The Asper Centre’s mission is realizing constitutional rights through Advocacy, Education and Academic Research. Our advocacy work entails a number of ongoing activities. We strive to play a meaningful role in significant constitutional litigation in order to make contributions to the overall quality of constitutional rights advocacy in Canada.
In addition to our continued involvement in legal advocacy interventions at appellate level courts, the Asper Centre undertakes numerous advocacy projects with the assistance of students in our clinical legal education course and our student working groups. These projects are developed through consultations with the private bar, non-governmental organizations, and our constitutional law faculty, and they include policy, legal reform, and support to trial level constitutional challenges. For example, the Asper Centre makes numerous oral and written submissions in respect of proposed legislations or policies affecting constitutional rights.
Clinic Course Projects
- Voting Age Challenge
- In 2019, the Asper Centre, Justice for Children and Youth and other children’s rights organizations began working on a constitutional challenge to lower the voting age in Canada. Building on the groundwork laid down by the Clinic (and partner organizations) in the previous year, this year the Clinic students worked to identify non-legal experts who have written on ideas that support the legal arguments for lowering the voting age; and they also began preparing the initial drafts of pleadings. In April, 2021, we were successful in obtaining funding from the Court Challenges Program to launch this case along with Justice for Children and Youth. The Asper Centre and Justice for Children and Youth hope to be able to file the application in Fall 2021.
- Climate Change Litigation
- Under the guidance of the Asper Centre’s 2020 Constitutional Litigator-in-Residence, Nader Hasan, Clinic students provided assistance in the Constitutional challenge, Mathur v Ontario, which was filed in November 2019 in the Ontario Superior Court of Justice. The Applicants, seven young environmental activists residing in Ontario represented by Nader Hasan and Ecojustice argue that Ontario’s Greenhouse Gas emission reduction targets infringe the constitutional rights of youth and future generations.
- R v Sharma
- Clinic students worked with Nader Hasan on the response to the Crown application for leave to appeal in this case. The Asper Centre had intervened at the Ontario Court of Appeal with LEAF (Women’s Legal Education and Action Fund). The case involves the constitutional challenge to the Criminal Code provisions that exclude certain offences from eligibility for conditional sentences. Ms. Sharma challenged this provisions on the basis of ss. 7 and 15 of the Charter, arguing that the exclusion failed to take into consideration Gladue principles in the sentencing of indigenous persons, which take into consideration their lived circumstances and seek to reduce the disproportionate incarceration of indigenous peoples.
- Freedom of Expression in Municipal Elections
- Clinic students worked on the Asper Centre’s intervention at the Supreme Court of Canada in the City of Toronto appeal, a case which concerned the constitutionality of the Province’s Bill 5 which reduced the number of City of Toronto wards from 47 to 25 during municipal elections. The students helped prepare the application to intervene in the case and prepared a draft factum in the appeal. The Appeal was heard on March 16, 2021.
- Setting the groundwork for a Constitutional challenge to lower the voting age in Canada
- The students worked on all aspects of preparing to undertake a Constitutional challenge with respect to lowering the voting age in Canada, including partner/stakeholder engagement and outreach, international and domestic legal research, securing funding from the Court Challenges Program and drafting a media release.
- See News Release on Asper Centre organizing youth consultations for legal challenge to Canada’s voting age
- See also Asper Centre student Karen Chen reporting on the clinic students’ work this term for the Asper Centre Outlook Newsletter.
- Sex Education Curriculum Charter Challenge
- Under the guidance of the Asper Centre’s 2018 Constitutional Litigator-in-Residence, Susan Ursel, Clinic students provided assistance to a group of prospective interveners in the Constitutional challenge to the Ford government’s repeal of the 2015 sex-ed curriculum. The students conducted research on several topics including Constitutional conventions and Charter jurisprudence focused on sections 7 and 15 of the Charter.
- Free Speech on University Campus
- In August of 2018, the Ontario government announced, via a news release, that it was going to require universities to develop, publicly post and enforce free speech policies on their campuses and apply current disciplinary methods to students in violation of the free speech policy. With the assistance of Professor Richard Moon, Asper Centre Clinic students researched and drafted a report on the possible Charter implications of the Ontario government’s free speech on campus directive (report forthcoming).
- Response to Immigration and Refugee Board’s 2018 External Audit (Immigration Detention)
- In 2018, the Immigration and Refugee Board released an External Audit report on the immigration detention system in Canada as well as its own Management Report and Action Plan in response to the External Audit’s scathing criticisms. Asper Centre Clinic students contributed research to a joint-civil society/immigration bar practitioners’ report in response to these two documents. The clinic students who worked on this project continued with a practicum in the winter term, in which they developed a compendium of relevant case-law in which the courts have articulated what a legally sound and fair immigration detention hearing should look like (forthcoming).
- Bill C-56
- The clinic students researched and prepared a brief critiquing Bill C-56, an Act to limit the use of administrative segregation in federal prisons. While not yet complete, the Asper Centre’s brief will focus on the concern that the continued use of administrative segregation in Canadian correctional facilities cannot be justified in light of the growing evidence that segregation causes serious and potentially irreversible harm without serving a legitimate rehabilitative purpose. The brief addresses the presumptive limits on administrative segregation in Bill C-56 in light of their inability to protect vulnerable populations from harm to their mental and physical health. Further, the brief will look at whether they are reflective of the professional and scientific consensus that segregation should only be used in the rarest and most limited of circumstances.
- Spencer Dean Bird v. Her Majesty the Queen
- Students worked on the application for intervention of this case, which argued that the Maybrun framework should consider constitutional and access to justice issues. Students conducted research on the relevant jurisprudence and contributed to the formulation of the arguments advanced.
- Frank v. Attorney General
- Students worked on the application for intervention of this case, developing a work plan, including how the intervention would inform the s. 3 right to vote in future cases. Students helped to draft the affidavit, notice of motion, motion record, and memorandum of argument, with consultation from the Asper Centre’s faculty advisors and the co-counsel to the intervention.
- KRJ Intervention
- Students provided research and drafting support to our intervention in this case that focused on the constitutionality of sentencing provisions with retroactive effect
- Ernst v Alberta Energy Regulator
- Students provided research and drafting support to our intervention in this case that looked at the effect of an immunity provision in the legislation applicable to the Alberta Energy Regulator. Students travelled to Ottawa in January to witness the argument they had worked being presented at the Supreme Court by our Litigator in Residence, Raj Anand.
- Students worked on two additional projects exploring the application of Charter values to administrative decision-making and the possibility of a Charter claim in relation to prison conditions.
- SCC Interventions
- Students worked on the Henry and B010 intervention at the Supreme Court of Canada, assisting in the drafting of the motions to intervene and the facta in each case. Students travelled to Ottawa to watch both cases being argued by our pro bono counsel.
- Students worked on a project analyzing a potential discrimination complaint by a group advocating on behalf of deaf children.
- Dangerous Offender Provisions
- A team of students analyzed the dangerous offender provisions of the Criminal Code of Canada.
- Kazemi Estate v. Islamic Republic of Iran
- A team of students provided litigation support to our intervention in Kazemi appeal. Students researched legal issues, drafted legal arguments and made a trip to Ottawa to watch the Centre’s arguments.
- R. v. Kokopence
- Students worked on the intervention material and the final factum filed at the Supreme Court of Canada in our intervention.
- CSIS Practicea
- Our project examining CSIS practices in relation to security certificates, which was continued by IHRP students into the second term practicum.
- R. v. Anderson
- Students worked on drafting our application for intervention in case and researching issues for the factum. Students traveled to the Supreme Court to watch the intervening argument.
- Students worked on a number of applications for intervener standing at the Supreme Court of Canada in the cases of Canada v. Bedford, Divito v. Minister of Public Safety and Emergency Preparedness and Attorney General of Canada on behalf of the Czech Republic and Minister of Justice of Canada v. Bretislav Zajicek.
- Women Prisoners in Canada
- Two students researched and wrote an extensive report on the legal issues arising from our treatment of women prisoners in Canada, focusing on aboriginal women and women with mental health issues. This material was drawn upon in a brief we worked on with the International Human Rights Program for the Special Rapporteur for Indigenous Peoples.
- Downtown Eastside Sex Workers United Against Violence v. Canada
- A team of students provided litigation support to our intervention in the Downtown Eastside Sex Workers case challenging the prostitution sections of the Criminal Code. The case went to the Supreme Court of Canada on the issue of the standing of the challengers to bring the case. Students helped prepare the intervention materials including a response to the government’s challenge to our intervention, researched legal issues and helped to prepare the factum filed with the Supreme Court.
- Jury Vetting
- Two students worked on the intervention material and the final factum filed at the Supreme Court of Canada in our intervention into 5 cases focusing on the impact of the jury vetting issue in Ontario criminal cases.
- Jury Representation
- Two students provided litigation support through reviewing affidavits, attending cross-examinations and researching legal issues, in this appeal before the Ontario Court of Appeal. The issue was the lack of representation on the jury rolls of First Nations on reserve people. The students continued their work in the second term for the practicum to assist in the drafting of the factum and attended all 3 days of the appeal at the Court of Appeal
- Refugee Law Office
- A team of 4 students worked with the Refugee Law Office to research potential constitutional challenges to the treatment of detainees in the refugee system. Students also analyzed the impact of Bill C-4, which was the earlier draft of the bill to amend the Immigration and Refugee Protection Act.
- Polygamy Reference
- A team of students provided litigation support to our intervention in the Reference Re s. 293 of the Criminal Code. Students summarized expert evidence, researched legal issues and traveled to Vancouver to assist the executive director and observe the proceedings.
- Two teams of students worked on projects for the Women’s Legal Education and Action Fund including research on the representation of women in political office and background research on the prostitution challenge: Bedford v. Canada.
- Law Commission of Ontario
- A student provided legal research on the federalism issues related to the provision of services to undocumented immigrants in Ontario.
- ARCH Disability Law Centre
- A student conducted research to assist ARCH in providing advice to a client respecting voting rights of persons with disabilities.
- Students provided legal research in respect of the comparator group analysis in equality rights cases before the Supreme Court of Canada to assist in their motion to intervene in the case of Withler v. Canada, scheduled to be heard by the Supreme Court in March 2010.
- Law Commission of Ontario
- A student provided background research in respect of federalism issues impacting precarious work and vulnerable workers in the province.
- Students provided litigation support through drafting, research and creating documents for the cases in which the Centre obtained intervener standing including Conway v. The Queen, Prime Minister of Canada v. Omar Khadr, City of Vancouver v. Ward, and Alberta v. Caron (cases described here). Students travelled to Ottawa to watch counsel argue Conway v. Her Majesty the Queen and Prime Minister of Canada v. Omar Khadr.
- Housing Rights Coalition
- Students provided research and legal drafting support to a coalition of housing advocates who are developing a test case to challenge government policy respecting housing rights in Canada. Students provided in-depth research and analysis for specific Charter arguments, reviewed and summarized expert opinion evidence and provided an initial draft of an expert affidavit. The class hosted one of the coalition meetings at the Faculty of Law and was able to observe first-hand the discussion regarding the litigation strategy.
- Equality Rights for First Nations Children
- One project has involved both litigation support and policy advocacy respecting the services provided to First Nations children both on and off reserves. A student provided research support regarding the constitutional issues behind a Canadian Human Rights Act complaint that has been filed at the Canadian Human Rights Tribunal.
- A strategy has also been developed for further advocacy respecting the provision of services to First Nations children who may be caught in jurisdictional wrangling between levels of government. On December 12, 2007, Jordan’s Principle was passed by Private Member’s Motion 296 in the House of Commons. Jordan’s Principle is a child-first approach to resolving jurisdictional disputes between federal and provincial/territorial governments where the provision of necessary services to First Nations children is concerned. It is named after a First Nations boy with complex medical needs who was unable to return to his home on a reserve because of the failure of governments to agree on who would provide the necessary medical support that he needed to be at home with his family.
- Read Jordan’s Principle
- Advocate for Jordan’s Principle
- Ontario Justice Education Network Jury Project
- The Asper Centre partnered with OJEN to provide assistance in a project that focused on jury duty. Aboriginal high school students in Thunder Bay, Ontario participated in a mock jury trial, playing the role of witnesses and jury members. An Asper Centre student developed the case scenario in consultation with lawyers and judges, and then traveled north to participate in the mock trial.
- Read about the student’s experience in her trip journal.