Author: Student

The Positives of Campaigning: City of Toronto and Freedom of Expression at the Supreme Court

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by Bailey Fox

Introduction

On October 1, 2021, the Supreme Court of Canada (SCC) released its decision in Toronto (City) v Ontario (Attorney General), 2021 SCC 34 [City of Toronto]. In the 5-4 decision, the Supreme Court held that the legislation that reduced the size of Toronto City Council during an ongoing municipal election did not violate the Constitution’s guarantee of freedom of expression. The Court also held that unwritten constitutional principles cannot, on their own, invalidate legislation.

The Asper Centre intervened in the case, specifically on the issue of the scope of freedom of expression in the context of municipal elections. The decision, while resolving the immediate dispute, raises many new questions about the future of the Charter of Rights and Freedoms’ s.2(b) guarantee of freedom of expression. The divide between the majority and dissenting opinion on the role of unwritten constitutional principles also highlights the existing divide between the Supreme Court’s judges regarding Charter interpretation.

Background

On July 27, 2018, shortly after being elected, the Ontario government tabled the Better Local Government Act, SO 2018, c 11 [BLGA]. The BLGA reduced the number of wards in the City of Toronto from 47 to 25 during the City’s ongoing election. The BLGA upended the election, eliminating 22 wards and requiring candidates to pivot their campaigns to new or unfamiliar districts.

Shortly after being enacted on August 14, 2018, a number of parties, including affected candidates and the City of Toronto brought an application seeking to invalidate the BLGA. The parties advanced a few constitutional arguments, including that the BLGA violated ss.2(b) and s.15(1) (equality rights) of the Charter, as well as the unwritten constitutional principles of democracy and the rule of law. The application was heard on an expedited basis on September 9, 2018. In City of Toronto et al v Ontario (Attorney General), 2018 ONSC 5151, the application judge held that the BLGA violated both candidates’ and electors’ s.2(b) rights and could not be justified under s.1 of the Charter. Given the s.2(b) violation, the application judge held that it was not necessary to consider the role of unwritten constitutional principles. The application judge invalidated the legislation and restored the 47-ward format for the election.

The government sought an appeal, and an urgent stay, of the application judge’s decision at the Ontario Court of Appeal (OCA). In its stay decision, the OCA found that candidates were seeking a positive right to a particular platform, and held that the BLGA did not substantially interfere with expressive freedom. Based on the stay decision, the BLGA remained in force and Toronto’s election proceeded on a 25-ward basis.

A little over a year later, the appeal was heard and decided on its merits. The Asper Centre intervened in the appeal. In Toronto (City) v Ontario (Attorney General), 2019 ONCA 732, the OCA reversed the application judge’s decision and affirmed the constitutionality of the BLGA. Justice Miller, writing for the majority, characterized the claim as a positive one – that the claimants were seeking access to a statutory platform as opposed to freedom from government interference in electoral expression. Applying the case of Baier v Alberta, 2007 SCC 31 [Baier], the Court held that the claimants must demonstrate a substantial interference with freedom of expression but have failed to do so since the government is not required to ensure the effectiveness of expression.

In dissent, Justices Nordheimer and MacPherson would have denied the appeal on a finding that the BLGA violated all electoral participants’ s.2(b) rights. The dissenting justices largely adopted the submissions of the Asper Centre on this point.

The City of Toronto appealed the OCA’s decision.

The Supreme Court’s Decision

Majority

Chief Justice Wagner and Justice Brown wrote the 5-judge majority decision. Like the OCA, the SCC characterized the claim as a positive one, that is that the claimants were seeking access to a particular statutory platform (a 47-ward council). Noting that this appeal was an opportunity to ‘affirm and clarify’ the Baier framework, the Court held that when claimants are seeking to impose an obligation on the government to provide access to a statutory platform for expression, the s.2(b) claim is a positive one (para 24). In such cases, the claimant must demonstrate that lack of access to a statutory platform has substantially interfered with, or “radically frustrated”, expression to such an extent that expression is “effectively precluded” (para 26).

Applying the Baier framework, the Court held that the claim was a positive one, however the City had not demonstrated substantial interference with expression. The Court noted that the Act did not prevent candidates from engaging in political speech or impose conditions on the content or meaning of speech. The Court rejected submissions that the BLGA rendered prior campaigning meaningless, noting that government action that makes prior speech less effective is not a substantial interference with s.2(b). The Court concluded that candidates’ freedom of expression was not radically frustrated and therefore the BLGA did not violate s.2(b).

On the question of the role of unwritten constitutional principles in Charter interpretation, the Court held that these principles – like democracy and the rule of law – could be used for exactly that, and nothing more. Adopting a textual approach to constitutional interpretation, the Court held that unwritten constitutional principles represent general principles underlying the constitutional order, and while they may assist the Court as interpretative tools or to develop structural doctrine, these principles do not have independent legal force.

Dissent

Justice Abella penned the reasons on behalf of the four dissenting judges. They would have allowed the appeal based on a finding that the BLGA violated s.2(b) of the Charter.

The dissent rejected the Baier framework and would have applied the test for a s.2(b) violation from Irwin Toy Ltd v Quebec, [1989] 1 SCR 927 [Irwin Toy]. Justice Abella noted that Baier only applies to circumstances where an existing statutory platform is underinclusive, and characterized the claim in this case as government interference with expressive rights attached to an electoral process (para 151). Applying the Irwin Toy framework, Justice Abella held that the BLGA’s timing “interfered with the rights of all participants in the electoral process to engage in meaningful reciprocal political discourse” (para 157). Justice Abella held that since the government had not provided any justification for the legislation’s timing, it could not be saved under s.1.

Justice Abella also commented on the role of unwritten constitutional principles, holding that they are independent of, and form the backdrop to, the written text of the constitution. These principles represent society’s normative commitments and therefore have independent legal force. Per the dissent, in rare cases, unwritten constitutional principles may invalidate legislation that has otherwise escaped the reach of an express constitutional provision.

Where do we go from here?

The majority’s critique of Irwin Toy and affirmation of Baier is notable and perhaps concerning. The majority notes at para 14 that Irwin Toy “has been criticized for setting too low a bar for establishing a s. 2(b) limitation…”. The analysis then continues with a discussion of s.2(b)’s internal limits, the distinction between positive and negative claims, and an affirmation of Baier. While this is a legitimate and existing critique of Irwin Toy, the Court does not expand on why such a broad test is at odds with the text of s.2(b), is normatively problematic, or why or whether it should be changed. However, the Court’s decision has the effect of limiting the applicability of the Irwin Toy framework, and potentially narrowing the scope of s.2(b), and thus adding complexity to s.2(b) litigation. As noted in the dissent at para 155, claimants must now meet a preliminary burden of demonstrating that their s.2(b) claim is a negative entitlement. Adding this inquiry to the s.2(b) analysis is especially concerning given that the distinction between positive and negative entitlement is easily malleable (again, a critique noted by the dissent at para 152 and previous SCC jurisprudence).

Also of note is the very high bar the Court states is required to establish a s.2(b) violation under Baier/City of Toronto. To succeed under this framework a claimant must show that lack of access to a statutory platform has radically frustrated expression to the extent that it is effectively precluded. The substantial interference standard (which was imported from the freedom of association jurisprudence and has since been impugned in that context; see City of Toronto at para 21) thereby recognizes that some interference with expressive freedom is constitutionally permissible. City of Toronto ignites a latent question about s.2(b)’s internal limits and elevates the bar that claimants must meet if a Court considers the claim a positive one.

The decision’s discussion of unwritten constitutional principles also reflects an ongoing divide among SCC judges between a textual and liberal/purposive interpretation of the Charter. While both opinions resolved the dispute on s.2(b) grounds, they nevertheless included a sustained discussion in obiter on unwritten constitutional principles. The majority subscribes a limited role for purposive interpretation, and later notes that notes that unwritten constitutional principles may assist with constitutional interpretation, but only where the test is not sufficiently definitive (para 65). But what is notably absent is any engagement by the majority with the purpose of s.2(b), or the impact of the principle of democracy on the analysis of a case where the scope of s.2(b) is at issue. While Justice Abella recognizes that freedom of expression includes the right to engage in political discourse (paras 114 – 122), the relevance of political discourse or the election context takes a backseat in the majority’s decision. This, in addition to emphasizing the distinction between a positive and a negative claim, is a marked departure from earlier jurisprudence like Irwin Toy that emphasized the purpose of freedom of expression, and  its connection to political discourse, and a broad scope for s.2(b).

In conclusion, the case that came to the Supreme Court was concerned with mid-election reform to Toronto City Council’s structure. However, in destabilizing the s.2(b) framework and narrowing the applicability of unwritten constitutional principles, the SCC’s decision leaves constitutional litigators, scholars, and students with many questions about the future of s.2(b) and constitutional interpretation.

Bailey Fox is a Research Assistant with the Asper Centre and is currently an LLM student at the University of Toronto, Faculty of Law. 

R v Chouhan: The Supreme Court of Canada finds room for disagreement

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By Wei Yang

On June 25, 2021, the Supreme Court of Canada (SCC) released its reasons for judgement in R v Chouhan,1 a case that the Asper Centre intervened in last year.

Background

Mr Chouhan was charged with first-degree murder and was thus entitled to a trial by jury. His trial date was scheduled for September 19, 2019, the same day that legislation eliminating peremptory challenges and substituting the trial judge as the trier for challenges for cause took effect.2 Prior to the new law, a limited number of peremptory challenges were available for both the accused and the Crown to dismiss potential jurors without cause.3 Challenges for cause used to be heard by lay triers instead of the trial judge.4

The federal government introduced this legislation in response to the trial of Gerald Stanley, who was charged with murder in the death of Colten Boushie, an Indigenous man. Mr Stanley was acquitted by a jury composed of zero Indigenous persons – a result of Mr Stanley’s peremptory challenges against five Indigenous prospective jurors.5

Mr Chouhan argued before his trial that the elimination of peremptory challenges violated his ss. 7, 11(d), and 11(f) Charter rights.6 If the amendments were constitutional, Mr Chouhan argued that they applied prospectively and not to his trial.7 The trial judge determined that there were other sufficient jury selection protections and the amendments were purely procedural.8 Therefore, the law was constitutional and applied to all trials after entering into force, including Mr Chouhan’s; neither party was entitled to peremptorily challenge any prospective jurors. Mr Chouhan was convicted.

At appeal, the Court of Appeal for Ontario rejected Mr Chouhan’s constitutional arguments, echoing the trial judge’s finding that other jury-related protections such as representative jury rolls, judicial excusals, and challenges for cause sufficiently preserved Mr Chouhan’s ss. 11(d) and 11(f) rights.9 However, the Court of Appeal held that his substantive right to peremptory challenges was nevertheless affected.10 Therefore, the amendments applied prospectively and Mr Chouhan was entitled to peremptory challenges.11

At the Supreme Court of Canada

The Crown appealed on the temporal applicability issue and Mr Chouhan cross-appealed on the constitutional question.12 The Supreme Court of Canada released its decision from the bench: Wagner CJ declared that a majority of the Court believed that the amendments were constitutional and purely procedural. The appeal was allowed, the cross-appeal was dismissed, and the conviction was restored.

The SCC released its divided reasons eight months later. Writing the joint reasons for judgement (alongside four other sets of reasons) Wagner CJ, Moldaver and Brown JJ held that s. 11(d) does not entitle anyone to a particular jury process.13 The question to be asked on a s. 11(d) challenge is “whether a reasonable person, fully informed of the circumstances, would consider that the new jury selection process gives rise to a reasonable apprehension of bias so as to deprive accused persons of a fair trial before an independent and impartial tribunal”, citing Valente v The Queen.14 They agreed with the lower courts that representative jury rolls, the randomness of jury selection, unlimited challenges for cause, and the judge’s power to excuse (or stand aside) prospective jurors protect the independence and impartiality of the tribunal and thus the amendments were constitutional.15 In addition, the changes were purely procedural and applied retrospectively.16 The justices found that abolishing peremptory challenges will likely increase the representativeness of the jury.17 The justices specifically noted, however, that jury diversity is not constitutionally required.18

Wagner CJ, Moldaver and Brown JJ proceeded to define the scope of the existing protections. First, trial judges should consider issuing jury charges and instructions to militate against unconscious bias.19 With challenges for cause, jurors should be asked relevant questions related to circumstances of the case and whether they can set aside compromising beliefs.20 However, the questions must respect juror privacy.21The judge can exercise their discretion to exclude prospective jurors since it is unlikely that individuals will openly admit to their biases.22 Judges can also stand aside prospective jurors if doing so would uphold public confidence.23

Karakatsanis, Martin and Kasirer JJ agreed with the final disposition and the need for robust jury instructions, but cautioned against Wagner CJ, Moldaver and Brown JJ’s description of the scope of the existing jury procedures.24 They opined that it should be left for the lower courts to decide how to interpret and apply the new amendments.25 In addition, one must not rely too heavily on the randomness of jury selection since random selection within an “unequal society” does not eliminate systemic bias.26

Rowe J, in another separate concurring opinion, agreed with the disposition but cautioned against interpreting this judgement as constitutionalizing these jury selection procedures.27 Interpreting these statutes as constitutional requirements would create the absurd consequence of eliminating Parliament’s ability to repeal their own laws, undermining the principle of parliamentary sovereignty.28

Abella J agreed that the amendments were constitutional but dissented on its temporal applicability. In opposition to Wagner CJ, Moldaver and Brown JJ’s more conservative approach, Justice Abella held that as long as judges “vigorously exercise their authority” by using their stand aside power to increase jury diversity and jurors are asked more probing questions when challenged for cause, the accused’s s. 11 rights are sufficiently protected.29 However, the abolition of peremptory challenges still affected a substantive right; the ability for an accused to participate in the empanelment of a jury they themselves view as representative and impartial is a substantive right even if it is not a constitutional one.30 The amendment, therefore, was not purely procedural and did not apply to Mr Chouhan’s trial.31

Côté J, in dissent, claimed Wagner CJ, Moldaver and Brown JJ attempted to create a new jury regime to disguise the fact that the existing one is inadequate.32 The abolition of peremptory challenges creates a gap in the system, violating Mr Chouhan’s s. 11(f) Charter right.33 Stand asides do not sufficiently preserve impartiality because they do not completely eliminate the possibility that the prospective juror will be empanelled.34 Jury rolls are not necessarily representative: when they are sourced from municipal assessment rolls, it prevents some Indigenous persons from being selected.35 Those who have committed certain provincial and criminal offences are also omitted from the jury roll, which excludes many Indigenous and Black persons who are disproportionally represented in the criminal justice system.36 Finally, without peremptory challenges, there is no assurance that jurors will share similar life experiences to the accused, affecting the common sense, competence, and fact finding ability of the jury.37 This infringement cannot be saved under s. 1 of the Charter: it is not rationally connected to the objective of combatting jury discrimination and promoting jury diversity, nor is it minimally impairing (peremptory challenges ought to have been regulated, not eliminated).38 In the alternative, the abolition applied prospectively.39

Implications

The Asper Centre is pleased to see that a majority of the Court shared our view that the amendments were constitutional. The majority of the Court also recognised the reality of unconscious bias, as we stated in our submissions, in addition to affirming the Asper Centre’s argument that peremptory challenges were only one component of a jury selection system that otherwise provides sufficient protections for an accused person.40 However, we recognize the differing views on peremptory challenges in relation to jury representativeness.

Nader Hasan, co-counsel for the Canadian Muslim Lawyers Association and the Federation of Asian Canadian Lawyers (and adjunct professor at UofT Law and Asper Centre’s Fall 2020 constitutional litigator-in-residence), who intervened to support Mr Chouhan’s cross-appeal, lauded Côté J’s dissent.41 Despite the Court’s disposition, Hasan noted that this decision will empower defence counsel to more aggressively challenge for cause prospective jurors.42

R v Chouhan continues the Supreme Court of Canada’s pattern of divided opinions.43 Although the judgements on the constitutional question and temporal applicability were relatively clear, this decision nevertheless produced five distinct sets of reasons, none of which represented a plurality or majority of the Court. This division likely reflects the diverse views on the effectiveness of peremptory challenges on jury representativeness, as demonstrated by the parties’ submissions. Ultimately, however, this outcome leaves Canadians and lower courts with a clear conclusion but without decisive directions.

Wei Yang is an incoming 2L JD student at the Faculty of Law and is currently one of the Asper Centre’s summer research assistants.

Footnotes:
1. R v Chouhan, 2021 SCC 26 [Chouhan].
2. Ibid at para 1, citing Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, 1st Sess, 42nd Leg, 2019, c 25.
3. Chouhan, supra note 1 at paras 10, 13.
4. Ibid at para 27.
5. Ibid at para 41.
6. Ibid at para 3.
7. Ibid.
8. Ibid at para 4.
9. Ibid at paras 6, 35.
10. Ibid at para 6.
11. Ibid.
12. Ibid at para 7.
13. Ibid at para 31.
14. Ibid, citing Valente v The Queen, [1985] 2 SCR 673, 1985 CanLII 25.
15. Ibid at paras 33–36.
16. Ibid at para 90.
17. Ibid at para 41.
18. Ibid at paras 43, 74 (citing Abella J at para 164), 79.
19. Ibid at para 49.
20. Ibid at para 64.
21. Ibid at para 66.
22. Ibid at para 67.
23. Ibid at paras 70–71.
24. Ibid at paras 109–111.
25. Ibid at paras 111–112.
26. Ibid at para 114.
27. Ibid at para 126.
28. Ibid at paras 141–142.
29. Ibid at paras 159–161, 165.
30. Ibid at paras 167, 189, 194, 204–205.
31. Ibid at paras 165, 220.
32. Ibid at para 267.
33. Ibid at paras 260, 267.
34. Ibid at para 269.
35. Ibid at para 272.
36. Ibid.
37. Ibid at paras 275–277.
38. Ibid at paras 288–291.
39. Ibid at para 293.
40. Ibid (Asper Centre’s factum at paras 2, 3, 20).
41. Nader Hasan, “The Côté J dissent in #Chouhan is [three consecutive fire emojis]. The lead decision, on the other hand, suggests that we can deal with potentially racist jurors with a mid-trial instruction ‘don’t be racist’. [Quote Tweet]” (25 June 2021 at 11:10), online: Twitter <https://twitter.com/Nader_Hasan_law/status/1408442578501001216>.
42. Nader Hasan, “On the plus side, the Chouhan decision as a whole is a clarion call to defence counsel to be aggressive with their challenge-for-cause and stand-aside applications. There is at least some recognition that an important tool has been lost with the abolition of peremptory challenges [Reply Tweet]” (25 June 2021 at 11:10), online: Twitter <https://twitter.com/Nader_Hasan_law/status/1408442579977490435>.
43. Cristin Schmitz, “Supreme Court of Canada Hits Record Low 40% Unanimity Rate in 2019; Many Appeals Came from Quebec” (20 January 2020), online: The Lawyer’s Daily <https://www.thelawyersdaily.ca/articles/17529/supreme-court-of-canada-hits-record-low-40-unanimity-rate-in-2019-many-appeals-came-from-quebec> (last modified 21 January 2020).

Introducing our Summer 2021 Research Assistants!

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The Asper Centre is excited to welcome eight new research assistants for Summer 2021, three of whom who are working directly through the Factor-Inwentash Faculty of Social Work. This year’s research assistants will be taking on many new and existing projects, including an upcoming podcast series and a ground-level Charter challenge to Canada’s voting age.

2021 Asper Centre Summer Research Assistants

Leila Far Soares

Leila will be entering her 2L year at the University of Toronto Faculty of Law. She received her undergraduate degree from the University of Toronto, where she double-majored in criminology and ethics, society & law. During her 1L year, Leila was an associate editor at the University’s Law Review as well as a member of the Asper Centre’s Prisoners’ Rights Working Group. She continues to work with the Centre this summer and her research focus is on the judicial treatment of the open court principle in the context of administrative tribunals as well as the Centre’s Law Foundation of Ontario-funded police accountability project. Additionally, she is assisting on the constitutional challenge to Canada’s voting age. In her free time, Leila enjoys reading, travelling, and watching movies.

 

Wei Yang

Wei will be entering his 2L year at the University of Toronto Faculty of Law. He completed his undergraduate studies at the University of Toronto, majoring in Political Science and Ethics Society & Law. In addition to his research role on many upcoming Asper Centre projects, he will also be working with the Centre on the ground-level constitutional challenge to Canada’s voting age. The Charter declares that all Canadians have the right to vote (s. 3) and to equality and non-discrimination (including on the basis of age) (s. 15). The current voting age of 18 years old thus infringes the Charter rights of young Canadians and weakens our democracy. In 1L, Wei was a member of the Asper Centre’s Refugee and Immigration Law Working Group. He is also the Co-President of UofT Law’s Asia Law Society for the 2021 – 2022 academic year.
 

Alison Schwenk

Alison just completed her 1L year at the University of Toronto Faculty of Law. She graduated from McGill University, majoring in Political Science. Alison will be focused on long-term projects with the Asper Centre, and is currently working with Executive Director Cheryl Milne on Clinic training responsibilities and the “Children, Youth and the Law” course at the Faculty of Law. During 1L, Alison was a member of the Asper Centre’s Indigenous Rights Working Group, where she conducted research on civil oversight of law enforcement and its impact on Indigenous peoples. She loves completing jigsaw puzzles, crosswords and sudoku (Alison also still plays the 2048 puzzle game!)
 

Eunwoo Lee

Eunwoo is an incoming 3L student at the University of Toronto Faculty of Law. He studied political science at York University, Glendon Campus. Eunwoo will be researching recent case law citing the United Nations Convention on the Rights of the Child (UNCRC). Given that judicial citations of the UNCRC is a relatively new phenomenon, Eunwoo hopes to discover trends and themes across the case law and how the Convention is being applied across Canada. This research will be used to develop presentable content at the National Judicial Institute Conference in 2022. Eunwoo loves to spend his free time playing jazz and funk guitar.

 

Szymon Rodomar

Szymon will be entering his 3L year at the University of Toronto Faculty of Law. He studied international development, politics and sociology at Trent University. Szymon is laying the groundwork for the Asper Centre’s Podcast Project. He is currently conducting research on constitutional law cases that the Asper Centre and Faculty of Law alumni have been involved in, brainstorming possible topics and case law to discuss in each new episode. Szymon also volunteers with Law in Action Within Schools (LAWS), a education program hosted by the University of Toronto Faculty of Law and Osgoode Hall Law School that provides students from four Toronto-area high schools with a variety of extracurricular opportunities related to law and justice. Szymon is an avid runner and enjoys cooking (although he also enjoys running to visit new restaurants as well!).

Toolkit for Evidence-Based Child Protection Research Assistants (at the Factor-Inwentash Faculty of Social Work)

Alina Valachi

Alina is currently completing her dual JD/MSW degrees at the University of Toronto. She received her B Eng from McGill University and BSW from Dalhousie University. Alina is working at the Factor-Inwentash Faculty of Social Work as the Project Manager of the Toolkit for Evidence-Based Child Protection Practice project. This project is a Law Foundation of Ontario-funded collaboration between Dr Barbara Fallon at the Factor-Inwentash Faculty of Social Work and the David Asper Centre. This project aims to synthesize legislation, case law and social science literature in key areas of child protection practice to ensure that decisions made in the justice system reflect the best interests of children and families involved in the child welfare system. She is also the Project Lead of the Pro Bono Students Canada (PBSC) Trans ID Clinic at Friends of Ruby. In her free time, Alina enjoys mountain biking with her children and reading philosophy.

David Baldridge

David is an incoming 2L student at the University of Toronto Faculty of Law. He completed his undergraduate studies at the University of Toronto, majoring in Economics and Political Science. David is also working at on the Toolkit for Evidence-Based Child Protection Practice project this summer at the Factor-Inwentash Faculty of Social Work, where he is primarily focusing on researching relevant case law. During his 1L year, David was a member of the Prisoners’ Rights Working Group at the Asper Centre. He was also involved in the Faculty of Law’s Privacy and Cybersecurity Law Group. Outside of law school, you will see David playing trumpet in orchestras, jazz ensembles and chamber groups.
 

Alison Gillanders

Alison is a graduate of McGill University, majoring in International Development Studies and minoring in Philosophy. She is a research assistant for the Toolkit for Evidence-Based Child Protection Practice project at the Factor-Inwentash Faculty of Social Work. Alison will be expanding upon the project by creating new templates on matters such as openness in adoption, legislation and the case law. As part of the project, Alison will be focusing on research in the social science literature. At McGill, she was a Director of Sponsorship for McGill Women in Leadership. She eagerly awaits Toronto’s gradual reopening so she can continue biking and exploring new parks and other destinations around the city.

Meet Nader Hasan, the Asper Centre’s New Constitutional Litigator-in-Residence

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By Amy Chen

Nader Hasan, a partner at Stockwoods LLP and one of Canada’s leading appellate lawyers, will be co-teaching the Asper Centre’s clinic course this fall as the constitutional litigator-in-residence. He graciously sat down with me to discuss his legal education, career history, and hopes for the upcoming term.

Mr. Hasan has a long and varied career in criminal, constitutional, and regulatory law. Surprisingly, law school was not always the plan. “Like many children of immigrants, there was the expectation and hope that I would eventually become a doctor,” Mr. Hasan said. However, “along the way, I became really passionate about various social justice and human rights issues, both in the US, Canada, and around the world. That sparked my intellectual interest in the law.” His interest in the law was cemented after completing his undergraduate degree at Harvard in international human rights, as well as his Masters of Philosophy in international studies at Cambridge. Ultimately, he decided to begin his law career at the University of Toronto.

Mr. Hasan’s interest in constitutional law began in Professor Lorraine Weinrib’s constitutional law small group: “I learned about the power of the Charter, and how, if done properly and effectively, a constitutionally entrenched bill of rights could truly be a weapon on the side of good and justice… I knew early on in law school that I was very passionate about constitutional law, public law, and criminal law.” However, when considering heavy debt load and his need to care for his aging parents, Mr. Hasan began his career in a corporate firm in New York. Although Mr. Hasan was doing a lot of pro bono work on behalf of asylum seekers and the wrongfully convicted, he was only able to work on it in “from 10 pm to 3 am” after billing his normal hours. Still, he considered this a crucial step in his career: “in many ways it was a typical “Big Law” experience, but through this process I was able to learn a lot about what it meant to be a good lawyer, as well as the types of careers open to lawyers.”

Eventually, he returned to Canada to pursue a criminal/constitutional law career. Since then, Mr. Hasan has appeared as counsel in a number of high-profile constitutional law cases, including acting as lead counsel to the landmark Indigenous rights case Clyde River v. Petroleum Geo‑Services Inc. Most of the major cases he was involved in had humble beginnings: “these cases that end up at the Supreme Court of Canada, you don’t get there without a very carefully constructed record from the ground up, by interviewing people and doing your legal research. It is not glamorous, but all meaningful, with an important end goal in sight.” Right now, Mr. Hasan is working as lead counsel in Mathur et al v. HMQ, a constitutional challenge against Ontario’s greenhouse gas emissions targets. His rationale for working on this case was simple: “as a human being living in this day and age, we all have an obligation to move hearts and minds when it comes to climate change. I happen to be trained as a constitutional lawyer, and the way I know how to make a difference is constitutional litigation.”

At the Asper Centre this fall, Mr. Hasan will bring with him not just his significant constitutional litigation experiences, but also his extensive teaching and mentorship experiences. He has served as an adjunct professor at the University of Toronto law faculty since 2010, teaching the popular Crime and Punishment course and the criminal appellate externship. He hopes to nurture the passions that Asper Centre clinic students have for constitutional law: “I’m sure students have been told that you can’t make money in constitutional law, but if this is something you want to do, there are certainly avenues to pursue a constitutional law career.” He will illustrate these avenues by sharing his own experiences alongside the experiences of Asper Centre director Cheryl Milne and other guest speakers. Although this year’s clinic course will be unique, given that some students will be attending remotely, Mr. Hasan is optimistic that the course will proceed smoothly.

To end the interview, I asked Mr. Hasan what he believes to be the qualities that make a good constitutional lawyer. He did not hesitate in giving his answer – “it’s all about hard work and passion.” A strong case is comprised of dedicated people who are “willing to work whatever hours it takes with an unyielding attitude, knowing that they are fighting on the side of justice.”

The interview has been edited for clarity.

Amy (Jun) Chen is a 1L JD Candidate at the Faculty of Law and is the Asper Centre’s current summer Research Assistant.

COVID-19 Contact Tracing and Uncharted Constitutional Waters

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by Amy Chen

On July 29, 2020, Lisa Austin, Andrea Slane, Vincent Chiao, and David Lie joined Director Cheryl Milne of the Asper Centre to discuss their collaborative research paper: Test, Trace, and Isolate: COVID-19 and the Canadian Constitution. The paper (also co-authored with Beth Coleman, Martha Shaffer, and François Tanguay-Renaud) reviews the benefits, limitations, and constitutional implications of contact tracing apps. The webinar can be viewed online here.

What are Contact Tracing Apps?

Dr. Lie began the panel by giving an overview of the different types of contact tracing apps. Contact tracing is a method for controlling infectious disease outbreaks by identifying, notifying, and monitoring individuals who have been exposed to the disease. In response to the COVID-19 pandemic, countries have been utilizing smartphone apps to conduct digital contact tracing in conjunction with manual human contact tracing. These apps fall into two categories – apps that are centralized and integrated with manual human contact tracing, and apps that are decentralized and work parallel to manual tracing. Dr. Slane noted that different liberal democracies have tried different frameworks. Australia and Singapore have adopted the centralized approach; Germany, Austria, and Switzerland have adopted the decentralized approach; some countries (i.e. Bahrain, Kuwait) have tried more privacy-intrusive apps that collect GPS data.

Ontario will be using the decentralized model through an API developed and supported by Apple and Google. The app, which is currently in its beta testing phase, uses Bluetooth to communicate with other phones that have the app installed. This allows the app to track and record the names of those who have come into close contact. If an individual tests positive for COVID-19, they can voluntarily upload the list of recorded names onto the app’s server. If other users have been in contact with the same individuals, they will be notified through the app. The app may also show a “risk score” and recommend high-risk individuals to get tested.

Pros and Cons of the Decentralized Framework

There are two upsides to this decentralized framework: 1) it is technologically supported by Apple/Google and 2) it is more privacy-protective. However, the panelists stressed that this also means that there are many downsides. First, Professor Austin noted that Apple and Google’s role has not been sufficiently scrutinized. The app will be governed by the technical decisions of these large technological companies rather than the decisions of our democratically elected governments. While Australia has experienced some technical difficulties with their centralized app, their government has been able to pass legislation regarding data control and usage.

Second, a privacy-protective app means that the data is limited in its accuracy and effectiveness. Dr. Lie pointed out all the ways in which the data could be distorted. The app relies entirely on individuals to voluntarily report their positive diagnoses, which means that many positive cases could be missed. Users could put fake names on their phones or repeatedly change their names, which makes it harder to track infected individuals. Proximity data, which is calculated based on the strength of the phones’ Bluetooth signals, could be inaccurate if the signals are disrupted. It is uncertain what percentage of the population needs to get the app for it to be effective. It is even uncertain whether digital contact tracing would supplement manual contact tracing efforts.

The most concerning aspect about the decentralized approach is that health authorities will only have limited access to the data collected by the app. Health authorities would not be able to contact infected individuals and provide them with education and health support. They would not be able to assess the effectiveness of the app, particularly its effectiveness for vulnerable communities. Dr. Slane indicated that the app will not be accessible for individuals who do not have access to smartphones, who have language barriers, who distrust technology, and who distrust state action or surveillance. Publicly accessible data is needed to develop effective targeted approaches for communities that are disproportionately affected by the pandemic.

Digital Contact Tracing and the Charter

Digital contact tracing requires a balancing between our personal privacy rights and public health outcomes. As explained by Professor Austin and Professor Chiao, the Charter is an important framework in assessing how to balance these rights in a way that is justifiable in a free and democratic society.

The Federal Privacy Commissioner has stated that data collected by the apps must be used in a way that is consistent with the principles of necessity and proportionality. What that means is hard to assess ex ante since we are in “uncharted waters”, but there are several contextual factors to keep in mind. First, we would need to know exactly what Ontario’s public health goal is in pushing out contact tracing apps. If the goal is to make manual tracing more effective, it may be harder for the government to justify why a decentralized privacy-protective app is necessary or proportional.  Second, privacy rights dictated by the Charter are traditionally assessed a criminal “state vs. individual” context. While courts may be concerned with protecting individuals from the overreach of state power in the criminal context, individual privacy rights may be given less weight in the context of a public health emergency. Finally, how the rights will be balanced will likely be determined through political decisions rather than through legal decisions.  If the app is widely perceived to be effective, courts are unlikely to disturb the government’s decision. If the app is perceived to be ineffective, the government will likely take actions without prompting from the courts.

Digital contact tracing could engage both s. 7 and s. 8 Charter interests. The apps could engage an individual’s interests in life, liberty, and security if the data was used to enforce quarantine or lift isolation measures in an unsafe manner. Whether the principles of fundamental justice would be violated would depend on a multitude of variables that cannot be determined at this time. In addition, the apps could engage our privacy interests associated with our anonymity or our biological cores. The nature and scope of the section 8 right would be context-specific. For instance, individuals may inadvertently waive or diminish their reasonable expectation of privacy by volunteering data and accepting the terms and conditions of the app. On the other hand, section 8 may protect individual privacy if data was used for purposes that were not consented to (i.e. law enforcement, immigration). Individual privacy rights may also be engaged in circumstances that are not governed by the Charter. Businesses may conduct informal voluntary screening questionnaires as a condition for accessing services, or employers may ask employees to use the digital tracing apps in the workplace. These issues would have to be dealt with through quasi-constitutional private sector data protection laws.

Ultimately, the panelists argue that digital contact tracing must be integrated alongside traditional human contact tracing for there to be effective health outcomes. Given the shifting public health landscape, the scope of the legal ramifications of contact tracing apps is still unknown. The panelists stressed that public trust in the app, our governments, and our public health authorities will be crucial in determining the effectiveness of digital contact tracing.

Amy (Jun) Chen is a 1L JD Candidate at the Faculty of Law and is the Asper Centre’s current summer Research Assistant.