Constitutional lawyer Joseph Arvay remembered as tireless defender of the underdog

Joseph Arvay dedicated his career to the fight for Canadians’ civil liberties, leading landmark legal cases that helped protect the LGBTQ community from discrimination, preserve access to safe injection sites and defend prisoners against unconstitutional punishment.

Arvay died this weekend at the age of 71, according to his law firm. No cause of death has been released.

Long-time friend and former attorney general Andrew Petter described Arvay as “the Clarence Darrow of Canada” in an interview with Gloria Macarenko, host of CBC’s On the Coast, referring to the renowned American civil rights lawyer.

“His legacy, his record is just extraordinary. He was a force of nature — personally and professionally,” Petter said.

Born and raised in Ontario, Arvay suffered a spinal injury in a car accident at the age of 21 that left him a paraplegic. He earned law degrees at both the University of Western Ontario and Harvard and worked in government for a time before turning to private practice.

According to Petter, Arvay made the decision to strike out on his own because he believed he could effect change more easily from outside the system.

“We sparred a lot. He had a lot more faith in the institute of law when it comes to social justice,” Petter said.

“It was always a friendship in which ideas were challenged.”

‘Joe didn’t care much for hierarchy’

Arvay was an Officer of the Order of Canada and a recipient of the Order of British Columbia.

His long list of legal cases offers something resembling a comprehensive summary of the major battles over rights and freedoms fought in Canadian courtrooms over the last three decades.

Arvay won a landmark case before the Supreme Court of Canada in 1995, establishing that discrimination on the basis of sexual orientation is prohibited.

He represented Little Sisters Book Emporium in Vancouver in its fight against censorship of LGBTQ materials by customs officials.

When the Canadian government tried to shut down the Insite safe injection site in Vancouver, Arvay won the program a constitutional exemption from federal drug laws.

Arvay was ‘was a force of nature,’ according to a friend. (Darryl Dyck/Canadian Press)

He also represented the plaintiffs in the case that saw medical assistance in dying legalized across the country, and led the successful challenge to have indefinite solitary confinement declared unconstitutional.

In many of his high-profile cases, Arvay represented the B.C. Civil Liberties Association (BCCLA), working for no charge.

The BCCLA’s litigation director, Grace Pastine, remembers Arvay as a passionate defender of the underdog, but also someone who brought a sense of fun to the law.

“Joe didn’t care much for hierarchy, and he would take a good idea from absolutely anywhere, whether it was from a judge or from a student or from a person he was sitting next to on the plane,” Pastine said.

“And maybe that would get him in trouble from time to time when he would wag his finger before a judge while he was in court, but it really made working with him so much fun.”

‘One of the finest constitutional lawyers’

Arvay also agreed to take on some cases for the B.C. government in recent years. He argued against private health-care advocate Dr. Brian Day’s challenge to the public health system and represented the province in its court action over Kinder Morgan’s Trans Mountain pipeline expansion.

B.C. Attorney General David Eby paid tribute to Arvay’s legacy in a statement on Monday afternoon, writing about how he studied Arvay’s work in law school and aspired to work with him one day.

“Joe was one of the finest constitutional lawyers in this country and was a tireless advocate for human rights, Indigenous peoples and countless other marginalized or disadvantaged groups,” Eby said.

“He donated thousands of hours of his time to defend the rights of people who are on the margins, and he did so to make our country a better and more equal place.”

Arvay was an Officer of the Order of Canada and a recipient of the Order of British Columbia.

More recently, Arvay represented a group of 15 young people who are attempting to force Ottawa to develop a climate recovery plan.

He also lent his legal analysis to the push and pull between individual rights and public health early on in the COVID-19 pandemic, seeming to foresee protests against government restrictions on daily life.

In March, Arvay co-wrote an opinion piece for CBC warning that Charter rights are not absolute.

“Rights and liberties must sometimes make way in the pursuit of other legitimate societal objectives, like public health,” Arvay and co-author David Wu wrote.

They argued that proportionality and balance are key to preventing government overreach and oppression, and cautioned governments against invoking the “notwithstanding clause” to override the protection of the Charter.

Details on a memorial for Arvay have yet to be worked out.

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