asper centre case

Supreme Court of Canada Affirms Asper Centre’s Position on Charter Damages 

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The Supreme Court of Canada heard this appeal in Treaty One Territory (Winnipeg, Manitoba). This was the Court’s first time sitting outside of Ottawa. 

by Amy Chen

On June 12, 2020, the Supreme Court of Canada released its judgment on Conseil scolaire francophone de la Colombie-Britannique v. British Columbia. The primary issue was whether the Province of British Columbia  failed to adequately fund its French-language school board, therefore violating the board’s  s. 23 minority-language Charter rights. The secondary issue was whether the Province owed the school board damages for said violations under s. 24(1) of the Charter. The Asper Centre’s intervention focused on the scope of the government’s qualified immunity from Charter damages. The SCC affirmed the Asper Centre’s position – the government may only have qualified immunity from Charter damages if its actions are authorized by statute, not policy.

Background

The Conseil scolaire francophone de la Colombie‑Britannique (“CSF”) is the only French‑language school board in British Columbia. It submitted multiple s. 23 Charter claims against the Province, including, among other things, the Province freezing its funding for school transportation. The CSF sought a significant amount of damages under s. 24(1) of the Charter.

Damages may be awarded under s. 24(1) for a Charter breach where it is “appropriate and just” from the perspective of the claimant and the state (Vancouver (City) v. Ward [Ward]). The government may use its qualified immunity to oppose a damages award if it can prove that there are concerns of “good governance” or that alternate remedies are available. This qualified immunity was first established in Mackin v. New Brunswick [Mackin]: “absent conduct that is clearly wrong, in bad faith or an abuse of power, the courts will not award damages for the harm suffered as a result of the mere enactment or application of a law that is subsequently declared to be unconstitutional”. The immunity allows public officials to carry out their duties without fear of liability, in the event that the statute is later struck down (Ward).

The trial judge found that the Province’s freeze on transportation funding constituted an infringement of s. 23, and awarded CSF $6 million in damages. She concluded that the Province was not immune to damages in this case, as she did not foresee any chilling effects to good governance or government decision-making.

On appeal, the British Columbia Court of Appeal (BCCA) set aside the $6 million remedy, endorsing a broader reading of Mackin. A government can utilize its qualified immunity when fulfilling its legislative or policy-making function, excepting any conduct found to be “clearly wrong, in bad faith or an abuse of power”. The BCCA found precedent for this interpretation in the 2006 Ontario Court of Appeal case Wynberg v Ontario [Wynberg], which rejected a distinction between legislative and policy-making functions regarding the Mackin immunity. The trial judge was found to be in error for considering chilling effects and “overriding” the Province’s qualified immunity in the present case. The Province acted in good faith pursuant to policy, and therefore the CSF was not entitled to any damages.

The Asper Centre’s Position

The Asper Centre, as represented by Professor Kent Roach and Anisha Visvanatha (Norton Rose Fulbright Canada), opposed the BCCA’s extension of the scope of qualified immunity. In its factum, the Asper Centre stated that the BCCA erred in considering Wynberg, an outdated case that ignored the distinctions between s. 24(1) of the Charter and s. 52(1) of the Constitutional Act, 1982. Ward clearly limited the scope of the government’s qualified immunity to government actions taken under statutes, an approach which is principled, democratic, and based on the rule of law.

The Asper Centre further argued that an extension of the qualified immunity would place an unfair burden on Charter claimants. After establishing the existence of a Charter violation and a functional need for damages, claimants would still have to prove that the government acted in bad faith. Meanwhile, the government would have an incentive to argue that its impugned actions were authorized by policy. Since the definition of “policy” is so vague, excessive amounts of preliminary litigation would likely be required to determine the nature of the government action. Overall, an extension of the qualified immunity would restrict access to justice and access to remedies. It would place a significant evidentiary and financial burden on Charter claimants.

The Supreme Court Judgment

The Supreme Court held that the Province unjustifiably breached CSF’s s. 23 Charter rights in two instances: first, when they  denied CSF adequate funding for school transportation; second, when they denied  CSF an Annual Facilities Grant. The lower courts interpreted s. 23 too narrowly, without fully considering the section’s remedial purpose.

While a significant portion of the judgment concerned the interpretation of s. 23, the Majority adopted all of the Asper Centre’s arguments concerning remedies. They recognized that Ward was the appropriate authority and that the qualified immunity should only apply to state actions authorized by legislation. They agreed that it was appropriate for government immunity to apply “in respect of a well-defined instrument such as a law”, but not in respect of “undefined instruments with unclear limits, such as government policies”. It was also recognized that the extension would allow the government to avoid liability by claiming that their unlawful actions were authorized by policy, which would in turn restrict access to justice. The Majority restored the $6 million remedy and added a further $1.1 million remedy for the second s. 23 breach.

The Dissent stated that there was no principled basis to limit the application of Mackin to legislation. The question to be asked is not what the vehicle of state action was, but under what circumstances should the state be liable for damages. As Professor Roach comments, the dissent’s approach would still allow the government to insulate themselves from damages by claiming that their actions were authorized by policy.

Overall, Professor Roach is very satisfied with the outcome of this case. The Asper Centre has once again helped set a new precedent on Charter remedies and has provided significant input  at the Supreme Court level.

Amy (Jun) Chen is a 1L JD Candidate at the Faculty of Law and is the Asper Centre’s 2020 summer research assistant. 

Reflections on the Asper Centre Intervention in Ontario v. G

Posted on by Tal Schreier

By Jeffrey Wang

As a clinic student this term, I had the opportunity to hear the Asper Centre’s oral arguments in its intervention at the Supreme Court of Canada in the appeal of Ontario v. G, which took place on February 20, 2020. The appeal concerned the constitutionality of the Ontario and federal sex offender registry laws, which required offenders found not criminally responsible (NCR) to report to the registry for life, even if they had been absolutely discharged by the Ontario Review Board (ORB). Offenders not found NCR who receive an absolute discharge, record suspension, or pardon do not have to report to the registries. In this way, the claimant, G, who was found to be NCR after his criminal trial, argued that the Ontario and federal sex offender registry laws violated his s. 7 and s. 15 rights under the Charter.

Justice Doherty for the Ontario Court of Appeal did not find a s. 7 violation. However, he recognized that the sex offender registries drew a discriminatory distinction based on the ground of mental disability under s. 15 of the Charter, since the law reinforces the stereotype that NCR offenders are indeterminately dangerous. Under s. 1, the court focused on the fact that the reporting requirements for NCR offenders did not have any “exit ramps” even though similar “exit ramps” are available for non-NCR offenders. Justice Doherty found that this was not a minimal impairment of s. 15 rights and struck down the laws.

Supported by the faculty of law’s Professor Kent Roach, the Asper Center intervened in this appeal on the issue of remedies, specifically about when delayed declarations of invalidity intersect with the need for constitutional exemptions in Charter litigation.  In this case, the Ontario Court of Appeal suspended the declaration of invalidity for one year in order to allow the legislature to amend the impugned laws. However, Justice Doherty exempted the applicant G from this suspension, which meant that G was removed from the sex offender registry reporting requirements, effective immediately. This was controversial, since the Supreme Court in R v Demers had expressly advised against exempting individual claimants from suspended declarations. The Asper Center argued that the Demers rule must be overturned. This is due to the fact that the Supreme Court has exempted individual claimants from suspended declarations in the past, such as in Corbiere and Carter. In addition, without the ability to exempt claimants from suspended declarations, individual claimants must wait until the completion of the suspended declaration in order to receive any benefits of their successful claim. The Asper Center also argued that the Supreme Court should only use suspended declarations of invalidity as a remedy when it is justified as necessary and proportional. This is in line with international practices such as the Hong Kong courts’ use of suspended declarations as well as the Supreme Court’s own jurisprudence on other constitutional remedies. Furthermore, many scholars are critical of the overuse of suspended declarations of invalidity since the remedy creates uncertainty and allows laws to continue violating Charter rights during the suspension.

My experience working on this case provided me with an invaluable look into appellate advocacy. At the Supreme Court, the arguments focused on if the sex offender registry laws violated s. 15 of the Charter and security of the person under s. 7. Many of the Justices were critical of the government’s s. 15 argument, asking numerous questions on the implications of their evidence that NCR offenders are more likely than the average population to commit another offence. Although the Asper Center was only given five minutes, Asper Centre Executive Director Cheryl Milne effectively addressed all of our arguments, and the Justices seemed receptive. It was exciting to see the research I conducted on Hong Kong’s jurisprudence not only be included in our factum, but also mentioned in our oral arguments. Ultimately, we will have to wait to see if the Supreme Court will take our invitation to re-imagine the use of suspended declarations of invalidity as a constitutional remedy.

Jeffrey Wang is a 2L JD student at the Faculty of Law and is the current Half-time Asper Centre Clinic student.

News Release: Asper Centre and Justice for Children and Youth organize youth consultations for legal challenge to Canada’s voting age

Posted on by Tal Schreier

Toronto, November 14, 2019 — In partnership with several child rights organizations, Justice for Children and Youth (JFCY) and the David Asper Centre for Constitutional Rights (Asper Centre) have secured case development funding from the Court Challenges Program, which helps finance cases of national significance related to constitutional human rights issues. They will be hosting a consultation for children and youth to inform a legal challenge against Canada’s minimum voting age.

The consultation is designed to hear from children and youth on the voting age and determine a legal approach to a constitutional challenge that both respects and represents their interests. If you are interested in joining the consultations, reach out to the Asper Centre through the contact information provided below.

Section 3 of the Canadian Charter of Rights and Freedoms is clear that all Canadian citizens are allowed to vote. JFCY and the Asper Centre will be working with other child rights organizations and young people to challenge section 3 of the Canada Elections Act, which prevents citizens under the age of 18 from voting in federal elections, on the grounds that the voting age requirement is unconstitutional.

17-year-old student Samantha Walsh supports a legal challenge to the voting age. “As a young person who was unable to vote during the last federal election, I’m excited about a challenge to lower the voting age. Lowering the voting age would allow youth to feel as though they are a more valued part of the society they are contributing to.”

Mary Birdsell, Executive Director of JFCY, agrees. “Decision-makers tend to cite outdated factors when denying young people access to the polls. They are the same factors historically used to deny other groups the right to vote,” she says. “We have seen a continued rise in young people’s efforts to be heard — millions marching on issues that have a direct impact on their lives and the world in which they live in, yet they still can’t vote.”

Increasing social science evidence about adolescent decision-making has established that adolescents are just as cognitively capable of voting as adults, which supports the position that the voting age restriction is unconstitutional. The Universal Declaration of Human Rights states that “everyone has the right to take part in the government of his country, directly or through freely chosen representatives.” The United Nations Convention on the Rights of the Child requires countries to “assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child” in accordance “with the age and maturity of the child.”

There are many international success stories of the voting age being lowered. Turnout among 16- and 17-year-olds was 75 percent in Scotland’s 2014 independence referendum, and 16-year-olds can now vote in both Scotland and Wales. In Austria, lowering the voting age increased civic interest among 16- and 17-year-olds — part of growing evidence that voting early is more likely to result in voting later in life.

Canada’s four federal political parties also permit those under 18 to vote for party leadership. The Liberal Party of Canada, Conservative Party of Canada, and Green Party of Canada allow members as young as 14. The federal New Democratic Party does not set out a minimum age for membership, but its provincial and territorial NDPs typically require members to be 14 or older. The Ontario NDP accepts 13-year-olds as full voting members. Moreover, many 16- and 17-year-olds shoulder “adult-like” privileges and duties in Canada, including being allowed to join the military, drive in many provinces and territories, work entry-level jobs, and pay taxes.

Last year, Chief Electoral Officer of Canada Stéphane​ Perrault said the idea of lowering the voting age is “worth considering.” Cheryl Milne, the Executive Director of the Asper Centre, agrees. “Our Supreme Court has made it clear that any limit on Canadians’ right to vote must be clearly justified,”. Given our political parties welcome 14-year-olds to vote in their leadership races, the position that under-18s lack the experience and knowledge to vote responsibly in federal elections is untenable.”

PARTNERS:

Canadian Civil Liberties Association

Canadian Coalition for the Rights of Children

Children First Canada

Society for Children and Youth of BC – Child and Youth Legal Centre

The Students Commission of Canada

UNICEF Canada

AVAILABLE FOR COMMENT:

Cheryl Milne, Executive Director, Asper Centre: cheryl.milne@utoronto.ca or 416-978-0012

Mary Birdsell, Executive Director, JFCY: birdsem@lao.on.ca or 416-920-1633

For media inquiries with Samantha Walsh, please contact Emily O’Connor, Communications Manager at UNICEF Canada: eoconnor@unicef.ca or 647-500-4230

ABOUT JUSTICE FOR CHILDREN AND YOUTH

Justice for Children and Youth provides select legal representation to low-income children and youth in Ontario. We are a non-profit legal aid clinic and specialize in protecting the rights of those facing conflicts with the legal system, education, social service or mental health systems. We give summary legal advice, information and assistance to young people, parents (in education matters), professionals and community groups across Ontario.

ABOUT DAVID ASPER CENTRE FOR CONSTITUTIONAL RIGHTS

The Asper Centre is devoted to realizing constitutional rights through advocacy, research and education. We play a vital role in articulating Canada’s constitutional vision to the broader world. The cornerstone of the Centre is a legal clinic that brings together students, faculty, and members of the bar to work on significant constitutional cases and advocacy initiatives.

A historical first for the SCC

Posted on by Tal Schreier

The Asper Centre is intervening in the upcoming Supreme Court of Canada case of Conseil scolaire francophone de la Colombie Britannique v British Columbia (Éducation) relating to whether British Columbia failed to adequately fund and support French minority language education.

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. In this case, 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.  Further, the court will have to decide whether the province should have to pay damages to the school board. This decision could affect other minority-language communities across Canada.

The focus of the Asper Centre’s intervention is on the availability of Charter damages and the appropriateness of the application of the Mackin principles to damages under s.24(1) of the Charter for unconstitutional policy decisions. Read our factum here.

The SCC will hear this case on September 26th 2019 in Winnipeg Manitoba, in Treaty One Territory. This is a historical first, where the SCC will sit outside of Ottawa.

Oral arguments for the Asper Centre will be presented by University of Toronto Professor of Law and Prichard-Wilson Chair of Law and Public Policy, Kent Roach (pictured above).

Freedom of expression in an election context: A purposive approach

Posted on by Tal Schreier

by Keely Kinley

On September 19, 2019, the Ontario Court of Appeal dismissed the City of Toronto’s legal challenge against the Province of Ontario for making unilateral changes to the size and structure of Toronto’s city council midway through last year’s municipal election period (Toronto (City) v. Ontario (Attorney General), 2019 ONCA 732). In a 3-2 decision, the Court of Appeal held that the province had the “legitimate authority” to reduce council from 47 to 25 seats, and that doing so was constitutional even in the middle of an active election (para 6).

At trial, the Ontario Superior Court ruled that Bill 5 – the legislation that changed Toronto’s ward structure – “substantially interfered” with both candidates’ and voters’ freedom of expression contrary to s. 2(b) of the Charter (Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151). Specifically, the court found that Bill 5 interfered with candidates’ freedom to effectively communicate their political messages to voters and, by doubling the population size of City wards, also interfered with electors’ ability to express political views through voting. Nine days after the ONSC decision was released, the province won a stay of the ruling and the election proceeded with 25 wards on October 22, 2018.

On appeal, the court found that Bill 5 did not infringe the s. 2(b) rights of either candidates or voters. Justice Miller, writing for the majority, emphasized that s. 2(b) of the Charter protects against interference with expressive activity, not interference with expressive activity’s intended result; consequently, “legislation that changes some state of affairs (such as the number of electoral wards) such that a person’s past communications lose their relevance, and no longer contribute to the desired project (election to public office), is not, on that basis, a limitation of anyone’s rights under s. 2(b)” (para 41).

All five judges agreed that the Province had the constitutional authority to alter the structure of Toronto’s City Council, that legislation cannot be stuck down solely on the basis of unwritten constitutional principles, and that Bill 5 did not infringe voters’ 2(b) rights. However, MacPherson and Justice Nordheimer decried Miller’s characterization of the expressive activity affected by the ward changes as “a person’s past communications” as overly narrow and found that candidates’ 2(b) rights were infringed by the mid-election enactment of Bill 5.

MacPherson’s fiery dissent called for a purposive approach to freedom of expression in the election context and identified the 2(b) right implicated in this case as the “right of all electoral participants to freely express themselves within the terms of the election after it had begun” (para 128). Justice MacPherson cited para 1 of the Asper Centre’s factum to support this view: “The Charter’s guarantee of freedom of expression is a key individual right that exists within and is essential to the broader institutional framework of our democracy. In the election context, freedom of expression is not a soliloquy. It is not simply the right of candidates and the electorate to express views and cast ballots. It expands to encompass a framework for the full deliberative engagement of voters, incumbents, new candidates, volunteers, donors, campaign organizers and staff, and the media, throughout a pre-determined, stable election period.”

The dissenting judgment suggests that free expression in the election context requires that an election’s basic terms not be “upended mid-stream” (para 123). Reducing the size of city council during an active election made it difficult for volunteers, voters, donors, and commentators to carry on expressing themselves “within the established terms of [the] election then in progress” (para 128), and this is why Justice MacPherson’s finding that candidates’ 2(b) rights were infringed turned on the timing of the Bill; even though the province never directly curtailed expressive activity, it effectively “blew up the efforts, aspirations and campaign materials of hundreds of aspiring candidates” when it altered the ward structure in the middle of the election period (para 136).

While the majority did not adopt the Asper Centre’s broad, purposive view of freedom of expression in the election context, this was a successful intervention for the Centre. Its arguments were cited with approval in both judgments and provided important international context to this difficult case of first instance.

As of January 2019, Toronto City Council has instructed staff “to pursue a leave to appeal application to the Supreme Court of Canada in the event the Province is successful on its appeal at the Court of Appeal” (see the City’s public statement here: http://wx.toronto.ca/inter/it/newsrel.nsf/11476e3d3711f56e85256616006b891f/d354c2f99405923b8525847a0056fff8?OpenDocument); staff are now in the process of reviewing the court’s decision in detail. If the City appeals, the 3-2 split at the Court of Appeal and the national significance of the issues raised in this case might improve the odds of the Supreme Court of Canada granting them leave.

Keely Kinley is a 2L JD Student at the Faculty of Law. She was the 2019 Asper Centre summer research assistant and is currently leading the Asper Centre’s Climate Justice student working group.