Breaking Down The Two Solitudes of Theory and Practice - illustration

By Kent Roach, Faculty of Law Professor and Prichard Wilson Chair in Law and Public Policy

From the Fall/Winter 2013 issue of Nexus.

There is an unfortunate tendency to dichotomize the worlds of theory and practice. Lawyers and judges who practice sometimes see the work of legal academics as precious and irrelevant. Similarly legal academics may so immerse themselves in the rich world of the university they sometimes forget that they are also lawyers and that most of their students will become lawyers.

The divide between theory and practice seems to be growing and is leading some to question the relevance of law schools. This is unfortunate, because law schools are well-suited to bridge that divide and in doing so enrich both fields. One need only think about some of the collections of essays edited by U of T Law faculty over the last decade or so on practical topics, such as the head tax case, the anti-terrorism bill, medicare, legal aid and the role of Parliament. All of these books brought insights from academe to practical and topical subjects.

At the Faculty of Law, we are also fortunate to have a vibrant clinical program that helps bridge the gap. I am most familiar with the work of the David Asper Centre for Constitutional Rights, which is celebrating its fifth anniversary. The Centre has already intervened in 11 cases including eight at the Supreme Court of Canada. Students work hard conducting research to assist the lawyers in the cases and learn practical skills relating to the preparation and filing of courtroom materials.

But does this temporary taste of the deadlines and realities of practice pay sufficient educational and theoretical dividends? I would say it does. Most of the Asper Centre’s interventions have focused on access to justice issues. Such issues are a perfect meeting place for theory and practice.

One of the Centre’s first interventions in the Supreme Court was the Conway [2010] 1 S.C.R. 765 case where it argued with success for a broad interpretation of the jurisdiction of administrative tribunals jurisdiction to award Charter remedies.  This recognized the costs of obtaining remedies from the superior courts.

The Centre, however, has not given up on the superior courts and has argued in Ward [2010] 2 S.C.R. 28 for the availability of damages as a remedy under the Charter and in Caron [2011] 1 S.C.R. 78 for the availability of advanced costs orders to allow Charter arguments to be made. More recently, the Centre argued for broader public interest standing in Downtown Eastside Sex Workers [2012] 2 S.C.R. 524.

Students need to appreciate both sides of the theory/practice coin. For example, the Supreme Court’s decision in Vancouver v. Ward [2010] 2 S.C.R. 28 was in many ways a theoretical success. The Court’s unanimous judgment was an elegant clarification of what had been a muddied and incoherent jurisprudence.

In every case, Charter applicants would have to justify damages as necessary to compensate, vindicate or deter Charter violations and these functional considerations would also drive the quantum of damages. At the same time, governments could argue that damages would not be appropriate because of an open-ended range of countervailing factors including the availability of alternative remedies.  The Court demonstrated the meaning of this structure by upholding a $5000 damage award for the unconstitutional strip search of Vancouver lawyer Cameron Ward while holding that a $100 damage award for the unconstitutional seizure of his car was not necessary.

Arguing the case for the Centre certainly helped my own scholarship. I re-wrote the chapter on damages in my text of constitutional remedies and kept writing till I had a new edition. Moreover, the Court’s use of a mini section 1 in determining whether damages should be explored forced me to examine the role of proportionality, the central organizing idea in public law, in the field of constitutional remedies. Exploring how this theme emerges in Canadian and comparative jurisprudence will keep me busy for years.

I enjoy teaching Ward to the students in my advanced constitutional law but was recently reminded not to let my intellectual admiration of the judgment get ahead of itself. Three years later, there are pitifully few cases applying Ward to award damages.

The problem is not the theory of Ward but the nature of practice. Some cases have gone off the rails by suing individual officials and not governments and judges have used the $5000 award as a starting point: something every lawyer reading this piece knows ensures that only economically irrational plaintiffs and lawyers will take on such cases. Fortunately, there are some out there. Nevertheless, we still must find a way to deal with access to justice if the promise of Ward and all other theoretically satisfying laws are to be realized.

As tempting and familiar as it is to reside in the separate worlds of theory and practice, we must break down the walls. Academic lawyers are fortunate to have a living laboratory in the practice of law to test and refine their theories. Practitioners are fortunate to have access to academic lawyers, many with advanced degrees in the cognate disciplines, and with time and resources to think beyond the next case.  Academics and practitioners have much to learn from the other. We are all in this together.

Kent Roach is chair of the Asper Centre Advisory Committee and has represented the Centre in a number of cases including Ward and Downtown Eastside Sex Workers. He published the second edition of Constitutional Remedies in Canada in 2013 and was recently awarded a Trudeau Fellowship which will be used in part to examine constitutional remedies in a comparative fashion. The 2014 Asper Centre annual conference will examine constitutional remedies.