Joseph Arvay: Freedoms fighter

Constitutional lawyer Joseph Arvay has played a crucial role in defining and defending Canadian civil rights

Joseph Arvay, arguably the most influential constitutional lawyer in the country's history| Photo: Dominic Schaefer

One day in 1991, lawyer Joseph Arvay got a call from John Dixon of the BC Civil Liberties Association. Would Arvay be able to take on the case of a bookstore whose product was being stopped and held at the United States-Canada border?

Little Sister's Book and Art Emporium, which has been located on Davie Street in Vancouver since it was founded in 1983, serves the lesbian, gay, bisexual and transgender community. In 1985 the store's products began to get stopped at the border by Canada Customs.

The store had gone to court over this issue for the first time in 1986 – years before Arvay's involvement. This effort cost the bookstore around $100,000, said Little Sister's co-owner Jim Deva, and ended with customs saying, on the steps of the courthouse, that they would pay for about $200 worth of magazines that had been destroyed.

The store wasn't ready to give up this fight.

“That's when Mr. Arvay came in,” said Deva.

By the time Arvay got involved in the controversial case, Little Sister's had already been through a lot; Deva said the store's very existence was threatened as customs had every intention of shutting it down.

Product being stopped at the border meant inventory issues, and sales had suffered. (Unrelated to this but to make matters worse, Little Sister's had been the victim of two bombings – one in 1987 and another in 1988. There was to be a third bombing in 1992.)

Arvay set out to prove that Canada Customs' actions were unconstitutional. It would be a straightforward case, everyone thought, probably involving “a couple days' preparation and one day in court.”

“It then consumed 17 years of my life and involved two trips to the Supreme Court of Canada,” Arvay said.

Most of that work, said Arvay, was pro bono.

This was not Arvay's first time litigating a case that involved defending a client whose civil liberties had been infringed upon; he is known for his involvement in so many high-profile civil liberties cases it is almost impossible to keep track.

His work has by no means been limited to constitutional law. Over the course of his four-decade career, he has litigated cases of all types, including commercial, defamation, medical malpractice and intellectual property cases.

“I consider myself a generalist, notwithstanding I have maybe a particular expertise in constitutional law,” Arvay said. “I just enjoy anything that is actually complicated and complex. I like the challenge of learning new areas of the law, even if at the outset it all seems mysterious and intimidating.

“I'm just not as well known in the other areas as I may be in the constitutional cases because they tend to be the cases that interest the public and get the media attention.”

And it is the constitutional cases – helping shape the way the Constitution of Canada is interpreted – that will be his legacy.

“The body of [Arvay's] work really defines what the Charter [of Rights and Freedoms] means in a lot of contexts,” said A.C. Richard Parsons, president of the Trial Lawyers Association of British Columbia. “Every lawyer that analyzes those issues [that Arvay has worked on] now analyzes them through a framework that he helped create through his role in the process.”

Some may best know Arvay for being counsel in the case of Egan and Nesbit vs. Canada that, in 1995, established sexual orientation as a prohibited basis of discrimination.

Or for his role a decade ago as lead counsel in British Columbia in the case that struck down the laws preventing same-sex marriage, making Canada the first country in the world where a court allowed same-sex couples to get married.

Many may remember him for having successfully argued on behalf of several health services unions in the case that established collective bargaining as constitutionally protected.

One of his more recent high-profile civil liberties cases was that of Gloria Taylor, an assisted-suicide advocate who was suffering from ALS, also known as Lou Gehrig's disease. Taylor won the right to seek a physician-assisted suicide in June 2012 (but ultimately died of natural causes in October 2012).

The list goes on and on. His client roster, past and present, ranges from unions, First Nations, civil liberties associations, a transgender beauty pageant contestant, Winston Blackmore, Vancouver Mayor Gregor Robertson, Hells Angels, children of sperm donors, sex workers, school districts, Insite safe injection site, members of the judiciary, federal and provincial governments and many administrative tribunals.

And he is by no means done.

In 1969, while Arvay was a student at the University of Western Ontario, an event occurred that would alter his perspective forever. He was in a car accident that left him a paraplegic, and he has used a wheelchair ever since. While this hasn't prevented him from remaining active – to this day, he enjoys several activities including cycling – it completely changed the way he saw the world, and this is probably one of the biggest reasons he was drawn to litigating minority rights.

“I went from being a member of the majority and all of a sudden became a member of a minority,” Arvay said.

“I became acutely aware of discrimination and prejudice against minority groups, including me.”

Arvay said he is driven by the fact that he considers his clients' issues to be important.

“I believe in my clients' causes,” he said. “That's how I feel about every case that I do. Once I take on a case, I fight very hard for my clients and believe in the rightness and the justness of their cause.

“But it's nice to get paid for that as well.”

Born in 1949 and raised in Welland, Ontario, Arvay got his law degree from the University of Western Ontario in 1974 and graduated with a master's from Harvard, where he took courses in constitutional law, in 1975.

After Harvard, Arvay taught law at the University of Windsor for about five years, before deciding he was “not a scholar.”

In November 1981, he moved to B.C. and took a position at the Ministry of the Attorney General.

Five months after joining the ministry, on April 17, 1982, Prime Minister Pierre Trudeau and Queen Elizabeth II signed into law the Constitution of Canada, which included the Canadian Charter of Rights and Freedoms.

This event ultimately carved the path for Arvay's career.

Having a new constitution meant uncharted waters for the legal profession, and there was a lot of room for interpretation in terms of civil liberties, Parsons said.

“When the charter first came out, everyone thought, ‘This is wonderful, but what does it mean in application?'” he said. “How do these rights apply and how do you balance the competing interests that sometimes occur when you have competing charter rights?”

Arvay's role in figuring this out was pivotal, said Parsons, as he took many of these early cases to the B.C. Court of Appeal and the Supreme Court of Canada.

But working for the ministry, Arvay found himself on the wrong side of charter cases.

“I wanted to be acting for the citizen, not for the government,” Arvay said.

So in 1990 he went into private practice with John Finlay and Murray Rankin, creating Arvay Finlay. Since then he's worked on many prominent cases including opposing the Surrey School District, which had been banning childrens' books depicting same-sex relationships in a positive light, and arguing in favour of Insite, the country's first legalized safe injection facility.

The Gloria Taylor case is the one Arvay has felt most personally tied to, for many reasons, including the fact that he had witnessed loved ones die painful deaths.

“It spoke to me in a very personal way,” Arvay said.

The case protecting health unions' right to bargain collectively is another one that stands out for him.

“[Prior to that], jurisprudence had been that there was no constitutional right to collective bargaining, and in a surprising decision the Supreme Court of Canada said there was,” he said. “I'm proud of that achievement.”

Peter Gall, a partner at Heenan Blaikie in Vancouver, first met Arvay at Harvard. Gall argued against Arvay in the health services union case.

“Joe had to overcome previous decisions of the Supreme Court of Canada that went against him [and] he got the Supreme Court of Canada to overrule those previous decisions,” Gall said. “That takes some masterful lawyering.”

Despite opposing him in the courtroom, Gall said it's a pleasure to hear Arvay argue and put a case together.

He described how other lawyers feel when they find out they will be working opposite Arvay.

“Firstly, they think, ‘I'd better be prepared and I need to spend a lot of time thinking about my case, because if I don't, I'm going to be in trouble,'” Gall said.

“As well, they think, ‘This is going to be a great treat,' because it's always a pleasure to see great lawyering in action.”

When Arvay took the Little Sister's case, he did a lot of research on the subject matter.

“You can't have a lawyer defending you when they are uncomfortable with the material they are defending,” Deva said.

Parsons said there aren't many people who would have had the courage to take the case.

“It's a complicated issue,” Parsons said. “You have to be brave of heart to take on those issues and come out on the other side with the court agreeing with your analysis.”

Getting the Little Sister's case off the ground wasn't cheap.

“[Arvay] was very patient,” Deva said. “We paid him when we could get the money. We paid him on a monthly basis, as much as we could out of the store profits, because he realized the store had to continue in order for our case to continue.

“Not every lawyer is that thoughtful.”

Many of Arvay's clients in constitutional cases can't afford to pay him.

“Most of my clients are not wealthy people,” he said. “In fact, most of them are poor people. In order to practise constitutional law, you have to do so often by doing work pro bono or in the hopes that if you win the case the court will order the government to pay the costs.

“So I'm a bit of a risk-taker in that respect. I've taken on a number of cases with a hope and a prayer that I'll win and I'll get my costs. I've managed to do that in a number of cases.

“But I do other cases, commercial cases. That's what pays the bills and allows me to do these cases that don't pay the bills.”

Arvay has also been fighting to get the government to pay the costs of citizens challenging the charter.

“I believe that if we are going to have an equal playing field when we are litigating the charter, the government should be required to pay the cost of not only the government lawyers but the lawyers on the other side of the case, because one of the greatest impediments to justice or the access to justice in Canada is our legal costs,” he said.

“Governments don't have any problems finding the money to defend laws when they are being challenged, but citizens have a huge amount of difficulty.”

Arvay turned 65 this year, but retirement isn't in the cards for the immediate future. In January 2014, Arvay officially joined Farris, Vaughan, Wills & Murphy LLP.

Although he has been at the firm only a few short months, he is already involved in a wide range of significant cases.

For example, he is representing the Hells Angels in a case that is challenging civil forfeiture laws.

Arvay is acting as co-counsel with David Martin on behalf of the BC Civil Liberties Association in challenging the constitutionality of federal legislation that allows the Communications Security Establishment Canada (CSEC) to intercept private communications.

He is co-counsel acting for Ivan Henry, who was wrongfully convicted of sexual assault in the 1980s and spent 27 years in prison – a case that the Supreme Court of Canada has just decided to hear.

As well, he acted for Winston Blackmore when he was charged with polygamy.

Once again, the list could go on.

Despite all he has done for constitutional law and litigants, Arvay has a life outside work, too. He has been married to wife Connie Addario for 13 years (this is his second marriage) and between them they have five children. In his spare time he bikes, swims and fishes. He also used to sit-ski until he was injured a few years ago.

“I was the first person to ever sit-ski on Whistler Mountain. That's one of my claims to fame that nobody knows about,” he said with a laugh.

In January 1996, several months after a 34-day court run, Justice Kenneth Smith of the Supreme Court of British Columbia ruled that Little Sister's was being discriminated against by Canada Customs – a victory for the bookstore, which had been fighting the battle for a decade.

But this wasn't a complete triumph. Arvay and Little Sister's had also attempted to prove that the statute that allowed customs staff to censor books at the border was unconstitutional.

On that point they lost.

“We wanted the entire thing just overturned, for them to rewrite the law, but it didn't happen,” Deva said.

The Supreme Court of Canada upheld Smith's decision in 2000.

To Arvay, the Little Sister's case was about more than censorship.

“It became a much more important case about the intersection of the guarantee of freedom of expression in our charter and the guarantee of equality.”

The store did make a second and final trip to the Supreme Court to argue that the laws permitting Canada Customs to censor materials were unconstitutional. An attempt to be awarded advance costs was unsuccessful.

Little Sister's no longer has any issues with Canada Customs (now called the Canada Border Services Agency), however, and Deva said many good things came out of the journey.

“It pointed out some flaws in our system,” he said. “There is a need for Joe and lawyers like Joe to continue to believe in the future of our country as a free nation.

“Thank God for civil liberties. Thank God for Joe.” 

  • Represented plaintiffs Egan and Nesbit in a case that established sexual orientation as prohibited grounds for discrimination

  • Was lead counsel in the case that struck down the laws preventing same-sex marriage

  • Represented Gloria Taylor in Carter vs. Canada, which gave her legal access to doctor-assisted suicide (she died of natural causes)

  • Represented Insite safe injection site, resulting in the facility remaining open and recognizing that addicts had a right to supervised injection

  • Argued on behalf of children of sperm donors, giving them the same rights as adopted children in terms of information access

  • Argued against the Surrey School District, establishing that school districts can't refuse to allow the use of books that portray same-sex relationships in a positive light

  • Represented several health services unions in the case that established that collective bargaining is constitutionally protected

  • Prosecuted a case for the Crown involving over 100 people (one of the largest number of accused ever charged under one indictment) who had protested against Everywoman's Health Centre

  • Represented Bill Vander Zalm arguing that the HST was unconstitutional, and in another case defending the legislation that allowed for the referendum on the HST

  • Was on the legal team representing Jenna Talackova, a transgender beauty pageant contestant fighting for the right to compete in the Miss Universe contest

  • Acting for unions before the Supreme Court of Canada on whether there is a constitutional right to strike (decision pending)

  • Acting for the Assembly of First Nations in the leading aboriginal title case now under reserve in the Supreme Court of Canada (decision pending)

  • Representing Providence Health Care to challenge the federal law that prohibits doctors from prescribing medical-grade heroin

  • Representing the Hells Angels in a case that challenges civil forfeiture laws

  • Acting as co-counsel with David Martin in the Communications Security Establishment Canada (CSEC) case, which is challenging the constitutionality of federal legislation that permits CSEC to intercept private communications and collect and analyze metadata

  • Acting together with Glen Orris on behalf of one of the skippers charged with criminal negligence in the case of the B.C. ferry that sank (the Queen of the North)

  • Acting as co-counsel together with Marilyn Sandford and Cameron Ward for Ivan Henry, who was wrongfully convicted of sexual assault in the 1980s and spent 27 years in prison (this case will be heard in the Supreme Court of Canada in the coming year)

  • Acting for the BC Health Coalition in defending the B.C. legislation that prohibits for-profit medical clinics

  • Representing the provincial court judges in a compensation dispute with the provincial government