Alumnus Joe Arvay '74 - The Great Crusader
December 05, 2012
By Drew Hasselback ‘96
Joseph J. Arvay Q.C., has already cemented his reputation as one of Canada’s leading constitutional and civil rights lawyers, but he expects that his biggest case before the Supreme Court of Canada is yet to come.
Arvay, who graduated from Western Law in 1974, has successfully argued several high-profile cases that have redefined the legal rights of Canadians in many areas: gay rights, freedom of speech, drug use and aboriginal rights. Last June, he appeared before the Supreme Court of Canada on a closely watched case involving the constitutionality of Canada’s prostitution laws. That hearing made national headlines, as will the court’s eventual opinion. When it comes to picking cases, Arvay is a lawyer who swings for the fences.
And one of the most critical cases of his career is now in the courts. The B.C. Court of Appeal will soon rule on Carter v. Canada (Attorney General), a case involving the legality of physician-assisted suicide that Arvay argued before the court in March 2013. Whatever the outcome, he fully expects that case to progress to the Supreme Court.
“I’d like to be remembered as the lawyer who persuaded the Supreme Court of Canada to strike down the laws prohibiting physician-assisted dying,” he says. “It’s almost certain it will go to the Supreme Court of Canada.”
Arvay may now rank among the elite of Canada’s Charter litigators, but his legal career has rather humble beginnings. As a kid growing up in Welland, Ontario in the 1960s, Arvay’s first legal hero was the only lawyer he knew – the fictional TV lawyer Perry Mason.
While there were such things as constitutional lawyers, they spent their days arguing about some pretty dull things, like whether milk production should be regulated by the provinces or the federal government. A civil rights lawyer may challenge police action, but the scales were tilted against the accused. But the arrival of Charter litigation in the early 1980s would challenge many things and profoundly change Canadian society.
It would also help make Arvay one of Canada’s most formidable courtroom giants.
His professional profile might be large, but in person, Arvay is anything but intimidating. He’s soft-spoken and comes across as very easy-going. The real-life Arvay is a lawyer for the little guy.
“People who know him by reputation are often disarmed when they meet him because they expect sort of a blustery, forceful, egotistical kind of guy,” says Craig Jones, a B.C. lawyer and law professor who knows Arvay well. “He has a healthy ego, no question. But he doesn’t force himself upon people. He does a lot more listening than talking.”
Arvay came to Western as an undergrad in the late 1960s for simple reasons. His sister was going there and, as a small town kid, he was delighted by the pastoral campus and the grey stone buildings. He took a variety of courses in undergrad, and as he approached graduation, he found that his career options were limited. He’d always been a good arguer so he decided to give law school a shot.
He loved it and was immediately captivated by the law. “It didn’t take me long to know that I had found what I wanted to do,” he recalls. “It was instantaneous once I finally understood that law is a way to help solve problems using the force of one’s intellect or power of persuasion.”
After graduating from Western Law, Arvay tried his hand at academia. He obtained an LLM from Harvard University, and then taught at the University of Windsor law school in the 1970s. Still thinking about his TV hero, he took a year off to work as a criminal lawyer but he soon realized that criminal law would not be his forte. So he moved west in the early 1980s to take a job as a constitutional lawyer with the B.C. government. The Charter was about to arrive; yet he didn’t instantly recognize how interesting it would make his legal career.
Young lawyers might dream of changing the world. That may sound naïve or far-fetched, yet for a lawyer in the 1980s, the Charter made this possible. You could suddenly sue the government for anything. You might not always win, but if you do, you score a precedent that changes society forever. This annoys some: Why not leave social change to the legislature? Not Arvay. He’s quite content to see governments pass errant laws or ignore important social issues. “I love what I do. I like the fact that governments behave badly. That gives me something to do.”
But Western Law professor Bradley Miller, who appeared against Arvay in Carter, cautions that if constitutional litigation looks black and white, it’s because the process encourages – even demands – oversimplification.
“It helps to remember that lawyers, including Joe, are always acting for clients. Those clients – and Carter is a very good example – are often fronting for groups that have tried and failed to persuade the legislature to change a statute in their favour. But when a law is struck down, everyone who had been protected by that law now loses its protection,” says Miller.
“Joe’s success - and he does this better than anyone - depends on persuading the court that his client’s personal drama is of the utmost significance, and that those persons who will be stripped of the law’s protection in order to accommodate Joe’s clients just don’t matter all that much. There’s nothing egalitarian about it,” he says.
Arvay can be theatrical in court. He’s not fond of that description, yet it must be said. He’s just fun to watch. Ask any journalist who’s seen him argue.
“He has a quiet, unassuming presence, but a rapier-sharp legal mind. He also has great tenacity and stamina, and realizes the constitutional challenges he takes on will likely end up in Canada’s highest court,” says Neal Hall, who until last year spent two decades as the court reporter for the Vancouver Sun.
“He is a highly respected lawyer in B.C.,” adds Mark Hume, a veteran reporter and columnist for the Globe and Mail in Vancouver. “From a journalist’s perspective, when you see his name on a case, you know there’s going to be a good show. He is always meticulously prepared and his presentations are always impressive. He’s certainly one of my favourite lawyers to cover because of his articulate arguments.”
Lawyers respect him too, says Jones, who is currently a professor in the new Faculty of Law at Thompson Rivers University in Kamloops, B.C. Jones offers a unique perspective on Arvay. Not only has he worked with Arvay as both a colleague and a courtroom adversary, he’s also been a client. In 1997, Canada played host to an Asia-Pacific Summit. The meeting took place on the campus of the University of British Columbia, where Jones was a law student at the time. When Jones was arrested at a protest and one of his law professors recommended he call Arvay. In the end, the crown never charged Jones with a crime, though Arvay did later represent Jones and six other UBC students before a public inquiry that examined the RCMP’s conduct at the summit.
“I have learned so much from watching Joe in action, both as a client and as a colleague,” Jones says. “He is a ferociously good lawyer.”
Jones describes Arvay as an “old-school” lawyer who, through talent and experience, has a unique ability to push a hard case up a steep hill.
“When he’s on, there’s just no one that can touch him,” Jones says. “Some people have a gift to see where the law is going, and get there ahead of the queue. But Joe has actually pushed the law for things like gay rights and civil liberties. But for the force of his personality, I think the law wouldn’t be where it is today in some of these areas.”
Drew Hasselback (LLB, 1996) is Legal Post Editor of the Financial Post.
This article was originally published in the 2013 Western Law Alumni Magazine.
