The Asper Centre regularly intervenes in cases of constitutional significance heard at the Supreme Court of Canada or at provincial Courts of Appeal.
2024
- Mikhail Kloubakov, et al. v. His Majesty the King
- Attorney General of Ontario v Working Families Coalition (Canada) Inc. et al.
- Slepcsik v. Canada (Minister of Citizenship and Immigration)
2023
- York Regional District School Board v. Elementary Teachers’ Federation of Ontario
- Attorney General of Canada v. Joseph Power
- Mathur v. Ontario
2022
- Attorney General of Québec, et al. v. Attorney General of Canada, et al.
- Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al
- Corporal C.R. McGregor v. Her Majesty the Queen
- R v. Sharma
2021
- Attorney General of BC v. Council for Canadians with Disabilities
- City of Toronto v. Attorney General of Ontario et al
2020
2019
- Conseil scolaire francophone de la Colombie-Britannique v. British Columbia
- Her Majesty the Queen v Kevin Morris
- Her Majesty the Queen v Cheyenne Sharma
- City of Toronto v. Attorney General of Ontario et al
2018
2017
- Spencer Dean Bird v. Her Majesty the Queen
- Attorney General of Canada on behalf of the Republic of India v. Surjit Singh Badesha, et al.
- Jessica Ernst v. Alberta Energy Regulator
2016
2015
- B010 v Minister of Citizenship and Immigration
- Henry v. Her Majesty the Queen
- R v. Kokopenace
- Tanudjaja et al. v. Attorney General of Canada and Attorney General of Ontario
2014
- Trial Lawyers of British Columbia and Canadian Bar Association v. Attorney General of British Columbia
- R. v. Anderson
- Estate of the Late Zahra (Ziba) Kazemi, et al. v. Islamic Republic of Iran, et al.
2013
2012
- R. v. Davey, R. v. Cardoso, R. v. Yumnu, R. v. Emms, R. v. Duong
- Attorney General of Canada v. Downtown Eastside Sex Workers United Against Violence Society and Sheryl Kiselback
2011
2010
- Her Majesty the Queen in Right of the Province of Alberta v. Caron
- Prime Minister of Canada et al. v. Omar Khadr
- City of Vancouver, et al. v. Alan Cameron Ward, et al.
- Conway v. Her Majesty the Queen, et al.
Mikhail Kloubakov, et al. v. His Majesty the King
This appeal will determine the constitutionality of two Criminal Code sex work provisions. Both impugned provisions were introduced in the Protection of Communities and Exploited Persons Act (“PCEPA”), which Parliament enacted following the Supreme Court of Canada’s 2013 decision in Bedford. The first provision at issue in Kloubakov is the “material benefit” offence (section 286.2), which prohibits individuals from receiving a financial or other material benefit which they know came from the purchase of sexual services, subject to several exceptions (set out in section 286.2(4)) and exceptions to those exceptions (set out in section 286.2(5)). The second impugned provision is section 286.3, which prohibits procuring, recruiting, harbouring, or exercising control over someone for the purpose of selling their sexual services. The Alberta Court of Appeal held that both provisions were constitutional. The Asper Centre’s intervention focused on the framework for the section 7 analysis. The Asper Centre submitted that specific provisions within a legislative scheme must be read consistently with the overarching purposes of the scheme. In the context of the PCEPA, this means that all provisions must be consistent with the objective of protecting sex workers’ safety. The Asper Centre also argued that illusoriness can be understood in terms of instrumental rationality. If defences fail to eliminate the very criminal liability which they were intended to remove, then they will effectively be underboard (and therefore failures of instrumental rationality). Applied to the PCEPA, the Asper Centre contended that – to the extent that the defences provided for in section 286.2(4) deny sex workers’ access to safety measures – they are illusory. Special thanks are owed to Gerald Chan and Stephen Aylward from Stockwoods LLP, who are acting as counsel for the Asper Centre in Kloubakov. The hearing is scheduled for November 2024.
Attorney General of Ontario v Working Families Coalition (Canada) Canada Inc. et al.
This case concerns whether third party spending limits on political advertising in Ontario infringe the informational component of the right to vote (i.e., a citizen’s right to exercise their vote in an informed manner), which is protected by s. 3 of the Charter. In 2017, the Ontario government amended the Election Finances Act, R.S.O. 1990, c. E.7 to impose, for the first time, spending limits on third party political advertising. It expanded the definition of political advertising to include issue-based ads, and restricted third party political advertising in the 6-month period leading up to the issuance of the writ of election. While a constitutional challenge to these restrictions was underway, the government further amended the legislation to extend the restriction to 12 months before the writ of election without increasing the $600,000 spending limit. The Asper Centre intervened in this appeal arguing that the enactment of greater restrictions on the informational component of the section 3 right to vote under the Charter is a relevant and important factor in assessing whether the right is infringed and whether the infringement is justified. Further, a change in legislation is highly relevant at the minimal impairment stage of the section 1 analysis. When legislation is modified to impose greater restrictions on Charter rights, the previous version of the legislation provides another alternative that was more minimally impairing of the right at issue. Thus, there is a serious question of whether Ontario has met its burden under section 1 and demonstrated that the previous version of the legislation did not achieve the government’s purpose in a real and substantial manner. The hearing of the Appeal took place on May 21 & 22, 2024 and the decision is under reserve.
Slepcsik v. Canada (Minister of Citizenship and Immigration)
Mr. Slepcsik challenged the constitutionality of ss. 40.1 and 46(1)(c.1) of the Immigration and Refugee Protection Act (IRPA) which provide for the automatic loss of permanent resident (PR) status, inadmissibility, and removal following a cessation decision. The case concerned whether this automatic loss of PR status violates sections 7, 15, 12 and 2(d) of the Charter. Under these provisions, PRs who arrived in Canada as refugees can be stripped of their status for a series of reasons set out in s. 108, including where “the person has voluntarily re-availed themselves of the protection of their country of nationality” (s. 108(1)(a)).
Before the Federal Court, the Asper Centre focused its submissions on s. 108(1)(a), arguing that the automatic loss of PR status after returning to one’s country of nationality (“re-availment”) offends section 12. The Asper Centre first contended that revoking PR status amounts to “punishment” or, alternatively, “treatment” within the meaning of section 12. The Asper Centre then argued that the punishment was grossly disproportionate as applied to reasonable hypothetical rights-holders. The gross disproportionality analysis considers three factors: the conduct which triggers the punishment, the punishment itself, and the punishment’s connection to recognized sentencing principles. Drawing on reported cases, the Asper Centre noted that loss of PR status has been triggered by individuals returning to their country of origin for significant family events like funerals or to care for ill loved ones. In terms of the impact on rights-holders, the Asper Centre stressed that the affected refugees have already had to overcome numerous challenges associated with settling in Canada, including learning a new language and building a family. This is incompatible with human dignity since it ignores the person’s humanity, focusing only on their refugee status when they arrived in Canada. Finally, the impugned provisions bear no relation to recognized sentencing principles. Contrary to the IRPA‘s objectives of facilitating refugee’s social and economic well-being by reunification with relatives in Canada, taking away PR status undermines their social, economic, and family networks.
York Regional District School Board v. Elementary Teachers’ Federation of Ontario
The facts of this case concern teachers’ privacy rights in Ontario. A discipline grievance was brought in by a teachers’ federation of Ontario on behalf of two elementary school teachers. The teachers claim that their privacy rights under section 8 of the Charter have been violated when the principal accessed their “log” an online application where they recorded concerns about another teacher allegedly receiving preferential treatment. At the appeal level, the court allowed the appeal, thereby reversing the arbitrator’s decision that quashed the two teachers’ grievances. The Asper Centre intervened to provide further insight on the appropriate approach that the court should adopt in their Charter rights analysis. Focusing on both Oakes and Doré test, the Asper Centre sought to distinguish the analytical framework that both tests provide and how they might each be applied in this case. The hearing of the Appeal took place on October 18, 2023.
Attorney General of Canada v. Joseph Power
The issue central to this case is whether the Crown enjoys absolute immunity in passing legislation which is subsequently deemed unconstitutional. The respondent sought damages flowing from the enactment of unconstitutional provisions under section 24(1) of the Charter, submitting that the provisions were clearly wrong and taken in bad faith. The Court of Appeal held that the Crown does not enjoy absolute immunity regarding unconstitutional legislation per Mackin v. New Brunswick (Minister of Finance). The Asper Centre’s intervention focused on the appropriate framework for awarding damages to remedy Charter violations caused by unconstitutional legislation. The Asper Centre argued that the appellant erred in contending that awarding damages under section 24(1) of the charter will never be appropriate and just for two reasons. First, section 24(1), properly interpreted, does not bar remedial damages for harms suffered by an individual due to the existence of a law that violates the Charter. Second, the Ward test provides the necessary proportionate approach for assessing s. 24(1) damages for harms caused by the existence and operation of an unconstitutional law. The Appeal was heard on December 7, 2023.
Attorney General of Québec, et al. v. Attorney General of Canada, et al.
On December 18, 2019, the Quebec government submitted the following question to the Quebec Court of Appeal (QCCA): Is An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24, ultra vires the Parliament of Canada under the Constitution of Canada? In this Reference, the QCCA held that Indigenous peoples have the right to self-government and jurisdiction over child and family services and answered that the Act is constitutional, except for ss. 21 and 22(3), which are not. These two provisions of the Act give Indigenous laws the force of federal law and made them paramount over provincial laws. On April 20, 2022, the Supreme Court of Canada granted leave to appeal the QCCA’s decision. The Asper Centre intervened to support the constitutionality of the Act and to argue that s. 35(1) of the Constitution Act, 1982 protects generic self-government rights. The Asper Centre argued that consideration of the content of Canada’s obligations under the United Nations Convention on the Rights of the Child (UNCRC), as well the performance reviews it has received since the UNCRC was ratified, support the contention that the pith and substance of the Act falls squarely within s. 91(24) of the Constitution Act, 1867. Further, the Asper Centre argued that if the Supreme Court determines that stare decisis governs the question at issue in this appeal, compelling reasons exist to reconsider any precedent that would preclude judicial recognition of a s. 35 generic self-government right over child and family services.
In its decision released on 17 October 2024, the Ontario Court of Appeal (ONCA) allowed the appeal of the Ontario Superior Court’s (ONSC) decision which had rejected a youth climate activist group’s constitutional challenge to the greenhouse gas emissions target set by the Government of Ontario under s 3(1) of the Cap and Trade Cancellation Act in 2018. In allowing the appeal, the ONCA found the ONSC erred in framing the issue as a positive rights claim under the Canadian Charter of Rights and Freedoms (the Charter), leading to errors in finding there was no violation of section 7 (the right to life, liberty and security) and section 15 (the right to equality) of the Charter, as well as improper causation analyses. The ONCA remitted the case to be heard again by the ONSC and the section 7 and section 15 issues will be decided on the merits in light of the ONCA’s decision.
The Asper Centre’s intervention focused on the need for a flexible approach to section 15(1) of the Charter as well as the fact that climate change is a novel issue that requires novel remedies. The Asper Centre also intervened before the ONSC in 2022, focusing its intervention on remedies available to the courts in climate change cases. The Asper Centre was represented by Ewa Krajewska in both the ONCA and ONSC.
Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al.
This case concerns the constitutionality of the Safe Third Country Agreement (STCA) between Canada and the United States (US). The STCA requires refugee claimants entering Canada to make their claim in the first safe country they arrive, in this case the US. Under the STCA if a claimant tries to make an asylum claim at a Canadian land Port of Entry from the United States their claim will be barred unless it meets a narrow set of exceptions. The Applicants challenged the STCA, arguing that sections 101(1)(e) and 159.3 of the Immigration and Refugee Protection Act (IRPA), which authorise the STCA, are ultra vires and violate sections 7 and 15 of the Canadian Charter of Rights and Freedoms (Charter). The Federal Court of Canada determined that the impugned IRPA provisions unjustifiably violated section 7, but declined to consider the section 15 claim. The Federal Court of Appeal overturned the lower court ruling, finding that the impugned provisions did not violate section 7. On the section 15 issue raised, the Federal Court of Appeal held that there was no requirement on lower courts to consider all Charter claims raised the parties. The appeal to the Supreme Court of Canada was allowed. The Asper Centre, West Coast LEAF and LEAF were jointly granted intervener status and focused their intervention on the Federal Court’s decision to decline to consider or make factual findings on section 15.
Corporal C.R. McGregor v. Her Majesty the Queen
This case concerns the extraterritorial application of the Canadian Charter of Rights and Freedoms. Corporal McGregor was stationed at the Canadian Embassy in Washington, D.C. and had a temporary residence in Virginia. As a diplomatic agent, he was granted immunity of his person, property, and residence. This immunity was challenged in 2017 when a female member of the Canadian Armed Forces accused McGregor of interference and voyeurism following the discovery of an audio recording device in her Virginia home. In the ensuing investigation, the Embassy of Canada waived McGregor’s immunity of residence to allow investigators to obtain a search warrant and gather evidence. McGregor brought a motion under s 24(2) of the Charter to exclude the evidence and also submitted that his s 8 right to be free from unreasonable search and seizure had been violated. A Military Judge found no violations and held that the Charter did not apply because the investigation was conducted in Virginia. The judge cited R v Hape, 2007 SCC 26 in support of this finding. Using the evidence from the search of the accused’s Virginia residence, the Military Judge convicted McGregor of unlawful interception, voyeurism, and sexual assault charges. The Court Martial Appeal Court (CMAC) upheld this decision.
R v. Sharma
The Appellant, Ms. Sharma is a bi-racial Indigenous woman, whose ex-boyfriend used her as a drug mule and she was charged and convicted with importing just under 2kgs of cocaine. She would have been a suitable candidate for a conditional sentence but for the prohibition preventing drug importers from receiving a conditional sentence. In response to Ms. Sharma’s s.15 Charter argument that s.742.1(c) of the Criminal Code is unconstitutional as it disproportionately affects Indigenous women by removing the ability to serve their sentences as conditional sentences, the judge held that there is no reason to believe that the prohibition, on the record before it, created an adverse effect such that it can qualify as a distinction based on Aboriginal status. The Asper Centre previously intervened in this case in 2019 at the Court of Appeal for Ontario.
Attorney General of BC v. Council for Canadians with Disabilities
The Council of Canadians with Disabilities and two plaintiffs claimed that provisions of British Columbia’s mental health legislation infringe s. 52 of the Constitution Act, 1982 and ss. 1, 7 and 15 of the Canadian Charter of Rights and Freedoms. The two individual plaintiffs discontinued their claims and withdrew from the case. The Council of Canadians with Disabilities filed an amended statement of claim setting out generalized allegations of constitutional infringements and removing the particulars pleaded by the individual plaintiffs. The Attorney General of British Columbia applied for summary judgment to dismiss the action. The application judge granted summary judgment and dismissed the action due to the Council of Canadians with Disabilities lacking public interest standing to pursue the claim on its own. The Court of Appeal allowed an appeal, set aside the summary judgment, and remitted the matter of public interest standing for reconsideration. The Asper Centre intervened, stating that the test from Canada (AG) v Downtown Eastside Sex Workers Against Violence is a suitable test for public interest standing. This test recognizes the systemic remedial role of s. 52(1) and responds to access to justice concerns and difficulties in seeking and obtaining effective systemic s. 24(1) remedies.
R v. Chouhan
In September 2019, Parliament introduced two amendments to the jury selection process through Bill C-75. First, it eliminated peremptory challenges, or the ability to strike potential jurors without cause. Second, it allowed trial judges to stand aside jurors. The central issues on appeal are (1) the constitutionality of the amendments introduced in Bill C-75, and (2) whether the amendments apply retrospectively or prospectively. Mr. Chouhan argues that the amendments violate the accused’s rights under ss. 11(d), 11(f), and 7 of the Charter. He submits that peremptory challenges allow the accused to strike potentially biased jurors and participate in the trial process. The Asper Centre submits that the elimination of peremptory challenges does not violate ss. 11(d), 11(f) and 7. Peremptory challenges are based on the subjective views and biases of the parties involved. The use of peremptory challenges gives rise to intentional and unintentional discrimination of racialized jurors, particularly Indigenous and Black jurors.
Ontario Court of Appeal decision
Attorney General of Ontario v. G
In 2002, G was found not criminally responsible on charges of sexual assault and other charges by reason of mental disorder. In 2003, G was given an absolute discharge by the Ontario Review Board. G was obliged to register under the provincial sex offender registry and report to provincial authorities for life, pursuant to Christopher’s Law (Sex Offender Registry), 2000, S.O. 2000, c. 1. G was also required to register and report under the federal sex offender registry, pursuant to the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”). In 2014, G initiated legal proceedings seeking a declaration that the application of the federal and provincial sex offender registries to persons found not criminally responsible who are then granted a subsequent absolute discharge infringes their rights under ss. 7 and 15 of the Charter. G’s application was dismissed by the Ontario Superior Court of Justice citing no Charter breaches. The Ontario Court of Appeal unanimously allowed G’s appeal and concluded that the provincial and federal sex offender registries infringe G’s s. 15 Charter rights (and those of individuals in his situation), and that such infringements cannot be saved under s. 1. In terms of remedy, the Court of Appeal declared Christopher’s Law and SOIRA to be of no force or effect in their application to individuals in G’s situation. It suspended the effect of the declaration for 12 months; however, it exempted G from this suspension. The Attorney General of Ontario appealed the portion of the Court of Appeal’s judgment granting an individual exemption from the period of suspension to G. The Asper Centre intervened in this appeal to recommend to the court flexible rules for the use of suspended declarations of invalidity and personal remedies for individual successful claimants.
Read the Supreme Court of Canada decision here
Conseil scolaire francophone de la Colombie-Britannique v. British Columbia
Section 23 of the Charter guarantees the right to minority language education. In British Columbia, the Conseil scolaire francophone de la Colombie-Britannique (B.C.’s French language school board) and co-plaintiff parents brought a lawsuit against the Ministry of Education to obtain the financing required in order to build schools that are equivalent to English-language schools. The trial judge said the province breached the French-speaking community’s rights under section 23 of the Charter in several areas of B.C. The Court of Appeal said courts needed to be practical when looking at section 23. Giving the school board what it wanted would cost too much and section 23 of the Charter didn’t mean the province had to provide all the school facilities right away. The school board appealed. The Supreme Court will decide how courts should deal with minority language rights including what governments must do when there aren’t enough students to justify offering full school services in the minority language. Another issue is whether courts should look at costs when deciding whether a breach of section 23 can be allowed. Also the court will have to decide whether the province should have to pay damages to the school board in this situation. This decision could affect many other minority-language communities across Canada.
Her Majesty the Queen v Kevin Morris
Mr. Morris, a Black man, was charged and convicted with the possession of illegal firearms. During sentencing, the judge considered reports on anti-Black racism in Canada, and how such systemic racism impacted Mr. Morris’ life. The judge held that these reports were admissible as they were not new to the law, being similar to Gladue reports for Indigenous offenders. Ultimately, Mr. Morris was sentenced to 12 months, reduced from 15 months due to various Charter breaches by the police. The Crown appealed the sentence, arguing that systemic racism can be taken into account in sentencing Black offenders only if the offender succeeds in demonstrating a causal link between systemic racism and the offence conduct. The Asper Centre submitted that this position imposes an unfair evidentiary burden on Black offenders and undermines the principles of substantive equality.
Her Majesty the Queen v Cheyenne Sharma
The Appellant, Ms. Sharma is a bi-racial Indigenous woman, whose ex-boyfriend used her as a drug mule and she was charged and convicted with importing just under 2kgs of cocaine. She would have been a suitable candidate for a conditional sentence but for the prohibition preventing drug importers from receiving a conditional sentence. In response to Ms. Sharma’s s.15 Charter argument that s.742.1(c) of the Criminal Code is unconstitutional as it disproportionately affects Indigenous women by removing the ability to serve their sentences as conditional sentences, the judge held that there is no reason to believe that the prohibition, on the record before it, created an adverse effect such that it can qualify as a distinction based on Aboriginal status. The Asper Centre jointly intervened in this appeal with the Women’s Legal Education and Action Fund (LEAF).
Ontario Court of Appeal decision
City of Toronto v. Attorney General of Ontario et al
On September 10, 2018, Ontario Superior Court Judge Edward Belobaba in City of Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151 declared that the province of Ontario had “substantially interfered” with the Charter section 2(b) freedom of expression rights of both the municipal ward election candidates and City of Toronto voters and struck down the province’s Bill 5 (which reduced the number of City of Toronto wards from 47 to 25) as unconstitutional. The province appealed the decision to the Ontario Court of Appeal, which on September 19, 2018 stayed the order of the Superior Court pending the appeal, and thus allowed the election to proceed with the reduced number of wards. The appeal of the lower court decision was heard on June 10-11, 2019. The Asper Centre intervened in the appeal at the OCA, arguing a purposive and expansive approach to the right to freedom of expression in an election context. On September 19, 2019, the Court of Appeal allowed the appeal and set aside the Ontario Superior Court of Justice’s decision. The Asper Centre intervened in the SCC appeal, which is set to be heard on March 16, 2021. The Asper Centre would like to acknowledge the contributions made by Faculty of Law members, Prof. Lorraine Weinrib and Prof. Yasmin Dawood to the legal arguments filed at the SCC.
Asper Centre Factum at the OCA
Asper Centre Factum at the SCC
Book of Authorities of the Intervener, David Asper Centre for Constitutional Rights, at the SCC
Bradley David Barton v. Her Majesty the Queen (2018)
The Appellant, Mr. Barton was charged with the first degree murder of Cindy Gladue. The Crown argued that Mr. Barton intentionally caused a fatal injury, alternatively, he was guilty of manslaughter for causing death in the course of a sexual assault. Mr. Barton testified to consensual sexual activity and accidental injury. A jury acquitted Mr. Barton of first degree murder and of manslaughter. The Court of Appeal allowed an appeal and ordered a new trial.
Read the Supreme Court of Canada decision here
Spencer Dean Bird v. Her Majesty the Queen (2017)
The appellant was sentenced to a penitentiary term followed by a period of long-term supervision. The Parole Board determined that this supervision would begin with the appellant residing at a community correctional centre. Upon completing his penitentiary term, the appellant arrived to the designated correctional centre to commence the period of long-term supervision but soon left. He was apprehended and charged with failure to comply with the conditions of his long-term supervision. He argued that the residency requirement was unlawful. The trial judge agreed, finding that his being forced to reside in penal institution after completion of his prison term violated his s. 7 Charter rights. The Court of Appeal allowed the appeal, ruling that the trial judge erred in permitting the appellant to collaterally attack the residency requirement.
The respondents are the uncle and mother, respectively, of the victim. They are alleged to have planned a long-distance “honour killing” in India from Canada because the victim had married a man whom the respondents considered unsuitable. The respondents are alleged to have resorted to hostility, violence and threats, failing which they hired hitmen who tracked the couple down in the state of Punjab, killed the victim and severely beat the victim’s husband. Indian authorities charged several Indian nationals connected to the murder, three of whom have been convicted, as well as the respondents.
India sought the respondents’ extradition for prosecution on the offence of conspiracy to commit murder. The respondents were committed for extradition, and the Minister proceeded to issue a surrender order. The respondents, who have health issues that require medical care in custody, placed before the Minister the record of human rights violations in India’s prison system. The Minister issued a surrender order conditional on receipt of formal assurances from India, including assurances regarding death penalty, fair trial and the respondents’ health and safety in Indian custody.
The Asper Centre was granted intervener status in this appeal concerning the ability of the applicant, Jessica Ernst, to make a Charter claim against the Alberta Energy Regulator, the respondent, that it had infringed upon her s. 2(b) Charter rights. The applicant claimed that the respondent regulator had been negligent in dealing with her claims against EnCana Corporation in a dispute over hydraulic fracturing. The particular hydraulic fracturing project allegedly had adverse impacts to an aquifer near the applicant’s property. Specifically, the legal action against the respondent regulator concerned how the applicant was restricted from communicating through channels of public communication and that her only recourse over the aquifer dispute would be through the Board’s Compliance Branch. The applicant was allegedly barred from speaking about the dispute to the media or with other citizens. At trial court, the judgement ruled in favour of the respondent regulator finding that a statutory immunity clause barred the claim and ordered that the Charter claims would be struck out. The Court of Appeal dismissed Ernst’s appeal and she now appeals to the Supreme Court. The Asper Centre is represented by Raj Anand of WeirFoulds LLP and Cheryl Milne.
Read the Asper Centre factum here
Read the Supreme Court of Canada decision here
The applicants are Canadian citizens residing in the United States for employment reasons, who intend to return to Canada if circumstances permit. Both applicants were refused voting ballots for the 2011 Canadian General Election since they had been resident outside Canada for five years or more. The applicants sought a declaration that certain provisions of the Canada Elections Act violated their Charter-protected right to vote. A judge of the Ontario Superior Court of Justice declared the impugned provisions of the Act unconstitutional by reason of violating the applicants’ right to vote under s. 3 of the Charter, and the violation was not justifiable under s. 1.
A majority of the Court of Appeal allowed the Attorney General’s appeal, finding that the denial of the vote to non-resident citizens who have been outside Canada for five years or more is saved by s. 1. The limitation is rationally connected to the government’s pressing and substantial objective of preserving Canada’s “social contract” (whereby resident citizens submit to the laws passed by elected representatives because they had a voice in making such laws); it minimally impairs the voting rights of non-resident citizens by ensuring they may still vote if they resume residence in Canada; and the limitation’s deleterious effects do not outweigh the law’s benefits. In dissent, Laskin J.A. would have dismissed the appeal, finding that the “social contract” was not an appropriate nor a pressing and substantial legislative objective, and should not have been considered by the court. Justice Laskin also found that the denial of the right to vote was not rationally connected to the stated objective and did not minimally impair the rights of non-resident citizens, and that its harmful effects outweighed the stated benefits of the limitation.
Read the Asper Centre factum here
The Asper Centre was granted intervener status in this appeal which deals with the applicability of certain amendments to s. 161(1) of the Criminal Code in sentencing. The accused was sentenced to a total of nine years’ imprisonment for certain sexual offences committed against persons less than sixteen years of age from 2008-2011. The trial judge held that the accused would be prohibited from engaging in certain activities for a further seven years after his release. On August 9, 2012, s. 161 (1) was amended. The trial judge found that these new amendments were punitive under s. 11 (i) of the Charter and thus should not be retroactively applied to the accused. The Crown appealed the trial judge’s decision and argued that the newly amended s.161 (1) terms should be applicable. The Court of Appeal allowed the Crown’s appeal and the accused appealed to the Supreme Court. The Asper Centre is represented by John Norris of Simcoe Chambers and Professor Hamish Stewart, a professor at U of T’s Faculty of Law.
Read the Asper Centre comment on the decision here
Read the Supreme Court of Canada decision here
Read the Asper Centre factum here
The Asper Centre was granted intervener standing in this set of four appeals heard together before the Supreme Court. The appeal focused on the definition of human smuggling adopted by the Refugee Protection Board, the standard of review for that decision, and whether section 7 of the Charter is engaged by the inadmissibility process. The Appellant, called B010 in the case, is a Tamil who fled from the Sri-Lankan government, first to Thailand, and then to Canada. In order to get to Canada, he worked as part of the crew of the ship which was smuggling him in. The Board determined that B010 was ineligible to enter Canada because he fit the definition of “people smuggler” because he aided or abetted the other people on the ship to enter Canada illegally. The Court of Appeal dismissed the case, holding that the Board’s definition of people smuggler was reasonable and should not be overturned on review. The Asper Centre was represented by Audrey Macklin, a professor at U of T’s Faculty of Law, and Barbara Jackman of Jackman, Nazami and Associates
Read the Asper Centre factum here.
Henry v. Her Majesty the Queen (2015)
The Asper Centre and the British Columbia Civil Liberties Association were granted intervention standing jointly in this appeal which addressed the availability of Charter damages for a Crown violation of the Charter in the absence of malicious intent. Mr. Henry who was wrongfully convicted spent approximately 27 years in jail for sexual assault charges for which he was ultimately acquitted seeks damages against the Crown. The Attorneys General for BC and Canada argue that such claims against the Crown must be based upon malicious prosecution and evidence of malice on the part of the Crown prosecutors. The Court released it judgment on May 1, 2015 granting the appeal. The Asper Centre and BCCLA were represented by Marlys Edwardh and Francis Mahon of Sack Goldblatt Mitchell LLP.
On June 8, 2016 the Supreme Court of British Columbia released its decision on the question of Charter damages. The BC court held that the Crown prosecutor had intentionally withheld information which they knew or ought to have known was material to the defence. The Crown’s failure to disclose was held to violate Mr. Henry’s right to make a full answer and defence and to be the direct cause of his wrongful conviction, dangerous offender designation and incarceration. Based on the functional justifications of compensation, vindication and deterrence set out in Ward, the court found Charter damages to be an appropriate remedy. After assessing Mr. Henry’s suffering and the potential social cost of a large award against the state, the court awarded damages of slightly over $8 million.
Read the BC Supreme Court Decision here.
Read our comment on the Supreme Court of Canada decision here.
Read the Asper Centre/BCCLA factum here.
The Asper Centre was granted intervener standing in two appeals heard by the Ontario Court of Appeal during the week of April 30, 2012. At issue was the claim that the jury pools from which the juries were selected were unrepresentative because the government failed to include a large number of potential jurors who were First Nations living on-reserve. Our submissions focused on the equality rights at issue. The Court of Appeal released its decision in the Spiers appeal and granted the appeal and ordered a new trial on other grounds. You can read this decision here.
The Ontario government through an Order in Council commissioned an independent review of these issues by former Supreme Court Justice Frank Iacobucci. View this report here.
The Court of Appeal released its decision on June 14, 2013. While it did not address the equality rights argument, it drew upon the Iacobucci report in granting the appeal and ordering a new trial. This decision was appealed to the Supreme Court of Canada. The Asper Centre was again granted intervener standing, but this time jointly with the Womens’ Legal and Education Action Fund (LEAF). The Supreme Court of Canada released its decision on May 21, 2015.
Read our comment on the decision here.
Read LEAF’s comment on the decision here.
Asper Centre and LEAF Factum – Supreme Court of Canada
Asper Centre Factum – Ontario Court of Appeal
Tanudjaja et al. v. Attorney General of Canada and Attorney General of Ontario (2015)
The Asper Centre was granted intervener standing in a motion brought by the Attorneys General to strike the pleadings in this case. The application sought declarations that sections 7 and 15 of the Charter have been infringed by the failure of the Ontario and Federal governments to develop comprehensive strategies to address homelessness. We sought standing to address the governments’ claims that the remedies sought were not within the jurisdiction of the court. The motion was heard May 27-29, 2013. The Superior Court released its reasons on September 6, 2013, striking the application.
The Asper Centre was again granted intervener standing on the appeal of this decision at the Ontario Court of Appeal. The Appeal was heard on May 26-27, 2014. The Court of Appeal released its decision on December 1, 2014. In a split decision, Justice Pardu and Chief Justice Strathy dismissed the appeal, while Justice Feldman would have allowed the appeal on the basis that the application should be heard on its merits. The appellants have indicated that they intend to seek leave to appeal to the Supreme Court of Canada.
Decision of the Ontario Court of Appeal
Decision of the Superior Court of Justice
Asper Centre Factum – Ontario Court of Appeal
Asper Centre Factum – Ontario Superior Court of Justice
Trial Lawyers of British Columbia and Canadian Bar Association v. Attorney General of British Columbia (2014)
The Asper Centre was granted standing in this appeal before the Supreme Court of Canada which focused on the constitutionality of British Columbia’s court hearing fees, charged for days in court. The fees were argued to be contrary to the rule of law by posing a barrier to access to justice. The Centre intervened on the issue of the rule of law and the appropriate remedy. The appeal was heard on April 14, 2014 and the Court released its judgment on October 2, 2014. The Centre was represented by Paul Schabas of Blakes LLP and Cheryl Milne.
The Asper Centre was granted standing in this appeal before the Supreme Court of Canada involving the Crown’s election for a mandatory minimum sentence for an aboriginal man on a charge of impaired driving. The Asper Centre’s arguments addressed the Charter review of Crown discretion to seek the mandatory minimum in the circumstances of an aboriginal offender where s.15 and Gladue principles apply. The appeal was heard March 19, 2014. Kent Roach and Cheryl Milne appeared as counsel. the Court reserved judgment.
Supreme Court Decision released June 6, 2014
Estate of the Late Zahra (Ziba) Kazemi, et al. v. Islamic Republic of Iran, et al. (2014)
The Asper Centre was granted intervener standing jointly with the International Human Rights Program in this appeal before the Supreme Court of Canada that was heard on March 18, 2014. In 2003, Zahra Kazemi, a Canadian citizen and photographer, was arrested and detained while in Iran. She was allegedly tortured and sexually assaulted by State authorities in Iran. She later died of her injuries. Her son Stephan Hashemi brought a civil claim on behalf of her estate and on his own behalf against the government of Iran and individuals alleged to be responsible. The Courts below held that the State Immunity Act prevented such a claim from going forward. The Asper Centre argued that the right to a remedy is a principle of fundamental justice under s. 7 of the Charter. The Centre’s Constitutional Litigator in Residence John Norris and Carmen Cheung appeared as counsel. The Court released its judgment on October 10, 2014 dismissing the appeal and holding that the civil claim cannot go forward under the State Immunity Act.
Read the Court’s decision here.
The Asper Centre was granted intervener standing in this appeal before the Supreme Court of Canada. The case involved challenges to provisions of the Criminal Code pertaining to prostitution in which the Ontario Court of Appeal struck down the prohibition against keeping a bawdy house and read in qualifications to the provisions in respect of living off the avails of prostitution. The Asper Centre addressed the issue of stare decisis (the impact of previous cases decided on this issue). The appeal was heard June 13, 2013 and the decision was released on December 20, 2013.
Read the Court’s decision here. The arguments of the Asper Centre on the issue of stare decisis are quoted and accepted at paragraphs 43 and following.
Read the Supreme Court’s summary of the case here.
Divito v. Minister of Public Safety and Emergency Preparedness (2013)
The Asper Centre was granted intervener standing in this appeal from the Federal Court of Appeal on the constitutional challenge to the International Transfer of Offenders Act. Our submissions focused on the constitutional boundaries of the exercise of statutory discretion by the Minister. The Court released its decision on September 19, 2013, dismissing the appeal and upholding the constitutionality of the legislation. It did not address the arguments related to the exercise of statutory discretion by the Minister.
Read the Supreme Court’s Decision
R. v. Davey, R. v. Cardoso, R. v. Yumnu, R. v. Emms, R. v. Duong (2012)
The Asper Centre was granted intervener standing on its own in five appeals being heard together addressing the impact of the practice of “jury vetting” by the Crown and police. The Asper Centre submitted a brief to the Privacy Commissioner in 2009 on this issue. Our submissions focus on the privacy rights of potential jurors and the impact of the practice on the administration of justice. The five appeals were heard over two days on March, 14 and 15, 2012. Executive Director Cheryl Milne and Professor Lisa Austin represented the Centre. The Court released its decision on December 21, 2012. While acknowledging that jurors have the right to privacy in respect of some of the records examined, the Court upheld the convictions of all accused and dismissed the appeals.
Supreme Court Judgments: R. v. Emms; R. v. Davey; R. v. Yumnu
Attorney General of Canada v. Downtown Eastside Sex Workers United Against Violence Society and Sheryl Kiselback (2012)
The Asper Centre was granted intervener standing on its own in this case which addressed the test for public interest standing in a constitutional case challenging the prostitution provisions of the Criminal Code of Canada. The case was heard on January 19, 2012. Professor Kent Roach represented the Centre. The Court released its decision on September 21, 2012.
Polygamy Reference Case: British Columbia Supreme Court (2011)
The Asper Centre, jointly with the Canadian Coalition for the Rights of Children, was granted standing as interested persons in the Reference by the Lieutenant Governor in Council set out in Order in Council No. 533 dated October 22, 2009 Concerning the Constitutionality of s. 293 of the Criminal Code of Canada, R.S.C. 1985, c. C 46, (offence of polygamy). The Centre and the Coalition presented arguments based upon the impact of the case and the practice of polygamy on the constitutional rights of children. On November 23, 2011, Chief Justice Bauman released his decision in the case in which he declared that the prohibition is consistent with the Canadian Charter of Rights and Freedoms except to the extent that it applies to young people ages 12 to 17 who enter into polygamous marriages or unions. While he held that the provision prohibiting polygamy infringes s. 2(a) – freedom of religion – he found that the infringement is a reasonable limit under s. 1 of the Charter due to the evidence presented of real and apprehended harms to women, children and society caused by polygamy.
Our Commentary on the Decision
British Columbia Supreme Court Judgment – November 23, 2011
Her Majesty the Queen in Right of the Province of Alberta v. Caron (2010)
The Asper Centre was granted intervener standing on its own for the first time in this case which addresses the availability of advance costs in test case Charter litigation. The case was heard on April 14, 2010.
Prime Minister of Canada et al. v. Omar Khadr (2010)
The Asper Centre, jointly with U. of T.’s International Human Rights Program and Human Rights Watch, was granted standing as an intervener in the government’s appeal from the Federal Court’s decision to order the Prime Minister to request Omar Khadr’s repatriation to Canada. Background materials are available on the Faculty of Law’s Khadr webpage. The Supreme Court released its decision in the case on January 29, 2010, declaring that Omar Khadr’s rights had been breached but refraining from ordering the Prime Minister to seek repatriation.
Globe and Mail Op Ed by Prof. Audrey Macklin, Diana Juricevic and Executive Director, Cheryl Milne
City of Vancouver, et al. v. Alan Cameron Ward, et al. (2010)
The Asper Centre, jointly with British Columbia Civil Liberties Association, was granted standing as an intervener in this appeal before the Supreme Court of Canada heard on January 18, 2010. The case addressed the question of whether damages are available for the infringement of a right or freedom guaranteed by the Charter in the absence of bad faith, an abuse of power, or tortious conduct on the part of the infringer. The Court’s decision, released on July 23, 2010, upheld the award of damages for the breach of the Respondent’s rights under s. 8 of the Charter.
Conway v. Her Majesty the Queen, et al. (2010)
The Asper Centre was granted standing as an intervener jointly with the Criminal Lawyers’ Association in its first case before the Supreme Court of Canada. The case examines the constitutional jurisdiction of the Ontario Review Board, which reviews the treatment of persons found not criminally responsible under the Criminal Code of Canada. At issue was whether the Review Board has jurisdiction under s. 24(1) of the Charter to find Charter violations and provide appropriate and just remedies for them.
Together with the Criminal Lawyers’ Association, the Asper Centre argued that a Review Board does have such jurisdiction as it arises from the remedial structure of the Review Board; the board already has jurisdiction over the subject matter, parties, and remedies; the board has the necessary expertise; and there is restricted access to courts or other avenues to Charter remedies for NCR detainees.
The Supreme Court released its decision June 11, 2010, declaring that a Review Board is a court of competent jurisdiction to grant remedies under s. 24(1) of the Charter. However, the appeal was dismissed as it was clear that Parliament intended that dangerous NCR patients should have no access to absolute discharges. Similarly, allowing the Board to prescribe or impose treatment is expressly prohibited by s. 672.55 of the Criminal Code. Finally, the substance of complaints regarding proximity of room location to a construction site may well be fully addressed within the Board’s statutory mandate and the exercise of its discretion in accordance with Charter values. If so, resort to s. 24(1) of the Charter may not add to the Board’s capacity to either address the substance of C’s complaint or provide appropriate redress.