Author: Tal Schreier

Unpacking the Issues in the Upcoming TWU Appeals at the Supreme Court of Canada

Posted on by Tal Schreier

by Tal Schreier

On November 30th and December 1st 2017, the Supreme Court of Canada will hear two appeals involving Trinity Western University (TWU), a private Christian university in British Columbia wishing to open a new law school. The appeals involve legal challenges to decisions by the law societies of British Columbia and Ontario and the impact of a policy that requires TWU students to sign a code of conduct forbidding sexual intimacy outside heterosexual marriage. Ontario decided to deny the accreditation of TWU law graduates in the future, while BC approved accreditation. The cases are expected to “break new constitutional ground” around how administrative decision-makers are to balance the competing Charter rights of equality and freedom of religion.

The David Asper Centre for Constitutional Rights is involved in three upcoming events at the University of Toronto’s Faculty of Law aimed at assisting students and the public in better understanding the key issues that are involved in the TWU cases. The Asper Centre  is jointly convening these events with Out in Law and the Journal of Law and Equality.

First, on November 23rd, ahead of the actual court dates, a Dean’s Emerging Issues Workshop Series panel discussion has been convened to consider and analyse some of the main issues that will be covered in the TWU appeals. The discussion will cover the administrative law issues involved, the balancing of competing rights and the unique circumstances regarding the involvement of public interest interveners in these cases. The panelists will include Professors Denise Reaume and Richard Stacey of the Faculty of Law, University of Toronto, Professor Richard Moon of the Faculty of Law, University of Windsor and Cheryl Milne, the Executive Director of the David Asper Centre for Constitutional Rights. Maryam Shahid, JD Candidate at the Faculty of Law and co-Editor of the Journal of Law and Equality will moderate the panel.

Second, on the actual hearing dates (Nov 30 and Dec 1) we have organized for the live-stream viewing of the arguments taking place at the Supreme Court of Canada. While the arguments are being live-streamed directly from the court, faculty members from the law school will provide commentary explaining the key issues as they arise. A schedule of “live-commentators” will be made available in due course.

Lastly, following the hearing, we will convene a post-TWU debriefing panel discussion. This presentation will provide an opportunity for some of the intervening parties’ counsel to discuss what transpired in the cases and what they may have liked to say to the court to better enrich the parties’ arguments, if not for the constraints involved. The date for this presentation will take place sometime in late January or early February of 2018.

Asper Centre Alumni Network 5 in 5 Event

Posted on by Tal Schreier

by Ryan Howes

On November 2, 2017, the Asper Centre hosted its inaugural Alumni Network event, a “5 in 5” panel in which five alumni each had five minutes to discuss an interesting advocacy case or initiative that they have worked on in their respective practices.  Breese Davies, the Asper Centre’s 2017 Constitutional Litigator-in-Residence moderated, introduced each speaker and kept time. The presentations highlighted the diverse and impactful work in constitutional litigation and advocacy that Asper Centre alumni engage in, often in collaboration with the Asper Centre.

An interesting theme that emerged from the discussions was the importance of narrative in legal advocacy. Facts are persuasive, but narratives are compelling. Narratives communicate the human dimension that exists behind the facts. Complimenting a strong body of supportive facts within a narrative that conveys the experiences of real people effected by the target issue supports effective advocacy.

Louis Century (JD/MGA ’13), an associate at Goldblatt Parners LLP, presented on being co-counsel for the Asper Centre as intervener in the Frank et al v Canada (Canadian non-resident voter) case at the Supreme Court of Canada (SCC). This case concerns the constitutionality of a law that bars expats from voting if they have been outside the country for 5 or more years. The law was upheld at the court of appeals. The appellate judge argued that, in order to qualify for voting, a citizen must have a stake in the society. Expats are therefore ineligible. There are no grounds for this in the constitution. Louis worked in collaboration with Asper Centre affiliate faculty to submit a factum, which addressed this “social contract” justification and promoted expats’ right to vote. The government has introduced a bill to amend this Act, so the SCC hearing was postponed to mid-2018. No legislative progress is yet evident.

Aria Laskin (JD ’14), an associate at Torys LLP, presented on her work with the Asper Centre and the University of Toronto Faculty of Law’s International Human Rights Program on behalf of detained children in Canada’s immigration facilities. Hundreds of immigrant children have been detained. A challenge that Aria faced in advocating for this cause was identifying different forms of advocacy beyond traditional litigation to work towards the ultimate goal: reducing and ending the immigration detention of children. In addition to litigation, Aria worked on public advocacy initiatives in order to raise awareness of the issue. This has had positive results. Fewer children are being detained today, and they are no longer being placed in solitary confinement.

Jennifer Luong (JD ’13), presented on her work at the Ministry of the Attorney General Constitutional Law Branch, where she acted as respondents’ counsel in the Grand et al v Ontario case. Jennifer represented the government in the challenge by families to the discriminatory consequences of the Children’s Law Reform Act. This Act identified a child’s parents as their natural parents, burdening non-traditional families with additional legal processes and costs in order to demonstrate parenthood over their child. The Grand case challenged the Act on these grounds. As a result, Ontario made remedial amendments to the Children’s Law Reform Act with the All Families Are Equal Act.

Marcus McCann (JD ’14), an associate at Symes Street & Millard LLP, presented on being co-counsel for an intervener in the upcoming Trinity Western University case at the SCC. He discussed the case in the context of two pertinent precedents, Loyola v Quebec and Doré v Barreau du Québec, arguing that the SCC’s decision in the Trinity Western University case will refine how these past rulings apply. For instance, Marcus predicted that the SCC’s decision might constrain Doré because in this instance there is a competing rights claim. Although the Trinity Western University case raises many interesting questions, Marcus argued that the SCC might limit the scope of its ruling and leave unaddressed such questions as whether corporations as legal persons are entitled to s. 2(a) rights.

Megan Savard (JD ’09), partner at Addario Law Group LLP, presented on her advocacy work surrounding criminal liability under the Assisted Human Reproduction Act, for which she has collaborated with Asper Centre clinic students in drafting submissions to government. The Act is vague in describing the criminal acts it identifies, which presents difficulties for persons working in assisted reproduction and surrogates. Megan’s presentation was a story of persistence and unexpected continuity following failure. She is currently in stage three of her legal advocacy, the first two stages having not resulted in the kind of government action she was advocating for. But she persists. Megan’s advocacy uses stories demonstrating the free agency of women who serve as surrogates to challenge policymakers’ fears that women will be exploited for purposes of reproduction. She also challenges arguments grounded in sanctity of the body.

In addition to Asper Centre alumni, some current Asper Centre clinic students and student working group members attended the event.  As a first year law student, it was both eye-opening and inspiring for me to see the relationship that former students maintain with the Asper Centre and that making such an impact is possible so soon after graduating from law school.

 Ryant Howes is the current work-study student at the Asper Centre and is also a first yer JD Candidate at the Faculty of Law. 

 

Asper Centre Public Interest Litigation Conference – Call for Papers

Posted on by Tal Schreier

The David Asper Centre for Constitutional Rights is pleased to invite abstract submissions for its upcoming Public Interest Litigation Conference, which will be  held on March 2, 2018.  The Conference will be focused on legal strategies for successful public interest litigation in Canada, as a means to bring together relevant stakeholders to share their challenges, successes and strategies in this field.

Please find below the call for papers.  We invite proposals for papers in 2 formats: a longer paper covering pertinent issues related to public interest litigation in Canada and a shorter paper focused on lessons learned from a specific public interest case.  We hope that together these streams will generate positive response among both practitioners (lawyers and NGOs) who are engaged in public interest litigation and scholars who study and analyze the impact of these cases.

As indicated in the call for papers, please submit proposals to tal.schreier@utoronto.ca by November 30, 2017.

We look forward to receiving your applications and to hosting you in March!

Sincerely,
The David Asper Centre for Constitutional Rights

Public Interest Litigation Conference – CALL FOR PAPERS

Asper Centre to support efforts in challenging solitary confinement in Canada

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by Tal Schreier

Long periods of solitary confinement can have a devastating impact on the mental and physical well-being of prisoners. Ending solitary confinement is not only morally just but also has practical benefits of improving public safety as prisoners who have been subject to solitary confinement often experience problems re-entering into society and have higher rates of recidivism. The current practice of solitary confinement in Canada risks violating the basic Charter rights of prisoners and according to international law, the use of prolonged periods of solitary confinement amounts to cruel and unusual punishment and even torture. Canada should fall in line with this international norm, and immediately curtail the practice of lengthy solitary confinement.

The Asper Centre has been observing two recent public interest litigation cases on this issue (both court decisions are still outstanding), the first of which was brought by the John Howard Society and the British Columbia Civil Liberties Association in the British Columbia Supreme Court, challenging the constitutionality of the current legislative provisions that govern the practice of solitary confinement. The other case was brought by the Canadian Civil Liberties Association and the Canadian Association of Elizabeth Fry Societies in the Ontario Superior Court of Justice, also a constitutional challenge to the practice of solitary confinement in federal penitentiaries in Canada.

Both cases are based on ss. 7, 12 and 15 of the Charter of Rights and Freedoms, in which the applicants attack various provisions of the Corrections and Conditional Release Act of 1992 which currently authorizes what is formally called “administrative segregation” indefinitely for a wide range of reasons. Although the Act stipulates that the practice is meant to be used as a last resort, it is ordered without independent or external oversight and is commonly extended for excessive periods of time.

Both these cases have proceeded to court despite the government having introduced in June of this year Bill C56, new legislation proposing a cap of 15 days on holding prisoners in solitary confinement (with an 18 month transition period after the bill passes into law during which time the cap will be set at 21 days). While Bill C56 is a welcome sign that government views the need to reform this harmful practice, the Bill contains a number of crucial flaws that will need to be addressed in order to bring the law properly into line with the Charter.

For example, the specific wording of Bill C56 allows the “institutional head” of a prison to extend administrative segregation past the capped period. The Bill also proposes “independent external review” which only comes into effect when the segregation continues beyond the capped period, however this review is on paper only. With no hearing or access to counsel, and an outcome of the review that is non-binding, this effectively means that the “institutional head” can disregard the recommendation and extend segregation. Furthermore, Bill C56 does not prohibit the practice of segregation for mentally ill persons or other vulnerable groups.

The Asper Centre clinic students are reviewing the proposed legislation and will be drafting submissions to Parliament on these and other identified issues with Bill C56.

Supreme Court’s Ruling in Recent Extradition Case Disappoints: Comment

Posted on by Tal Schreier

by Patrick Enright

This past week the Supreme Court of Canada released its decision in the landmark extradition case of India v Badesha.  The case – which the Asper Centre intervened in earlier this year – involved the possible extradition of an infamous couple to India to face charges of conspiracy to commit murder.  The case raised the intriguing question of when, and if, diplomatic assurances from a foreign state can make extradition to a foreign state Charter-compliant. India, for its part, has a notorious human rights record with respect to treatment of prisoners in its custody. Systemic abuse, sexual assault, a lack of potable water, and cramped living conditions are all endemic throughout the system – and abuse from prison guards is a common occurrence.

The question before the Court was this: can mere assurances of safety from the Indian government make up for all this?

The Supreme Court’s answer seems to be “no.” But much remains uncertain. On the plus side, the Court made it clear that diplomatic assurances cannot, by themselves, make up for evidence of human rights abuses in a foreign country. And the Court made it equally clear that general evidence of widespread human rights abuses can be used as evidence that specific persons will be subject to torture and mistreatment upon extradition to a foreign state.

It also laid out the considerations that must be taken into account when assessing the reliability of assurances against torture. Factors such as the specificity of the assurances, the foreign state’s capacity to comply with the assurances, and the ability to monitor and verify the foreign state’s compliance with assurances must all be considered.

But the good news stops there. Much of the decision’s positive elements are muddled by the Court’s insistence on including a number of policy considerations that, we are told, must also colour the analysis. Courts must in each case consider the relationship between Canada and the recipient state, as well as the seriousness of the offence, when determining whether a surrender order meets constitutional muster.

There is, however, an obvious problem with this. The question of whether policy considerations should tip the scale in favor of extraditing leaves too much discretion in the hands of politicians – instead of the Courts. One only has to look at the fallout from the payment to Omar Khadr to realize that importing political considerations into questions of rights-protection is often a marriage made in hell.

When assessing the role of diplomatic assurances in determining whether extradition is appropriate, then, the question should be a simple one…can the state actually fulfill its promises?

The Asper Centre’s submissions urged the Supreme Court to place this question at the heart of the analysis on judicial review of extradition cases. We urged the Court to require the state to produce evidence that it could fulfill its promises and safeguard the rights of Canadian citizens’ subject to extradition. The court, for its part, only partially heeded our warning – opting instead to list a catalogue of things that are to be considered when assessing a surrender order – some rights-friendly, some not.

The Asper Centre’s outside counsel, John Norris, was also troubled by the court’s deference to the Canadian government on extradition cases, yet he too chose to see the silver lining as the court did in the end uphold the need to carefully consider human rights in extradition cases. “You can see it as the glass is half-full or half-empty. I prefer to see it as half-full because the emphasis on human rights is an important part of the judgment,” Norris commented.

As the proverbial wisdom has always said: sometimes you win, and sometimes you lose. And sometimes you lose, but the result isn’t quite as bad as you thought it might be.

And I guess that’s something.

Patrick Enright is a third-year JD candidate at the University of Toronto’s Faculty of Law and was a student in the Asper Centre half time clinic, who assisted with the Asper Centre’s intervention in this case.