Remembering Peter H. Russell (1932-2024)

In Memoriam

The Asper Centre joins the University of Toronto in mourning the passing of Peter H. Russell, Professor Emeritus. An esteemed and prolific contributor to the University of Toronto community, Peter left a significant legacy in the fields of political science, judicial politics, and Canadian Constitutional Law. He was a friend of the Asper Centre through his participation in workshops and contributions to our publications. He sat on the panel for one of our first events in the Fall of 2008 on the Governor General’s decision to prorogue Parliament. He contributed to subsequent constitutional roundtables on topics including the judicial appointment process in Canada and was a co-host of our workshop on Constitutional Conventions which produced the publication, Adjusting to a New Era of Parliamentary Democracy. “It was sometimes a challenge to moderate a panel with Peter because he loved to talk,” says Executive Director Cheryl Milne, “But I was always appreciative of how generous he was with his knowledge and wisdom.” You can learn more about his life and contributions from the Faculty of Political Science.

Asper Centre Intervenes in Climate Change Case at ONCA

by Chelsea Gordon, Daniel Kiesman and Sang Park

On January 15, 2024, the Asper Centre intervened before the Ontario Court of Appeal in Mathur v Ontario. The Asper Centre’s Constitutional Litigator in Residence Ewa Krajewska acted as counsel for the Asper Centre in this intervention. As students in the Asper Centre Clinic course this past term, we had the opportunity to contribute to the intervention by conducting research and drafting versions of the factum as part of our clinic coursework.

Mathur is a significant case because it is the first time that substantive legal issues of a constitutional challenge to insufficient government action to address climate change has been before an appellate court in Canada. Furthermore, this case is also one of the first s. 15(1) Charter cases to reach an appellate court since the Supreme Court modified its approach to s. 15(1) in R v Sharma.[1]

Background

The appellants are a group of seven young Ontarians. The appellants challenge a 2018 decision by the Government of Ontario to lower the province’s greenhouse gas emissions target to 30% below 2005 levels by 2030. Ontario set this target despite scientific research showing that to prevent serious adverse consequences in relation to health, food security, and human security, greenhouse gas emissions would need to be reduced by 52% below 2005 levels by 2030. As a result, the appellants argue that this emissions target violates s. 7 of the Charter by allowing a level of emissions that will lead to serious adverse consequences and put the lives of Ontarians at risk. The appellants also argue that the emissions target violates s. 15(1) of the Charter because young people and future generations will disproportionately bear the burdens and face the adverse effects of inadequate climate change policy.

The Superior Court of Ontario held that the appellants’ challenge was justiciable but dismissed the appellants’ Charter claims.[2] The Asper Centre also intervened at the Superior Court, read the factum here.

With regard to s. 7 the application judge appeared open to the idea that climate change could be the kind of issue area where a positive s. 7 obligation on government could arise and assumed without deciding that a positive obligation arose here.[3] However, the application judge held that the emissions target did not infringe any principles of fundamental justice and therefore did not infringe s. 7.[4] Regarding s. 15(1) the application judge, applying Sharma, held that the claim must fail at the first step of the test as causation cannot be established. The application judge held that causation could not be established because the “disproportionate impact is caused by climate change and not the [emissions] target.”[5]

The Asper Centre’s Intervention at the Court of Appeal

The Asper Centre’s intervention at the Court of Appeal is focused on two issues. First, that 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.

Read the Asper Centre’s factum here.

In its submissions relating to causation in the s. 15(1) analysis, the Asper Centre traces the history of equality jurisprudence to underscore that substantive equality drives the s. 15(1) analysis and that the application judge erred by abandoning a substantive approach and adopting a formalistic analysis of causation. The Asper Centre notes that from the start, in the first s. 15(1) case Andrews v Law Society of British Columbia, the Supreme Court recognized that a seemingly neutral law may create an unequal impact on a particular group and as a result the s. 15(1) analysis must focus on the impact of the law on a particular group.[6] This approach has been repeatedly affirmed in subsequent Supreme Court decisions. Most recently the importance of substantive equality was reaffirmed in Sharma where the Supreme Court stated it is an “animating norm” of s. 15(1).

Furthermore, the intervention seeks to emphasize that the proper approach to causation must be flexible and contextual. Such an approach does not require that an impugned law be the only cause of an adverse impact. Rather, to establish causation a claimant need only show that a law is a cause. To support this approach the Asper Centre highlights cases such as Fraser v Canada (Attorney General) where an RCMP job-sharing program, which was not in and of itself the root cause of wage inequality, was found to infringe s. 15(1) because it furthered the economic disadvantages women face in society.[7]

Despite these precedents, the application judge adopted a formal and rigid approach to causation, holding that the emissions target did not infringe s. 15(1) because the harms to youth are caused by climate change. This approach harkens back to the rejected approach to equality taken under the Canadian Bill of Rights wherein a provision which restricted access to employment insurance to pregnant women was allowed to stand because the discriminatory impact on pregnant women was not caused by the legislation, but by the fact that the women were pregnant. This approach also departs from the decades of precedent which instruct a flexible and contextual approach that centres substantive equality at the heart of s. 15(1).

Should the Court of Appeal find a Charter infringement the Asper Centre’s submission encourages the Court to be creative and utilize its remedial discretion under s. 24(1) of the Charter to forge an appropriate and just remedy. Declaratory relief will be insufficient in this case as the impacts of climate change, stemming from government inaction present complex and novel issues for the legal system. Faced with novel issues the Supreme Court, in cases such as Ontario v G[8] and Doucet-Boudreau v Nova Scotia (Minister of Education),[9] has crafted unique remedies under s. 24(1). Furthermore, as the Asper Centre notes in its factum, courts in other jurisdictions, such as the German Constitutional Court[10] and the Supreme Court of the Netherlands,[11] which have confronted the issue of inadequate government climate policies have crafted creative remedies aimed at addressing the complexities of climate change.

Chelsea Gordon, Daniel Kiesman and Sang Park are JD Candidates at the Faculty of Law and were Asper Centre clinic students in Fall 2023.

[1] R v Sharma, 2022 SCC 39.

[2] Mathur v Ontario, 2023 ONSC 2316

[3] Mathur v Ontario, 2023 ONSC 2316 at para 82.

[4] Mathur v Ontario, 2023 ONSC 2316 at para 142.

[5] Mathur v Ontario, 2023 ONSC 2316 at para 178.

[6] Andrews v Law Society of British Columbia, [1989] 1 SCR 143 at 164.

[7] Fraser v Canada (Attorney General), 2020 SCC 28 at paras 92-107, 113.

[8] Ontario (Attorney General) v G, 2020 SCC 38.

[9] Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62.

[10] 1 BvR 2656/18 (2021).

[11] C-565/19 P, C/09/456689 / HA ZA 13-1396.

Asper Centre intervenes in Mathur et al v His Majesty the King in Right of Ontario

On January 15, 2024, the Asper Centre will be intervening in the case of Mathur et al v His Majesty the King in Right of Ontario at the Ontario Court of Appeal, generously represented by our counsel and recent Constitutional Litigator in Residence Ewa Krajewska of Henein Hutchison Robitaille LLP.

This case, which commenced in 2019, involves a Charter challenge to the Ontario government’s legislative response to climate change, more specifically its adoption of weaker greenhouse gas emissions reduction targets with the passing of the Cap and Trade Cancellation Act, 2018, S.O. 2018, c. 13. It is the first Charter challenge in Ontario against government actions taken related to climate change to reach a full hearing on its merits.

The Appellants are a group of 7 youth climate justice activists and their guardians, who assert that the dangers and existential risks posed by climate change violate the Section 7 and 15 Charter rights of Ontario youth and future generations.

Although the court at first instance found that the issues in the application were justiciable, it decided that the appellants had not established any violation of Charter sections 7 or 15.  

The Asper Centre is intervening on two issues in this appeal: the proper interpretation and application of the causation requirement in s. 15(1) of the Charter, and how the remedies available under s. 24(1) of the Charter can meaningfully vindicate the rights and freedoms of vulnerable claimant groups.

You can read our factum at the ONCA appeal here. The Asper Centre previously intervened in this case at the Ontario Superior Court of Justice. You can find our factum in that court here.

Asper Centre Celebrates 15th Anniversary

Jutta Brunnée, Faculty of Law Dean, University Professor and James Marshall Tory Dean’s Chair in conversation with
Asper Centre Executive Director Cheryl Milne

The David Asper Centre for Constitutional Rights celebrated 15 years at their special anniversary event on November 15, 2023.

Located within the University of Toronto Faculty of Law, the Centre and is devoted to advocacy, research, and education around constitutional rights in Canada.

With the establishment of the Asper Centre, made possible through the generous benefaction of Faculty of Law alumnus David Asper (LLM 2007), U of T is one of only a small number of schools internationally that play active roles in constitutional debates with practical impacts on constitutional rights. In addition to its innovative programs, the Centre houses a legal clinic that brings together students, faculty members, and members of the legal profession to work on significant, ground-breaking constitutional cases.

Since 2008, the centre has:

  • Led 38 Supreme Court of Canada interventions
  • Held 54 constitutional roundtables and 13 conferences/symposia
  • Supported 45 student working groups
  • Hosted 11 Constitutional Litigators-in-Residence
  • Released 37 publications

At the in-person live podcast recording of Charter: A Course (Season 3), Dean Jutta Brunnée interviewed the Asper Centre’s Executive Director, Cheryl Milne, who has been with the Centre since its inception.

alt_text

Constitutional Litigator-in-ResidenceEwa Krajewska (photo far left) interviewed Asper Centre Clinic alumni (photo second from left to right): Keely Kinley (JD 2021), Ryan Deshpande (JD 2021)Geetha Philipupillai (JD 2017), and Neil Abraham (JD 2016).

This event celebrated the Asper Centre’s commitment to articulating Canada’s constitutional vision to the broader world.

Special thanks to the evening’s participants and to all who attended!


Asper Centre 2022-2023 Annual Report

Watch the Charter @ 40: The Asper Centre brought together its past Constitutional Litigators-in-Residence for a special conversation with Executive Director, Cheryl Milne, reflecting on the Charter of Rights and Freedoms at 40 years.

From U of T Law website at https://www.law.utoronto.ca/news/asper-centre-15th-anniversary

Reflections on Climate Justice and the Law

by Carson Cook, Eva Boghosian and Hannah West

As members of the 2023-2024 Environmental Rights Student Working Group at the David Asper Centre for Constitutional Rights, eleven first year students at the University of Toronto Faculty of Law have been researching various legal doctrines, legislation, and case law related to how environmental rights are conceived in Canada, how they can be used/acted upon, and how they might be improved. Their research has covered environmental constitutional litigation like Mathur v Ontario; how Indigenous rights and knowledge interact with environment law; and, legal doctrines from other jurisdictions that provide environmental protection. The outcome of this research will be a guidebook that informs community organizers and activists of the state of environmental rights within Canada.

To take part in the Global Day of Action for Climate Justice, we asked these students to reflect on their research and the potential for climate action within Canada. A common theme, and perhaps a surprising one, was positivity surrounding Canada’s ability to pursue climate action within its legal framework. Though the students identified various issues of implementation, they appreciated finding processes within the Canadian legal system that can support environmental protection and climate action. Students also valued their research as it provided them with an opportunity to learn about other jurisdictions and the processes used internationally that could be adopted within Canada. Though, in addition to issues of implementation, the students noted the legal system only moves in small steps. However, the students noted they felt more empowered to think about furthering climate action with their new knowledge of these environmental legal frameworks.

Another recurring insight from the students was how important education for the general public is for meaningful climate action – highly relevant to the Environmental Rights Working Group’s goal of creating a guidebook for lay-people to understand their legal rights with respect to the environment. As law students and future lawyers, we are in positions of privilege to have the tools and training to research complicated theories and frameworks that greatly affect how climate action is pursued, and we therefore have a duty to help educate those around us. Importantly, the students noted, this education should not simply be providing information, but conducted in a way that empowers people – to build their skills, knowledge, and confidence so that they can work and learn in the environmental space to further change.

Such education builds power for all of us to push for change, as legal professionals or otherwise. This was the final theme from our reflection session with the student researchers – the importance of an analysis of power when working for climate justice. While legal processes can be and have been created to further environmental protection, those processes can be subverted when there is a power imbalance between adversarial parties. While law affects social values, social values also affect the law. The collective power of a community asking for change or participating in decision-making processes is key for climate action to occur. This is not to pin the causes of climate change on individuals, but it is to recognize the agency and power we each hold, and that builds when we work together to tackle otherwise insurmountable problems. The Environmental Rights Working Group has been one small way in which we, as law students, are building power within ourselves, amongst each other, and within our Toronto community.

Carson Cook, Eva Boghosian and Hannah West are JD Candidates at the Faculty of Law and are the Asper Centre Environmental Rights Working Group leaders this year.