Asper Centre OUTLOOK & Message

 

Dear Asper Centre Friends,

We hope that you, your loved ones and colleagues are keeping safe and well during these challenging times.

Shortly before the faculty of law closed due to COVID-19 earlier this month, the Asper Centre published its annual newsletter, the Asper Centre Outlook. This issue contains many wonderful articles written by our faculty’s students, on topics ranging from voting rights, media freedom, UNDRIP implementation, sex workers’ rights and the carbon tax. Our students’ interest and engagement with the leading constitutional issues in Canada is impressive as always and we are so grateful for their contributions.

We hope you will find this newsletter a good distraction to the more worrisome news flooding your screens, and until we see you again, we wish you the very best. Keep safe and well.

The Asper Centre

Carbon Tax Constitutional Challenge: ABCA Sides with Province

by Adam LaRiviere

On February 24th, 2020, the Alberta Court of Appeal (‘ABCA’) released its decision regarding the constitutional challenge of the Greenhouse Gas Pollution Pricing Act, SC 2018, c 12 (‘Act’). The case was decided 4-1 in favour of the Alberta government and stated that Parts 1 and 2 of the Act were unconstitutional in their entirety. This decision is the third of its kind, with the Ontario and Saskatchewan Courts of Appeal deciding in favour of the federal government 4-1 and 3-2 respectively. The Supreme Court of Canada (SCC) was set to hear appeals from Ontario and Saskatchewan on March 24th and 25th in order to make a final decision on the constitutionality of the Act, however due to Covid-19, the Court has postponed the hearing to June 2020.

What is the Act?

The Act came into force in June 2018, with some aspects, such as the federal fuel charge system, being applied as late as January 1st, 2020. The Act is a direct response to the current climate crisis, and seeks to lower green house gas (GHG) emissions by imposing a minimum set of price standards for both carbon-based fuels and industry-based emissions which provinces must adhere to. This means that all Provinces and Territories are required to meet the minimum price per tonne of carbon dioxide equivalent and establish emission caps as directed by the Act.

Previous Decisions

The reasoning behind the ABCA majority’s decision in this case differed greatly from the previous challenges in Ontario and Saskatchewan. In those appeals, both majorities found that the legislation was validly enacted under the national concern doctrine of Parliament’s Peace, Order and Good Government (POGG) powers; however, it was stated that neither court considered the impact of the Act on the exclusive jurisdiction of the provinces to make laws relating to the development and management of their natural resources under s. 92(A) of the Constitution.

The ABCA’s Decision

The ABCA’s decision was largely founded on the rejection of the application of the national concern doctrine. The majority stated that this doctrine cannot 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 subject matter of the Act was contested by the parties but the court found that, at its minimum, the Act is aimed at the regulation of GHG emissions. The court focused on the infringement of the provinces’ exclusive power to develop and manage their natural resources granted under s. 92(A). It was found that these powers, in conjunction with the provinces’ proprietary rights in their resources, afford the provinces substantial control over the development of their resources. This includes the ability to regulate resources after they have been extracted. The majority continued, stating that the legislation also falls under the provincial power over property and civil rights (s.92(13)), the power over local works and undertakings (s. 92(10)), and finally the power of direct taxation (s. 92(2)).

The majority also stated that even if they are incorrect in the above finding, the national concern branch of Parliament’s POGG powers cannot apply. They state that the subject matter of the impugned legislation is not sufficiently distinct or indivisible from provincial powers for the national concern doctrine to apply. Rather, the legislation allows the federal government to determine the degree to which the provinces must exercise their power, thus rendering it meaningless. Additionally, the powers granted to Parliament are not inherently limited in the legislation. This creates the potential for Parliament to regulate all things pertaining to the environment or climate change.

Justice Feehan wrote in dissent that he would uphold the Act. He dismissed the idea that the Act infringes the exclusive jurisdiction of the provinces on the grounds that S. 92(A) cannot limit pre-existing federal powers including the national concern branch of the POGG powers. He then stated that the subject matter of the legislation is much more narrow and concerns the need to make a behavioral change in Canada towards more efficient energy use through the use of pricing standards for GHG emissions. Consequently, he stated that this characterization of the Act is within the scope of the national concern doctrine.

Future Litigation

As mentioned, the SCC was meant to hear the appeals from Ontario and Saskatchewan, in addition to the Alberta appeal, on March 24th and 25th. While the decisions have been 2-1 in favour of the federal government, the Justices have been split 7-5 on this issue overall. Parliament remains confident in their position despite this lack of consensus and they feel confident that the “price of pollution is within federal jurisdiction.”

Adam LaRiviere is a 1L JD student at the Faculty of Law and is a member of the Asper Centre Climate Justice student working group this year.

Reflections on the Asper Centre Intervention in Ontario v. G

By Jeffrey Wang

As a clinic student this term, I had the opportunity to hear the Asper Centre’s oral arguments in its intervention at the Supreme Court of Canada in the appeal of Ontario v. G, which took place on February 20, 2020. The appeal concerned the constitutionality of the Ontario and federal sex offender registry laws, which required offenders found not criminally responsible (NCR) to report to the registry for life, even if they had been absolutely discharged by the Ontario Review Board (ORB). Offenders not found NCR who receive an absolute discharge, record suspension, or pardon do not have to report to the registries. In this way, the claimant, G, who was found to be NCR after his criminal trial, argued that the Ontario and federal sex offender registry laws violated his s. 7 and s. 15 rights under the Charter.

Justice Doherty for the Ontario Court of Appeal did not find a s. 7 violation. However, he recognized that the sex offender registries drew a discriminatory distinction based on the ground of mental disability under s. 15 of the Charter, since the law reinforces the stereotype that NCR offenders are indeterminately dangerous. Under s. 1, the court focused on the fact that the reporting requirements for NCR offenders did not have any “exit ramps” even though similar “exit ramps” are available for non-NCR offenders. Justice Doherty found that this was not a minimal impairment of s. 15 rights and struck down the laws.

Supported by the faculty of law’s Professor Kent Roach, the Asper Center intervened in this appeal on the issue of remedies, specifically about when delayed declarations of invalidity intersect with the need for constitutional exemptions in Charter litigation.  In this case, the Ontario Court of Appeal suspended the declaration of invalidity for one year in order to allow the legislature to amend the impugned laws. However, Justice Doherty exempted the applicant G from this suspension, which meant that G was removed from the sex offender registry reporting requirements, effective immediately. This was controversial, since the Supreme Court in R v Demers had expressly advised against exempting individual claimants from suspended declarations. The Asper Center argued that the Demers rule must be overturned. This is due to the fact that the Supreme Court has exempted individual claimants from suspended declarations in the past, such as in Corbiere and Carter. In addition, without the ability to exempt claimants from suspended declarations, individual claimants must wait until the completion of the suspended declaration in order to receive any benefits of their successful claim. The Asper Center also argued that the Supreme Court should only use suspended declarations of invalidity as a remedy when it is justified as necessary and proportional. This is in line with international practices such as the Hong Kong courts’ use of suspended declarations as well as the Supreme Court’s own jurisprudence on other constitutional remedies. Furthermore, many scholars are critical of the overuse of suspended declarations of invalidity since the remedy creates uncertainty and allows laws to continue violating Charter rights during the suspension.

My experience working on this case provided me with an invaluable look into appellate advocacy. At the Supreme Court, the arguments focused on if the sex offender registry laws violated s. 15 of the Charter and security of the person under s. 7. Many of the Justices were critical of the government’s s. 15 argument, asking numerous questions on the implications of their evidence that NCR offenders are more likely than the average population to commit another offence. Although the Asper Center was only given five minutes, Asper Centre Executive Director Cheryl Milne effectively addressed all of our arguments, and the Justices seemed receptive. It was exciting to see the research I conducted on Hong Kong’s jurisprudence not only be included in our factum, but also mentioned in our oral arguments. Ultimately, we will have to wait to see if the Supreme Court will take our invitation to re-imagine the use of suspended declarations of invalidity as a constitutional remedy.

Jeffrey Wang is a 2L JD student at the Faculty of Law and is the current Half-time Asper Centre Clinic student.

Careers in Constitutional Law

by Kylie de Chastelain

Many students are fascinated by the constitutional issues they engage with in the classroom and the Asper Centre regularly receives questions about how to work towards a career in Constitutional law. To help address these questions, the Asper Centre hosted a panel discussion on February 12th, 2020, entitled: “Careers in Constitutional Law.”

Four brilliant lawyers were invited to share about their experiences in constitutional law practice. Emily Chan, a staff lawyer at Justice for Children and Youth, was joined by Sinéad Dearman, an Associate at Olthuis Kleer Townshend LLP; Geetha Philipupillai, an Associate at Goldblatt Partners; and Padraic Ryan, Counsel at the Constitutional Law Branch of the Ministry of the Attorney General of Ontario. Each panelist spoke about the realities of long-term litigation, working with rotating governments, and the complexities of constitutional law. The panelists’ career experiences are detailed below, followed by a round-up of their best advice for aspiring constitutional lawyers. As you’ll see, there’s more than one path towards working in constitutional law.

Emily Chan

Staff Lawyer, Litigation and Community Development, Justice for Children and Youth

Emily Chan’s day-to-day work is very diverse, ranging from privacy law to human rights matters and constitutional law issues. Her official title is “Community Development Lawyer” – a role which suits her passion for advocacy and community organizing. Initially, Emily never planned on having a litigation career; preferring research and writing to public speaking and debate. Despite this, litigation now comprises a significant portion of her practice.

Emily has represented Justice for Children and Youth before the Supreme Court of Canada on a number of interventions. Notable among these are Prime Minister of Canada v Khadr, 2010; an intervention about Omar Khadr and the rights of children who are found in armed combat overseas, and Kanthasamy v Canada, 2015; a case that considered the best interests of a minor who sought refugee protection in Canada on humanitarian grounds. Interventions such as these frequently involve Charter-based challenges – as was the case in Khadr, where Emily’s arguments on behalf of Justice for Children and Youth focused on Khadr’s section 7 Charter rights to life, liberty, and security of the person. Ultimately, Emily’s work – while not exclusively constitutional – does involve a significant amount of constitutional law; proof that a career in constitutional law doesn’t have to be “all or nothing.”

Sinéad Dearman

Associate, Olthuis Kleer Townshend LLP

Sinéad was called to the bar in 2018 and was a member of the Indigenous Law students Association while at the University of Toronto’s Faculty of Law. She works in child protection law and represents a variety of First Nations governments in matters relating to child welfare and custody. This work is demanding, and Sinéad spends approximately 75% of her time travelling to remote First Nations communities across Ontario, where she meets with band governments and stakeholders and represents them in child welfare cases. In addition to child protection work, Sinéad has appeared before the Canadian Human Rights Tribunal, suing the Canadian government for discriminatory underfunding in public services (see: First Nations Child and Family Caring Society of Canada v Canada, 2019). Sinéad also works in Indigenous law-making; helping First Nations to refine and uphold their legal traditions and advocating for their inclusion within the broader Canadian legal system.

Sinéad believes that in order to practice Indigenous law, and constitutional law more broadly, you have to be able to show up in “mind, body, and spirit.” The work requires more than intellect; it requires being present and involved beyond the law. For Sinéad, this has often meant being in ceremony with her clients and becoming involved in the community beyond what might be expected in a non-Indigenous lawyer-client relationship.

Geetha Philipupillai

Associate, Goldblatt Partners

Geetha was also called to the bar in 2018, and one month later found herself working on the high-profile case involving Premier Ford’s reduction of Toronto City Council seats (see: The City of Toronto v Ontario (Attorney General), 2018). Although Geetha does not generally practice in labour law, the case presented an opportunity to represent union clients with a vested interest in the structure of Toronto’s city council. It was valuable, she said, to have the opportunity to work on a constitutional case, even if it was not in a practice area she typically engages with. In general, Geetha’s day-to-day work at Goldblatt involves employment law, civil class action suits, and claims from LawPro; the company that provides Ontario lawyers with professional liability insurance. Geetha’s work with LawPro frequently involves defending lawyers against claims of negligence.

In addition to all of this, Geetha, who was an Asper Centre Clinic student, served as pro-bono junior counsel to the Asper Centre on the Morris intervention. This case is challenging criminal law sentencing with respect to systemic racism and specifically anti-black racism. The Asper Centre’s intervention focuses on the need for substantive equality in sentencing and the corresponding rights engaged by s. 15 of the Charter. For Geetha, working in constitutional law has meant making the most of the opportunities that come her way. Although her legal work is not exclusively constitutional, she has chosen to make this an area of focus in her career.

Padraic Ryan

Counsel, Constitutional Law Branch, Ministry of the Attorney General of Ontario

Padraic always knew that he was interested in constitutional law and litigation, and endeavoured to work in government jobs instead of full-service Bay Street firms as a result. As a member of the Constitutional Law Branch, Padraic’s work is exclusively constitutional. In essence, he supports branches of the ministry that have constitutional questions or claims before them. Typically, these claims relate to statutes or policies that are being challenged, and while Padraic’s work involves a significant amount of litigation, he also provides advice to government ministries facing this kind of claim.

The work is full of variety, and Padraic says that one of the best parts of his job is the constant learning. In this kind of work, you never feel as though you’ve “specialized” or “mastered” a particular area of law – instead, you’re constantly learning about statutes you never knew existed and consulting with government ministries across a broad range of practice areas. By way of example, Padraic says he has worked on fire code prosecutions, labour relations issues, and interventions relating to federal immigration law. The challenges of government work are ever-present, he says, and dealing with election cycles, changing governments, and funding constraints can make his job very interesting. For those interested in a diverse range of legal issues that all engage constitutional law, a government position like Padraic’s might be the perfect fit.

Career Tips for Aspiring Constitutional Lawyers

  • Take a variety of courses. Emily advises that you take a variety of courses while you’re in law school because constitutional questions can arise in “any area of law.” Having a bit of knowledge across practice areas is helpful, because you simply can’t anticipate all the areas of law you might end up working in. Emily pointed to her own experience, noting that although she doesn’t practice refugee and immigration law, much of her constitutional work has involved Charter-based advocacy for refugee children and youth. Having the legal context that comes from a bit of coursework experience is highly valuable.
  • Have a demonstrated interest. All the panelists agree that, when it comes to hiring, it’s nice to see an applicant with a clear interest or passion. Whether it’s through your extra-curriculars, course selection, non-law school activities, or the organizations you belong to, make sure to highlight what you are interested in. Padraic emphasized that this doesn’t mean you must do every single extra-curricular related to constitutional law; but it’s good to be able to show participation in at least one or two constitutionally-related activities if this is something you are hoping to practice later on. The Asper Centre offers some fantastic ways to get involved, including: The Constitutional Law Clinic, Student Working Groups, and Summer Fellowship Program.
  • Consider administrative law. Geetha and Padraic suggest that administrative law is a great area of focus for constitutional-law hopefuls. Administrative law contains many of the same legal themes as constitutional law, and has the advantage of being highly marketable in the legal world. Geetha emphasized that administrative law can also be useful in practice because often constitutional challenges are brought by people who are unable to finance protracted litigation. When you understand administrative law well, you are better able to advise clients as to their strategic options and help them to achieve their goals without engaging in costly litigation.
  • Remember that your law practice will likely be diverse. With the exception of Padraic, who works in a role exclusively devoted to constitutional law, none of the panelists focus solely on constitutional work. Instead, constitutional law is simply one of many practice areas they engage in. Remember that it is rare to find a full-time job in constitutional law. Instead, think about adjacent practice areas that you are passionate about, and jump at the chance to do constitutional work when you can.
  • Don’t worry if the path isn’t straight. Sinéad says that while law school can be challenging intellectually, mentally, and emotionally, do your best to stick with it. Remember that law school and legal practice look very different, and being a young lawyer is nothing like being a young law student. Rely on the routines and activities that make you feel good and give you a sense of meaning beyond law school, and try not to get caught up in comparison and competition. As Padraic says, it’s better to think about the kind of work you want to do, and where you think you’ll fit best career-wise than to spend time trying to “check boxes” for the sake of it.

Kylie de Chastelain is a 1L student of law at the University of Toronto and the current Asper Centre work-study student.