David Asper Centre for Constitutional Rights

The Rule of Law as a Constitutional Essential
2012-09-19 12:30 - 14:00 (America/Toronto)
Dr. Pavlos Eleftheriadis (University Lecturer & Fellow in Law, University of Oxford)

Abstract: The United Kingdom constitution endorses both parliamentary sovereignty and the rule of law as constitutional principles of the highest rank. The relations between the two have been a source of great puzzles, legal and philosophical. In this paper Professor Eleftheriadis attempts to clarify some aspects of their relationship. He will argue that the rule of law is the more fundamental principle. This is because of its particular role in any theory of law. Properly understood, the value of the rule of law is not one value among many competing values. Its value is deeper because it serves as a foundation for any ordering of our collective life. In this sense it is a constitutional essential in the sense used by Rawls. Without it, our public scheme of cooperation (or in the language of classical political philosophy the “civil condition”) is either impossible or, whenever possible, illegitimate. In a well governed society the powers of parliament, courts and the government are best understood under the principle of the rule of law, where the idea of sovereignty plays only a small part.
A light lunch will be served.
Event date: Wednesday, September 19, 2012, from 12:30 PM to 2:00 PM
Location: Room FLA, Flavelle House, Faculty of Law, University of Toronto
For more workshop information, please contact Nadia Gulezko at n.gulezko@utoronto.ca

Counsel and expert witness reflect on Carter v Canada
2012-09-25 12:30 - 14:00
Prof. Wayne Sumner (Professor Emeritus of Philosophy, University of Toronto, expert witness on ethics in the Carter case) and Joseph Arvay, Q.C. (counsel for the plaintiffs in Carter and leading constitutional litigator) will reflect on the landmark British Columbia Supreme Court decision, Carter v Canada 2012 BCSC 886.
Joseph J. Arvay, QC holds law degrees from the University of Western Ontario Law School and Harvard Law School. He is called to the Bars of both British Columbia and the Yukon. Mr. Arvay has a busy civil litigation practice but with an emphasis on constitutional and administrative law matters. He has been involved in many constitutional cases of importance in British Columbia and elsewhere in Canada. Mr. Arvay has been involved in a number of aboriginal-rights litigation cases and is also counsel on medical malpractice cases, class actions, commercial litigation and defamation.Mr. Arvay has been counsel on a number of landmark constitutional law cases including Egan v Canada, The Little Sisters litigation, Health Services, Canada v PHS Community Services amongst many others. He is counsel on the Carter case.
Wayne Sumner is University Professor Emeritus in the Department of Philosophy at the University of Toronto. He is the author of five books: Abortion and Moral Theory (1981); The Moral Foundation of Rights (1987); Welfare, Ethics, and Happiness (1996); The Hateful and the Obscene: Studies in the Limits of Free Expression (2004); and Assisted Death: A Study in Ethics and Law (2011). He is a Fellow of the Royal Society of Canada and recipient of the 2009 Molson Prize in Social Sciences and Humanities from the Canada Council for the Arts. He was qualified as an expert witness in the case before the Supreme Court of British Columbia.
A light lunch will be served.
Event date: Tuesday, September 25, 2012, from 12:30 PM to 2:00 PM
Location: Room FLB, Flavelle House, Faculty of Law, University of Toronto
For more workshop information, please contact Nadia Gulezko at n.gulezko@utoronto.ca

The Disallegiant Heart: Constitutional Citizenship and the History of Marital Denaturalization
2012-10-15 12:30 - 14:00
Helen Irving, Professor, Faculty of Law, University of Sydney
Abstract: In this paper, I invite a reconceptualization of constitutional (as distinct from political) citizenship, by examining the legal practice, virtually universal between the mid-nineteenth and mid-twentieth centuries, of the denaturalization of citizen women who married alien men. This practice, which emerged as a by-product of the post-revolutionary constitutional state and the ‘new Westphalian’ international order, reveals two core paradigms: allegiance and protection. Our modern idea of citizenship, I argue, is still embedded in the first, to the detriment of the second. Our concept of citizenship, and the legal regimes that accompany it, reflect a distinction between the allegiant and the disallegiant citizen, which mirrors the injurious distinction upon which marital denaturalization rested.
A light lunch will be served.
Event date: Tuesday, October 16, 2012, from 12:30 PM to 2:00 PM
Location: Solarium, Falconer Hall, Faculty of Law, University of Toronto
Contact Nadia Gulezko for information and a copy of the paper: n.gulezko@utoronto.ca

Of Irregular Votes and Robocalls: Resolving Disputed Elections in Canada and New Zealand
2012-10-24 12:30 - 14:00
Andrew Geddis, Professor, Faculty of Law, University of Otago
Abstract: This paper begins with the broader question of how a constitutional order based upon a liberal-democratic commitment to letting the people choose their lawmakers ought to respond to allegations of flaws in its election process. After all, any large-scale human undertaking is bound to fall short of perfect implementation, so why do such claims matter so much? And if such claims do matter so much, what are the various issues that need to be resolved in order that they may be properly confronted and settled? From this general discussion, the paper then turns to examine how these issues are addressed in two nations that enjoy similar historical, cultural and constitutional traditions: Canada and New Zealand. The point of this comparison is not to illustrate the breadth of all possible responses to the challenge that a disputed election poses to a liberal democratic constitutional order, but rather to demonstrate that even relatively small differences in legal doctrine can have important real-world consequences. Furthermore, it is argued that such differences as can be discerned between the two nations are attributable to the balance each has struck between the perceived need for ensuring procedural correctness and bringing closure to the election process so as to permit elected representatives to carry out their lawmaking functions. Insofar as both of these goals emerges from the model of liberal democratic constitutionalism itself, each jurisdiction’s choices illustrate that any legal response to the challenge of disputed elections is not necessarily “required” but rather the result of a conscious preference for one over the other.
Andrew Geddis completed his undergraduate work at the University of Otago, studying law and political studies. In 1996 he was awarded a Fulbright scholarship to Harvard Law School, where he completed his LLM degree. In 2000 he returned to Otago to take up a lecturing position. He was appointed an Associate Professor in 2007, a Professor in 2011.
A light lunch will be served.
For more information and a copy of the draft paper contact Nadia Gulezko: n.gulezko@utoronto.ca
Event date: Wednesday, October 24, 2012, from 12:30 PM to 2:00 PM
Location: FLB, Flavelle House, Faculty of Law, University of Toronto

Social Science Evidence in Charter Litigation
2012-11-09 08:30 - 2012-11-12 17:00
Developments in Thirty Years of Fact Finding
What have we learned? What could we do better?
Event date: Friday, November 09, 2012, from 8:30 AM to 5:00 PM
Location: Flavelle House, Faculty of Law, University of Toronto
Opening Plenary Panel: The Challenges for Judges
Justice Robert Sharpe (Ontario Court of Appeal); Justice Susan Himel (Ontario Superior Court of Justice – Bedford v Canada); Justice Lynn Smith (Supreme Court of British Columbia – Carter v Canada)
Workshop topics include: a theory of constitutional facts; framework for reliability analysis; judging social science evidence—a feminist perspective; linking social science evidence with individual testimony; use of social science in specific cases such as Polygamy Reference, Gosselin, R v Bryan, Canada v PHS Community Services (Insite case); and more …
PROGRAM

"Riffing on the Federalist"
2012-11-28 16:00 - 17:30
Sanford Levinson
W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair
Professor of Government, School of Law
University of Texas at Austin
Event date: Wednesday, November 28, 2012, from 4:00 PM to 5:30 PM
Location: Rowell Room, Flavelle House, Faculty of Law, University of Toronto
Abstract: The Federalist is, without a doubt, the best-known, most widely-read and –analyzed extended work of American political thought. (The adjective is important in order to dispose of any claims made in behalf of the Declaration of Independence or the Gettysburg Address.) There are, therefore, a host of books and lengthy articles that devote themselves to trying to figure out the ultimate meaning of one or another particularly canonical essay among the 85 separate essays that comprise The Federalist. Among the most canonical are Federalist 10, famous for its theory of “factions,” and 78, in which Hamilton defends judicial review. Other books try to discern a single unified theory of government that links together James Madison, Alexander Hamilton, and John Jay in their guise as “Publius,” the public-spirited proponent of the Constitution writing to his fellow Americans and, especially, delegates to the New York ratification convention, which was, rightly, expected to be extremely close with regard to acceptance or rejection of the document. Both of these literatures are important and worth study, especially by scholars of late-18th century American thought. This book, however, is not designed to compete with them. Instead, what follows are 85 short essays—I am tempted to describe them as “riffs”—on each of the separate contributions by “Publius.” Each of this “riffs” attempts to show how the particular essay is relevant, often in surprising ways, to contemporary political discussion. The aim is not in the least to use the Federalist to offer ways of “interpreting” the United States Constitution, but, rather, to understand each essay as a defense of the institutions established by the Constitution and to put those defenses within the context of the political thought of the 18th century and to ask to what degree we accept or reject those guiding assumptions.
The Roundtable will be followed by a reception in the Faculty Common Room.
This event is co-sponsored with the Canada Research Chair in Constitutionalism, Democracy and Development.

Common Good, Public Reason and Constitutional Law
2013-01-24 12:30 - 14:00
Wojciech Sadurski, University of Sydney
The most feasible conception of the common good is one that refers to the legitimate motives for proposing and enacting collective authoritative decisions, which can be applied to, and complied with by, those who do not necessarily agree with the substantive merits of those decisions. Concretization of such a conception is found in the idea of public reason, elaborated upon with some sophistication by political liberals, most influentially by John Rawls. When properly modified in response to its critics (notably Ronald Dworkin), this idea resonates with a popular constitutional doctrine which calls for invalidation of laws tainted by wrong (i.e. unconstitutional) motives; thus the concept of public reason may be a useful tool in identifying which motives should be found unconstitutional. As scrutiny reliant upon the second-guessing of actual legislative motives is potentially unworkable, what is needed is an “objectified” approach to the motives. This can be detected through reasonableness analysis, perhaps supported by the device of proportionality. But there are limits to the arbitrary “manufacturing” of reasons, and the test of public reason is of value not only in the scrutiny of laws already enacted, but also as an appeal to lawmakers that only some types of arguments should be used in public discourse. While at first blush it may be seen as a prescription for hypocrisy, in fact the concept of public reason may play an important therapeutic and reflexive role: it may teach us to use only such arguments in public discourse which are respectful of fellow citizens who may disagree due to varying ideologies, religions and philosophical outlooks.
Event date: Thursday, January 24, 2013, from 12:30 PM to 2:00 PM
Location: Solarium, Falconer Hall, Faculty of Law, University of Toronto
Wojciech Sadurski is Challis Professor of Jurisprudence at the University of Sydney and Professor of the Centre for Europe at Warsaw University. He has taught at several institutions around the world, such as Cornell Law School and Cardozo Law School in the United States, and at universities across Europe: in Trento, Paris and Warsaw. He was Professor of Legal Theory and Philosophy of Law at the European University Institute in Florence from 1999-2009, serving as Head of Department of the Law at the EUI in 2003-2006. Specialising in philosophy of law, political theory, constitutional theory and comparative constitutional law, his most recent books include: Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe (Springer, 2005), Equality and Legitimacy (Oxford University Press, 2008) and Constitutionalism and the Enlargement of Europe (Oxford University Press, 2012). A member of a number of governing and programme bodies of think tanks and NGOs dealing with human rights and democracy promotion, he is currently Chairman of Academic Advisory Board of the Community of Democracies. A full profile and list of publications is available at http://sydney.edu.au/law/about/staff/WojciechSadurski/index.shtml.
A light lunch will be served.
For more workshop information and a copy of the draft paper, please contact Nadia Gulezko at n.gulezko@utoronto.ca

Social and Economic Rights - A South African Perspective
2013-02-14 12:30 - 14:00
Zak Yacoob
Former Justice of the Constitutional Court of South Africa
Event date: Thursday, February 14, 2013, from 12:30 PM to 2:00 PM
Location: Room B, Flavelle House, Faculty of Law, University of Toronto
Judge Yacoob has been a judge of the Constitutional Court of South Africa. He is married to Anu. The couple have two children. He has been blind for almost all his life. Judge Yacoob became a judge of the Constitutional Court of South Africa in February 1998 and retired from active service on 31 January 2013. Justice Yacoob was appointed Acting Deputy Chief Justice from 1 February 2012 to 31 May 2012. He wrote the Court’s decision in the Grootboom case involving housing rights under the South African constitution.
He attended a special school and attained a law degree at an apartheid university for Indians. In May 2010 he received an LLD honoris causa from the University of Fort Hare, South Africa. The same degree was conferred upon him by the University of KwaZulu-Natal in April 2011.
Judge Yacoob practised as an advocate for 25 years. Much of this was concerned with using the law in the struggle against apartheid and for democracy. He was a member of the underground of the African National Congress and other community organisations. He was a member of the Independent Electoral Commission and of the Independent Panel of Experts that advised the National Assembly on the drafting of the South African Constitution. Judge Yacoob has attended dozens of international conferences and workshops on topics as varied as blindness, children and democracy.
Link to the Grootboom decision.
A light lunch will be served.
For more workshop information and a copy of the Grootboom decision please contact Nadia Gulezko at n.gulezko@utoronto.ca

2013 Morris A Gross Memorial Lecture
2013-02-27 16:00 - 17:30
The Honourable Lynn Smith
The Quest for a Charter Equality Test: Has the Longest Way Round Been the Shortest Way Home?
Watch the webcast here.
Event date: Wednesday, February 27, 2013, from 4:00 PM to 5:30 PM
Location: Rowell Room, Flavelle House, Faculty of Law, University of Toronto
Lynn Smith, B.A. (University of Calgary), LL.B. (University of British Columbia), LL.D. (Hon.) (Simon Fraser University) was appointed to the Supreme Court of British Columbia in 1998. She served as a Justice of that Court until her retirement in September 2012. Prior to her appointment as a judge, she practised law at Shrum, Liddle and Hebenton (now McCarthy Tetrault), specializing in civil litigation. She taught law at the University of British Columbia 1981-97 in areas including Constitutional Law, Evidence, Civil Litigation, and Real Property. She has published books and articles in the fields of Charter equality rights, civil litigation and evidence, human rights, administrative law, and women’s equality. She was Dean of the U.B.C. Law Faculty 1991-97. In 2005-06, Lynn Smith was Executive Director of the National Judicial Institute, on secondment from the Court. She is a Judicial Associate of the National Judicial Institute and serves on the faculty of the Charter and Evidence Workshops as well as the New Federally-Appointed Judges Program. She has been involved in international judicial education exchanges with China, Scotland, Ghana and Viet Nam. During a Judicial Study Leave in 2009-10, she researched credibility assessment, examining the psychological and social science literature as well as the law. She published a paper on that topic, and prepared a program on credibility assessment used in National Judicial Institute seminars. Lynn Smith was the Chair of the B.C. Supreme Court Law Clerks Committee and of the Committee on Communications Technology, whose report was adopted by the Court in May, 2012. Commencing in January, 2013, she is teaching a seminar on Constitutional Litigation at the U.B.C. Faculty of Law. She is married to Jon Sigurdson, who is a Justice of the Supreme Court of British Columbia. They have two daughters, Elin Sigurdson and Krista Sigurdson.
The Morris A. Gross Memorial Lecture was established in memory of the late Morris A. Gross by the law firm Minden Gross LLP and by members of his family, friends and professional associates. The intention of the lectureship is to, every two years, bring to the Faculty of Law a distinguished scholar or a member of the practising bar or bench for discussion with the student body and Faculty, and to deliver the bi-annual Morris A. Gross Memorial Lecture.
This event is being co-sponsored by the JOHN AND MARY YAREMKO FUND FOR MULTICULTURALISM AND HUMAN RIGHTS.
For more information, contact Cheryl Milne cheryl.milne@utoronto.ca

Respecting Democratic Constitutional Change
2013-03-04 12:30 - 14:00
Craig Scott

Member of Parliament for Toronto-Danforth

This lecture will discuss the structure and philosophy of the Supreme Court of Canada’s approach to the dynamics of constitutional change, including the stages necessary to move from the democratic expression of a desire for change to lawful amendment of the Constitution. Scott will discuss his legislative proposal, An Act Respecting Democratic Constitutional Change recently tabled as a bill in the House of Commons.
Craig Scott is MP for Toronto-Danforth (NDP), having been elected in March 2012 in a by-election called following the passing of Jack Layton. He is the Official Opposition Critic for Democratic and Parliamentary Reform. Prior to being elected, he was on faculty at Osgoode Hall Law School (2000-2012) and University of Toronto Faculty of Law (1989-2000).
Craig Scott, MP, Toronto-Danforth, 741 Broadview Ave, Suite 304, Toronto, ON M4K 3Y3 Tel: 4164058914; 914, Confederation Bldg, Ottawa, ON K1A 0A6, Tel: 6139929381.
A light lunch will be served.
Read the Bill Here
For more workshop information, please contact kara.norrington@utoronto.ca

Event date: Monday, March 04, 2013, from 12:30 PM to 2:00 PM
Location: Room FLA, Flavelle House, Faculty of Law, University of Toronto

The Indigenous as Alien
2013-11-01 12:30 - 14:00
Constitutional Roundtable
Harney Program in Ethnic, Immigration and Pluralism Studies &
Canada Research Chair in Citizenship and Multiculturalism
present
Leti Volpp
UC Berkeley School of Law
The Indigenous as Alien
Immigration law, as it is taught, studied, and researched in the United States, imagines away the fact of preexisting indigenous populations. To show how this takes place, this Essay examines the way immigration law narrates space, time, and membership. But despite this disappearance from the field, Indians have figured in U.S. immigration law, and thus, the Essay describes the neglected legal history of the treatment of American Indians under U.S. immigration and citizenship law. The paper then returns to explain why Indians have disappeared from U.S. immigration law through an investigation of the relationship between We the People, the “settler contract,” and the “nation of immigrants.”
Leti Volpp is the Robert D. and Leslie Kay Raven Professor of Law in Access to Justice at the UC Berkeley School of Law, where she teaches courses on immigration and citizenship. Her most recent publications include “Imaginings of Space in Immigration Law,” in Law, Culture and the Humanities (2012), the edited symposium issue “Denaturalizing Citizenship: A Symposium on Linda Bosniak’s The Citizen and the Alien and Ayelet Shachar’s The Birthright Lottery,” in Issues in Legal Scholarship (2011), and “Framing Cultural Difference: Immigrant Women and Discourses of Tradition,” in Differences: A Journal of Feminist Cultural Studies(2011). Forthcoming work includes “Civility and the Alien,” in Civility, Legality and the Limits of Justice (Austin Sarat, ed., Cambridge University Press, forthcoming).

Event date: Friday, November 01, 2013, from 12:30 PM to 2:00 PM

Location: Room 108N, North House, Munk School of Global Affairs, 1 Devonshire Place

Wishful Thinking: The Supreme Court of Canada Looks at Canadian Democracy in the Charter Era
2014-11-18 12:30 - 14:00
Mary Eberts
Constitutional Litigator-in-Residence David Asper Centre for Constitutional Rights
University of Toronto
Moderator:
Yasmin Dawood
University of Toronto Faculty of Law
NOTE DATE CHANGE: Tuesday, November 18th 2014
12:30 – 2:00
Solarium (room FA2), Falconer Hall
84 Queen’s Park
MARY EBERTS received her legal education at Western and the Harvard Law School, and is a member of the Bar of Ontario. She joined a Bay St. law firm after several years of teaching at the Faculty of Law, University of Toronto, and was a partner at that firm until opening a small firm specializing in Charter and public law litigation. From this base in Toronto, she has appeared as counsel to parties and interveners in the Supreme Court of Canada, Courts of Appeal and Superior Courts in Ontario and other provinces, the Federal Court and Court of Appeal, and before administrative tribunals and inquests in Ontario and other provinces. She was active in securing the present language of section 15 of the Charter, and was one of the founders of the Women’s Legal Education and Action Fund (LEAF). Since 1991, she has been litigation counsel to the Native Women’s Association of Canada (NWAC). Mary held the Gordon Henderson Chair in Human Rights at the University of Ottawa in 2004-2005 and the Ariel Sallows Chair in Human Rights at the College of Law, University of Saskachewan in 2011 and 2012, where she taught courses in test case litigation. Recognition of her work includes the Law Society Medal, the Governor-General’s Award in Honour of the Persons’ Case, the Queen’s Diamond Jubilee Medal and several honourary degrees.

A light lunch will be provided.

For more workshop information, please contact Nadia Gulezko at n.gulezko@utoronto.ca.

Constitutional Roundtable- Richard Stacey
2015-02-05 12:30 - 14:00
Constitutional Roundtable
presents
Richard Stacey, Faculty of Law University of Toronto
12:30 – 2:00 p.m.
Thursday, February 5, 2015
Room 101, Victoria College
Constitutional Law in the Absence of Constitution: Power in the Revolutionary Interregnum
In early February 2011, the Egyptian armed forces assumed executive control of Egypt and suspended the 1971 Constitution. A group of academics was mandated to propose amendments to the Constitution which, once approved by referendum on 19 March, became Egypt’s ‘interim’ Constitution. A process for the drafting and adoption of a new constitution was initiated, and the 2012 Constitution was adopted by referendum in December 2012. The armed forces again assumed executive control in July 2013 and suspended the 2012 Constitution, with another new constitution approved at referendum in January 2014. During both periods of military control, it remains unclear what replaced the suspended Constitution as the country’s foundational legal instrument. The Egyptian case is an example of constitutional interregnum, where political authority is exercised in the apparent absence of any formal constitutional foundation for political authority. This paper focuses on these periods of constitutional interregnum, exploring through a number of contemporary and historical cases how the gap left by the suspension of a constitution during a period of constitutional replacement is filled. The paper argues that even without a formal written constitution, a governing body’s authority and the lawfulness of its conduct depends on adherence to supra-constitutional principles derived from the commitment to constitutional democracy itself. Because a democratic constitution claims to speak for the whole people, the law in force during the constitutional interregnum and which governs the drafting of a new constitution must, at least, treat all and each of the people as equals and affirm a democratic right to representation in the drafting process. Any meaningful claim to be exercising authority in the name of the people – a claim to the authority of popular sovereignty – implies a commitment to a set of principles capable of constraining and directing the groups or individuals who exercise authority. These principles provide a constitutional foundation for government and for the legal system during the interregnum, ensuring both a benchmark for lawful government and legal continuity.
Richard Stacey served as Director of Research at the Center for Constitutional Transitions at NYU Law until joining the Faculty of Law at the University of Toronto. He holds a PhD from New York University’s Institute for Law and Society and bachelors degrees in political theory and law from the University of the Witwatersrand in Johannesburg, South Africa. He served as law clerk to Justice Kate O’Regan and Justice Bess Nkabinde at the Constitutional Court of South Africa, and has taught courses in political theory, constitutional law, administrative law and human rights at the University of Witwatersrand, the University of Cape Town and the City University of New York Law School. In 2009 he was a research consultant during Kenya’s constitutional review process and has remained involved in constitutional transitions around the world, providing technical advice through the Center for Constitutional Transitions in Tunisia, Libya, and Egypt. His work has appeared in a number of journals of law and political theory, the multi-author reference work Constitutional Law of South Africa (of which he acts as co-editor), and in books on constitutional design, land reform, and women’s rights.
A light lunch will be provided.

Constitutional Roundtable - Cristina Rodriguez
2015-10-14 12:30 - 14:00
Constitutional Roundtable
presents
Cristina Rodriguez, Leighton Homer Surbeck Professor of Law at  Yale Law School
12:30 – 2:00 p.m.
Wednesday, October 14, 2015
Location: Victoria College, Room VC 115
The Power to Enforce the Law: Presidential Power and American Immigration Policy
In November 2014, President Obama announced his intention to dramatically reshape immigration law through administrative channels. Together with relief policies announced in 2012, his initiatives would shield over half the population of unauthorized immigrants from removal and enable them to work in the United States. These events have drawn renewed attention to the President’s power to shape immigration law. They also have reignited a longstanding controversy about whether constitutional limits exist on a central source of executive authority: the power to enforce the law.
In using the Obama relief policies to explore these dynamics, we make two central claims. First, it is futile to try to constrain the enforcement power by tying it to a search for congressional enforcement priorities. Congress has no discernible priorities when it comes to a very wide swath of enforcement activity—a reality especially true for immigration law today. The immigration code has evolved over time into a highly reticulated statute through the work of numerous Congresses and political coalitions. The modern structure of immigration law also effectively delegates vast screening authority to the President. Interlocking historical, political, and legislative developments have opened a tremendous gap between the law on the books and the law on the ground. Under these conditions, there can be no meaningful search for congressionally preferred screening criteria. Far from reflecting a faithful agent framework, then, immigration enforcement more closely resembles a two-principals model of policymaking—one in which the Executive can and should help construct the domain of regulation through its independent judgments about how and when to enforce the law.
Second, when exploring limits on the enforcement power, we should focus not on who benefits from enforcement discretion but on how the Executive institutionalizes its discretion. The Obama relief initiatives are innovative: they bind the exercise of prosecutorial discretion to a more rule-like decision-making process, constrain the judgments of line-level officials by subjecting them to centralized supervision, and render the exercise of enforcement discretion far more transparent to the public than is customary. These efforts to better organize the enforcement bureaucracy ultimately advance core rule of law values without undermining deterrence or legal compliance, as some critics have worried. Moreover, while our focus on discretion’s institutionalization requires contextualized judgments that may rarely translate into clear doctrinal rules to govern the enforcement power, we believe it is generally unnecessary and unwise to use constitutional law to limit the President’s authority over how to organize the enforcement bureaucracy.
Cristina M. Rodríguez was appointed Professor of Law at Yale Law School in January 2013. From 2011-2013, she served as Deputy Assistant Attorney General in the Office of Legal Counsel in the U.S. Department of Justice, and from 2004-2012 she was on the faculty at the NYU School of Law. Professor Rodriguez also has been a non-resident fellow at the Migration Policy Institute in Washington, D.C., a term member on the Council on Foreign Relations, and the Henry L. Stimson Visiting Professor of Law at Harvard Law School. Before entering academia, she clerked for Justice Sandra Day O’Connor of the U.S. Supreme Court and Judge David S. Tatel of the U.S. Court of Appeals for the D.C. Circuit. Professor Rodriguez’s fields of research and teaching include immigration law; constitutional law and theory; administrative law and process; language rights and language policy; and citizenship theory. Originally from San Antonio, Texas, she earned a B.A. in History from Yale College in 1995, a Master of Letters in Modern History in 1998 from Oxford University, where she was a Rhodes Scholar, and a J.D. from Yale Law School in 2000.

Asper Centre Immigration & Refugee Law student working group presents Senator Ratna Omidvar
2018-03-07 12:30 - 14:00 | J140 Jackman Law Building, 78 Queen's Park Cres, Toronto, Ontario, M5S 2C5, Canada
The Asper Centre’s Immigration & Refugee Law Student Working Group is honoured to host Senator Ratna Omidvar for a lunchtime seminar on Wednesday March 7, 2018 at 12h30. All students are welcome and encouraged to attend. Senator Omidvar will share her personal story of coming to Canada from India, and she will discuss issues related to inclusion and diversity in Canada, immigration and refugee law and policy, the Charter and progressive law reform. She will then take questions from the audience. This will be a great opportunity to get some insight from her inspiring career.
Light lunch will be provided
Email tal.schreier@utoronto.ca for further information.
About Senator Omidvar:

The Honourable Ratna Omidvar, C.M., O.Ont.
Senator for Ontario, The Senate of Canada
Ratna Omidvar is an internationally recognized voice on migration, diversity and inclusion. In April 2016, Prime Minister Trudeau appointed Ms. Omidvar to the Senate of Canada as an independent Senator representing Ontario. As a member of the Senate’s Independent Senators Group she holds a leadership position as the Scroll Manager.
Senator Omidvar is the founding Executive Director and currently a Distinguished Visiting Professor at the Global Diversity Exchange (GDX), Ted Rogers School of Management, Ryerson University. GDX is a think-and-do tank on diversity, migration and inclusion that connects local experience and ideas with global networks. Previously, Senator Omidvar was the President of Maytree, where she played a lead role in local, national and international efforts to promote the integration of immigrants.
Senator Omidvar is the current Co-Chair of the Global Future Council on Migration hosted by the World Economic Forum and serves as a Councillor on the World Refugee Council. She is also a director at the Environics Institute, and Samara Canada. Senator Omidvar is the Toronto Region Immigrant Employment Council’s Chair Emerita and was formerly the Chair of Lifeline Syria.
Senator Omidvar is co-author of Flight and Freedom: Stories of Escape to Canada (2015), an Open Book Toronto best book of 2015 and one of the Toronto Star‘s top five good reads from Word on the Street. She is also a contributor to The Harper Factor (2016) and co-editor of Five Good Ideas: Practical Strategies for Non-Profit Success (2011). Senator Omidvar received an Honorary Degree, Doctor of Laws, York University in 2012.
Senator Omidvar was appointed to the Order of Ontario in 2005 and became a Member of the Order of Canada in 2011, with both honours recognizing her advocacy work on behalf of immigrants and devotion to reducing inequality in Canada. In 2014, she received the Cross of the Order of Merit of the Federal Republic of Germany in recognition of her contribution to the advancement of German-Canadian relations.

Asper Centre's 10th Anniversary Celebration
2018-10-17 17:00 - 19:00 | Jackman Law Building, Faculty of Law, University of Toronto, 78 Queens Park
View the event photo gallery
Read our “Celebrating 10 Years” Magazine
Read the Asper Centre’s 2017 – 2018 annual report
Watch the video of the event on YouTube
It’s been a full decade since the Asper Centre for Constitutional Rights opened its doors!
To celebrate 10 years of dedicated advocacy, education and research, former Supreme Court of Canada Justice Thomas Cromwell will moderate a conversation between Mary Eberts and Joseph Arvay, two of our former Constitutional Litigators-in-Residence
on October 17, 2018 at 5:00pm
Reception to follow
The Honourable Thomas Albert Cromwell, C.C. received law degrees from Queen’s and Oxford, practised law in Kingston and Toronto and taught law at Dalhousie University. During his time at Dalhousie, he was active as a labour arbitrator and served as Vice-chair of the Nova Scotia Labour Relations Board. After serving as Executive Legal Officer to the Chief Justice Canada from 1992 – 1995, he was appointed a judge of the Nova Scotia Court of Appeal in 1997, serving there until his appointment as a judge of the Supreme Court of Canada in 2008. Mr. Cromwell was the first recipient of the Canadian Bar Association’s Louis St. Laurent Award of Excellence and is an honorary fellow of Exeter College, Oxford and of the American College of Trial Lawyers. A holder of four honorary doctorates in law, he has also had an award established in his name at the Queen’s Faculty of Law, The Honourable Thomas Cromwell Award for Public Service. He is the chair of the Action Committee on Access to Justice in Civil and Family Matters, a director of the International Centre for Criminal Law Reform and Criminal Justice and of Access Pro Bono British Columbia. He retired from the Supreme Court of Canada on September 1st, 2016. A member of the Bars of Nova Scotia, Ontario and British Columbia, he now serves as senior counsel with Borden Ladner Gervais LLP in Ottawa and Vancouver. He is a recipient of the Canadian Institute for the Administration of Justice’s Justice Medal and of the Medal of the International Society for the Reform of Criminal Law. In 2017, was named a Companion of the Order of Canada for his “illustrious service as a Supreme Court justice, and for his leadership in improving access to justice for all Canadians.” In 2018, he was named by the Canadian Lawyer Magazine as of one Canada’s most influential lawyers.

Mary Eberts received her legal education at Western and the Harvard Law School, and is a member of the Bar of Ontario. She joined a Bay St. law firm after several years of teaching at the Faculty of Law, University of Toronto, and was a partner at that firm until opening a small firm specializing in Charter and public law litigation. From this base in Toronto, she has appeared as counsel to parties and interveners in the Supreme Court of Canada, Courts of Appeal and Superior Courts in Ontario and other provinces, the Federal Court and Court of Appeal, and before administrative tribunals and inquests in Ontario and other provinces. She was active in securing the present language of section 15 of the Charter, and was one of the founders of the Women’s Legal Education and Action Fund (LEAF). Since 1991, she has been litigation counsel to the Native Women’s Association of Canada (NWAC). Mary held the Gordon Henderson Chair in Human Rights at the University of Ottawa in 2004-2005 and the Ariel Sallows Chair in Human Rights at the College of Law, University of Saskachewan in 2011 and 2012, where she taught courses in test case litigation. Mary was the Constitutional Litigator in Residence in 2014-15 and a McMurty Fellow at Osgoode Hall Law School in 2015-16. Recognition of her work includes the Law Society Medal, the Governor-General’s Award in Honour of the Persons’ Case, the Queen’s Diamond Jubilee Medal and several honourary degrees. In 2017, Mary was made an Officer of the Order of Canada. She is currently a Senior Fellow at Massey College, University of Toronto.
Joseph Arvay, who co-founded the firm of Arvay Finlay Barristers in 1990 with offices in Vancouver and Victoria, is recognized as one of this country’s most highly respected lawyers. His practice emphasizes constitutional and administrative law matters, as well as Indigenous rights litigation.. He has been counsel in scores of important Supreme Court of Canada cases. His exceptional commitment to human rights in this country has been recognized with numerous awards and tributes. He was awarded honourary doctorates of law from both York University and the University of Victoria. In 2017 he was named an Officer of the Order of Canada as well as a Member of the Order of British Columbia.

WEBINAR: COVID-19 Contact Tracing and the Canadian Constitution
2020-07-29 12:00 - 13:30
The David Asper Centre for Constitutional Rights & the Schwartz Reisman Institute for Technology and Society were pleased to co-present
COVID-19 Contact Tracing and the Canadian Constitution
a FREE WEBINAR on Wednesday July 29, 2020 @12:00-1:30pm
Contact tracing apps play an important role alongside human tracing in our public health response to the COVID-19 pandemic. In order to ensure that contact tracing apps infringe our Constitutional rights as little as possible, however, the apps must be carefully constructed and the information they collect must be safeguarded. In a highly collaborative research paper entitled “Test, Trace, and Isolate: COVID-19 and the Canadian Constitution,” a team of experts from the University of Toronto, York University and the Ontario Tech University reviewed the benefits and limitations of using contact tracing apps to identify people who have been exposed to COVID-19.
In this webinar, the paper’s authors Lisa Austin (pictured), Vincent Chiao, David Lie (pictured), and Andrea Slane took part in a group discussion, led by Asper Centre Executive Director Cheryl Milne, about their research and conclusions including: the usefulness of contact tracing apps, the privacy choices involved in the technical design of these apps, which app the government has selected to use and why, as well as the privacy impacts considered under the Canadian Charter of Rights and Freedoms, which provides a framework for balancing competing rights and interests.
The panelists will be available for questions at the end of their discussion. An electronic copy of the paper is available here. Email tal.schreier@utoronto.ca for inquiries.
WEBINAR RECORDING LINK
Authors’ BIOS
Lisa Austin BA &Sc (McMaster) 1994, MA (Toronto) 1995, LLM (Toronto) (1998), PhD (Toronto) 2005, called to the Bar of Ontario in 2006, is a Professor of Law and the Chair in Law and Technology at the University of Toronto Faculty of Law. She is a co-founder of the IT3 Law at the University of Toronto, which engages in interdisciplinary research on privacy and transparency. Professor Austin’s research and teaching interests include privacy law, property law, and legal theory. She is published in such journals as Legal Theory, Law and Philosophy, Theoretical Inquiries in Law, Canadian Journal of Law and Jurisprudence, and Canadian Journal of Law and Society. Professor Austin’s privacy work has been cited numerous times by Canadian courts, including the Supreme Court of Canada.
Vincent Chiao, B.A. (University of Virginia), Ph.D. (Northwestern), J.D. (Harvard), is an Associate Professor in the Faculty of Law of the University of Toronto. He researches and teaches primarily in the area of criminal law and criminal justice, with a particular interest in the philosophical examination of its doctrine and institutions. He is the author of Criminal Law in the Age of the Administrative State (Oxford University Press 2018). He is also responsible for overseeing the Faculty of Law’s appellate criminal law externship, which provides selected third year JD students with the opportunity to work directly on criminal appeals, including before the Ontario Court of Appeal and the Supreme Court of Canada.
Dr. Beth Coleman is Associate Professor of Data & Cities at the Institute of Communication, Culture, Information and Technology and Faculty of Information, University of Toronto, where she directs the City as Platform lab. Working in the disciplines of Science and Technology Studies and Critical Race Theory, her research focuses on smart technology & machine learning, urban data, and civic engagement. She is the author of Hello Avatar and multiple articles addressing issues of smart cities, urban data, augmentation & experience design, and critical race, among others. She has presented at leading international conferences and municipal contexts such as CHI; Sharing Cities, Barcelona; Gender and Cities, Geneva; Mars/Waterfront Toronto. Her research affiliations include the Berkman Klein Center for Internet & Society, Harvard University; Microsoft Research; Data & Society Institute, New York; and expert consultant for the European Commission Digital Futures. She is one of the foundational directors of Thriving Cities, Mistletoe Singapore. Her previous academic positions include the Massachusetts Institute of Technology and University of Waterloo.
David Lie received his BASc from the University of Toronto in 1998, and his MS and PhD from Stanford University in 2001 and 2004 respectively. He is currently Professor in the Department of Electrical and Computer Engineering at the University of Toronto.  He also holds appointments in the Department of Computer Science, the Faculty of Law and is a research lead with the Schwartz Riesman Institute for Technology and Society.  He is known for his seminal work on the XOM architecture, which was an early precursor to modern trusted execution processor architectures such as ARM Trustzone and Intel SGX.  He was the recipient of a best paper award at SOSP for this work. David is also a recipient of the MRI Early Researcher Award, Connaught Global Challenge Award.  He developed the PScout Android Permission mapping tool, whose datasets have been downloaded over 10,000 times and used in dozens of subsequent papers.  David has served on various program committees including OSDI, Usenix Security, IEEE Security & Privacy, NDSS and CCS.  Currently, his interests are focused on securing mobile platforms, cloud computing security and bridging the divide between technology and policy.
Martha Shaffer is a Professor at the University of Toronto Faculty of Law, which she joined in 1990. She holds law degrees from Harvard and Toronto, as well as an undergraduate degree from Harvard. She served as Law Clerk to the Supreme Court of Canada for Chief Justice Brian Dickson, before becoming the Boulton Junior Fellow at the Faculty of Law, McGill University. Professor Shaffer’s principal research and teaching interests concentrate on criminal law, family law and equality issues.
Dr. Andrea Slane joined Ontario Tech University’s Faculty of Social Science and Humanities in 2009 as an Associate Professor in the Legal Studies program. She is also the Associate Dean of Research and Graduate Programs, Legal Studies. Her research focuses on privacy, data protection, and the variety of legal regimes that protect people from both individual and commercial wrongdoing online and over digital devices. She has a substantial body of work on the appropriate means to regulate the flow of personal information, whether between individuals; individuals and businesses; businesses and government; business to business; or to the public. She has also conducted sociological research on the views of professionals who work with victims of online child sexual exploitation, and is currently engaged in a new project examining senior citizens’ views toward new social support technologies such as digital assistants and social robots, and the kinds of protections they feel they need.
François Tanguay-Renaud is a Professor of Law and the Director of York University’s Jack & Mae Nathanson Centre on Transnational Human Rights, Crime and Security since 2012. He is also one of the founders and first Director of York’ University’s Juris Doctor/Master of Arts (JD/MA) combined program in law and philosophy, the founder and main administrator of the Ontario Legal Philosophy Partnership (OLPP) and a former Associate Dean Research, Graduate Studies, and Institutional Relations. Professor Tanguay-Renaud holds degrees in both civil and common law from McGill University, where he was both a Loran Scholar and a Greville-Smith Scholar. He also studied at the National University of Singapore, and completed his graduate work (BCL, MPhil, DPhil) at the University of Oxford. Professor Tanguay-Renaud ‘s current academic interests span a wide range of subject areas — but notably, criminal law, criminal procedure, constitutional law, emergency law, and public international law — viewed mostly through the lens of analytical legal theory.

Constitutional Roundtable with Professor Michael Beenstock
2023-10-10 12:30 - 14:00 | Flavelle FL219 – John Willis Classroom
The David Asper Centre for Constitutional Rights’ Constitutional Roundtables are an annual series of lunchtime discussion forums that provide an opportunity to consider developments in Canadian constitutional theory and practice. The Constitutional Roundtable series promotes scholarship and aims to make a meaningful contribution to intellectual discourse about Canadian and comparative constitutional law.
Professor Michael Beenstock (Hebrew University of Jerusalem) will present the following paper (click on title for paper):
The ‘Battle between the Branches’: Positive and Normative Theories of Judicial Review
“My paper is related to the debate in legal philosophy between the legal positivists (and Dworkin), who are in favor of judicial review and the political constitutionalists, who are against it. I use formal methods from game theory and statistical theory to study the tension between the legislature and the judiciary, when the latter is empowered with judicial review. In the positive theory the legislature and the judiciary are adversarial; the judiciary may be more or less activist, and the legislature may engage in override, politicize appointments to the judiciary, or simply ignore rulings of the supreme court. The positive theory predicts that the outcome of the battle between the branches is Pareto inefficient in terms of infringement of the constitution and the public benefit from legislation.
Under the normative theory the legislature and the judiciary cooperate. As expected, the outcome is Pareto superior. The normative theory provides a structural basis for enhancing the efficiency of judicial review. It also sets a benchmark for comparing efficiency under political constitutionalism with the best possible outcome under judicial review.
Whereas the positive theory characterizes the world as it is. The normative theory refers to an ideal world. In a follow-up paper I plan to study efficiency under political constitutionalism and to compare it with efficiency according to the positive and normative theories of judicial review.
By using formal methods and clearly stated axioms, such as rationality, the robustness of these comparisons is transparent axiomatically and methodologically. Legal philosophers who disagree should be able to pin-point the source of their disagreement.”
Michael Beenstock is a Professor of Economics at the Hebrew University where he teaches graduate econometrics. Although his main concern is with economics, he has strayed into other disciplines such as epidemiology, psychology, climate science and criminology. As a result of the constitutional crisis in Israel, Prof Beenstock has also recently strayed into judicial review. Apart from his theoretical paper on positive and normative theories of judicial review, he is currently engaged in testing its empirical predictions using data from the Comparative Constitutions Project (University of Chicago).
Some of Prof Beenstock’s recent books are: Heredity, Family and Inequality: A Critique of Social Science, MIT Press, 2012, Econometric Analysis of Nonstationary Spatial Panel Data, with D. Felsenstein, Springer, 2019, Recurrence Risk of Autism Spectrum Disorder. Nova Science Publishers, Hauppauge, NY, 2021, Zero Interest Policy and the New Abnormal: a Critique, Oxford University Press, 2022. Some of Prof Beenstock’s papers related to jurisprudence are: The Productivity of Judges in the Courts of Israel, Israel Law Review, 35: 249-65, 2001, with Y. Haitovsky, Does the Appointment of Judges Increase the Output of the Judiciary?, International Review of Law and Economics, 24: 351-69, 2004, and, with J. Guetzkow, Plea Bargaining and the Miscarriage of Justice”. Journal of Quantitative Criminology, 2021.
Open to the public. No registration required. Light lunch provided.
Email tal.schreier@utoronto.ca for information.
