SCC’s Reference re GGPPA Decision: an important milestone, but still a long road to travel

by Cameron Somerville

On March 25th, 2021, the Supreme Court of Canada (SCC) upheld as constitutional the federal Greenhouse Gas Pollution Pricing Act (GGPPA), which sets a benchmark for pricing greenhouse gas (GHG) emissions across the country. In a 6-3 decision, the SCC established that the federal government has jurisdiction to apply the GGPPA under the Peace, Order, and Good Government powers (POGG) of the Constitution. Significantly, this sets a marker for the federal government’s ability to control greenhouse gas emissions.

“Climate change is real,” wrote Chief Justice Wagner.[1] “It is caused by greenhouse gas emissions resulting from human activities, and it poses a grave threat to humanity’s future. The only way to address the threat of climate change is to reduce greenhouse gas emissions.”[2]

This decision, while important, is unlikely to be the last word on carbon pricing in Canada.

Charting A New Course

The GGPPA received royal assent in 2018. The preamble to the legislation details the Act’s stated purpose: limiting the negative impacts of carbon emissions on Canadians’ well-being. Notably, it characterizes climate change as a “national problem.” The SCC has previously held legislation can use the preamble to “provide a base for assessing the gravity” of an issue of national concern.[3]

The GGPPA has two main parts. Part 1 is administered by the Canada Revenue Agency and applies a charge to 21 types of fuel and combustible waste. Part 2 establishes a GHG emissions pricing mechanism for large industrial emitters. Provinces can choose whether to implement a carbon pollution price or implement a cap-and-trade system, that allows corporations to trade emissions allowances under an overall cap, or limit, on those emissions.

The Act only operates as a “backstop,” forcing a system on provinces that don’t already have one in place. Additionally, the Act requires the agency return 90% of the revenue as rebates to provinces and individuals, so it is not a tax.

Diverging Paths: Provincial Courts of Appeal Decisions

Alberta, Ontario, & Saskatchewan challenged the federal government’s right to set price standards for carbon-based fuels and industry-based emissions. Ontario’s and Saskatchewan’s Courts of Appeal ruled the GGPPA falls within the National Concern Doctrine of the federal government’s POGG powers. Both judgements had dissents that indicated the law would be valid if its structure were changed, placing it under the federal tax power.

The Alberta Court of Appeal was the final provincial ruling and the only court to rule the GGPPA ultra vires Parliament. The majority found the Act infringed the provincial power to manage natural resources. The Court held that the National Concern Doctrine failed, as carbon pricing does not possess the requisite degree of unity to make it indivisible, in other words that the doctrine could not be used to assign a new head of power to the federal government where the subject matter falls within the province’s exclusive jurisdiction.

The Latest Stop: Supreme Court of Canada Decision

The SCC split 6-3 in finding the Act intra vires the federal government, with three separate dissenting judgements.

Chief Justice Wagner’s Majority Reasons

The majority judgement uses the Act’s long title to frame its main thrust as not just the mitigation of climate change but mitigation through pan-Canadian GHG pricing mechanisms.[4] They argue both Parts 1 and 2 of the GGPPA are “centrally aimed” at creating one GHG pricing scheme nationally.[5]

The majority finds the law is “tightly focused” and that all the provinces acting together would be “incapable” of enacting legislation with equivalent effects because they could not impose a binding outcome-based standard.[6] Therefore, the law meets the first set of requirements for the POGG national concern doctrine.

Lastly, the majority determines the impact of the legislation is reconcilable with the distribution of legislative powers. Since the law merely operates as a “backstop” within a “narrow and specific regulatory mechanism” it does not unduly infringe provincial powers.[7] Furthermore, considering the interests climate change would harm, they find the impact on provincial heads of power is relatively limited.[8]

They determine the GGPPA meets the criteria established in R v Crown-Zellerbach Canada Ltd. and is intra vires the Parliament of Canada.[9]

The Dissenting Judgements

Justice Côté takes issue primarily with the power granted under the GGPPA to the Governor in Council. He argues no clause should give the executive branch the power to nullify or amend Acts of Parliament. Furthermore, when an Act grants such power, the law cannot be within the national concern doctrine as the minimum standards have not been set by Parliament but by the executive branch.[10]

Justice Brown found the subject matter of the GGPPA was “squarely within” provincial jurisdiction and argued the Court should “condemn” the “leveraging” of climate change.[11] He finds provincial property and civil rights stand out as “the most relevant source of legislative authority” for the GGPPA.[12]

Finally, Justice Rowe took issue with the use of POGG in the majority’s reasons. He felt the doctrine of National Concern, and POGG more generally, should only be used as a last resort to “preserve the exhaustiveness of the division of powers.”[13]

The Road Ahead

This decision is not the end of the story for litigation of environmental legislation and climate change protection in Canada. As Justices Brown and Rowe indicate, the on-going balancing of powers in federalism will no doubt be fodder for the next leg of the journey.

This latest ruling is only directly about carbon pricing schemes. David Suzuki said the judgement gives the federal government the “power to make a difference,” but the extent of that power remains unclear.[14] The SCC in Friends of the Oldman River Society v Canada (Minister of Transport) ruled the “environment” cannot be assigned solely to one level of government, as the “environment” is too broad.[15] This case is likely not the last time a court will need to balance Canada’s climate crisis and federalism issues.

Nonetheless, potential future challenges should in no way undermine the magnitude of this decision. The finding that a matter is one of national concern is “permanent” and confers exclusive jurisdiction on the issue to Parliament.[16] The Supreme Court has moved the line for federal authority in environmental legislation. The question remains just how far it has moved.

Cameron Somerville is a 1L JD student at the Faculty of Law and is a member of this year’s Asper Centre Climate Justice student working group.

[1] Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 at para 2 [re GGPPA] [2] Ibid
[3] Reference re Anti-Inflation Act, [1976] 2 SCR 373 at para 66
[4] re GGPPA, supra note 1 at para 58
[5] Ibid at para 71
[6] Ibid at paras 179, 182
[7] Ibid at paras 199-200
[8] Ibid at para 206
[9] R v Crown-Zellerbach, [1998] 1 S.C.R. 401
[10] GGPPA SCC, supra note 2 at para 294
[11] Ibid at para 454
[12] Ibid at para 343
[13] Ibid at para 616
[14] Supreme Court decision puts Canada on right track for carbon pricing, David Suzuki Foundation at https://bit.ly/3fMSCXa
[15] Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1 S.C.R. 3 at para 93
[16] re GGPPA, supra note 1 at para 90

How should judges consider anti-Black racism in sentencing? Asper Centre intervenes in R v Morris

by Teodora Pasca

On February 11, 2021, the Court of Appeal for Ontario heard oral arguments in R v Morris, the long-anticipated appeal that is expected to determine how systemic anti-Black racism should factor into sentencing determinations.

The Asper Centre intervened in R v Morris with the assistance of counsel Nader Hasan of Stockwoods LLP and Geetha Philipupillai of Goldblatt Partners LLP. The Asper Centre argued that the principle of substantive equality — which requires courts to actively consider the potentially discriminatory impact of criminal laws and procedures on marginalized people — must play a central role in developing a framework for sentencing Black offenders.

The Respondent, Kevin Morris, was a young Black man living in Toronto who had experienced substantial disadvantage and discrimination prior to coming before the court. Having lost his father to cancer at the age of 7, Mr. Morris was raised by a single mother. Though she worked multiple jobs to make ends meet, the family experienced significant financial disadvantage that limited his opportunities. Mr. Morris has lived with a learning disability and mental illness throughout much of his life. Living in inner-city public housing, he repeatedly witnessed violence and was himself a victim of violence, within an environment where his community distrusted the police’s ability to protect them from harm.

Experiences like these made life very challenging for Mr. Morris, and ultimately culminated in criminal proceedings. At the age of 22, he was charged and convicted of possessing an illegal firearm.

The principle of substantive equality is key to understanding the life experiences that brought Mr. Morris before the court and contributed to his offence. As counsel for Mr. Morris Faisal Mirza and Gail Smith argued, the substantial documentation introduced at the sentencing hearing demonstrated that Mr. Morris’s experiences — including poverty, difficulties in school, mental health issues, and violent victimization — were manifestations of anti-Black racism. This is because Black communities experience systemic discrimination and barriers to access in all of these areas of life.

Black people are also more likely to experience discrimination within the criminal justice system and be victimized by police use of force. When Mr. Morris was arrested, for example, police breached his right to counsel under s 10(b) of the Charter and ran over his foot with their squad car.

All parties before the Court of Appeal agreed that systemic anti-Black racism is directly relevant to an offender’s moral blameworthiness and is properly considered in sentencing. The primary dispute was how such factors ought to be considered, as well as whether the specific sentence Mr. Morris received was fit.

Acknowledging the impact of anti-Black racism on the circumstances that brought Mr. Morris before the court, Nakatsuru J sentenced him to a mitigated yet still substantial term of 15 months’ imprisonment, reduced to 12 months to account for the Charter breaches. On appeal, the Crown argued that 15 months was a manifestly unfit sentence in light of the seriousness of the offence and the need for denunciation and deterrence. Conversely, Mr. Morris’s counsel argued that there were no errors in Nakatsuru J’s sentencing determination and that the ultimate sentence imposed — which still put Mr. Morris in jail for a year — sufficiently addressed public safety concerns while being appropriately sensitive to the lived experiences that reduced Mr. Morris’s moral blameworthiness.

The Asper Centre did not take a position on Mr. Morris’s sentence. Its submissions on appeal instead focused on the broader question of how systemic and background factors should inform the sentencing framework for Black offenders.

Drawing on guidance provided by the Supreme Court of Canada’s decision in R v Gladue, the Asper Centre argued that a similar framework — which incorporates systemic and background factors into sentencing and prioritizes non-custodial options — should be adopted for Black offenders. In the Asper Centre’s view, promoting substantive equality in sentencing requires implementing a “Gladue­-like framework” for Black offenders. Although their historical circumstances differ, Black people in Canada experience many of the same circumstances that called for a new approach in the Indigenous context in Gladue, including persistent experiences of discrimination when dealing with the criminal justice system and pronounced over-representation in the prison population.

In its factum, the Asper Centre also took issue with the Crown’s position that something akin to a “causal link” to the offence and the offender is required in order to consider factors linked to anti-Black racism in sentencing. (The Crown ultimately stepped back from this position in oral argument.)

Ultimately, the Asper Centre proposed that a new sentencing framework for Black offenders, in order to be consistent with the principle of substantive equality, should include the following four features:

  • Judges should always turn their minds to systemic factors, even in cases that typically prioritize deterrence and denunciation.
  • The offender should not have an evidentiary onus to show a causal link between their offence and the systemic factors they raise.
  • Judges should request a particularized pre-sentence report that speaks to systemic and background factors if they believe such information will assist in their decision-making.
  • Judges should apply all the purposes and principles of sentencing in light of the reality of anti-Black racism, with maximum attention paid to restorative justice and the principle of restraint.

Morris provides the Court of Appeal with a valuable opportunity to address and clarify how anti-Black racism can be considered in sentencing Black offenders. It remains to be seen what framework or approach the Court will adopt, but its ultimate decision is one to watch — this case could shape how sentencing judges approach issues of racial discrimination and equality for years to come.

The Asper Centre’s intervener factum in R v Morris can be found at this link.

Teodora Pasca is a 3L JD/MA Criminology Student at the Faculty of Law.

An Introduction to the Duty to Consult

by Annie Chan

Arising from the Honour of the Crown, the duty to consult is a central tool in the protection of Aboriginal rights and the promotion of Crown-Indigenous reconciliation in Canada. As summarized by Professor Kerry Wilkins, adjunct professor at the University of Toronto Faculty of Law, the “Crown has a duty to consult a given Indigenous community when it is contemplating conduct that to its knowledge might have an appreciable adverse impact on an Aboriginal or treaty right that [the] community has or credibly claims”. Despite a series of notable and high-profile cases, there remains significant ambiguity in the law surrounding this important duty.

On Friday, January 22, 2021, the Asper Centre’s Climate Justice student working group and the Indigenous Initiatives Office (IIO) at the Faculty of Law convened a panel discussion titled An Introduction to s.35 and the Duty to Consult, providing an opportunity for the law school community to learn about the current state of the duty to consult and engage with open questions surrounding the doctrine. The panel was moderated by Professor Kerry Wilkins who was joined by Joel Morales (Counsel at Olthuis Kleer Townshend LLP) and Candice Telfer (Acting Director of the Legal Services Branch in Ontario’s Ministry of Indigenous Affairs). Elder Constance Simmonds (Cree-Metis Knowledge Keeper and Elder-in-Residence at the Faculty of Law) opened and closed the panel with her thoughts and prayers. The student organizers of the event (Maddie Andrew-Gee, Yara Willox and Haleigh Ryan) drafted a Primer about the Duty to Consult, as background to the event, with additional recommended readings.

Professor Wilkins began the discussion with a brief overview of the law on the Duty to Consult, beginning with its first mention in R v Sparrow as a relevant and possibly necessary component to the Crown’s successful justification of any infringement of an Aboriginal right. The duty is triggered by 3 elements: 1) Crown knowledge (of the asserted or proven Aboriginal right); 2) Crown conduct (excluding legislative activity); and 3) potential for adverse impact (above the de minimis threshold). Once the duty has been triggered, its content and scope are proportionate to the preliminary assessment of the strength of the Indigenous community’s claim and the likely severity of the adverse impact.

This notion of a “preliminary assessment” gives rise to several questions. Assuming the Crown is responsible for conducting the assessment, do they have a duty to share the results with the Indigenous community and provide them with an opportunity to correct it? Is the assessment a constitutionally necessary part of the consultation exercise? Morales argued that “if there is going to be a preliminary assessment, the Indigenous group should have a say in what goes into that” particularly where there are sacred sites or interests being impacted that were previously undisclosed due to concerns arising from colonial practices. Telfer contended that the government should still be entitled to privilege for any legal advice they utilize as part of the assessment but agreed that Indigenous communities should be given an opportunity to “fill the gaps” where the Crown is missing information. Wilkins noted that the Supreme Court’s judgment in Beckman v Little Salmon/Carmacks First Nation [1] suggests that a formal preliminary assessment is not strictly necessary so long as the required level of consultation is ultimately discharged. Nevertheless, the panelists agreed that whether or not it is legally required, a collaborative and transparent assessment is in the interests of both parties as a means of “promoting engagement and negotiation between Indigenous communities and government decision-makers.”

Another practical issue that arises with the duty to consult is that while there are numerous instances in which such a duty may be triggered, Indigenous communities have historically and continue to lack resources to fully participate. Given this reality, to what extent does the Crown have a responsibility to facilitate Indigenous participation by providing funding or resources? In responding to this question, both panelists stressed the importance of meaningful Indigenous participation in consultation. For the Crown, providing funding is important not only from a legal perspective but also a policy one because “if a community can’t meaningfully engage in consultation, there are [legal and pragmatic] risks for the government in moving forward,” said Telfer. While noting that some government funding is available, Morales framed the issue of adequacy of funding in terms of the “friction” between processes that the Indigenous community believes to be necessary and those that the Crown is willing to fund. From a legal standpoint, Wilkins noted that there was no case law establishing a strict legal requirement for the Crown to provide funding but the SCC has appeared to take into account the presence or absence of funding in its overall appraisal of whether the Crown’s consultation was sufficient [2]. Elaborating on this point, Morales cited Saugeen First Nation v Ontario [3] where the Court held that “[the parties] should not have reasonably expected the First Nation to absorb all the consultation costs” where the “expense of the consultation arose out of the proponent’s desire to see the project through and the Crown’s desire to see it move ahead”.

The panel then addressed a further significant practical issue of ascertaining which rights-holders need to be consulted where there is controversy about who legitimately speaks for the community. Given that the tension was itself created by the government’s imposition of the Indian Act’s Band Council model on Indigenous communities’ traditional governing structures, Morales suggested that “[Indigenous communities] should be allowed to work it out [internally] before the consultation projects happen.” While this would inevitably create delays, Morales noted that “Indigenous communities have waited a long time to even be at the table” and “shouldn’t be seen to be holding up projects due to government structures and policies being imposed on them unilaterally”. While Telfer agreed that she would be uncomfortable with the government imposing a view as to the legitimate authority where the community itself is fractured, “on a pragmatic level, there are decisions the government needs to make […] with immediate and broad impacts where time may be a luxury”. In such circumstances, “we need to think about meaningful engagement across these divisions in order to move forward,” added Telfer. “One option the Crown has,” Wilkins suggested, “is to consult with all the different conflicting claimants to make sure it has the benefit of all points of view.” However, this may be complicated where one group refuses to participate if another group is consulted.

Ultimately, as Wilkins remarked in closing, in many aspects of the doctrine on the duty to consult “the Supreme Court of Canada has left itself and lower Courts with great flexibility to reach the result they want to reach in particular cases.” As a result, there remains significant inconsistency in the doctrine affecting its utility as a tool for reconciliation. Nevertheless, as Elder Constance Simmonds reminded us in closing, as human beings “we all have a stake in protecting the land and the water;” thus, “for future generations, these are really important conversations.”

A recording of the webinar is available here.

[1] 2010 SCC 53

[2] See Clyde River (Hamlet) v Petroleum Geo-Services Inc., 2017 SCC 40 and Chippewas of the Thames First Nation v Enbridge Pipelines Inc., 2017 SCC 41.

[3] 2017 ONSC 3456

Annie Chan is a 1L JD student at the Faculty of Law and is currently an Asper Centre work-study student.

 

Remembering Joseph Arvay

The David Asper Centre for Constitutional Rights joins the constitutional law community in mourning the death of Joseph Arvay, O.C., O.B.C., Q.C. Joe Arvay offered his time to the Centre as our first constitutional litigator in residence. Indeed he was the inspiration for the continuing role that has been incorporated into our teaching and advocacy. He gave generously of his time to the students and was an important supporter of our advocacy. Of his time with us, Joe said, “I really enjoyed my experience as the first constitutional litigator in residence at the Asper Centre. It was a joy to work with students again.”

Marcus McCann (JD 2014) was one of the students who worked with Joe on the Asper Centre’s intervention in Bedford v Canada on the role of stare decisis in constitutional litigation: “It was a great pleasure to see Joe’s mind at work. He was very tactical, always five steps ahead in the conversation. That should be obvious from his career. But at the same time, he never lost sight of the goal, of the people who would be helped by litigation. He litigated with heart, even when he was litigating a seemingly bloodless topic like stare decisis.”

At the Centre’s 10th Anniversary Event, Joe joined Mary Eberts, another constitutional litigator in residence, on stage in a discussion with the Hon. Thomas Cromwell on significant issues in constitutional litigation in Canada. The topics were wide ranging with two formidable leaders of the constitutional bar and the former Supreme Court of Canada Justice, from the seminal cases in which they both participated in Andrews v British Columbia, to significant aboriginal rights cases, to the more recent Carter v Canada. Executive Director, Cheryl Milne, noted, “There is no other lawyer in Canada who has litigated as many significant constitutional cases at all levels of Court as Joe. His stamp on constitutional law in this country is monumental. While many lawyers have regularly taken on interventions at the Supreme Court, Joe made it a point to litigate these cases at the trial level.” As he himself noted in reference to his cases involving advanced costs, “We can all do pro bono work as interveners, but try starting a case like Little Sisters, try starting a case like Carter, try starting any of these cases, which involve thousands of hours of work. It would be so much more encouraging for lawyers if they could get costs in advance.”

Professor Kent Roach, the chair of the Asper Centre’s advisory board worked with Joe on number of cases, some focusing on aboriginal rights. He says, with sadness, “Joe was fearless and his intellectual curiosity knew no bounds. His advocacy shaped the Charter of Rights and Freedoms and always in the direction of helping the disadvantaged. He also knew how to have fun and never took himself too seriously. He will be sorely missed.”

Asper Centre Intervention Influences SCC on Suspended Declarations

by Jeffrey Wang

The Supreme Court of Canada (SCC) recently released the decision of ON (Attorney General) v G. This case challenged the constitutionality of Christopher’s Law, an Ontario law that allowed some offenders who were convicted of sexual offences to be removed from the federal and provincial sex offender registries after 10 years. Christopher’s Law did not extend to any offenders who had been found not criminally responsible due to mental disorder even if they had been absolutely discharged of the crime. The respondent fell within this latter group and challenged this law under s. 15 of the Charter for discrimination on the basis of mental disability.

At the Ontario Court of Appeal, Justice Doherty found that Christopher’s Law violated s. 15 and thus struck down the law. However, he suspended the declaration of invalidity for twelve months in order to allow the legislature to amend the impugned law. Justice Doherty also exempted the applicant G from this suspension, which meant that Christopher’s Law immediately stopped applying to him personally. This exemption was very controversial since it went against the SCC’s jurisprudence in R v Demers that individual remedies under s. 24(1) should not be combined with general remedies under s. 52.

The Asper Centre intervened in ON v G on the issue of remedies. Assisted by Professor Kent Roach, the Centre argued that courts have increasingly used suspended declarations of invalidity without proper justification. The Centre urged the SCC to adopt a more principled approach to applying this constitutional remedy. Additionally, the Centre argued that individual exemptions can be applied in conjunction with suspended declarations of invalidity in order to allow applicants to benefit from their successful Charter challenge.

The SCC’s ON v G decision “accept[ed] the Asper Centre’s invitation to articulate a principled approach to remedies for legislation that violates the Charter.”[1] The majority decision asserted that constitutional remedies should guided by four remedial principles: Charter rights should be safeguarded; the public has an interest in the constitutional compliance of legislation; the public is entitled to the benefit of legislation; and the courts and legislatures play different institutional roles.[2] Constitutional remedies must balance the fact that the public does not want to be governed by unconstitutional legislation but also cannot function under an absence of legislation. To reach this balance, the Court once again urged the judiciary to carefully identify the unconstitutional aspects of legislation and use reading down, reading in, and severance to preserve its constitutional aspects.

In its discussion of suspended declarations, the Court recognizes that there may be times where “giving immediate and retroactive effect to the fundamental rights and freedoms guaranteed by the Charter must…yield to other imperatives.”[3] However, agreeing with the Asper Centre, the Court is clear that suspended declarations should only be granted where the government can demonstrate “that the importance of another compelling interest grounded in the Constitution outweighs the continued breach of constitutional rights.”[4] For example, the government can rely on the distinct roles of the courts and legislatures, but must show that “an immediately effective declaration would significantly impair the ability to legislate.”[5] Courts must also balance the benefits of a suspended declaration against the significance of the Charter right in question. For example, it will be difficult to balance a suspended declaration against potential criminal jeopardy.[6] Moving forward, the Court is clear that suspended declarations will be rare, and the government will also have to justify its length if it were to be granted.

This principled balancing approach expands the previous categorical Schachter framework where suspended declarations were only granted in three specific scenarios. As noted by the Asper Centre and other commentators, many cases after Schachter continued to grant suspensions beyond these categories often without explanation. This more flexible approach in ON v G addresses this concern and allows justified uses of this remedy in more unique circumstances.

The ON v G Court also departed from precedent and allowed the simultaneous application of s. 24(1) and s. 52 remedies. This means that individual claimants can be exempt from suspended declarations. While some have argued that only allowing the claimant to be exempt is unfair to all others in their position, the Court reasoned that the claimant is the one who brought a successful Charter challenge and should reap its rewards.[7] Additionally, since Charter challenges can be difficult to bring forward, individual exemptions to suspended declarations may temper the disincentives of litigation.[8] The Court also noted that the government may show that there is a compelling reason to deny an exemption, such as if the exemption would undermine the purposes of the suspension, or if judicial economy would not be served by exempting a large class of claimants.[9]

Applying these principles to the case at hand, the Court noted that a suspended declaration of invalidity for Christopher’s Law is justified for public safety reasons[10]. Immediately declaring the law to be invalid could potentially irreversibly exempt many dangerous individuals from being listed on the sex offender registry, greatly restricting the effectiveness of new legislation.[11] However, an individual exemption is warranted for the claimant, since they have long had a spotless criminal record and do not pose a threat.

The Asper Center reached out to Professor Kent Roach to get his thoughts on the ON v G ruling. He comments that:

“The case will be a landmark one for the use of suspended declarations of invalidity and the Asper Centre appears to have made a real impact. The majority embraces the Centre’s arguments for a principled approach that does not depend on the three categories outlined in Schachter. They also accept the need for allowing exemptions in appropriate cases when the government has justified the use of a suspension. Even the dissenting judges also acknowledged that the Asper Centre had been helpful in arguing for the need for exemptions from suspensions to prevent irreparable harm. The judgment cites both my own scholarship but also remedial scholarship from Grant Hoole my former LLM student and Carolyn Moulard my current doctorate student.”

Indeed, the ON v G case will undoubtedly be solidified as a significant development in constitutional law. The dissenting justices criticized the majority’s broad and vague remedial principles, but it will be up to the lower courts to further build on the majority’s foundations. There is no denying that ON v G has pushed the law on constitutional remedies to be more fair and rational, ushering in a new era of remedies from the courts.

Jeffrey Wang is a 3L JD Candidate at the Faculty of Law, and a former Asper Centre Clinic student. 

[1] Para 81.

[2] Para 94.

[3] Para 121.

[4] Para 133.

[5] Para 129.

[6] Para 131

[7] Para 148.

[8] Ibid.

[9] Paras 150-151.

[10] Para 175.

[11] Para 176.