The City of Toronto’s Potential New Bylaw Limiting Public Demonstrations

by Rob De Luca

In December 2024, Toronto’s City Council moved to require the City Manager to develop a new public demonstrations by-law.  If the by-law roughly contemplated in the City’s motion is proposed and passed, the by-law would limit demonstrations in certain public spaces, such as streets and sidewalks.  The “bubble zones”, as they are often called, would specifically apply to public spaces if the public spaces are near or connected to “vulnerable institutions”, including religious institutions (such as places of worship and religious schools).  As discussed further below, public consultations on the potential proposal are currently ongoing.

While a handful of municipal institutions have recently adopted similar measures to the one potentially proposed, the measures have yet to face significant judicial scrutiny.

Bubble Zones as a Charter Issue

The City of Toronto’s potential proposed by-law would directly engage Charter rights and freedoms.

City Council’s motion has identified some of the potential Charter interests in issue.  Specifically, the City’s motion proposes the development of a draft by-law that would place an “emphasis on protecting vulnerable institutions such as places of worship, faith-based schools and cultural institutions, that support[] the City’s commitment to keeping Torontonians safe from hate and protects Charter rights that address impacts of demonstrations that target people based on their identity as prohibited under the Ontario Human Rights Code”.

Read broadly, the City’s Charter-related purposes may include an intent to protect individuals and protected associations from unlawful discrimination on the basis of religion (such as protection against hate speech directed at places of worship, via public property) and, more generally, to protect and promote the rights of “vulnerable institutions” to exercise the fundamental freedoms enumerated under the Charter.  This latter exercise may include, but is not necessarily limited to, the freedom of “vulnerable institutions” to engage in communities of religious expression and association without unreasonable interference that might be facilitated by direct or indirect state action (e.g., interference that may be facilitated by protesters or counter-protesters using public spaces).

However, both the City’s motion and its more recent survey and public consultation materials are spare on details.  They do not, for instance, specify what would be included under the umbrella of “vulnerable institutions”.  Unfortunately, both the motion and the public consultation materials are also silent on the additional Charter rights and freedoms that would very likely be engaged by any “bubble zone” by-law – the rights of protesters themselves.  Because all relevant Charter rights and freedoms must be considered in any adequate consultation, they are worth discussing here.

First, bubble zones intentionally restrict freedom expression and assembly by limiting protesters’ right to use public property to speak to their chosen audience.  Communicating directly to one’s target audience is often central to any protest.  The fact that a lawful protest or counter-protest may provoke or even enrage others does not remove the expression from Charter protection.  See, e.g., Fleming v. Ontario, 2019 SCC 45, para 66.  While the Charter’s guarantee of freedom of expression does not include a right to a captive audience, the use of bubble zones to restrict the time and place of protests, and to protect specific audiences from acts of protest, is no trivial limit on freedom of expression.

Second, and relatedly, any proposed restrictions on expression would not be limited to speech with little substantive content.  Protest and expression in any Canadian jurisdiction is already restricted in numerous ways, with or without bubble zones.  Among other things, the Criminal Code prohibits protesters from uttering threats or engaging in violence against others, including against the vulnerable institutions that would be the subject of any City by-law.  Canada’s Criminal Code also criminalizes hate speech in certain contexts, such as by prohibiting non-private statements that wilfully promote hatred against an identifiable group or that willfully promote antisemitism by condoning, denying or downplaying the Holocaust.  Similarly, the Ontario Human Rights Code prohibits discrimination and harassment based on religion (specifically, “creed”) and other protected grounds.

Bubble zones operate to prohibit expression that is not already prohibited by these and similar restrictions.  One inevitable consequence of the foregoing is that bubble zone policies almost invariably curtail protests that would otherwise be protected “expressions of the heart and mind, however unpopular, distasteful, or contrary to the mainstream” (Irwin Toy Ltd v Quebec (AG), [1989] 1SCR 927, p. 968).

For these and related reasons, governments defending bubble zones in other contexts have sometimes simply conceded that the policy or legislation in issue limits or engages the Charter right to freedom of expression.  See, e.g., R. v. Spratt, 2008 BCCA 340, para 28 (noting, in a leading case involving a bubble zone that served to protect access to abortion, that the government’s concession on this point was “unsurprising”).  As recognized by these government concessions, the communication of ideas to others, including those who may vehemently disagree, forms the very heart of the freedom of expression guarantee.  Denying protesters the right to use an otherwise public space to communicate their ideas is a clear limit on this guarantee.

Thus, the difficult issue raised by “bubble zones” is usually not whether the protesters’ Charter rights have been “engaged” or “limited” by the zones – they usually have been – but whether the limits are reasonable.

The use of bubble zones to protect access to abortion in Canada provides a helpful illustration.   Canadian courts have upheld appropriately designed access to abortion bubble zones.  The zones continue to be used in several jurisdictions.  Courts have typically reasoned that while such zones engage the Charter rights of protesters, they have been carefully designed to ensure that the weighty, Charter-laden aims of the zones – ensuring women and their care-givers have unimpeded and safe access to health service providers – do not overwhelm these countervailing Charter rights and freedoms.

In the above-mentioned case of Spratt, for instance, the bubble zone in question was found to be a reasonable limit on protesters’ Charter rights because: the zone was designed, in part, to resolve the documented problem of protesters physically interfering with clinic access and to otherwise provide users of the clinic with the opportunity to avoid anti-abortion protesters, if they so choose; the size of the bubble zone was relatively small (30 metres at its widest point) and consistent with these purposes; and the purposes of the bubble zone legislation were of sufficient weight as to justify the admitted limit on the rights of protesters.

In arriving at this conclusion, the British Columbia Court of Appeal relied, in part, upon the respondent’s important submission that individualized policing of the zone between lawful and unlawful expression was impracticable and ineffective in the known and well-documented circumstances:

[80] … [The respondent] says the evidence in this case demonstrated that the line between peaceful protest and virulent or even violent expression against abortion is easily and quickly crossed.  To try to characterize each individual approach to every woman entering the clinic is too difficult a calculus when the intent of the legislation is to give unimpeded access to those entering the clinic.  Therefore a clear rule against any interference is the best way to achieve the ends of the legislation.  The respondent refers to the words of the Supreme Court of the United States in Hill v. Colorado, 530 U.S. 703 (2000 United States Supreme Court) where Justice Stevens, delivering the opinion of the Court, said this at 729:

… The statute seeks to protect those who wish to enter health care facilities, many of whom may be under special physical or emotional stress, from close physical approaches by demonstrators.  In doing so, the statute takes a prophylactic approach; it forbids all unwelcome demonstrators to come closer than eight feet.  We recognize that by doing so, it will sometimes inhibit a demonstrator whose approach in fact would have proved harmless.  But the statute’s prophylactic aspect is justified by the great difficulty of protecting, say, a pregnant woman from physical harassment with legal rules that focus exclusively on the individual impact of each instance of behavior, demanding in each case an accurate characterization (as harassing or not harassing) of each individual movement within the 8-foot boundary.  Such individualized characterization of each individual movement is often difficult to make accurately.  A bright-line prophylactic rule may be the best way to provide protection, and, at the same time, by offering clear guidance and avoiding subjectivity, to protect speech itself.

Unlike the bubble zone litigated in Spratt, the City’s current proposal, such as it is, currently lacks the specifics and evidence that would be required to evaluate the reasonableness of the City’s anticipated limits on the rights of protesters.  To take an obvious unknown: the nature and extent of any limit on the Charter rights of expression and assembly can be profoundly affected by the size of the bubble zone chosen and the precise institutions to which it will apply.  A 10-metre zone designed to provide unimpeded physical access to places of worship would be different in severity and kind to a 200-metre zone designed to insulate a wider swath of institutions from acts of public expression.  While the City has elected to ask individuals for their opinions as to the appropriate size of any bubble zone, and as to which institutions should be considered vulnerable institutions deserving of protection, it is difficult to see how most individuals would have the evidence required to arrive at Charter-sensitive answers to the questions posed.

The City’s Public Consultation Process

The Charter considerations canvassed above suggest that the City’s current public consultations cannot be considered a full public consultation on the issues raised.  The ongoing public consultations are nevertheless an opportunity for interested residents to voice their opinions on the potential proposal.

On April 23, 2025, the City held its first public consultation on the proposal, wherein third-party consultants described the potential proposed by-law and solicited written comments by way of a webinar chat.  A second public consultation is being held on April 30, 2025.

As part of its consultations, the City is also soliciting both survey responses and written comments.  The survey, contact information for written comments (under “Have Your Say”), and additional information, is available at:

https://www.toronto.ca/community-people/get-involved/public-consultations/public-consultation-for-proposed-demonstration-bylaw/

The deadline for public submissions to the City’s survey is approaching: May 1, 2025.

The City’s consultation process, including its survey questions, has been criticized by some civil society groups.  These criticisms have also included substantive concerns with the City’s proposal to date.

The Canadian Civil Liberties Association’s letter to the City is available here.

Progress Toronto’s letter to the City is available here.

Rob De Luca is a Research Associate at the David Asper Centre for Constitutional Rights.

Call for Papers: Litigating Positive Rights symposium

Re-Opening the Door: Litigating Positive Rights under the Canadian Charter of Rights and Freedoms

The David Asper Centre for Constitutional Rights (the Asper Centre) invites papers for a one-day symposium on litigating positive rights under the Charter. The symposium’s goal is to develop our understanding of positive rights in Canada, especially the challenges they currently face and the issues that might arise if positive rights were more robustly recognized under the Charter. The symposium, which will add to the decades-long conversation in Canada among scholars and courts about positive rights, will take place on Friday January 16, 2026, at the Faculty of Law, University of Toronto.

Two decades ago, in Gosselin, the Supreme Court of Canada left the door open to an expansive view of positive rights claims under the Charter. Since then, however, courts across the country have failed to recognize them. Underpinned by caution and concern, this pattern holds across diverse contexts, from the welfare context to the asylum context. Yet, climate change and growing economic inequality have renewed the push for positive rights. Take Mathur v Ontario, for example, the first Charter case concerning climate change to be decided after a full hearing, or the recent housing cases testing the precedent of Tanudjaja v Attorney General of Canada et al. In both contexts, litigants have sought relief for urgent and wide-ranging social issues that are difficult to conceptualize or remedy via a purely negative rights framework. These issues, and the litigation they have spawned, invite a closer inspection of positive rights under the Charter.

Against this backdrop, the Asper Centre is seeking submissions from both scholars and practitioners that address the following key questions:

  • Is there truly a distinction between positive rights and negative rights under the Charter?
  • What role should Canadian courts play with respect to positive rights, specifically vis-à-vis Parliament and provincial legislatures? How is this affected by the principles underpinning the separation of powers?
  • What practical challenges does litigating positive rights pose in areas such as climate change and equality rights?
  • What is the nature of the social science evidence required to argue or defend these cases?
  • What does constitutional experience abroad teach us about the potential for positive rights under the Charter?
  • What are the remedial options for positive rights claims?
  • What lessons or impacts could be drawn from international law examples?

Located within the University of Toronto Faculty of Law, the Asper Centre is devoted to advocacy, research, and education on constitutional rights in Canada. Since its inception in 2008, the Asper Centre has hosted many conferences and symposia focused on various aspects of Charter and public interest litigation. In 2018, the Asper Centre convened a Public Interest Litigation Conference, focusing on legal strategies for successful public interest litigation and similarly in 2023 held a symposium focusing on equality rights litigation. The resulting papers were published by LexisNexis Canada in the books Public Interest Litigation in Canada and Litigating Equality, with corresponding volumes of the Supreme Court Law Review. This symposium seeks to build on the themes explored in earlier events to contribute to the practical scholarship on public interest litigation and to produce a follow-up publication to these earlier works.

Those interested in participating should send an Abstract (250 words maximum) of your intended paper to Tal Schreier (tal.schreier@utoronto.ca), the Asper Centre’s Program Coordinator. Papers may be at any stage of development, but participants will be expected to circulate a paper of at least 5000 words (final papers should be 5000-10,000 words). Alternatively, we welcome shorter case comments of approximately 2500 words that focus on a single court decision.

Deadline for proposals: June 30, 2025.

Asper Centre ED Receives University of Toronto Chancellor’s Leadership Award

The Asper Centre’s Executive Director, Cheryl Milne has been awarded the University of Toronto’s 2025 Chancellor’s Distinguished Leadership Award.

Recipients of this award demonstrate outstanding leadership and significantly advance the University’s mission to foster an academic community in which the learning and scholarship of every member may flourish. There are three categories of the Chancellor’s Leadership Award: Influential Leader; Distinguished Leader; and Emerging Leader.

As a Distinguished Leader, Cheryl Milne has dedicated her career to advocating for access to justice and the human rights of marginalized groups, particularly children. She was a pioneer in children’s human rights advocacy long before it gained widespread recognition. At Justice for Children and Youth, Cheryl handled numerous high-profile constitutional cases, many reaching the Supreme Court of Canada. Cheryl’s career progressed to the David Asper Centre for Constitutional Rights at the Faculty of Law, where she became the centre’s inaugural Executive Director. This unique role allowed her to excel as a constitutional litigator and innovative legal educator. The centre is the only clinic in Canada that integrates constitutional research, policy, teaching, and practice. Cheryl was instrumental in shaping the centre’s mission to advance constitutional rights through advocacy, education, and research. She developed its objectives to contribute significantly to constitutional advocacy, serve as an expert resource, and increase awareness and acceptance of constitutional rights. 

Recognized as a leading constitutional lawyer, Cheryl is also a respected legal educator. Her teaching approach combines classroom theory, practical training, and critical and ethical reflection opportunities, exemplifying modern experiential legal education. Her “Constitutional Litigator in Residence” program enhances the Centre’s advocacy and educational goals by pairing students with leading practitioners in an immersive environment. In 2019, Cheryl received the Law Society of Ontario Medal for her contributions to the profession, including her advocacy for children’s and marginalized communities’ rights, groundbreaking constitutional litigation, innovative legal education methods, and volunteerism. 

Cheryl was nominated byBrittany Twiss, Assistant Dean, JD Program, Faculty of Law. 

Read more about the award here.

Ontario Court of Appeal Allows Appeal by Youth Climate Litigants in Charter Challenge to Ontario’s Emissions Targets

by: Chelsea Gordon and Daniel Kiesman

For the first time in Canada, an appellate court has considered the implications of the Canadian Charter of Rights and Freedoms (“Charter”) on climate change policy. In a decision released on October 17th, the Ontario Court of Appeal allowed the appeal in Mathur v Ontario[1] and remitted the application to be heard again by the Superior Court. In doing so, the Ontario Court of Appeal identified errors in the lower court judge’s analysis of the appellants’ case under ss. 7 and 15(1) of the Charter. This decision represents a significant win for youth climate activists.

The Asper Centre, represented by Ewa Krajewska, intervened in this case at both the Superior Court and the Court of Appeal.

Background

Superior Court Judgement

In the judgement on appeal at the Ontario Court of Appeal, a Justice of the Superior Court rejected the applicants’ constitutional challenge to the greenhouse gas emissions target set by the Government of Ontario under s. 3(1) of the Cap and Trade Cancellation Act (“CTCA”).[2]

In 2018, the Government of Ontario, through s. 3(1) of the CTCA set an emissions reduction target of 30% below 2005 levels by 2030. However, scientific research showed that to prevent serious adverse consequences, greenhouse gas emissions would need to be reduced by 52% below 2005 levels by 2030. The applicants are a group of young Ontarians who argued that the target set by Ontario was too low, leading to adverse future consequences for young people and future generations.

At the Superior Court, the applicants advanced two Charter arguments. First, by failing to set the target high enough, Ontario was authorizing and creating a level of emissions that will lead to serious adverse consequences and put the lives of Ontarians at risk, violating s. 7 of the Charter. Second, the applicants argued the CTCA violates s. 15(1) of the Charter because it distinctly encumbers young people and future generations who will endure most of the impacts of climate change.

The judge characterized the applicants’ complaint as being a positive rights claim, suggesting that the applicants were seeking a declaration that the Ontario government has a positive obligation to prevent the impacts of climate change from posing a threat to young people’s security of the person.[3]

You can read the Asper Centre’s Superior Court factum here. For a more in depth discussion of the Superior Court decision, please see the Asper Centre’s previous blog post here.

After framing this as a positive rights case, the judge went on to assume without deciding that a positive obligation arose in this case, but that Ontario did not violate the principles of fundamental justice when setting the emissions target.[4] On that basis, no violation of s.7 was found.  In deciding the applicants’ s.15(1) claim, the judge applied the two-part test from R v Sharma.[5] She held that while young people are disproportionately affected by climate change, that disproportionate effect is caused by climate change itself and not by the emissions target set by Ontario.[6] On this basis, she found that the government of Ontario had not caused or contributed to the disproportionate effects of climate change faced by young people. Further, there is no positive obligation on the government to address inequalities through remedial legislation.

Arguments on Appeal

The applicants appealed the Superior Court decision alleging that the application judge erred by characterizing their ss. 7 and 15(1) Charter claims as attempts to impose positive obligations on the Government of Ontario to combat climate change. Their position was that Ontario’s chosen response to climate change knowingly permits dangerously high levels of greenhouse gas emissions, which will discriminate against youth and future generations, and that both the Target and the Plan should be reviewed for constitutional compliance.

Ontario focused its arguments primarily on the issue of remedies, arguing that the appellants’ request for a science-based greenhouse gas reduction target was outside the court’s institutional capacity to order. Further, Ontario argued that the appellants’ have not proven that Ontario has caused or contributed to the worsening impacts of climate change and that the effects claimed are not caused by the Target, Plan or the CTCA.

Asper Centre Intervention

The Asper Centre intervened on two points. First, the application judge erred by adopting a formalistic approach to causation that has consistently been rejected by the s. 15(1) jurisprudence. Second, given the complexities and the novelty of climate change, should the Court of Appeal find a Charter infringement, it ought to go beyond declaratory relief to craft an appropriate and just remedy under s. 24(1) of the Charter. You can read the Asper Centre’s factum here.

With respect to s. 15(1), the Asper Centre urged the Court of Appeal to reinforce the flexible approach to causation in the context of governmental emissions targets. The Asper Centre emphasized that the caselaw has made clear that substantive equality is at the centre of s.15(1). To achieve substantive equality, courts must adopt a flexible approach to causation and consider the actual impact of the impugned law on the claimant group. Claimants need not show that the impugned law is the only or predominant cause of the disproportionate impact. Under the proper approach to causation, the claimants need only to show that the impugned emission targets contribute to the disproportionate effects of climate change. In this way, substantive equality may be achieved by allowing s. 15(1) to remain flexible to account for pre-existing problems such as climate change.

The Asper Centre also argued that the application judges’ approach, which viewed climate change itself as the cause of the disproportionate impact on youth, harkens back to the rejected formalistic approach to equality taken under the Canadian Bill of Rights. Instead, the Asper Centre argued that the application judge should have followed the approach to substantive equality taken by the Supreme Court of Canada in cases like Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux and Quebec (Attorney General) v A.[7] These cases recognized that while the government was not responsible for the underlying inequality, all that the claimant must show is that the government action contributes to a disproportionate impact.

With respect to s. 24(1) remedies, the Asper Centre argued that if a Charter violation is found, the Court can be creative in utilizing its remedial discretion under s. 24(1). The Asper Centre argued that, in this case, declaratory relief would be insufficient since the impacts of climate change and inadequate government action present complex and novel issues for the legal system. The Asper Centre submitted that when faced with novel issues, courts are able to fashion unique remedies under s. 24(1).

For a more fulsome discussion of the Asper Centre’s intervention before the Ontario Court of Appeal, please see our previous post here.

Decision of the Ontario Court of Appeal

In a unanimous decision, the Ontario Court of Appeal held that the application judge erred in characterizing this as a positive rights case. They stated, “Ontario voluntarily assumed a positive statutory obligation to combat climate change and to produce the Plan and the Target for that purpose. Ontario was therefore obligated to produce a plan and a target that were Charter compliant.”[8] The Justices allowed the appeal owing to the errors in the lower court judgement but declined to decide the issues and instead remitted it back to the Superior Court to be heard again. They chose not to decide the issues based on the “institutional advantage” that courts of first instance have in issuing declarations and directions.[9]

Section 7

In the s. 7 analysis, the Ontario Court of Appeal found that the application judge’s incorrect framing of the issue as a positive rights claim has led to errors in her reasoning. The Court stated, “The question before the application judge was not whether Ontario’s Target did not go far enough in the absence of a positive obligation to do anything. Rather, she should have considered whether, given Ontario’s positive statutory obligation to combat climate change that it had voluntarily assumed, the Target was Charter complaint.”[10]

Section 15(1)

The Court held that the application judge had again erred by characterizing the appellants’ claim as a positive rights claim. In the case of s.15(1), this led the application judge to incorrectly conclude that the applicants sought to impose an obligation on the government to remedy inequality associated with climate change. The Court of Appeal emphasized that while s. 15(1) does not impose a general obligation on the state to remedy all inequalities, when a government has chosen to act, that legislation cannot have a discriminatory impact.[11]

The Ontario Court of Appeal held that the application judge’s analytical error in construing the appellants’ position as a positive right claim led to an improper causation analysis. The Court’s reasons indicate that the causation analysis at the first step of the s. 15(1) test should be flexible and responsive to the nature of the particular adverse impact claim.  Thus, the Court of Appeal held that proper causation analysis in this instance should have gone further and considered whether, by committing itself to a greenhouse gas emissions target that fell short of the scientific consensus on what was required, Ontario has caused or contributed to a disproportionate impact.[12] Because the province has chosen to enact the CTCA, the proper analysis should have addressed whether “there was a link or nexus between the impact of the Target and the disproportionate impact based on a protected ground.”[13]

Additionally, the Court of Appeal determined that the application judge’s causation analysis was at odds with her findings under s. 7.[14] The application judge held that the appellants had met their causation burden of showing the CTCA engaged their rights to life and security of the person. The Court of Appeal noted that the causation burden under both s. 7 and s. 15(1) is the same in that a claimant does not need to show that state action is the dominant cause of the harm.[15] By finding that the causation burden was met under s. 7 and not under s. 15(1), the application judge drew conclusions which the Court of Appeal determined were inconsistent and not adequately explained.[16]

Implications Moving Forward

The Court of Appeal declined to decide the application and instead remitted the case back to the Superior Court for a new hearing.[17] Thus, the case will return to the Superior Court for the s. 7 and s. 15(1) issues to be decided on the merits and in light of this decision.

Overall, this decision is an important signal that Charter challenges of climate change legislation are not necessarily positive rights claims. In this case, the Court of Appeal made clear that while climate change is a global issue when a provincial government chooses to act to address it, the choices it makes are subject to review to ensure they are compliant with the Charter. Going forward, this case solidifies the role of the judiciary with respect to climate change and other remedial legislation. Ensuring that in the division of powers, the judiciary will maintain a role in reviewing legislation for constitutional compliance and, more than anything, leaves open the door to a finding that insufficient climate change action violates Charter rights.

This decision is also important as it is one of the first appellate decisions regarding s. 15(1) since the Supreme Court released its decision in Sharma.[18] The Court of Appeal recommitted to the flexible approach to causation that a substantive approach to equality requires. This decision makes clear that a rigid and formulaic approach to causation is improper and inadequate. Where a pre-existing societal inequity exists, and a government chooses to act to address it, courts must not focus only on pre-existing inequity at the causation stage of the analysis. Instead, as the Court of Appeal indicated in its reasons, courts must adopt a flexible approach to causation that considers the underlying contextual factors and examine whether the government action in question contributes to the inequality in question. In this instance, as the Court of Appeal concluded, the proper approach to causation necessitates an inquiry into whether the impugned emissions targets contribute to a disproportionate impact on youth.[19]

Chelsea Gordon and Daniel Kiesman are 3L JD Candidates at the Faculty of Law, and were Asper Centre Clinic students in Fall 2023, who worked on the Asper Centre’s intervention in Mathur.

[1] Mathur v Ontario, 2024 ONCA 762 [Mathur CA].

[2] Mathur v Ontario, 2023 ONSC 2316 [Mathur]; Cap and Trade Cancellation Act, 2018, SO 2018, c 13, s 3(1).

[3]  Mathur, supra note 2 at paras 122-124.

[4] Ibid at para 142.

[5] R v Sharma, 2022 SCC 39.

[6] Mathur, supra note 2 at para 178.

[7] Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17; Quebec (Attorney General) v A, 2013 SCC 5.

[8] Mathur CA, supra note 1 at para 5.

[9] Ibid at para 7.

[10] Ibid at para 53.

[11] Ibid at para 40, 55-58.

[12] Ibid at para 58.

[13] Ibid at para 57.

[14] Ibid at para 59.

[15] Ibid at para 61.

[16] Ibid at para 65.

[17] Ibid at para 76.

[18] R v Sharma, 2022 SCC 39.

[19] Mathur CA, supra note 1 at para 58.

Meet Mary Birdsell, the Asper Centre’s new Constitutional Litigator in Residence for Fall 2024

by Kate Shackleton 

From working directly with young clients to arguing cases at the Supreme Court of Canada, Mary Birdsell has advocated on behalf of children and youth for more than 25 years.  This fall, she will share her knowledge of children and youth justice, constitutional law, and appellate litigation with students in the Asper Centre’s clinic course as the Constitutional Litigator-in-Residence. I recently spoke with Birdsell about her career so far, her constitutional law expertise, and what she’s looking forward to her in her new role.  

Originally from Alberta, Birdsell chose to attend law school at Dalhousie University. She opted for Dalhousie because she was curious about living elsewhere and eager to meet classmates from across the country. When she started law school, she recalls being uncertain if she wanted to be a lawyer. However, she was drawn to law because she thought “it would be an interesting and excellent education in how society functions.” She notes that her first-year courses covering constitutional law, human rights, and the Charter affirmed her decision to pursue a law degree, since they were “exactly what [she] was interested in.”  

After graduating law school,  Birdsell articled with a full-service corporate law firm in Toronto where – coincidentally – her first case focused on section 15 of the Charter. She worked on behalf of an intervener in Thibaudeau v Canada – which examined the rule that child support payments were taxable on the receiving parents – under the tutelage of Mary Eberts and Steve Tenai.  

Following her articles, Birdsell joined Justice for Children and Youth (where she now serves as Executive Director). She knew that clinic work appealed to her thanks to the semester she spent working full-time at Dalhousie’s legal clinic and she was particularly interested in Justice for Children and Youth because of her pre-law experiences working with youth.  

During her time at Justice for Children and Youth, the organization has been involved in a number of landmark cases in the youth justice sphere – many of which centre on Charter rights. When I asked her to identify highlight cases, it was difficult for her to choose a select few. In terms of having a meaningful impact, R v D.B. came to mind first. The case, in which Asper Centre Executive Director Cheryl Milne was counsel for Justice for Children and Youth, established that diminished moral blameworthiness for youth is a principle of fundamental justice under section 7. More recently, she pointed to Justice for Children and Youth’s intervention in R. v Le,  where the Supreme Court of Canada affirmed that race relations inform the detention analysis under section 9 of the Charter 

Although not every case has yielded the outcome she hoped for, she described constitutional litigation as a “powerful tool” in the hands of youth justice advocates. She observed that the Charter offers a “fundamental path” to confront some of the most pressing issues facing Canadian youth, such as the Saskatchewan law requiring parental consent for students under 16 to change their name or pronouns.  

For Birdsell, evidence is the key to success in constitutional litigation. She stressed that evidence is especially important in equality-based litigation, since evidence is how litigants demonstrate that “oppression is happening the way you say it is.” Especially when organizations like police services or family services are being challenged, as often happens in the youth justice context, she explained that evidence is crucial to “switch the vantage point” for courts.  

When asked if she had any advice for law students, she encouraged students to follow what interests them. For those considering public interest work, she emphasized that there are many places where you can do public interest work, including government positions and at big firms. She also highlighted the value of being well-educated in constitutional law, since it empowers you to spot Charter issues “where others might not.”  

As the incoming Asper Centre Litigator-in-Residence, Birdsell is excited to interact with and learn from students. She also welcomes the opportunity to take a pause from front-line work and spend time thinking “a little more broadly and deeply about the law.” On the voting age challenge, which will form an important part of the clinic students’ work this fall, Birdsell described the case as going beyond just the right to vote. At its core, she said, the case is about how youth “ought to be able to participate in decision-making about the present and future.”  

Kate Shackleton is a rising 2L JD Candidate at the Faculty of Law and is an Asper Centre Summer Research Assistant.