Joe Arvay - Remembering his contributions from Little Sisters to Hells Angels

Renowned constitutional lawyer Joe Arvay passed away unexpectedly at the age of 71. Over the course of a remarkable career focused on public interest constitutional litigation he had a profound impact on the lives of many people. 

A few of the many cases he was involved with are discussed on the show, ranging from the Little Sisters bookstore case, that dealt with freedom of expression and equality rights to one of his most recent cases involving civil forfeiture of property that might be used, in the future, for criminal activity. 

R. v. Henry was a case involving a man wrongfully convicted of 10 sexual offences for which he was designated a dangerous offender and kept in jail for almost 27 years. His wrongful conviction was caused by the Crown not disclosing 30 witness statements that would have undermined already problematic identification evidence, as well as key forensic evidence. The Crown also concealed evidence of another suspect who had been arrested twice in the vicinity of the attacks. 

Mr. Arvay was successful in obtaining compensation for Mr. Henry as a constructional remedy, without having to prove that the prosecutor who withheld the evidence acted with malice. Prior to this case, no compensation would have been available unless the wrongfully convicted person was able to provide the Crown was motivated by an improper purpose. 

The high threshold was intended to protect prosecutorial discretion over matters such as the decision to prosecute someone or not. The Supreme Court of Canada accepted Mr. Arvay’s argument that there is no discretion concerning the obligation to provide disclosure of evidence once a prosecution is undertaken. 

Another notable case discussed on the show is Canada (Attorney General) v. Bedford. In this case, the Supreme Court of Canada struck down several of the prostitution laws that existed at the time. The court accepted that the legal prohibitions made life more dangerous for sex workers by preventing them from taking steps to ensure their safety. This was found to contravene section 7 of the Charter that protects the security of the person. 

Carter v. Canada (Attorney General) is also discussed on the show. In this case, the Supreme Court of Canada concluded that the assisted suicide prohibitions were unconstitutional to the extent that they prohibited physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

This case reversed an earlier Supreme Court of Canada decision and is an example of Mr. Arvay not accepting an older decision as being immutable. The Supreme Court of Canada agreed that earlier decisions could be revised in two circumstances: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.

The final case discussed was ongoing at the time of Mr. Arvay’s death. It involved the British Columbia civil forfeiture legislation which permitted property to be taken by the government on the basis that it is likely to be used, in the future, for criminal activity.

Mr. Arvay was successful at trial in having these provisions struck down as being unconstitutional. The trial judge used an example of a person being convicted of dangerous driving, serving their sentence, purchasing a new car, and having the government take the new car on the basis that it was likely they would drive dangerously again in the future. 

Follow this link for a transcript of the episode and links to the cases discussed.