The Achampong court challenge: read the legal arguments here

 

On September 10, 2018 Superior Court Justice Edward Belobaba ruled that Premier Doug Ford’s Bill 5 – the so-called Better Local Government Act – to reduce Toronto’s city council from 47 wards to 25, breached s. 2(b) of the Charter and was therefore unconstitutional. Shortly thereafter Premier Ford announced that not only was his government going to appeal the court’s decision, but he was going to invoke the Constitution’s “notwithstanding clause” for the first time in Ontario’s history to override the judge’s decision. The revised Bill has been introduced in the legislature with debates lasting into the late night; while a stay application, pending the appeal of the court decision, has been scheduled for Tuesday, September 18th. 

The David Asper Centre for Constitutional Rights is carefully observing the events as they unfold and is pleased to be convening a moderated panel discussion on Thursday Sept 20th at 4:30-6:00pm at the University of Toronto Faculty of Law (J250 Jackman Law Building, 78 Queens Park) in order to unpack the various legal issues involved in this unprecedented case.

Panel members will include two of our faculty’s Constitutional Law Professors Lorraine Weinrib and Yasmin Dawood, and litigator Steven Barrett of Goldblatt Partners LLP.

View the EVENT POSTER here.

The Asper Centre has collected the relevant court papers in the case and is pleased to share them here:

Achampong – Factum

ACHAMPONG decision Superior Court Sept 10 2018

City of Toronto – Factum (Stay Motion) (Motion File No M49615)

City of Toronto Factum CTF Factum

Factum – Stay pending appeal FINAL (for service and filing) v 2

Factum of the Intervenors, Hollett et al.

Factum of the Proposed Intervener returnable September 18, 2018

Factum of the Responding Parties, Chris Moise et al. (01193002)

Factum_Achampong_Stay C65861 M49615

Hollett – Factum (stay)

Moise – Factum

Moise – Reply Factum of the Applicants (01187040)

Supplementary Factum FINAL

 

 

Asper Centre Student Working Groups Making an Impact

by Tal Schreier

University of Toronto law students can become involved in the Asper Centre’s work through volunteering with one of our student working groups. The working groups are student-led initiatives that bring together 10-15 students to work in conjunction with academics, civil society groups or members of the bar on Charter rights advocacy or current constitutional law issues.

In 2017/2018, the Asper Centre had three dedicated student working groups, who were involved in a number of ongoing research and advocacy projects.

The Police Oversight student working group researched and commenced drafting comprehensive public guides to navigating each province and territory’s police oversight systems, as well as for the RCMP. These guides will include information on the structure, important timelines, helpful strategies, and realistic expectations of success in the various police complaints structures. The initial purpose of this project was to critically evaluate the oversight systems that hold police officers accountable in Canada and make the police complaints structures more accessible to all Canadians. This project expanded upon research undertaken by law student Sarah Strban, while she held an Asper Centre summer fellowship position in 2017.  Sarah initiated the student working group and her co-leaders were Joshua Favel and Natalie Marsh, who were all second year JD Candidates.

During her summer fellowship last year, Sarah assisted Toronto lawyer and former Asper Centre Constitutional Litigator-in-Residence Mary Eberts in conducting research into Indigenous policing.  The research was part of advocacy being conducted by the Legal Strategy Coalition on Violence against Indigenous Women (housed at LEAF, the Women’s Legal Education and Action Fund) in the context of the National Inquiry into Canada’s Missing and Murdered Indigenous Women and Girls.

In recent years, there have been many high-profile clashes between Indigenous peoples and the police. There have been serious allegations of systemic racism and improper conduct, such as against the RCMP in northern British Columbia and the Thunder Bay police force and there have also been countless allegations of police apathy and shoddy work when dealing with Indigenous persons, something that may very well have contributed to Canada’s missing & murdered Indigenous women.

Independent and objective police oversight helps ensure public confidence in the police, which in turn helps the police maintain public safety. For police oversight mechanisms to be effective however, members of the public need to know and understand how to navigate these often-complex procedures.  It is hoped that the police oversight guides being developed by the Asper Centre will promote victims’ access to justice as they will empower individuals and communities to become more aware of their legal rights and responsibilities, as well as allowing victims and complainants to be able to effectively participate in police oversight processes.

The Asper Centre’s Indigenous Rights student working group worked in partnership with the Chiefs of Ontario (COO) to prepare comprehensive research and legal advocacy documents regarding Indigenous peoples’ rights to substantive equality and self-determination in, primarily, the child welfare service provision area.  This project was initiated by JD Candidate Zachary Biech and his co-leaders were JD Candidates Alexis Gianellia and Catherine Ma.  The COO is a political forum and secretariat for collective decision-making, action, and advocacy for the 133 First Nations communities located within the boundaries of the province of Ontario.

Lastly, our Immigration and Refugee Law student working group was initiated by the Asper Centre’s 2017 summer research assistant, Natasha Anzik, who recently completed her second year as a JD Candidate at the Faculty of Law. Natasha’s co-leaders were JD Candidates Nicholas Martin and Christopher Puskas. The main focus of the working group this past year was to provide pro-bono research and support to the team of lawyers who are currently representing the public interest litigants (Canadian Council of Refugees, Amnesty International and the Canadian Council of Churches) in a Constitutional challenge to the Canada-U.S. Safe Third Country Agreement (STCA) at the Federal Court of Canada in which the designation of the U.S. as a safe third country for refugees to seek protection is being contested.

Photo: Student Working Group Leaders Chris Puskas, Natasha Anzik and Sarah Strban recruiting volunteers at UT Law Clubs Fairs

Call for Proposals for 2018-19 Asper Centre Working Groups is due on August 15 2018.

Further information about past student working groups is available here.

Bill C-59: The Good, the Bad, and Where We’re At

By Patrick Enright

When Bill C – 51, the Federal Government’s revised Anti-Terrorism Act, was pushed through Parliament following the attacks on Parliament Hill in 2015, the reaction from the public and civil liberties societies was swift. The Canadian Civil Liberties Association challenged key provisions of the Act under the Charter, and Professors Roach and Forcese (among others) wrote numerous articles decrying the law as “radical” and “unbalanced.” It also became a hot topic of debate in what turned out to be a contentious Federal Election, one that saw the Liberals win a surprising majority over Harper’s conservative flagship.

But when the dust settled from the election season, the question loomed large: would the Liberals take any action to reform the new law? At the time, there was reason to be skeptical. The law had received Royal Assent with support from both the Conservative and Liberal parties. And with the election of the U.S. chest-pounder-in-chief, Donald Trump, many thought the Liberals would shy away from anything that might portray them as either soft on terror or weak on national security matters.

So when the Liberals introduced Bill C – 59, An Act Respecting National Security Matters, there was reason to believe it would be a mere nodding attempt to keep a half-hearted campaign promise. In some ways the Bill does disappoint – and the Asper Centre has released a detailed analysis of its shortcomings. But in many ways it is a valiant effort to roll back some of Bill C-51’s glaring excesses.

The most obvious improvement in the legislation is the implementation of a multi-agency review mechanism. The new bill sets up a whole-of-government review committee that can assess and review all national security information (except Cabinet confidences) and produces frequent classified reports to Parliament as well as an annual unclassified report to the public regarding its findings. These provisions remedy a major deficiency in accountability that has been lacking for years in Canada’s national security framework. Until now, each national security agency had different oversight bodies, which could not collaborate with each other, despite the fact that the work of each agency is often intertwined. This created a “siloing” effect, where reviewing bodies could not follow the evidence down whatever rabbit hole it may have led. By contrast, the new “whole of government” mandate means that the entirety of Canada’s national security apparatus can be held accountable for its actions, including the CBSA (Canadian Border Services Agency) which had previously not been subject to any independent review.

The Bill is commendable in other areas as well. For example, Bill C – 51 introduced a new speech offence to the Criminal Code that made it an offence to “advocate or promote a terrorism offence in general.” The provision is breathtaking in scope. It makes it an offence to perform tasks as innocuous as promoting the assistance of designated terrorist groups, advocating for the provision of “material aid” to listed groups, and advocating for the provision of charitable aid to a listed terrorist organization. There were also no defences worked into the provision such as opinions in the furtherance of a religious belief, commentary on matters of public interest, or the articulation of truth.

Bill C – 59, to its credit, limits the scope of this offence to actions that actually “counsel” a terrorist activity. This is important because “counselling” criminal activity has always been a Criminal Code Offence – one that has been upheld as constitutional under the Charter.

All this being said, the Bill is not a model of perfection. The Liberals have come up at least one base short of a legislative home run. Canada’s national security framework remains sorely lacking in the area of privacy protection in that it still permits an enormous amount of sharing of Canadians’ personal information between federal agencies. As of now, the broad collection and sharing of Canadians’ personal information is authorized if the information pertains to acts that might “undermine the security of Canada.”

While this might sound perfectly reasonable, it is in fact alarming when one looks at the definition of what “undermines the security of Canada.” The category includes such unremarkable matters as interference with the economic or financial stability of Canada as well as any effort to “unduly influence” the government of Canada by any “unlawful means.” The term “unlawful,” it should be noted, is not the same thing as “criminal.” Canadians’ private information can be swept up and shared on the grounds that the target of the information had contravened an act of Parliament in an effort to merely “influence” government action (think of violations of the Ontario Labour Relations Act). Bill C-59 does nothing to remedy these deficiencies.

So what has been the progress on Bill C – 59? The Bill is currently being prepared for Second Reading in Committee, so there is still hope that modifications could be made. But there is no guarantee that changes to the bill won’t move in a less happy direction. The Progressive Conservatives, under their new leader Andrew Scheer, have made a habit of taking the Liberals to task on any matter that has the appearance of being “soft on terror,” including the management of returning ISIS fighters and – most controversially – the 10-million-dollar settlement with Omar Khadr. The Conservatives also appear to have taken issue with the restrictions on CSIS’s so-called threat reductions powers. Bill C – 51 made it legal for CSIS agents to take positive steps to reduce national security threats short of causing bodily harm, intruding on sexual integrity or obstructing justice. It also allowed CSIS to seek a warrant from courts that would authorize Charter violations. Bill C – 59 changes this. The Liberal government has reformed these provisions by requiring that all such actions be Charter compliant, and prohibits CSIS agents from using its powers to detain, torture, or damage property to the extent that it endangers life.

These are important changes, but it is not obvious that the Liberals will be able to pass it into law without a fight. For this reason, when it comes to debating the bill in second reading, one hopes that Liberals and Conservatives will come together to strike an appropriate balance between national security matters and rights-preservation.

In other words, that cooler heads might prevail.

Patrick Enright is a 3L JD Candidate at the University of Toronto Faculty of Law and was a 2016 Asper Centre Clinic student.

Litigating the Public Interest within the Context of Private Rights

By Ryan Howes

The Asper Centre’s Public Interest Litigation Conference offered numerous panels on topics ranging from specific case examples to broader litigation strategies for parties and interveners including non-litigation forms of advocacy and funding for the cause. One discrete panel focused on the broad topic of how public interest litigation intersects with private rights. As one might expect, the topics covered were varied.  In the realm of gene patents, Professor Richard Gold and Rachel Meland spoke of private rights interfering with the public interest in vital healthcare services. In contrast, Howard Anglin spoke on the R v Comeau case and how old prohibition era laws enacted in the public interest interfere with citizens’ ability to freely trade alcohol between the provinces, contrary to s. 121 of the Constitution Act, 1867. On a procedural level, Christine Laing discussed how security for costs negatively impacts public interest litigation. Finally, Eleanor Vaughan discussed how solicitor-client privilege bars access to some information in public interest litigation.

Professor Richard Gold and Rachel Meland presented on the consequences of corporations acquiring gene patents. Once a property right is granted, the right holding corporation becomes exclusively able to conduct tests on this particular part of person’s genome. This significantly hinders efficient diagnostic testing, requiring DNA samples be sent to many different labs rather than having a centralized parallel analysis conducted. In 2016, Professor Gold worked with the Children’s Hospital of Eastern Ontario in an action brought against Transgenomic, Inc. over the right to test for Long QT syndrome for patients in Canada. Transgenomic owns the patent for this gene. The matter was resolved in a settlement, in which Transgenomic granted licences to non-profit organizations to use the genes for non-profit diagnostic testing.

Christine Laing presented on the challenges posed by ordering that the claimant provide security for legal costs in public interest litigation, primarily granted for the benefit of the responding private litigant. The financial liability that this imposes on the public interest organization or litigant is often deterring or entirely prohibitive. Currently there is no particular test for when the Ontario Court of Appeal (ONCA) assesses the justness of security for costs. It is discretionary. However, she argues that it seems to consider whether the claim could be considered vexatious. A recent case that exemplifies this reasoning is Yaiguaje v Chevron, in which the ONCA overturned the decision of the Court of Appeal motions judge that required the plaintiffs to post $942,951.00 as security for costs.

Howard Anglin discussed the R v Comeau case, in which he represented the defendant, who was charged with illegally taking alcohol from Quebec to New Brunswick. The defendant’s position is that the charges are contrary to s. 121 of the Constitution Act, 1867, which states “All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.” The case has significant implications for the alcohol industry in Canada in particular, but in preserving a shared Canadian marketplace generally.

Finally, Eleanor Vaughan presented on legal privilege. Solicitor-client privilege was recognized as a principle of fundamental justice in the 2008 Canada (Privacy Commissioner) v Blood Tribe Department of Health case. The importance and protected status of solicitor-client privilege was upheld in Alberta (Information and Privacy Commissioner) v University of Calgary. This crucial component of our justice system is also capable of impairing public interest endeavours when it bars access to information that may be material to a case.

The intersection of public interest and private rights is a balancing process. In the context of genetic research, full patent rights pale in importance compared to life saving medical testing; but on the other hand, solicitor-client privilege is too important a right to be curtailed in pursuit of the public interest. On a case by case basis, the court will need to evaluate the relative merits of each implicated interest as private rights and public interest conflict in the future.

Ryan Howes is a JD Candidate at the University of Toronto Faculty of Law and was the Asper Centre work-study student in 2017/18.

Selected Themes from the Asper Centre’s Public Interest Litigation Conference

by Amanda Nash

On March 2nd, the David Asper Centre for Constitutional Rights hosted a conference on Public Interest Litigation. I was able to attend several of the panels, and what follows is an overview of prominent themes that threaded through the assorted talks on recent achievements, challenges, and best practices in public interest litigation. The range of speakers offered a unique lens through which to examine the state of Canadian public interest litigation and the proper role of those seeking to advance the public interest.

Diverse Voices and Lived Experiences
The conference’s first panel discussed recent cases in British Columbia and Ontario that brought challenges to the constitutionality of correctional uses of solitary confinement in Canada. Sitting on the panel, Lisa Kerr, Assistant Professor at Queen’s Law, argued for the importance of hearing from the, often marginalized, groups that are actually affected by the litigation. She noted that in the case litigated in BC by the BC Civil Liberties Association and the John Howard Society, the experiences of those subjected to prolonged segregation were highlighted. In contrast, she remarked that such voices were notably absent in the Ontario case. Kerr and the other panelists, Alison Latimer and Kelly Hannah-Moffat, discussed the importance of including indigenous, women’s, and mental health perspectives in the discourse and litigation. The cases provide an opportunity to rectify the shocking use of administrative segregation and the adverse impacts it has on already marginalized groups.

Sensitivity to the experiences of marginalized and vulnerable groups and individuals was an active topic throughout the conference. Reinforcing this point, Helgi Maki and Tess Sheldon spoke to the significance of practicing trauma-informed law. They argued that lawyers have a professional responsibility to meet their clients’ needs and interests, and where trauma might cause impairments in memory, communication, and trust, lawyers ought to build a professional relationship that is attentive to these considerations. Understanding the effects and experiences of trauma, they explained, can facilitate more fruitful and sensitive lawyering.

Many of the speakers referenced the fact that public interest litigation does not occur in a vacuum, since the wrongs we seek to redress affect real individuals. Reflecting upon the case of PS v Ontario, where PS, a deaf man, had been involuntarily detained for 19 years under the Mental Health Act, Karen Spector discussed the considerations public interest work must always bear in mind when advocating for the interests of persons with mental health disabilities. She reviewed her experience acting for the Mental Health Legal Committee in their intervention in the PS case before the Consent and Capacity Board. She noted that it is the role of interveners to ensure that adjudicators are aware of the consequences of their decisions on the wider communities. Whether they are party to the litigation or have experienced the disproportionate impacts of the law, public interest work nearly always involves vulnerable groups. As several speakers argued, it is incumbent upon the legal profession to always be mindful of how intersecting factors can shape the experiences of the clients and groups we serve.

Multimodal Advocacy
The value of engaging with affected communities is not confined only to test cases or intervention, but extends outside of the courtroom. Josh Paterson, Executive Director of the BCCLA, noted his organization’s ongoing efforts to work with affected individuals. In the case of Carter v Canada, the BCCLA employed this strategy to hear from affected individuals, and then convey their stories to spread awareness and understanding, whilst also garnering public support.

Not only does engaging affected communities involve hearing from specific individuals, but it can also demand that public interest work involve media work to foster support from the broader public. Anne Levesque shared the meaningfulness of public support in the First Nations Child and Family Caring Society v Canada case, which concerned the government’s gross underfunding of services for First Nations children. The case spurred the “I am a Witness” campaign, which first started as a public education initiative, but evolved into its own social movement. The campaign cultivated public support, lead the hearings to be televised, and allowed First Nations children to attend the hearings, enabling them to engage in the litigation that would directly affect them. Levesque stressed the significance of this public engagement in the success of the litigation.

Engaging a public audience can also provide financial support for public interest organizations to forcefully pursue litigation efforts. Given the constraints of public interest organizations’ limited budgets, utilizing crowd-funding is a strategy used by the BCCLA. Paterson noted that leveraging social media to encourage donations helps the BCCLA to employ staff litigators, pay for expert evidence, and the numerous other expenses that come with advocacy. Discussions of the solitary confinement cases that opened the conference underscored the reality that substantive change will likely require legislative and policy reform, including the establishment of independent legal oversight for decisions relating to administrative segregation. In addition to litigation work, public interest advocacy often also requires public education, fundraising, and law reform efforts.

The Role of Interveners
In the solitary confinement cases, public interest organizations acted as plaintiff/applicant. Nevertheless, the default of Canadian public interest litigation has generally been to intervene in compelling cases, however there are many barriers facing organizations who attempt to do so. As counsel for the Canadian Council of Christian Charities (CCCC), Barry Bussey had first-hand experience of the controversy that arose in the summer of 2017 in the TWU v LSUC case, when the Supreme Court initially denied intervener status to 17 applicant, including the CCCC and all LGBTQ groups. While all of the parties were eventually granted status, the incident prompted many conversations about the role that interveners ought to be playing.

Bussey noted that interveners are generally intended to assist the court and allow the public some access to justice, but an emphasis on “balance” and efficiency places demands on interveners that may undermine their effectiveness. For instance, the Supreme Court restricts each intervener to a 10-page factum and five minutes of oral argument. Interveners are also prevented from introducing new arguments or facts on appeal, and yet are required to present a unique perspective that is different from the parties and the other interveners. Despite challenges, interveners are common in Charter litigation, especially at the appellate level. Kathryn Chan and Howard Kislowicz’s research revealed the significant extent to which various interveners are involved in cases of religious freedom. The prevalence and degree of intervener involvement raises questions of how interveners can best engage in litigation.

Tensions arise between our desire to hear from a diverse and robust set of interested parties, and a need to prevent redundancies with overlapping constituencies and interests of intervening parties. Dan Sheppard examined the many nuances of intervening in cases raising constitutional issues, concluding that the Supreme Court’s attitude towards interveners has been broad but not deep. While interveners have historically been embraced, Sheppard suggests that the Supreme Court welcomes interveners only to lend their decisions the appearance of legitimacy, rather than engaging with interveners in a more substantive way. Since intervention remains a more economical way for public interest groups to be involved in litigation, it falls to us to consider whether our current approach can be improved.

Despite various hurdles, interveners currently remain an essential part of advancing social change in the justice system. As Joëlle Pastora Sala & Allison Fenske noted, a tenet of “public interest law is that it is unreasonable for ‘individual members of already vulnerable social groups [to] bear the burden of privately litigating broad-based systemic challenges.’” As lawyers at the Public Interest Law Centre of Legal Aid Manitoba (PILC), Sala and Fenske discussed their success in Stadler v St Boniface. PILC intervened in the case, in which the Manitoba Court of Appeal ruled that the province’s social benefits tribunal has the jurisdiction to hear Charter issues. While interventions are a common means of effecting change by informing the judiciary of the nature and scope of the interests at stake, speakers discussed the need to streamline the involvement of interveners without losing the meaningfulness of their contributions.

Looking Ahead
Although public interest litigation can be a demanding endeavour and there are numerous battles still to be won, overall the conference struck an optimistic tone. Positive achievements, such as in the solitary confinement cases, demonstrate the value of public interest litigation. But, rather than idling in our successes, most speakers deliberated on how public interest litigation might be developed to better achieve its goals. Basil Alexander presented his work, which surveyed the practical realities of cause lawyering, finding that they employ a multi-faceted approach to effecting change, but noted that various advocacy strategies have their own advantages and drawbacks. Alexander’s presentation tied in with the conference’s final panel on funding. Gabriel Latner spoke about how Canadian public interest groups may be able to learn from American approaches to advocacy. Many conference participants felt that public interest litigation in Canada functions differently in part due to Canada’s small size as compared to the United States; however, funding and coordination amongst stakeholders remains a concern. Wayne van der Meide presented on Legal Aid Ontario’s Test Case Program, which can help fund public interest litigation in Ontario although other funding strategies must be engaged.

In the pursuit of dynamic and potent public interest litigation, research on what works in public interest litigation can complement experiments in alternative advocacy models. Reflections on Canadian public interest litigation suggest that the never-ending work admits of many challenges, but all are committed to informed and effective advocacy.

Amanda Nash is a 3L JD Candidate at the Faculty of Law of the University of Toronto.