Author: Student

Federal government needs a stronger foreign affairs power, H. Scott Fairley argues

Posted on by Student

By Daniel Minden

Canadian federalism jurisprudence should provide the federal government with firmer ground to exercise authority over foreign affairs, Toronto lawyer H. Scott Fairley argued last week.  

On February 5, 2026, the David Asper Centre for Constitutional Rights hosted H. Scott Fairley, with Professor David Schneiderman as discussant, for a Constitutional Roundtable at Jackman Law. Fairley, a partner at Cambridge LLP, presented themes from his recent book Foreign Affairs in the Canadian Constitution (UBC Press, 2025). Fairley argued that an overly broad provincial role in foreign affairs displays disunity and invites aggression, citing James Madison, who wrote that if his country was to be “one nation in any respect, it clearly ought to be in respect to other nations.” 

Historical evolution of the foreign affairs power 

Fairley began by providing an overview of the evolution of the federal foreign affairs power since 1867. Unlike the written constitutions of other federations, Fairley noted that Canada’s Constitution Act, 1867 mostly leaves the issue of foreign affairs unaddressed. This was deliberate, Fairley contended, since Canada’s foreign relations were handled by the British Empire before the First World War. Illustrating this point, s. 132 of the Constitution Act, 1867 gives the federal Parliament “all Powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries.”  

While s. 132 might have been fit for purpose at the time of Confederation, following the 1923 Canada-U.S. Halibut Treaty Canada began to negotiate its own international treaties. As Canada forged an independent foreign policy in the years that followed, Fairley noted that s. 132 became moribund, since the provision only protects federal authority to implement treaties negotiated by the British Empire.  

As the utility of s. 132 faded, provincial governments, especially the government of Québec, began to assert themselves as international actors. In the 1960s, Québec adopted the Gérin-Lajoie doctrine and claimed a right to conduct international relations in all areas of provincial jurisdiction. 

Tracing the evolution of jurisprudence 

Fairley noted that constitutional jurisprudence in Canada has both protected and constrained the federal government’s ability to implement treaties.  

In the Aeronautics Reference [1931] UKPC 93 (BAILII) and Radio Reference [1932] UKPC 7 (BAILII), the Judicial Committee of the Privy Council (JCPC) held that broadcasting and aeronautics fell within the federal vires, relying in part on the fact that international treaties governed the two matters. However, in the Labour Conventions Reference [1937] UKPC 6 (BAILII), the JCPC held that although the federal government could enter into treaties, the performance of those treaty obligations “depends upon the authority of the competent legislature or legislatures.” In other words, the federal government could not intrude on a provincial vires on the basis that Canada needed to fulfil its treaty obligations. 

The Charter and judicial review of the royal prerogative 

Fairley also pointed out the consequential role of the Charter in enabling courts to review federal Cabinet decisions involving foreign affairs issues. The foreign affairs power exercised by Canada has its basis not in the text of the Constitution Act, 1867 but in the vesting of the royal prerogative in the Canadian government. Until a few decades ago, courts regarded the exercise of the royal prerogative as non-reviewable, Fairley contended. However, the Charter of Rights and Freedoms led courts to accept the reviewability of Cabinet decisions on foreign affairs.  

In the landmark case Operation Dismantle v. The Queen [1985] 1 SCR 441, the Supreme Court of Canada held that “decisions of the federal cabinet are reviewable by the courts under the Charter, and the government bears a general duty to act in accordance with the Charter’s dictates.” The Supreme Court reaffirmed this principle in Canada (Prime Minister) v. Khadr [2010] 1 SCR 44, when it held that “in the case of refusal by a government to abide by constitutional constraints, courts are empowered to make orders ensuring that the government’s foreign affairs prerogative is exercised in accordance with the constitution.”  

A proposed addition to the national concern doctrine 

Returning to the topic of federalism, Fairley argued that the Supreme Court of Canada should modify its test for the national concern doctrine so that the federal government can more easily claim jurisdiction over foreign affairs matters. 

As the Supreme Court of Canada held most recently in Reference re Greenhouse Gas Pollution Pricing Act (“Greenhouse Gas”), for a matter to be a matter of national concern, over which the federal government can claim jurisdiction under its Peace, Order, and Good Government (POGG) power, the matter must satisfy a three-part test. The matter must (a) be of sufficient concern to Canada as a whole, (b) have a singleness, distinctiveness, and indivisibility that clearly distinguishes it from matters of provincial concern (c) have a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the constitution.  

In Greenhouse Gas the Court also held that part (b) of the test may include a consideration of “the effect on extra‑provincial interests of a provincial failure to deal effectively with the control or regulation of the intra‑provincial aspects of the matter.” This seems to have led Fairley to adopt a proposed addition to the test, which could cut in favour of many foreign affairs issues being intra vires the federal government.  

In his lecture, Fairley proposed that the Supreme Court should add to the test that “national incapacity to address a matter of international concern independent of collective action [through a treaty]” should also be relevant to the determination of distinctiveness and indivisibility under the national concern doctrine. This would enable Canada to argue that global challenges such as pandemics and climate change, which require collective action, are within federal jurisdiction.  

Driving a truck through federal-provincial equilibrium? 

Professor David Schneiderman asked Fairley to consider whether this proposed addition to the national concern doctrine test might weigh too heavily in favour of federal power, threatening the constitutional equilibrium between the provinces and the federal government. Fairley responded that his proposal is consistent with equilibrium in its modern form, noting that Canadian federalism jurisprudence has long abandoned the notion of federal or provincial watertight compartments.  

Fairley argued that any notion that each order of government can act within sterile autonomous spheres divorced from Canada’s obligations abroad is no longer realistic. Rather, there now exists an extensive overlap between the provincial vires and federal vires as the doctrine of cooperative federalism appreciates. For Fairley, despite the importance of federal-provincial cooperation, Canadian courts must appreciate the distinctiveness of matters requiring collective action, where Canada depends on other nations and other nations depend on Canada.  

Fairley wrapped up his talk with a classical allusion by evoking the memory of Themistocles, who helped to unify Athens with its neighbour Piraeus. That unity was essential in enabling Athens to defeat an invasion by a more powerful Persian force. 

Daniel Minden is a Research and Communications Assistant with the Asper Centre. He is a 1L JD candidate at the University of Toronto Jackman Faculty of Law. 

Re-opening the Gosselin door: the Asper Centre hosts a Symposium on Litigating Positive Rights

Posted on by Student

By Daniel Minden

Twenty-four years after Gosselin v. Québec, 2002 SCC 84, in which the Supreme Court of Canada left the door open for the recognition of freestanding, positive rights under the Canadian Charter of Rights and Freedoms, a series of experts hosted by the Asper Centre argued that litigators should renew the push for judicial enforcement of positive rights. 

On January 16, 2026, the David Asper Centre for Constitutional Rights hosted a symposium on litigating positive rights under the Charter at the Henry N.R. Jackman Faculty of Law. Co-chaired by the Cheryl Milne of the Asper Centre and Professor David Schneiderman of the Jackman Faculty of Law, the event considered how litigators can seize the potential of the Charter to argue that governments have positive constitutional obligations to their citizens – including in the areas of climate, housing, and health policy. This blog post focuses on selected portions of the Symposium’s plenary sessions, although the day’s agenda also included concurrent panels covering specific policy areas. 

Enforcing positive social rights in an anti-democratic era 

In a keynote address to launch the symposium, Professor Aoife Nolan of the University of Nottingham School of Law set the tone for the day. Nolan argued that democracy and social rights are co-dependent, and that litigators have a role to play in protecting both.  

Drawing on her experience as President of the Council of Europe’s European Committee of Social Rights, Nolan contended that positive rights litigation is an important means of reinforcing and sustaining democracy. Nolan noted that her quasi-judicial body has held that social rights permit the exercise of democratic rights: in European Roma Rights Centre (ERRC) v. Greece (Complaint No. 15/2003), the Committee found that the right to housing enabled the exercise of political rights. Nolan also argued that healthy democracies are best able to fulfil social rights, referring to Nobel laureate Amartya Sen’s thesis that functioning democracies with a free press do not experience substantial famines. 

The connection between social rights and democracy can help to explain the rise of anti-democratic forces, Nolan argued, referencing research which demonstrates a positive correlation between citizens’ concerns over access to goods and services, and support for far-right parties. In a call to action to attendees, Nolan insisted that litigation is a “key mechanism to flag gaps and bring about government action in areas such as housing, social protection, and employment,” which in turn, helps to maintain confidence in democracy.  

Room for optimism about positive rights in Canada? 

Following Nolan’s lecture, Professor Joel Bakan of the University of British Columbia’s Allard School of Law provided an historical overview of attempts to litigate positive Charter rights in Canada. Bakan recounted that Canadian courts have persistently rejected the notion that the Charter protects ‘freestanding’ positive rights, i.e., rights that “obligate state actors to provide some protection or benefit regardless of whether they have already provided a version of that protection or benefit.” In contrast, Bakan asserted that Canadian courts have been willing to recognize ‘contingent’ positive rights, i.e. rights which “obligate state actors to extend or expand some protection or benefit they have already provided a version of.” Bakan noted Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC) and Vriend v. Alberta, 1998 CanLII 816 (SCC), as examples of the Supreme Court recognizing contingent positive rights.  

In the landmark Gosselin case, the Supreme Court rejected an attempt to establish a freestanding positive right claimed by a welfare recipient appellant. The Court held that “nothing in the jurisprudence thus far suggests that s. 7 places a positive obligation on the state to ensure that each person enjoys life, liberty or security of the person. Rather, s. 7 has been interpreted as restricting the state’s ability to deprive people of these.” The Court found that “such a deprivation does not exist in the case at bar,” but also left the door open to recognizing positive obligations created by s. 7 in a future case.  

Dissenting Justice Louise Arbour took a broader view of the word ‘deprive.’ She found that “there is no sense in which the actual language of s. 7 limits its application to circumstances where there has been positive state interference,” since the “concept of deprivation is sufficiently broad to embrace withholdings that have the effect of erecting barriers in the way of the attainment of some object.” Bakan argued that in later contingent positive rights cases, the Court has seemingly embraced Arbour’s expansive understanding of ‘deprivation.’ In Bakan’s interpretation, the Supreme Court’s jurisprudence in which it has recognized contingent positive rights “depend upon and affirm” Arbour’s view that “a right can be deprived, breached, violated [or] limited by omission as much as by action.” In Bakan’s view, the court’s simultaneous acceptance of contingent positive rights and rejection of freestanding positive rights is inconsistent.  

Finally, Bakan addressed the concern that freestanding positive rights risk transforming judges into legislators. While acknowledging the need for caution, Bakan pointed to Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, as a proof of concept for navigating justiciability issues. In Doucet-Boudreau, the trial judge held that the province of Nova Scotia had to deploy its best efforts to uphold French-language education rights in the province. Rather than ordering a specific policy solution for the Nova Scotia government to pursue, the trial judge retained jurisdiction and monitored the government’s progress. The Supreme Court upheld the trial judge’s remedy as an appropriate exercise of judicial authority since the remedy left “detailed choices of means largely to the executive.” For Bakan, Doucet-Boudreau indicates how freestanding positive rights arising from Charter interpretation (as opposed to textually explicit positive rights such as ss. 14 and 23) might be judicially enforced in Canada if recognized by the Court. 

Bakan was followed by New York University JSD student Henry Federer and Osgoode Hall Law School Assistant Professor Anthony Sangiuliano, who presented their upcoming articles on positive rights. As an alternative to the dichotomy between positive and negative rights, Federer proposed a ‘two-tier’ methodology for characterizing Charter rights which initially characterizes a right as imposing a negative duty on the state or imposing a positive obligation on the state. Then, the methodology characterizes the right a second time to elucidate whether the right, once engaged, creates a secondary duty or obligation for the state.  

Following Federer’s presentation, Sangiuliano argued that positive constitutional rights are predicated on findings that state omissions have caused a violation of the relevant right. Sangiuliano posited that such findings are not empirical, but normative: such a finding is predicated on the notion that the state has a duty to prevent an outcome. For Sangiuliano, the ‘exposition’ of judicial decisions can help reveal the normative assumptions that underly judicial findings of state omissions.  

Addressing judicial anxieties about positive rights 

The separation of powers concerns referenced by Bakan were also addressed in an afternoon plenary session on judicial anxieties about positive rights. Associate Professor Benjamin Perryman of the University of New Brunswick argued that the separation of powers between the three branches of government is a misnomer and should be reconceived as the overlapping of powers. Perryman contended that the judiciary has a role in explaining how the overlap ought to function in practice and pointed towards foreign jurisprudence to indicate how Canadian courts might go about this task. 

Both Professor Kent Roach of Jackman Law and Professor Margot Young of the University of British Columbia’s Allard School of Law argued forcefully against a distinction between positive and negative rights at all. Roach noted that the Charter rights implicated in criminal law, though often framed in negative terms in the text of the Charter, in effect create positive obligations for the state. For instance, s. 12 implicitly requires the state to invest in correctional facilities so that they do not amount to venues for cruel and unusual punishment. For Roach, the positive versus negative rights dichotomy is a false distinction.  

Young made a similar argument, asserting that the Charter is at a moment of “existential crisis” because Canadian courts have “failed to give force to the full potential for the Charter as an instrument of social justice.” Young argued that the Supreme Court’s concept of substantive equality in interpreting s. 15(1) requires recognition of positive state obligations if it is to mean anything – and that a real commitment to social equality requires doing away with the distinction between positive and negative obligations.  

Young quoted from the American scholar S. F. Kreimer, who writes that “appropriate verbal manipulations can easily move most cases across the line between positive and negative obligations,” and from the University of Ottawa’s Martha Jackman, who has written that “the distinction between state action and inaction, and between positive and negative rights, has been entirely discredited under international human rights law.” Young asserted that the courts’ proclivity to distinguish between positive and negative rights is explained by a desire to protect the separation of powers. For Young, however, the separation of powers “requires judicial enforcement of the Charter to its full remedial purpose.” 

This afternoon plenary panel also included a presentation by Associate Professor Angela Cameron of the University of Ottawa and Toronto lawyer Lara Koerner-Yeo of JFK Law LLP, who examined the role of the presumption of conformity (between Canadian legislation and international treaty obligations) in ss. 7 and 15 Charter litigation. Research by Cameron and Koerner-Yeo indicates very little litigation in which the presumption of conformity has been raised in support of positive rights claims. However, Cameron and Koerner-Yeo noted that the presumption is increasingly invoked in s. 35 litigation.  

Daniel Minden is a Research and Communications Assistant with the Asper Centre. He is a 1L JD candidate at the University of Toronto Jackman Faculty of Law. 

David Rabban argues for a distinct theory of the right to academic freedom, as the U.S. and state governments tighten the screws on universities

Posted on by Student

By Daniel Minden

As the Trump administration and state governments ramp up efforts to regulate American universities, David M. Rabban, an expert on the law of academic freedom and professor at the University of Texas School of Law, highlights that the U.S. Supreme Court has recognized a distinct right to academic freedom under the First Amendment of the U.S. Constitution – but argues that this distinct right must be properly elaborated by courts and theorized by scholars. 

On November 13, 2025, Rabban was hosted by the David Asper Centre for Constitutional Rights and the H.R. Jackman Faculty of Law Program on the Critical Analysis of Law for a lecture covering the interpretation of academic freedom as a First Amendment right.  

The foundational Sweezy and Keyishian decisions 

Rabban noted that although the text of the First Amendment does not explicitly refer to academic freedom, the Supreme Court of the United States identified academic freedom as a distinct right under the First Amendment in Sweezy v. New Hampshire, 354 U.S. 234 (1957), a McCarthy-era case arising from the state of New Hampshire’s investigation of a Marxist professor. In another landmark case, Keyishian v. Board of Regents 385 U.S. 589 (1967), the Court held that “Academic freedom is a special concern of the First Amendment” – an idea cited in hundreds of subsequent cases. 

Despite the Court’s holding in Keyishian, Rabban argues that the Court has never adequately explained why academic freedom is “special,” and that the large majority of academic freedom cases lack a substantive analysis. To fill in the gaps, Rabban has focused on interpreting the meaning of academic freedom through research presented in his new book, Academic Freedom: From Professional Norm to First Amendment Right. 

Interpreting the right to academic freedom 

What exactly is protected by the right to academic freedom as currently understood by American courts? Rabban finds that courts have principally protected the content of teaching and research. At times, they extended the freedom further, to protect, for instance, the confidentiality of classroom discussions, the confidentiality of medical records, and confidentiality guarantees extended by historians to interviewees previously involved in the Irish Republican Army. 

Other aspects of professors’ conduct have been treated inconsistently by courts. In some instances, courts have protected pedagogical decisions by professors when those decisions were justified on academic grounds as determined by peer academics. However, in Trustees of Indiana University v. Curry, No. 18-1146 (7th Cir. 2019), the United States Court of Appeals, Seventh Circuit, found that the plaintiffs’ argument that the use of fetal tissue in research was protected by the First Amendment was a “non-starter” since the statute forbidding the practice “regulates conduct, not speech.” 

Professors’ “intramural speech,” specifically, their comments about university policies or public issues outside of their domain of specialty, has also been treated inconsistently by courts. Some decisions have extended the right to academic freedom to include a professor’s comments about university policies, but in most cases, courts have decided cases pertaining to intramural speech under the broader First Amendment umbrella.  

In addition to professors, the U.S. Supreme Court has also protected the right of institutions to academic freedom. In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the Court affirmed a concurring decision from Sweezy which found that the “four essential freedoms” of a university are the rights “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” 

The insufficiency of general First Amendment rights when applied to professors 

Why is a specific right to academic freedom required, given the broader First Amendment? Rabban argues that general First Amendment rights as applied to professors are inadequate, necessitating the specific right. 

To be protected speech under the general First Amendment, speech by public employees must be about matters of “public concern.” In cases involving professors, courts have excluded from the “public concern” such categories as “abstract theorizing,” criticism of university administrators, and comments by professors protesting the denial of tenure to other professors. These categories of speech are fundamental to the work of any professor but are left unprotected by general First Amendment rights, argues Rabban. 

In addition, in Garcetti v. Ceballos, 547 U.S. 410 (2006), the U.S. Supreme Court held that the speech of public officials “pursuant to their official duties” is not protected under the First Amendment. Obviously, this rule restricting the scope of First Amendment rights would massively impede the protection enjoyed by professors, if applied to them. The Court even recognized the possible need to exclude professors from the Garcetti rule, but since the facts of the case did not involve academic freedom, the Court left aside the issue of the rule’s applicability to professors. 

The need to theorize the right to academic freedom as a distinct First Amendment right 

To compensate for the failure of the general First Amendment Rights to adequately protect professors, a specific right to academic freedom is needed, says Rabban. A proper theory of the right to academic freedom can both justify its existence and define its scope. Given the lack of U.S. Supreme Court jurisprudence adequately laying out the justification and scope of the right to academic freedom, Rabban has taken on this work himself.  

As a starting point, Rabban cites a publication by the American Association of University Professors (AAUP) which contains, in his view, the best justification of academic freedom. The AAUP highlights professors’ unique function in society, which is to apply their expertise to the pursuit and dissemination of knowledge which is a benefit to society, a role which would necessarily be impeded if professors could not reach academic conclusions that meet academic standards but offend legislators or members of the public. 

For Rabban, this unique role of the professor in society justifies the existence of a separate First Amendment right to academic freedom. The justification of the right can also help determine its scope. Rabban argues that the scope of the right must include pedagogical decisions and speech about educational issues at universities – but since the theory of the right relies on expertise to justify specific rights to academic freedom, the intramural expression of professors outside their expertise should not be protected by the right to academic freedom. 

Academic freedom in Canada 

During the question-and-answer period, one questioner noted that in Canada, the content of the right to academic freedom is generally seen as the right of professors not to be sanctioned by universities for exercising their general freedom of expression rights. The questioner noted that this Canadian conception of academic freedom is generally protected through collective agreements, rather than constitutional litigation. The efficacy of protecting academic freedom in Canada through collective bargaining is only possible because Canada has a much higher rate of faculty union membership as compared to the United States. 

Current challenges in the United States 

In concluding his talk, Rabban highlighted the current pressure being exerted by the U.S. federal government and state governments on academic freedom rights. Though Rabban accepts that legislatures do have a role in determining the general curriculum requirements for public universities, he contends that through their recent acts, legislatures are inappropriately supplanting the role of universities by determining the specific content of courses. These state acts are far more intrusive than previous state interventions such as the Cold War-era questioning of Professor Sweezy, argues Rabban.  

Even though current state regulations have created a chilling effect and rendered certain American professors hesitant to teach about topics such as race and sex, Rabban argues that the right to academic freedom matters and is worth exercising despite the risk of penalties such as forced early retirement. Rabban notes that in times of totalitarian rule, academics have given up a great deal, including their liberty, to preserve the right to academic freedom. Rabban’s advice to academic colleagues is not to be chilled, and to exercise their rights. 

Daniel Minden is a Research and Communications Assistant with the Asper Centre. He is a 1L JD candidate at the University of Toronto Jackman Faculty of Law.

Supreme Court concludes limits on third-party spending for political advertising violate the right to vote

Posted on by Student

By Taoran Li

On 7 March 2025, the Supreme Court of Canada released its decision in Ontario (Attorney General) v. Working Families Coalition (Canada) Inc., 2025 SCC 5, where the majority of the Court found limits on third-party spending for political advertising infringed the right to vote guaranteed under s. 3 of the Canadian Charter of Rights and Freedoms and were not saved under s. 1.

A civil society organization, several unions and individual citizens brought the constitutional challenge against Ontario’s Election Finances Act (“the EFA”), which was amended in 2017 to impose spending limits on third parties for the first time. The EFA was subsequently amended in 2021 to extend the time period during which those spending limits apply to third parties. The EFA imposes different limits on third parties and political parties: Section 37.10.1(2) of the EFA restricts the amount third parties can spend on political advertising to $24,000 in any one electoral district and to $600,000 in total during the 12-month period before a fixed-date election writ is issued.. By contrast, registered political parties may spend up to $1,000,000 on advertising, which applies for only six months before the election period.  In the six months preceding that, political parties face no limits on political advertising.

The Asper Centre intervened in the case and was represented by Debbie Boswell of Lerners LLP. Its intervention argued that the enactment of greater restrictions through legislative amendments is a relevant and important factor in assessing whether the right is infringed and whether the infringement is justified.

Writing for the majority of judges, Karakatsanis J concluded that the third-party spending limit infringes s. 3 of the Charter, fails to be justified, and is therefore constitutionally invalid. Two separate joint dissents were issued by Wagner C.J. and Moreau J, and Côté and Rowe JJ, both concluding the spending limit on third party advertising does not infringe s. 3.

Majority judgment 

According to the majority, the asymmetry between third parties and political parties is a significant, qualitative disparity which leads to disproportionality in the political discourse.  Third parties are strictly limited in their ability to inform citizens, whereas political parties face no restrictions in the first six months of the pre-writ year and may spend a substantially higher amount in the six months before the writ period.

This is because the asymmetry essentially allows political parties to overwhelm the voices of third parties during an important period in the democratic cycle which then deprives voters of a broad range of views and perspectives on social and political issues. Therefore, the voter’s right to an informed vote and to meaningful participation in the electoral process is undermined, limiting the right guaranteed under s 3. of the Charter.

The limitation was not justified under s 1. of the Charter, failing at the minimal impairment stage. The majority arrived at this conclusion after considering expert evidence supporting that a six-month period of pre-writ restrictions on third party political advertising (the previous restriction) would still be effective at achieving the government’s stated objective of ensuring electoral fairness and levelling the playing field, as well as taking into account less restrictive spending limits across the country and at the federal level.

Joint dissent: Wagner C.J. and Moreau J

The starting point for Wagner C.J. and Moreau J was first to affirm that the purpose of s. 3 is to protect the right of citizens to meaningfully participate in the electoral process. This right is comprised of two components: the first is expressive, which ensures that each citizen has a reasonable opportunity to introduce their own ideas and opinions into the political discourse. The second is informational, which ensures that each citizen has a reasonable opportunity to hear others’ perspectives and access information in order to exercise their right to vote in an informed manner.

Third party spending limits engaged the right to meaningful participation in both its expressive and informational components, as third parties can bring new issues to the political discourse and act as a voice for multiple citizens during the electoral process. Regulation of third-party advertising may thus restrict citizens’ opportunity to become informed of political issues, parties, and candidates.

The relevant question then becomes whether the impugned law results in depriving citizens of a reasonable opportunity to introduce their own ideas and opinions into the political discourse or become informed of facts, ideas, and others’ perspectives, thereby infringing the right to meaningful participation.

In order to identify whether there was an infringement, Chief Justice Wagner and Justice Moreau proposed a framework which includes assessing the quantum and temporal reach of the limit, the scope of conduct captured by the limit, and the limit’s impact on different forms of expression.

Based on the evidentiary record, Wagner C.J. and Moreau J concluded the third-party spending limit is not inconsistent with the right to meaningful participation as third parties may still engage in a range of political advertising activities within the spending limit including activities expressly exempted from the spending limit in the EFA, like editorials, columns, or books. Although expensive options like television advertising are limited, there are still other media platforms for citizens to exchange ideas and opinions as well as numerous forms of low-cost political advertising.

Wagner C.J. and Moreau J did not consider the asymmetry between third parties and political parties to undermine a citizen’s opportunity to meaningfully participate in the political process as third parties are not deprived of a reasonable opportunity to speak and be heard: they are still able to mount modest informational campaigns, and most election-specific advertising is generally concentrated around the election period, when both third parties and political parties are subjected to spending limits.

Côté and Rowe JJ Dissent 

Côté and Rowe JJ disagreed with the majority’s “comparative analysis,” which they considered to rest on an erroneous characterization of the purpose of s. 3 as protecting political discourse and extending expressive rights to political actors including third parties. In their view, the majority’s concerns regarding the nature of political discourse and its actors properly fall within s. 2(b) (freedom of expression), which was not at issue in this case due to the Ontario legislature’s clear invocation of the notwithstanding clause.

Côté and Rowe JJ disagreed with Chief Justice Wagner and Moreau J as to whether there is an expressive component within s. 3 and instead concluded that s. 3 is a voter-centric right that protects the ability of individual citizens to be informed in order to make an electoral choice. Thus, the question is not whether the spending limit creates a disequilibrium in the political discourse, but rather whether the limit infringes a voter’s ability to meaningfully participate in the electoral process.

In accordance with this reasoning, third parties ought to be properly conceptualized as “interest groups” who seek to contribute to, and influence, the political discourse. They should not be considered rightsholders under s. 3 as s. 3 does not protect the parties seeking to be heard. Rather, s. 3 belongs to citizens, as it is a participatory right which extends to individual citizens and their right to make an informed vote.

In order to determine whether there is an infringement of the right to meaningful participation, Côté and Rowe JJ endorsed the framework proposed by Chief Justice Wagner and Moreau J but qualified the scope of each consideration so that it is focused on the informational component in s. 3. Having regard to this framework and the purpose of s 3, Côté and Rowe JJ did not find the spending limits infringed s. 3 of the Charter.

Asper Centre’s intervention 

The Asper Centre’s intervention relates to the legislative history of the EFA, which had at first restricted third-party political advertising in the 6-month period leading up to the issuance of the writ of election. While the constitutional challenge to these restrictions was underway, the government further amended the legislation to extend the restriction to 12 months before the writ of election without increasing the $600,000 spending limit.

The Asper Centre argued that where the legislature modified an existing law to impose greater restrictions on a Charter right, this is a relevant and important factor in assessing whether the right has been infringed and whether the infringement is justified. It is particularly important to consider the impact of a change when ascertaining the government’s purpose in enacting the legislation and determining whether the legislative choice made by the government is minimally impairing of the right at issue.

Debbie Boswell commented that, “The Supreme Court’s reasoning reinforces that the right to vote under s. 3 should be given a broad and generous interpretation. While the majority reasons focus heavily on the comparison between third parties and political parties, there was another very relevant comparison here – between the previous version of the legislation and the amended version. Despite not expressly referencing the change in legislation, the evidence that the previous version of the legislation achieved the government’s goal is relied upon to conclude that it was not minimally impairing. This is an important development and lends support to our argument that a change in law is relevant, particularly when determining if it is justified under s. 1.”

Taoran Li is a Research and Communications Assistant with the Asper Centre. She is an international student from New Zealand attending the Master of Laws program at the University of Toronto Faculty of Law.

Kimberly Murray presents findings from Report on Missing and Disappeared Indigenous Children and Unmarked Burials in Canada

Posted on by Student

By Taoran Li

On 25 February 2025, the Asper Centre welcomed Ms. Murray to present the bi-annual Morris A. Gross Memorial Lecture.

From June 2022 until December 2024, Ms. Murray was the Independent Special Interlocutor for Missing Children and Unmarked Graves and Burial Sites associated with Indian Residential Schools. She is currently the National Scholar in Indigenous Legal Studies at the Queens University Faculty of Law. The formal introduction for Ms. Murray was given by Professor Kent Roach, who sat on the Expert Panel on Policing in Indigenous Communities (convened by the Council of Canadian Academies) of which Ms. Murray was the Chair of the Panel. Professor Roach also worked with Ms. Murray when she was the Executive Director of Aboriginal Legal Services.

As the Independent Special Interlocutor, Ms. Murray bore the crucial responsibility of making recommendations for a new federal legal framework to help identify and protect the unmarked graves and burial sites associated with former Indian Residential Schools across the country. In the process of formulating recommendations, Ms. Murray took part in conversations with Survivors, Indigenous families and communities who are leading the work of recovering the missing children and unmarked burials, and with governments, churches, and organizations.

In the lecture, Ms. Murray presented some of the important findings in the Final Report. She started by explaining the principles which guided her work, which were formulated with survivors and elders. The principles included that the bodies and Spirits of the missing and disappeared Indigenous children must be treated with honour, respect, and dignity, and that Indigenous families and communities have the right to know what happened to their children who died while in the care of the State and churches.

Ms. Murray outlined some of the powerful and indisputable history evidence contained in the Report of genocide, crimes against humanity and mass human rights violations in the Indian Residential School System. She also shared examples of burial locations with images of historical records that supported testimonies of survivors. One particularly harrowing story was of young boy called George Painter who was accused and eventually convicted of setting a fatal fire at the Cross Lake Indian Residential School. He was 7 years old when he was sent to the residential school and had tried to escape the school. When the fire occurred, he was charged with the crime setting the fire, but Canada did not provide him with a lawyer. He pled guilty and was given the maximum sentence of life imprisonment which he served at stony mountain penitentiary. Efforts to have George released failed, including when George’s father attempted to have the case reviewed, but the Department of Indian Affairs did not support his parole. He died in Winnipeg General Hospital at the age of 32, having spent half of his life in prison and most of the first part of his life at a residential school. He was buried in the prison cemetery along with many other Indigenous peoples, marked only with numbers.

Emphasizing the distinction between “missing and “disappeared”, Ms. Murray urged us to use the language of the latter as it more accurately reflects Canada’s culpability and responsibility in the children’s deaths and disappearances. The children did not go missing by accident; the disappearances happened because of purposeful State violence, action and force. Evidence supporting this in the Report included showing that cemeteries were part of the residential schools from the outset and that the Government had planned for the deaths of the children.

Pursuant to international legal criteria, the enforced disappearance of children requires the State to ensure that a full investigation into the deaths of the children occurs, that families be notified of the fate of the children, and that remedies be provided to the victims, including their families and communities. Canada therefore has an international obligation to establish a commission of investigations into missing and disappeared indigenous children and unmarked burials.

Because Canada cannot investigate its own wrongdoing, Ms. Murray considered Indigenous Nations, exercising their sovereignty, are best placed to lead these investigations. She found this to be best executed through legislation that upholds Indigenous sovereignty and laws.

In her cogent pronouncement, Ms. Murray said that it is time for Canada to shift from a culture of amnesty and impunity to a culture of accountability and justice. This must start with a proper Indigenous-led reparations framework of the many human rights violations, which must be developed through an anti-colonial lens that highlights the importance of Indigenous laws, international human rights and the United Nations Declarations on the Rights of Indigenous Peoples.

Finally, Ms. Murray repeated the call in the Report’s final chapter for Canadians to become upstanders to reconciliation: to be receptive about and fully acknowledge that atrocities, genocide and crimes against humanity have been committed against Indigenous people and proactively foster reconciliation based on truth, accountability and justice. She concluded the lecture with words shared by Natan Obed, President of the Inuit Tapiriit Kanatami at the national event in Iqaluit, who said “there is a point where we have to look people in the eye and tell them that their conduct is unacceptable and that some things are non-negotiable”.

This point in time, Ms. Murray enjoined, is now, and we must all tell the Canadian government that its conduct has been and continues to be unacceptable. It must now provide full reparations for the crimes against humanity it has perpetrated on Indigenous children, families and communities.

Taoran Li is a Research and Communications Assistant with the Asper Centre. She is an international student from New Zealand attending the Master of Laws program at the University of Toronto Faculty of Law.