Asper Centre Clinic Student Reflects on Drafting the Bird Intervention Factum

by Becky Lockert

This past fall, the Supreme Court of Canada granted the Asper Centre leave to intervene in R v Bird, a case that ties questions of access to justice and constitutionalism to the doctrine of collateral attack. The question at the heart of the case is, from the Asper Centre’s perspective, whether a court applying the collateral attack doctrine must explicitly consider countervailing factors to ensure that administrative orders are Charter compliant.

Mr. Bird, the appellant, was labelled a long-term offender and, upon the completion of his prison sentence, was subject to certain supervisory conditions. Although he had requested that he be released into his First Nations community, the Parole Board ordered Mr. Bird to reside in a community correctional facility. Notably, this community correctional facility is the same one where he served the end of his prison sentence.

On a January evening two years ago, Mr. Bird left his assigned correctional facility and did not return. Police apprehended Mr. Bird several months later, leading to a charge of breaching a long-term supervision order and the threat of up to ten years in prison.

At trial, Mr. Bird successfully argued that the imposition of the residency condition was contrary to s. 7 of the Charter and outside the statutory authority of the Parole Board, because continued incarceration cannot be a condition imposed by a long-term supervision order. Allowing the appeal, the Saskatchewan Court of Appeal held that Mr. Bird was precluded from challenging the legality of the supervision order condition. To make such an attack, the Court of Appeal concluded, would be allowing a collateral attack and contrary to legislative intent.

The Supreme Court granted leave to intervene to the Asper Centre in September 2017. The intervention team, consisting of Cheryl Milne (Asper Centre Executive Director) , Breese Davis (the Asper Centre’s 2017-18 Constitutional Litigator-in-Residence), and five clinic students, had six weeks to prepare our intervenor factum. Our task was to craft an argument that the Court, when determining whether to bar a collateral attack, should consider both the constitutionality of the administrative order and access to justice.

Cheryl and Breese immediately gave the reins to our small group of students. Gaining familiarity with the subject-matter was our first step; we assigned out research and set off to produce memos. Meeting regularly and communicating constantly, the group narrowed our issues and determined our approach. We would advocate for adding two branches to the collateral attack framework (from the Supreme Court’s judgment in R v Consolidated Maybrun Mines Ltd.).

First: courts cannot be complicit in the enforcement of unconstitutional administrative orders by refusing collateral attack against them. This would be contrary to the rule of law and the principle of constitutionalism. Especially in this case, where Mr. Bird’s liberty interest is at stake, compliance with the Charter cannot be left out from the Court’s analysis.

Second: courts should take note of access to justice challenges that make judicial review of administrative orders essentially inaccessible. Charter protections cannot be rendered meaningless by an effective inability to challenge potentially unconstitutional conditions.

Having determined our strategy, the drafting process began. For a number of us, this was to be our first factum. Cheryl and Breese put great faith in the group to craft the Centre’s written argument, providing helpful (and at times, challenging) feedback to our work-in-progress. The ability to maximize on Cheryl’s expertise in drafting intervenors’ facta and Breese’s wealth of knowledge as a seasoned criminal defence lawyer was immeasurably helpful. There were a series of late nights at the Faculty, including line-by-line group editing sessions where we wrote and re-wrote sections of the factum.

Following a series of drafts, more line-by-line edits, and finally a submission to Cheryl and Breese, we had our finished product. A few final tweaks on their end, and the factum was submitted to the Court and out of our hands.

The prospect of the Supreme Court reading our writing is a daunting one for students – daunting, but exciting. The Court will be hearing oral submissions on the case this upcoming March, and many of our student group will be coming along to see our arguments in action. How will the Court approach our arguments? Is our position persuasive, and will the Court accept the position that access to justice and constitutionalism must be considered?

Having this opportunity to draft an intervenor factum has been invaluable for our student group. On a personal note, I can attest to this being the most meaningful and challenging part of my law school career thus far. Being surrounded by four other dedicated and bright law students and having guidance from highly skilled supervising lawyers has resulted in a piece of work and an experience that I am proud to have been a part of.

Becky Lockert is a 2L JD Candidate at the Faculty of Law and was a student in the Asper Centre Clinical Legal Education Course.

Asper Centre Students convene Workshop for LAWS’ Global Citizenship Conference

By Crystal Li and Juela Xhaferraj

On February 9, 2018, the University of Toronto Faculty of Law was host to hundreds of high school students who were attending the annual Global Citizenship Conference organized by Law in Action Within Schools (LAWS).  Members of the Asper Centre’s Immigration and Refugee Law student working group were pleased to lead one of the workshops for the students at the Conference. Members of the Asper Centre’s other two student working groups (on Indigenous Rights and Police Oversight) as well as students from the International Human Rights Program at U of T Law, also led workshops at the Conference.

In keeping with the Global Citizenship Conference’s overarching theme, the Immigration and Refugee Law group’s workshop aim was to demonstrate to the student participants how global events have a local impact. We explored this theme through the lens of the Syrian refugee crisis. After a general introduction to the events that precipitated the refugee crisis and the conditions facing refugees, the rest of the presentation turned to the responses to the crisis. To provide a comparative perspective, we described Turkey and Germany’s responses before discussing the Canadian context. Part of the discussion on Canada’s response focused on the Safe Third Country Agreement (STCA) and why it might be necessary to suspend it.  The STCA is a bilateral agreement between the United States and Canada that stipulates that asylum seekers must lodge a refugee claim in the country in which they first arrive and that, subject to some exceptions, Canada can refuse or bar someone from lodging a refugee claim and force their return to the United States.

The STCA discussion was also a means of introducing the students to the work of the Asper Centre and its students. This academic year, the Asper Centre’s Immigration and Refugee Law student working group provided legal research assistance to the public interest litigants (Amnesty International, Canadian Council of Churches and the Canadian Council of Refugees) who have joined an individual litigant challenging the constitutionality of the STCA.  This challenge is argued on the basis that the United States should not be deemed a safe country for refugees given that the rights of refugees in the United States under the Trump administration have seriously plummeted and hence the STCA should be suspended at this time.

During the workshop, the participating students actively engaged in the discussions and exhibited an impressive understanding of the issues facing refugees both globally and locally. While some students were skeptical of Turkey’s and Germany’s true motives in accepting a large number of refugees, most agreed that Canada should learn from the two countries’ approaches and take in more refugees. In particular, the students saw the analogy between Germany’s now suspended Dublin Regulation (which regulates which country in Europe must examine a refugee claimant’s application at first instance) and Canada’s STCA with the U.S.  Many of the students felt that the Canadian government’s refusal to suspend the STCA is inconsistent with the accepting and welcoming public image held up by the government.

Towards the end of the presentation, the students asked about the practice of immigration and refugee law and about the work of the Asper Centre.  Many of them found it exciting that law students are able to work on important immigration and refugee law cases while still in law school.

Crystal Li and Juela Xhaferraj are both 1L JD Candidates at the Faculty of Law and are members of the Asper Centre’s Immigration and Refugee Law student working group this year.

Asper Centre discusses Legal Professionalism and Ethics with Law Students

It is well-known that lawyers are bound to the highest of ethical standards arising from the Law Society’s rules of professional conduct and ethics.  While law students are officially not bound by the same rules, the standards of professionalism and ethics arguably apply to students who are in essence at the very beginning of their legal careers.

In light of the above, first year students at the University of Toronto Faculty of Law must attend mandatory Professionalism and Ethics classes, with some of the curriculum emanating directly from the Law Society of Upper Canada. Furthermore, the Faculty offers a number of elective courses that examine the complex issues entailed within the broad topic of lawyers’ professional ethics.  An example of such a course is this Fall term’s upper year elective taught by visiting professor Allan Hutchinson, a well-known legal theorist from Osgoode Hall Law School, with an international reputation for his original and provocative writings on the legal profession. This intensive course, entitled Legal Ethics and Lawyer Regulation, focused on legal ethics and the regulation of the legal profession and it examined various topics such as the lawyer-client relationship, confidentiality, conflicts of interest, the duty of loyalty and ethics in advocacy, counseling and negotiations.

On November 9, 2016, the Asper Centre’s Executive Director Cheryl Milne and the Centre’s Constitutional Litigator in Residence Janet Minor participated in a panel discussion in Professor Hutchinson’s course, in order to highlight to the students some of the ethical and professionalism issues that arise in their specific law practices.  Ms. Renatta Austin (JD 2014), a lawyer in private practice, also took part in the panel discussion.

Ms. Austin began the session by talking about the issue of lawyer competence as it relates to professionalism.  In her sole-practice, she explained how she is sometimes wary of overextending herself by taking on legal matters for which she does not have the requisite experience.  She also cautioned against taking on more than one type of matter for a client, providing an example of a lawyer she interacted with whom she observed representing both parents in a child wardship case while also representing one of the parents in a criminal matter.  She criticized this practice as cases often have different goals and paramount interests and thus taking on all of them can potentially create ethical issues.

Ms. Minor provided the class with a perspective of some of the ethical issues encountered by a government lawyer.  She spent the bulk of her lengthy legal career as General Counsel in the Constitutional Law Branch of the Ontario Ministry of the Attorney General. She discussed ethical responsibility, the role of the Attorney General and the challenges of being a government lawyer, in particular the conflict that may arise when government lawyers must defend policy or legislation that may clash with their personal opinions.  In response to a question, Ms. Minor surmised that government lawyers, while held to the same ethical and professional standards as other lawyers, are often viewed by judges differently and held to an even higher standard as they are expected to demonstrate the best conduct, provide total disclosure, always act with courtesy and not exhibit any ‘shark-like’ lawyer practices.

Ms. Milne started her presentation by discussing the various ethical issues she encountered while working as staff lawyer at the NGO Justice for Children and Youth, such as having to diligently ensure that her child clients were deemed competent to provide her with instructions. She then highlighted her unique dilemma as the Executive Director of the Asper Centre charged with promoting the work of the Centre, while at the same time acting as the lawyer of record on many of the Centre’s cases, thereby being bound by the duty of confidentiality insofar as publicly discussing the cases.  This dual role perhaps may seem confusing to students but Ms. Milne treads carefully in both roles and ensures her clients’ interests at all times.

The number and quality of questions and comments exchanged between the students and the presenters during this panel discussion demonstrated that law students are indeed engaging with these issues in a meaningful way, thus preparing to assume the professional and ethical obligations that they will ultimately owe themselves, the public and their profession.