Author: Tal Schreier

Encampments and the Charter Workshop: Charter Challenges, Systemic Barriers, and Indigenous Legal Perspectives

Posted on by Tal Schreier

by Aurora Lawrence and Jay Wai

On February 28, 2025, the Centre for Constitutional Studies at the University of Alberta and the David Asper Centre for Constitutional Rights co-hosted a “Encampments and the Charter” workshop in Edmonton. The event brought together legal scholars and advocates to examine the legal, social, and political dimensions of housing encampments (also called homeless encampments and tent cities) in Canada.

As encampments continue to grow in response to the housing crisis, they have faced a range of governmental responses—many of which are politically and legally contentious.  The workshop explored both procedural and substantive legal issues, focusing on how provincial and municipal governments regulate encampments, and how such regulation is being challenged in court. Discussions centered on the application, advantages, and limitations of Charter rights challenges with respect to encampments, Indigenous legal traditions, and legal barriers to advocacy.  In particular, participants discussed encampments as spaces of harm reduction and mutual aid.

Workshop presenters included Margot Young, Alexandra Flynn, Anna Lund, Martha Jackman, Estair van Wagner, Heidi Kiiwetinepinesiik Stark, Avnish Nanda, Chris Wiebe, Renee Vaugeois, Gerard Kennedy,  Renée McBeth and Shaun Fluker. This blog post synthesizes the major points raised in the workshop.

Charter application in housing encampment litigation

At the heart of legal struggles between encampment residents and municipalities is the question of how the Charter applies and whether it adequately protects unhoused individuals from forced evictions, restrictive bylaws, and criminalization.  One key constitutional issue raised at the workshop was how section 7 of the Charter has been interpreted in ways that limit government obligations toward unhoused individuals. Martha Jackman, a professor emerita of law at the University of Ottawa, examined how courts have treated section 7 as a negative right by focusing on state non-interference rather than recognizing a positive right to housing.

Jackman critiqued cases like Victoria (City) v Adams, which are often viewed as breakthroughs in the fight for encampment rights. By contrast, Jackman argued that they demonstrate the limitations of how courts engage with section 7 Charter claims. In Adams, the Supreme Court of British Columbia held that the municipality could not enforce a by-law that prohibited overnight sheltering in parks when there was inadequate shelter space.[1] This decision was subsequently upheld on appeal.[2] Jackman explained that the claimants in Adams were not arguing for a conditional right to remain in encampments only when there was insufficient shelter space. Instead, they raised the lack of shelter options as just one example of the broader and systemic violations of section 7—violations that also stem from inadequate social assistance, a lack of social services, and the absence of long-term housing. Yet the Court reframed their claim, making the right to remain in an encampment contingent on the availability of shelter spaces. By doing so, the structural argument was reduced into a narrow, site-specific right. Jackman argued that this judicial reframing reflects a broader failure of courts, not advocates.

Margot Young, a professor at Allard Law, described encampment residents as “constitutional castaways”, a term coined by former Chief Justice McLachlin to highlight judicial blindness to systemic inequalities faced by the impoverished.[3] Drawing from her observations at the CRAB Park encampment in Vancouver, Young recounted unconstitutional searches of tents, seizure of belongings, and intimidation by park rangers. This treatment of encampment residents appeared irreconcilable with the decision in Bamberger v Vancouver (Board of Parks and Recreation), which emphasized the need for participation and notice in administrative actions—protections that are routinely ignored on the ground.[4] Young noted that encampment residents face a litany of Charter violations, highlighting the need to recognize not just intersectionality within individual identity but also within the Charter itself. She emphasized that the rights engaged, such as sections 2(d), 7, 8, 12, and 15, should not be considered in isolation. Instead, courts must allow the values recognized in one right to inform and strengthen others, reinforcing Jackman’s call for reading section 7 through a section 15 lens to address systemic inequality.

Jackman referenced G. (J.) v. New Brunswick (Minister of Health and Community Services) to outline a path forward for judicial decisions. In G. (J.), Chief Justice Lamer held that decisions infringing section 7 must provide affected individuals with meaningful participation.[5] Similarly, Jackman argued that encampment residents must have a voice in legal processes that impact their rights. She further advocated for interpreting section 7 through a section 15 lens to ensure that remedies address systemic human rights violations rather than offering temporary solutions grounded in negative section 7 rights.

When the personal belongings of precariously housed people are seized by public or private officials, there are rarely clear processes for recovering them. Alexandra Flynn, Director of the Housing Research Collaborative and Associate Professor at UBC’s Allard School of Law discussed litigating claims for property rights as one potential method for bolstering future housing encampment push back against unlawful state actions.  This is an area where there is currently little jurisprudence. Flynn suggested lack of effective remedies, and legal and procedural barriers that limit access to remedies, as reasons for this scarcity. Flynn emphasized that it is important to continue using all the available tools, including tribunals and small claims courts, when seeking remedies.

Procedural and systemic barriers

Building on these critiques of judicial limitations in encampment cases, litigator Avnish Nanda and Professor Anna Lund of the University of Alberta discussed the procedural and legal barriers they faced in their recent litigation work around homeless encampments in Edmonton and how those compare to the barriers Nanda has encountered in litigation over harm reduction programs. Referencing Margot Young’s essay, “Sleeping Rough and Shooting Up: Taking British Columbia’s Urban Justice Issues to Court,” they characterized litigation on homeless encampments and harm reduction programs as part of a broader movement for social justice, which Young defines as a “call for the alleviation of social and political exclusion, and the reduction of inequalities as a matter of justice, not merely charity, and as a matter of state, not individual, responsibility.”[6]

Nanda had worked on a line of cases where he sought interlocutory injunctions to stop legislation that reduced or obstructed access to government supports and harm reduction programs. The first of these cases, AC and JF v Alberta, laid the foundation for his later work and clarified the test for injunctive relief.[7] In 2020, Alberta lowered the maximum age eligibility of its Support Financial Assistance program for youth who were transitioning out of the child welfare system. Nanda challenged the amended legislation on the grounds that it violated section 7 of the Charter and sought an injunction to suspend the amendment. Compelled by the plaintiffs’ narratives, the Alberta Court of Queen’s Bench (ABQB) granted the injunction.[8] While the injunction was overturned on appeal, the Alberta Court of Appeal affirmed the traditional test for injunctive relief established in RJR-MacDonald, rejecting a more stringent test proposed in Alberta Union of Provincial Employees v Alberta where the government would benefit from a presumption that its legislation was constitutional.[9]

Encampment litigation across Canada relies on injunctions. In provinces such as British Columbia, municipalities must seek injunctions to remove encampments; conversely, in Alberta, the onus is on encampment residents to apply for injunctions to stop evictions. AC and JF was a significant decision because a more stringent test would make this prohibitively difficult for encampment residents to stop evictions. However, the workshop participants acknowledged Stepan Wood’s critique that the less stringent traditional test frequently allowed BC municipalities to obtain injunctions against encampments, prompting removals and evictions.[10]

The ABQB’s decision in AC and JF also revealed a litigation strategy—using narrative to bridge the gaps in the law. In later cases, Nanda again sought injunctive relief against legislation that shut down access to opioid treatment programs and supervised consumption sites, arguing breaches of sections 7, 12, and 15 of the Charter.[11] Not all the injunction applications succeeded, but the courts were willing to engage with the Charter claims. The parallels between encampment and harm reduction litigation make these cases valuable to draw from.

The issue of legal standing poses another barrier to encampment litigation. Renee Vaugeois and Chris Wiebe, co-founder and co-counsel for the Coalition of Justice and Human Rights respectively, reflected on their recent Charter challenge in Alberta which was struck down on standing. The Coalition applied for an interlocutory injunction using public interest standing to stop the City of Edmonton from evicting encampments. The City moved to strike the claim by challenging the Coalition’s request for public interest standing, and the City succeeded. The Alberta Court of King’s Bench refused to grant the Coalition public interest standing on the grounds that they did not have a “real stake or genuine interest” in the issue and that its litigation was not “a reasonable and effective means to bring the case to court” .[12]

Wiebe explained that the Coalition resorted to using public interest standing because the stigma of living in encampments and the frequent displacement of residents made it difficult to find someone who could act as a direct applicant. Moreover, the Coalition was concerned that courts would only consider the harm individual applicants were facing and disregard the harm the overall community would experience if evicted.[13]

Assistant Professor Gerard Kennedy from the University of Alberta examined recent court decisions dealing with public interest standing and noted that Alberta disproportionately denies standing claims. Judges seemed uncomfortable with granting public interest standing and would later dismiss claims on the merits, although these are separate processes. Courts tended to favour individual applicants and factual records that raise narrow issues to avoid any unintended consequences of granting public interest standing. However, this presented a significant issue for precarious populations where stigma and vulnerability prevent individuals from coming forward as direct standing applicants, as was the case in Coalition. Regardless, an individual claimant may not effectively be able to represent the interests of the community.

The workshop participants also acknowledged the adverse effects of litigation on encampments and their homeless population. Vaugeois noted that the City of Edmonton had increased encampment evictions after the Coalition decision and disbanded the Social Development Committee which brought different organizations together to talk strategically about dealing with shelter issues.

Indigenous legal perspectives

Indigenous people have been disproportionately affected by state actions to evict encampments, shut down harm reduction programs, and penalize homelessness through vagrancy bylaws. The fact that they are overrepresented in the homeless population may also trigger a section 15 Charter claim.

While the Charter’s limitations in protecting encampment residents highlight systemic failures, it is crucial to consider how Indigenous legal traditions offer alternative frameworks for addressing housing and community rights. Heidi Kiiwetinepinesiik Stark, Associate Professor at the University of Victoria, discussed how Anishinaabe law highlights collective responsibility of care which contrasts with settler individualism. The Indigenous legal perspective aligns with the understanding that unhoused individuals are part of a larger community and deserve care and support. By centering relational ontologies of care, policy decisions can better reflect our shared responsibility to one another.

Recognizing Indigenous law and jurisdiction can be especially important when encampments are situated on Indigenous land. Estair van Wagner, Associate Professor at the University of Victoria, and Stark highlighted the Beacon Hill Park Trust (Re) case where the Supreme Court of British Columbia had an opportunity to consider Indigenous jurisdiction and failed to do so.[14] Located on Lekwungen territory, Beacon Hill Park was granted to the City of Victoria in 1882 to be held in trust without regard to Lekwungen title.[15] During COVID-19, encampments grew, prompting city enforcement of prohibitions on daytime sheltering within the park. The Court ruled that encampments violated conditions of the park’s trust, focusing on property management rather than obligations to unhoused individuals or Indigenous governance.[16] The Songhees and Esquimalt Nations’ intervener status in the case was limited, excluding broader discussions of Indigenous jurisdiction and title.[17]

Notably, van Wagner emphasized how Beacon Hill Park was framed around private law, narrowing the scope of what was legally relevant. The Friends of Beacon Hill Park Society, a small non-Indigenous nonprofit, played a key role in this framing by arguing that encampments violated the trust’s terms.[18] Their position, which centered on preserving the park for public enjoyment, mobilized private law to exclude discussions of Indigenous jurisdiction, human rights, and obligations to unhoused individuals. Instead of recognizing the complex relationships between the land, Indigenous governance, and encampment residents, the Court deferred to a rigid interpretation of the trust. This case illustrates how legal frameworks continue to prioritize settler interests while limiting space for Indigenous law and authority.

Looking Ahead

The “Encampments and the Charter” workshop represented an important step in bringing together advocates and academics to address the constitutional law and systemic barriers housing encampment residents face. More conversations of this kind are needed to develop legal strategies that challenge the systemic inequalities. Indigenous law and legal traditions, which emphasize collective responsibility and care, offer a crucial alternative to the individualistic framework of the Charter. Centering these perspectives could help reshape legal approaches to housing and community rights in a more just and equitable way.

Aurora Lawrence and Jay Wai are 1L JD Candidates at the University of Toronto Faculty of Law and are members of the Asper Centre Encampments and the Charter working group

[1] 2008 BCSC 1363.

[2] Victoria (City) v Adams, 2009 BCCA 563 [Adams].

[3] R v Prosper, 1994 CanLII 65 (SCC), [1994] 3 SCR 236 at 302.

[4] 2022 BCSC 49 at paras 64, 69.

[5] ​​See 1999 CanLII 653 (SCC), [1999] 3 SCR 46 at para 81.

[6] Margot Young, “Sleeping Rough and Shooting Up: Taking British Columbia’s Urban Justice Issues to Court” in Martha Jackman & Bruce Porter, eds, Advancing Social Rights in Canada (Toronto: Irwin Law, 2014) 413 at 439.

[7] AC and JF v Alberta, 2021 ABCA 24 [AC and JF].

[8] AC and JF v Alberta (19 March 2020), Edmonton, ABQB 2003 04825 (interlocutory judgment transcript).

[9] Alberta Union of Provincial Employees v Alberta, 2019 ABCA 320.

[10] Stepan Wood, “Reconsidering the Test for Interlocutory Injunctions Affecting Homeless Encampments: A critical assessment of BC case law”  (2024) 61:1 OHLJ  161.

[11] Tam v Alberta, 2021 ABQB 156; Moms Stop the Harm Society v Alberta, 2022 ABQB 24; Black v Alberta, 2023 ABKB 123.

[12] Coalition for Justice and Human Rights Ltd v Edmonton (City), 2024 ABKB 26 [Coalition].

[13] Poff v City of Hamilton, 2021 ONSC 7224 at para 137.

[14] 2022 BCSC 284 [Beacon Hill Park].

[15] Ibid at para 19.

[16] Ibid at para 134.

[17] British Columbia v Friends of Beacon Hill Park, 2022 BCCA 383 at para 65.

[18] Ibid at paras 48–49.

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

Posted on by Tal Schreier

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

Posted on by Tal Schreier

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

Posted on by Tal Schreier

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

Posted on by Tal Schreier

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.