About the Podcast
Charter: A Course is a podcast created by the David Asper Centre for Constitutional Rights (the Asper Centre) and hosted by the Asper Centre’s Executive Director Cheryl Milne. Charter: A Course focuses on Canadian constitutional law and litigation.
In each episode, we highlight the accomplishments of U of T Law’s faculty and alumni involved in leading constitutional cases and issues. Each episode also includes a “Practice Corner,” where we talk about the ins and outs of what it means to be a constitutional litigator.
Whether you are a law student, a lawyer, or just an interested person, we hope that you learn about an aspect of constitutional law and litigation that interests you in our podcast.
S3E1: Bail and Section 11(e) of the Charter
This episode focuses on section 11(e) of the Canadian Charter of Rights and Freedoms, which provides that “any person charged with an offence has the right…not to be denied reasonable bail without just cause.”
With the help of our guests Professor Danardo Jones and Professor Jillian Rogin, in this episode, we discuss what bail is, exploring the idea of the ladder principle as discussed by the Supreme Court in the case of R v Antic, and the government’s legislative response to that case. We also discuss the current political discourse surrounding bail reform, and whether the federal Liberal government’s new bail reform legislation, Bill C-48, is compliant with the Charter. Professor Jones and Rogin of the University of Windsor Faculty of Law have both been actively involved in political and academic discourse surrounding bail in Canada, having recently appeared before the House of Commons Justice Committee to discuss the state of Canada’s bail system.
In this episode’s Practice Corner, we speak with lawyer Teodora Pasca who will take us through what it’s like in Bail Court and what happens in a typical bail hearing.
Find a FULL transcript of this episode HERE.
S2E7: Section 3 of the Charter – The Right to Vote
With the help of our distinguished guest, Professor Michael Pal, we discuss the history of the right to vote in Canada. Looking at the jurisprudence on how certain groups gained the right to vote over time, we consider how democracy has evolved in our country, and the role courts must play in protecting this fundamental freedom.
In the episode’s Practice Corner, we speak with Diego Christiansen-Barker, Khadijat Dairo and Katie Yu, three of the youth litigants who are involved in a court challenge to help young people in Canada gain the right to vote.
S2E6: International Law in Constitutional Litigation
How do Charter rights and Constitutional litigation in Canada intersect with international law like the UN Declaration of Human Rights or the UN Declaration on the Rights of Indigenous Peoples? With the help of our distinguished guest, Gib van Ert, we discuss the role of international law in Canadian constitutional litigation.
In this episode’s “Practice Corner,” lawyer and U of T Alumnus Cory Wanless discusses the ins and outs of litigating constitutional rights cases with international law components in Canadian courts.
S2E5: Socioeconomic Rights and the Charter
With the help of our distinguished guests, Martha Jackman and Bruce Porter, in this episode we discuss whether socioeconomic rights are protected under the enumerated provisions of the Charter of Rights and Freedoms. We hear about what socioeconomic rights entail – like the right to food, housing, and a living wage – and consider whether these rights confer positive obligations on the government.
In the Practice Corner (at 39:56), Jackie Esmonde joins us to discuss her experience litigating cases about socioeconomic rights on behalf of clients and as an intervenor at the Supreme Court. We also learn about Jackie’s community-driven approach to practicing law and policy writing.
S2E4: Freedom of Association and Expression
With the help of our distinguished guests, Professor David Schneiderman and Professor Ashwini Vasanthakumar, in this episode we discuss how our section 2 Charter freedoms – the freedom of expression, the freedom of association, and the freedom of assembly – protect our right to protest. Tracing the history of the right to protest up until some of the more recent instances of protests in this country, our guests share insights about the many moral and political purposes of this right in Canada.
In the Practice Corner, Steven Barrett, Managing Partner of Goldblatt Partners LLP, discusses the freedoms of expression, association, and assembly in the labour law context. We hear about the jurisprudence leading up to the Supreme Court’s recognition of a constitutional right to strike and discuss how the Charter is litigated in employment and labour disputes. We also hear more about Bill 28 and the provincial government’s use of the notwithstanding clause to limit the right to strike.
S2E3: Disability Rights under the Charter
In 1982, disability was included as an enumerated ground of discrimination under Section 15 of the Canadian Charter of Rights and Freedoms. Since then, disability rights advocates have pursued constitutional litigation on a range of issues. This podcast episode examines the successes and remaining challenges in having disability rights recognized and protected under the Charter.
Our esteemed guests in this podcast episode are David Lepofsky and Anita Szigeti, two lawyers specialized in disability rights. Our guests discuss, amongst other issues, how disability came to be an enumerated ground under section 15 of the Charter; some of the seminal Supreme Court of Canada cases that dealt with disability rights under the Charter; how individuals living with a mental disability either alone or in combination with a physical disability experience discrimination; how section 7 of the Charter interplays with respect to discrimination claims that normally fit within section 15 Charter claims; and, the future of disability rights under the Charter.
In the “Practice Corner” we speak with constitutional litigator Stephen Aylward, about his experiences as a constitutional litigator while living with a disability, and his thoughts on ways to remove existing barriers within the legal profession to make the practice of law more accessible.
S2E2: Section 33 of the Charter – The Notwithstanding Clause
This episode focuses on section 33 of the Canadian Charter of Rights and Freedoms, otherwise known as the ‘notwithstanding clause’. Recognized as a distinctive Canadian legal invention, the notwithstanding clause creates a legislative tool that permits federal, provincial or territorial legislatures to declare an act or provision of an act to operate notwithstanding sections 2 and 7 to 15 of the Charter.
With the help of our distinguished guest Professor Emerita Lorraine Weinrib we discuss section 33’s unique role within Canada’s constitutional democracy, its development, its operation, the political implications of it thus far, and the existing jurisprudence on its application.
In our “Practice Corner”, we will be speaking to two lawyers, Gregory Bordan and Marion Sandilands, who are involved in the legal challenge against the invocation of the notwithstanding clause in Quebec’s Bill 21, An Act respecting the laicity of the State.
S2E1: Section 28 of the Charter and Feminist Law Reform
This episode focuses on section 28 of the Canadian Charter of Rights and Freedoms, which states that notwithstanding anything in the Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.
With the help of our distinguished guest Professor Kerri Froc we trace the history of Section 28 and its questionable usage in jurisprudence, before discussing how a case currently making its way to the Quebec Court of Appeal may provide an opportunity for Section 28 to truly shine for the first time.
In the Practice Corner, Professor Martha Jackman tells us about Feminist Law Reform 101, a free online course designed to provide the tools to teach and inspire a new generation of feminist legal advocates like the ones who brought Section 28 into being.
Episode 6: Section 15 of the Charter
Section 15 of the Canadian Charter of Rights and Freedoms states that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, color, religion, sex, age or mental or physical disability.
With the help of our distinguished guests, constitutional litigators Mary Eberts and Jonathan Rudin (author of Indigenous People and the Criminal Justice System: A Practitioner’s Handbook) we trace the history of Section 15 and its development in Supreme Court of Canada jurisprudence, as well as its use in furthering the efforts to realize substantive equality for Indigenous peoples in Canada, in particular in the criminal justice system.
Mary and Jonathan also share their thoughts about the value of interveners in Charter litigation in Canada.
Episode 5: Climate Change Remedies and Section 7 of the Charter
Section 7 of the Canadian Charter of Rights and Freedoms guarantees that every person has the right to life, liberty, and security of the person, except in accordance with the principles of fundamental justice. This episode focuses on s. 7 of the Charter, climate change litigation and constitutional remedies in these cases.
In this episode, we speak with lawyer and former Constitutional Litigator-in-Residence at the Asper Centre, Nader Hasan about the meaning and purpose of section 7 in the context of climate change and government action/inaction, and as it relates to protecting the environment for future generations. Nader is legal counsel for the applicants in the Mathur v Ontario climate change litigation (see case link below), which he discusses in this episode.
In this episode’s “Practice Corner”, we speak with University of Toronto Faculty of Law Professor Kent Roach about constitutional remedies as a core aspect of charter litigation. Kent is the author of Constitutional Remedies in Canada (Carswell, 2013) and has recently published an article on judicial remedies in climate change litigation internationally.
Episode 4: Religious Freedom & Interventions in Constitutional Litigation
This episode focuses on freedom of religion and the role of interveners in landmark cases concerning religious freedom.
Section 2 of the Charter sets out that everyone has four fundamental freedoms, one of which is freedom of conscience and religion in clause 2(a). In this episode, we learn about the different ways in which the court has viewed freedom of religion in the past and the implications of those different views, from University of Calgary Professor Howard Kislowicz. We also hear from Howie about the extent to which interveners can be said to have improved the quality of court decisions, concerning freedom of religion, and the extent to which interveners can be said to have promoted the legitimacy and acceptability of those decisions.
In this episode’s Practice Corner, we talk about the process and practice of intervening in appeals at the Supreme Court of Canada with lawyer, Adriel Weaver.
Episode 3: Jury Fairness and the Charter
Section 11 of the Canadian Charter of Rights and Freedoms provides a list of rights for persons charged with a crime. These include, but are not limited to, the right to be tried within a reasonable period of time, under section 11(b), the right to be presumed innocent until proven guilty under section 11d, and the right to the benefit of a trial by jury, where the maximum penalty for the offense is imprisonment for five years, or even more severe punishment, under section 11(f).
In this episode we speak with Kent Roach, Professor of Law at the University of Toronto and lawyer Christa Big Canoe, Legal Director of Aboriginal Legal Services in Toronto, about jury fairness in Canada, the impact of the Supreme Court’s recent decision in R v Chouhan and the way in which the court’s current understanding of jury selection informs the right to a jury that is representative of the community. The conversation also turns to equality rights, jury representation, and the experiences of indigenous people when it comes to juries.
Lastly, in this episode’s “Practice Corner” we speak with lawyer Janani Shanmuganathan about some of the practicalities of jury selection from the perspective of a criminal defense lawyer.
Episode 2: COVID-19 and the Charter
This episode focuses on various Charter rights in the context of the COVID-19 pandemic. Section 6 (1) of the Charter of Rights and Freedoms confers the right to enter, remain in and leave Canada upon every citizen of Canada. Section 6(2) provides citizens and permanent residents with the right to move and take up residence and to pursue a livelihood in any province. Over the past year and a half, some provinces, including Ontario, have restricted movement across provincial borders. Other legal responses, or lack of responses, from government might also implicate section 7 rights to life, liberty and security of the person, while vaccine mandates raise questions about equality rights under section 15 or freedom of conscience and religion under section 2(a); and arguments have been made that restrictions on gathering affect those rights as well as the right to assembly under section 2(c) or association under 2(d).
We’ll hear about the complicated relationship between our Charter and the government’s response to the COVID-19 pandemic from Abby Deshman and Nathalie des Rosiers. We’ll also hear a bit more about a topic we covered in our first episode: section 1 of the Charter. Particularly, whether the Oakes test is too strict in the context of an emergency such as the COVID-19 pandemic. To close things off, in our “Practice Corner,” we’ll hear from two recent U of T law graduates, Geri Angelova and Hana Awwad, regarding their experience participating in the law school’s Grand Moot earlier this year, which was on the topic of the constitutionality of mandatory vaccinations.
Episode 1: What’s the Point of Section 1?
In this episode, we begin our exploration of the Canadian Charter of Rights and Freedoms with a conversation about section 1, which sets out that the rights in the Charter are subject to limits, or as the section says, “reasonable limits that are demonstrably justifiable in a free and democratic society.” We are privileged to speak with scholar and U of T alumnus Professor Jacob Weinrib. During our “Practice Corner,” we speak with constitutional litigator and U of T Law alumnus Padraic Ryan.