former person in foster care or someone who uses drugs calls you and says, hey, I got this problem.
00:41:59
Speaker
And if I respond by saying, hey, how you want to engage with this doesn't address the broader movement or the broader movement should go. So don't worry about your specific individualized case while we march in the streets or engage in transformative change. I think that's going to fall flat for that person. Because that person, that individual who's being harmed, wants some sort of relief right now.
00:42:33
Speaker
the groups and individuals I represent, they want to address stuff right now within the systems that exist right now, but with an eye towards transformative change. Because if we ignore one or the other, you're going to lead to circumstances where the person being harmed today is not going to get any effective recourse. But if you ignore kind of the broader aim, then you're not going to get the changes you need over a longer period of time.
00:42:45
Speaker
And I think for some folks, particularly
00:43:01
Speaker
to make a more equitable and inclusive society. So it's a perennial debate between how much do you engage with the system or to change the system. And I think that is very difficult questions. But as long as there's people who are fighting both, hopefully together, I think we can lead to real results.
00:43:24
Speaker
Yeah, I don't think it can be kind of an all or nothing or one or the other. Because even if you take the view that courts are largely ineffective, and to be clear, I don't take that view. Otherwise, I think I would have trouble in my job. There is some utility in these processes. Of course, it cannot be what you hang your hat on. It can't be the be all and end all.
00:43:50
Speaker
Um, but it is, it is there and especially on kind of the individualized basis, it is good for individuals and it's good that this tool exists, but for larger systemic changes was really never been what courts are for.
Law's Role in Societal Change
00:44:06
Speaker
I mean, courts originally, they arose kind of to adjudicate individualized disputes and to some extent they're still beholden to that role.
00:44:15
Speaker
Yeah, and I think I don't wish for to dismiss like the individual cases for justice right like I think we have very highly developed processes and if I was to make an analogy to like, like a bodybuilder like I think the muscles for.
00:44:30
Speaker
You know grievances at the labor law level or these kind of like constitutional challenge public law cases that that have niches takes takes on. I think we, we have figured out largely as a society and as the left, we have figured out how to kind of manage those individual cases and make sure that justice is done. I think, broadly speaking on the left, we've kind of neglected leg day right like we are, we have
00:44:53
Speaker
only done our arm curls and our bench press, and we have neglected to actually build the foundation of our power, which is the ability to actually bring about broad change and to reflect that power in the streets or legislatively or however you wish to kind of exercise that power. But you've got to put in the work to actually demonstrate that you as a movement have the power
00:45:21
Speaker
and the numbers behind you to actually be able to flex those muscles, however you're choosing to flex them. And that is the kind of fundamental kind of point that I wish to make, right? That is like, we have, as a movement, we have ignored leg day. We actually need to build power. We need to do more than just the kind of the stuff that we're good at. Yeah, like, but you know, even when it comes to the law stuff, like a lot of the stuff is,
00:45:50
Speaker
Like in my cases, this is novel. This is never been argued for. This is in both cases, the option of last resort. This is after kind of organizing, demonstrating a bunch of things have failed to push
00:46:05
Speaker
policies or governments along a particular direction. So they come to me and I have to make stuff up and hopefully get a result. But in some cases, folks go to the courts right away rather than engaging in that direct action. And I just think that, I don't know if folks appreciate this example, but if you look at things like even in the civil rights of the United States or
00:46:34
Speaker
a variety of other kind of justice-oriented transformational societal changes. It's folks working in tandem together and not kind of neglecting or even disparaging people who engage in other tactics, but just like working together towards that common aim because, you know, when you're in it, you don't know what is going to lead to the specific change. You know, you don't know if it's going to be a protest in the streets.
00:46:59
Speaker
or a court case, but you're just trying whatever you can to achieve that particular outcome. And I think that you can neglect either option, but it's more effective if you work in tandem because I know that the work I do benefits from people who engage in that more direct approach, right? To shift narratives, shift understandings, shift values. And I think vice versa that some of the court work I do
00:47:25
Speaker
can do the same among society but also within the political communities that I think are impacted by this because it took a long time for folks within the broader left movement to accept the experiences of the people who use drugs or even people who engage in sex work.
00:47:45
Speaker
You know, there are unpopular causes and constituencies within these political communities that, you know, often have to battle within those communities to get the recognition and respect they need. Yeah, and I think if I could jump in here, I think just kind of with you mentioning working in tandem, Avneesh. Earlier on, you mentioned kind of the role that media plays and you said, at least in relation to, you know, press releases, the governments have been putting out about opioid and opioid use in the IOAT program.
00:48:14
Speaker
that quote I think you said media had the receipts and I think this kind of underscores the need for kind of a multi-pronged approach that you know on the one hand you have kind of media that is drummed up interest around what the government is doing and the actions that are going on but at the same time you have a legal action going on at the same time and
00:48:36
Speaker
you know, what, what the legal action could have accomplished without kind of the, without the media or without public interest or something like that. I don't know, but the two together did get some kind of result.
00:48:50
Speaker
Yeah, I mean, an example of that, I mean, an example of that is the Habitat for Humanity case, right? Like you were representing the residents there as your lawyer, but then like Black Lives Matter came in and picked up this cause and shut down Habitat for Humanity Day. There were a handful of other actions that put pressure on Habitat for Humanity. And so, and as a result, the residents ended up getting what they wanted, right?
00:49:13
Speaker
Absolutely. Without BLM organizing, without those particular organizers and residents organizing among themselves and bringing these issues to bear, we wouldn't have had the result that we wanted or we got. It taught me about just working together, working with folks on the streets, but also with folks in the courtrooms to ensure that vulnerable, marginalized people are able to shape
00:49:41
Speaker
the world they live in to get the outcomes they need. And it's not going to be one or the other. It's got to be people working together. And I think Alberta is just getting to a point, maybe not in the labor context, but definitely in this constitutional, kind of marginalized public interest context where these organizations and these causes have to work together. And there has to be lawyers who are willing to take on these cases.
Closing and Audience Support Call
00:50:05
Speaker
These cases are not funded. And it's just like, you know,
00:50:10
Speaker
incredible amount of work and you know we're going to have a real discussion in this province about building an adequate legal civil society that's willing to take on these causes and work with movements. Yeah and I think you know I would just like to underscore you've worked exceptionally hard in all of these cases and I don't think I would recognize that from the outside looking in just how much
00:50:36
Speaker
work goes, obviously, community members put in huge amounts of work, but to shepherd these legal cases forward is also a Herculean task. And you've been doing this over and over and over, and it's been really, it's been awesome to see. And I just want more people to do it, so I don't have to do it. So if there's any lawyers listening to this or not, take this stuff on. Yeah. Yeah, yeah. And to everyone else out there, build those organizing and power building muscles as well.
00:51:06
Speaker
I think that's a fantastic place to leave it. Thanks so much for coming on the show, Avneesh and Adam. Now is the time to plug your pluggables. If you've got social media accounts or projects or things that people want to check out, the mic is yours. Adam, you're yours. I mean, I don't really have social media. I don't have anything. So my plug will be this podcast and whatever Avneesh is going to say. That's what you should be doing with your time.
00:51:33
Speaker
So there's a couple of things I want to flag, particularly around folks who organize in Alberta around for and who are people who use drugs because there's so much work that needs to be done and there's so much harm happening.
00:51:48
Speaker
Um, you know, more than 3 of the day are dying preventable. Situation so from mom start to harm. To a variety of other groups in Alberta grassroots organizations, rural harm reduction groups, we're working on this. Search them out, give them a plug, get engaged with these issues because.
00:52:08
Speaker
It's going to get a lot worse. There's going to be more preventable overdose deaths. The rates are going to climb significantly, particularly under this government's policies. So we need to be there for each other and to fight back. Agreed. Yeah. Mom, stop the harm. Do great work. Yes, I would definitely follow along with that. And I'll put that in the show notes.
00:52:30
Speaker
Um, yeah, thanks so much for coming on guys. And for the folks who made it all the way to the end of this podcast, there are a couple of things you can do to help us out. The easiest thing to do is of course, uh, non monetarily, the thing, the best thing to do to help us out is, uh, to share this podcast with your friends and family. I think this is really awesome conversation. I think more people, the more people that hear it, the better.
00:52:51
Speaker
monetarily, and that's obviously another big way to help us out. The easiest way to do that is to go to theprogressreport.ca slash patrons, put in your credit card information, give us a little bit of money every month, five, 10, $15, whatever you can afford. I want to get to 500 donors by the end of the month. We're currently in the 440s. And I think it's very doable that by the end of March in the next 20 days, that we make it to 500 some donors and keep Jim and I employed and within groceries with a roof over our head.
00:53:20
Speaker
Also, if you have any notes on this show or thoughts, comments, things you think I need to hear, I'm really easy to get ahold of. You can reach me on Twitter at Duncan Kinney, and you can reach me by email at DuncanK at ProgressAlberta.ca. Thanks so much to Cosmic Famicommunist for the amazing theme. Thank you for listening, and goodbye.