Asper Centre Clinic

Meet Mary Birdsell, the Asper Centre’s new Constitutional Litigator in Residence for Fall 2024

Posted on by Tal Schreier

by Kate Shackleton 

From working directly with young clients to arguing cases at the Supreme Court of Canada, Mary Birdsell has advocated on behalf of children and youth for more than 25 years.  This fall, she will share her knowledge of children and youth justice, constitutional law, and appellate litigation with students in the Asper Centre’s clinic course as the Constitutional Litigator-in-Residence. I recently spoke with Birdsell about her career so far, her constitutional law expertise, and what she’s looking forward to her in her new role.  

Originally from Alberta, Birdsell chose to attend law school at Dalhousie University. She opted for Dalhousie because she was curious about living elsewhere and eager to meet classmates from across the country. When she started law school, she recalls being uncertain if she wanted to be a lawyer. However, she was drawn to law because she thought “it would be an interesting and excellent education in how society functions.” She notes that her first-year courses covering constitutional law, human rights, and the Charter affirmed her decision to pursue a law degree, since they were “exactly what [she] was interested in.”  

After graduating law school,  Birdsell articled with a full-service corporate law firm in Toronto where – coincidentally – her first case focused on section 15 of the Charter. She worked on behalf of an intervener in Thibaudeau v Canada – which examined the rule that child support payments were taxable on the receiving parents – under the tutelage of Mary Eberts and Steve Tenai.  

Following her articles, Birdsell joined Justice for Children and Youth (where she now serves as Executive Director). She knew that clinic work appealed to her thanks to the semester she spent working full-time at Dalhousie’s legal clinic and she was particularly interested in Justice for Children and Youth because of her pre-law experiences working with youth.  

During her time at Justice for Children and Youth, the organization has been involved in a number of landmark cases in the youth justice sphere – many of which centre on Charter rights. When I asked her to identify highlight cases, it was difficult for her to choose a select few. In terms of having a meaningful impact, R v D.B. came to mind first. The case, in which Asper Centre Executive Director Cheryl Milne was counsel for Justice for Children and Youth, established that diminished moral blameworthiness for youth is a principle of fundamental justice under section 7. More recently, she pointed to Justice for Children and Youth’s intervention in R. v Le,  where the Supreme Court of Canada affirmed that race relations inform the detention analysis under section 9 of the Charter.  

Although not every case has yielded the outcome she hoped for, she described constitutional litigation as a “powerful tool” in the hands of youth justice advocates. She observed that the Charter offers a “fundamental path” to confront some of the most pressing issues facing Canadian youth, such as the Saskatchewan law requiring parental consent for students under 16 to change their name or pronouns.  

For Birdsell, evidence is the key to success in constitutional litigation. She stressed that evidence is especially important in equality-based litigation, since evidence is how litigants demonstrate that “oppression is happening the way you say it is.” Especially when organizations like police services or family services are being challenged, as often happens in the youth justice context, she explained that evidence is crucial to “switch the vantage point” for courts.  

When asked if she had any advice for law students, she encouraged students to follow what interests them. For those considering public interest work, she emphasized that there are many places where you can do public interest work, including government positions and at big firms. She also highlighted the value of being well-educated in constitutional law, since it empowers you to spot Charter issues “where others might not.”  

As the incoming Asper Centre Litigator-in-Residence, Birdsell is excited to interact with and learn from students. She also welcomes the opportunity to take a pause from front-line work and spend time thinking “a little more broadly and deeply about the law.” On the voting age challenge, which will form an important part of the clinic students’ work this fall, Birdsell described the case as going beyond just the right to vote. At its core, she said, the case is about how youth “ought to be able to participate in decision-making about the present and future.”  

Kate Shackleton is a rising 2L JD Candidate at the Faculty of Law and is an Asper Centre Summer Research Assistant. 

Extended Deadline for Asper Centre Clinic Course

Attention current Upper Year students at Uof T Law!

There are spaces available in the Asper Centre Fall clinic for upper year students.

Please send your one-page statement of interest to Executive Director Cheryl Milne (cheryl.milne@utoronto.ca) by 5:00 p.m. Monday, August 19th.

Asper Centre takes part in the Vote16 Summit in Ottawa

Posted on by Tal Schreier

By Vlad Mirel and Kate Shackleton

On May 29, 2024, academics, parliamentarians, and youth activists from across the globe gathered in Ottawa for Canada’s first-ever national Vote16 Summit. The event was organized by Vote16 Canada – a national campaign dedicated to lowering the voting age to 16 – and hosted by Senator Marilou McPhedran. 

To kick off the event, numerous experts presented evidence in favour of lowering the voting age to 16. Panelist Samantha Reusch (Executive Director, Apathy is Boring) stressed that the declining civic engagement Canada is experiencing presents a direct threat to the efficacy of its democracy. She emphasized that although youth feel alienated from the democratic process, they remain interested in politics. Sabreena Delhon illustrated how the pandemic negatively impacted civic engagement by removing students from schools and thus reducing their interaction with civic education. Lastly, Dr. Jan Eichhorn (Senior Lecturer/Research Director, University of Edinburgh) spoke about Scotland’s experience with lowering the voting age to 16, highlighting that Scottish youth became more politically-engaged than their UK peers who were not enfranchised. 

In the subsequent Q&A session, the panelists addressed audience concerns about social media and misinformation along with the partisan dimension of the voting age debate. The panelists expressed that many of the concerns that social media may unduly influence youth voting are already true for older generations. Furthermore, Professor Eichhorn outlined the non-partisan nature of the lowered voting age in Germany. 

Dr. Jan Eichhorn, Samantha Reusch, and Sabreena Delhon answer audience questions

Next up was the “Vote16 in Court” panel, featuring Sage Garrett and Caeden Tipler from Make It 16 New Zealand, Jacob Colatosti and Catherine He, who are two of the youth litigants involved in the ongoing voting age Charter challenge, and the Asper Centre’s Executive Director Cheryl Milne. 

Garrett and Tipler shared how Make It 16 New Zealand challenged the voting age based on the New Zealand Bill of Rights, which prohibits age discrimination against persons 16 years of age and older. They took their case all the way up to the Supreme Court, where the court held that the voting age was indeed inconsistent with the Bill of Rights. Although New Zealand’s parliamentary supremacy means that the government is not bound by the Court’s decision, Garrett and Tipler underscored that the case played a major role in raising awareness about their campaign. 

Next, Milne provided an update on the Canadian Charter challenge (led by the Asper Centre and Justice for Children and Youth). She explained that the government’s evidence has been reviewed and preparations for cross-examinations are underway. Colatosti and He also described how they got involved in the case and why youth voting is important to them. Colatosti was motivated to join the case when he was 16 due to his dissatisfaction with the rate of reform within Canadian politics. Meanwhile, He – who joined the litigation at 15 – voiced her support for enfranchising youth based on their position as “citizens, driving the future of change.”  

All five panelists then answered questions from the audience and noted some of the frequent questions they face. The panelists pointed out that Canada’s political cycle often results in the minimum voting age differing from when people actually get their first voting opportunity, with 19-year-old Colatosti still waiting to cast his first vote. In response to concerns that youth are too extreme or radical to vote, Garrrett stressed that no one should ever be disenfranchised based on their political opinions. Colatosti and He emphasized that parental influence is also not a persuasive counterargument, observing that youth are equally capable of influencing their parents. 

Panelists Caeden Tipler, Sage Garrett, Catherine He, Jacob Colatosti, and Cheryl Milne discuss the court challenges in New Zealand and Canada

The final panel – “Building Our Movement” – was composed of youth activists from across Canada (from various Vote16 chapters, the Fédération de la jeunesse franco-ontarienne, and the Francophone Youth Council) and international advocates like Bethania Lima from Brazil and Dr. Andrew Wilkes, who is the Chief Policy & Advocacy Officer of Generation Citizen in New York. The speakers encouraged those interested in advocating for legislative change to focus on drawing attention to their campaign and to reach out to local politicians. 

Bethania Lima (at far left) discusses how Brazil increased youth voter registration for the 2022 election

The Summit concluded with a symposium of more than 25 speakers who gave concise presentations on why they believed youth should be able to vote. Elder Verna McGregor welcomed the attendees. She analogized her dreamcatcher’s interwoven net to society itself, emphasizing how we are all interconnected and thus every voice must be heard in elections.  Several parliamentarians then expressed their support for lowering the voting age, such as Senators Robert Black, Kim Pate and Bernadette Clement as well as MPs Elizabeth May and Taylor Bachrach. Notably, Bachrach credited the youth litigants in the Charter challenge with inspiring the Private Member’s Bill to lower the voting age that he brought forward in 2021. MP Yves Perron of the Bloc-Quebecois outlined the important habit-forming impact voting at 16 would have. He stressed that youth voting is important not just for young people, but for the overall health of our democracy. Katie Yu and Amelia Penney-Crocker spoke on behalf of the youth litigants, with Yu commenting that lowering the voting age is about “treating young people as people.” 

MP Bachrach with the youth litigants (from left to right: Amelia Penney-Crocker, Katie Yu, Jacob Colatosti, and Catherine He)

Katie Yu and Amelia Penney-Crocker speak during the symposium portion of the Summit

Overall, the Vote16 Summit was an informative and inspiring event that promises to make important contributions to the movement for extending the vote to young people. By bringing together this diverse group of people with differing lived experiences and expertise, the Vote16 Summit provided its attendees with an incredibly enriching conversation surrounding youth voting. In addition to the ongoing Charter challenge, legislative change may be on the horizon thanks to Bill S-201 (introduced by Senator McPhedran). The bill is expected to go to Second Reading in the Senate in the near future, and to ensure the bill passes, interested individuals and organizations are encouraged to contact their provincial senators to express their support. A list of senators for each province as well as a statement in support of S-201 can be found on the Vote16 website. 

Emily Chan (Lawyer, Justice for Children and Youth), Mary Birdsell (Executive Director, Justice for Children and Youth), Katie Yu, Amelia Penney-Crocker, Jacob Colatosti, Catherine He (Youth Litigants), and Cheryl Milne (Executive Director, Asper Centre) 

Vlad Mirel and Kate Shackleton are rising 2L students at the Faculty of Law and are the current Summer Research Assistants at the Asper Centre.

Clinic Information Session – for U of T Law upper year students

On June 25, 2024 at 12:30pm the Asper Centre’s Executive Director, Cheryl Milne, will be taking part in a Clinic Information Session (via Zoom), for University of Toronto Faculty of Law upper year students.
This information session provided details on how to enroll in the for-credit clinical programs, including the Asper Centre Clinic, for Fall 2024. Students will have the opportunity to ask questions at this Zoom Meeting.
View the recording of the event HERE

Asper Centre Intervenes in Climate Change Case at ONCA

Posted on by Tal Schreier

by Chelsea Gordon, Daniel Kiesman and Sang Park

On January 15, 2024, the Asper Centre intervened before the Ontario Court of Appeal in Mathur v Ontario. The Asper Centre’s Constitutional Litigator in Residence Ewa Krajewska acted as counsel for the Asper Centre in this intervention. As students in the Asper Centre Clinic course this past term, we had the opportunity to contribute to the intervention by conducting research and drafting versions of the factum as part of our clinic coursework.

Mathur is a significant case because it is the first time that substantive legal issues of a constitutional challenge to insufficient government action to address climate change has been before an appellate court in Canada. Furthermore, this case is also one of the first s. 15(1) Charter cases to reach an appellate court since the Supreme Court modified its approach to s. 15(1) in R v Sharma.[1]

Background

The appellants are a group of seven young Ontarians. The appellants challenge a 2018 decision by the Government of Ontario to lower the province’s greenhouse gas emissions target to 30% below 2005 levels by 2030. Ontario set this target despite scientific research showing that to prevent serious adverse consequences in relation to health, food security, and human security, greenhouse gas emissions would need to be reduced by 52% below 2005 levels by 2030. As a result, the appellants argue that this emissions target violates s. 7 of the Charter by allowing a level of emissions that will lead to serious adverse consequences and put the lives of Ontarians at risk. The appellants also argue that the emissions target violates s. 15(1) of the Charter because young people and future generations will disproportionately bear the burdens and face the adverse effects of inadequate climate change policy.

The Superior Court of Ontario held that the appellants’ challenge was justiciable but dismissed the appellants’ Charter claims.[2] The Asper Centre also intervened at the Superior Court, read the factum here.

With regard to s. 7 the application judge appeared open to the idea that climate change could be the kind of issue area where a positive s. 7 obligation on government could arise and assumed without deciding that a positive obligation arose here.[3] However, the application judge held that the emissions target did not infringe any principles of fundamental justice and therefore did not infringe s. 7.[4] Regarding s. 15(1) the application judge, applying Sharma, held that the claim must fail at the first step of the test as causation cannot be established. The application judge held that causation could not be established because the “disproportionate impact is caused by climate change and not the [emissions] target.”[5]

The Asper Centre’s Intervention at the Court of Appeal

The Asper Centre’s intervention at the Court of Appeal is focused on two issues. First, that the application judge erred by adopting a formalistic approach to causation that has consistently been rejected by the s. 15(1) jurisprudence. Second, given the complexities and the novelty of climate change, should the Court of Appeal find a Charter infringement it ought to go beyond declaratory relief to craft an appropriate and just remedy under s. 24(1) of the Charter.

Read the Asper Centre’s factum here.

In its submissions relating to causation in the s. 15(1) analysis, the Asper Centre traces the history of equality jurisprudence to underscore that substantive equality drives the s. 15(1) analysis and that the application judge erred by abandoning a substantive approach and adopting a formalistic analysis of causation. The Asper Centre notes that from the start, in the first s. 15(1) case Andrews v Law Society of British Columbia, the Supreme Court recognized that a seemingly neutral law may create an unequal impact on a particular group and as a result the s. 15(1) analysis must focus on the impact of the law on a particular group.[6] This approach has been repeatedly affirmed in subsequent Supreme Court decisions. Most recently the importance of substantive equality was reaffirmed in Sharma where the Supreme Court stated it is an “animating norm” of s. 15(1).

Furthermore, the intervention seeks to emphasize that the proper approach to causation must be flexible and contextual. Such an approach does not require that an impugned law be the only cause of an adverse impact. Rather, to establish causation a claimant need only show that a law is a cause. To support this approach the Asper Centre highlights cases such as Fraser v Canada (Attorney General) where an RCMP job-sharing program, which was not in and of itself the root cause of wage inequality, was found to infringe s. 15(1) because it furthered the economic disadvantages women face in society.[7]

Despite these precedents, the application judge adopted a formal and rigid approach to causation, holding that the emissions target did not infringe s. 15(1) because the harms to youth are caused by climate change. This approach harkens back to the rejected approach to equality taken under the Canadian Bill of Rights wherein a provision which restricted access to employment insurance to pregnant women was allowed to stand because the discriminatory impact on pregnant women was not caused by the legislation, but by the fact that the women were pregnant. This approach also departs from the decades of precedent which instruct a flexible and contextual approach that centres substantive equality at the heart of s. 15(1).

Should the Court of Appeal find a Charter infringement the Asper Centre’s submission encourages the Court to be creative and utilize its remedial discretion under s. 24(1) of the Charter to forge an appropriate and just remedy. Declaratory relief will be insufficient in this case as the impacts of climate change, stemming from government inaction present complex and novel issues for the legal system. Faced with novel issues the Supreme Court, in cases such as Ontario v G[8] and Doucet-Boudreau v Nova Scotia (Minister of Education),[9] has crafted unique remedies under s. 24(1). Furthermore, as the Asper Centre notes in its factum, courts in other jurisdictions, such as the German Constitutional Court[10] and the Supreme Court of the Netherlands,[11] which have confronted the issue of inadequate government climate policies have crafted creative remedies aimed at addressing the complexities of climate change.

Chelsea Gordon, Daniel Kiesman and Sang Park are JD Candidates at the Faculty of Law and were Asper Centre clinic students in Fall 2023.

[1] R v Sharma, 2022 SCC 39.

[2] Mathur v Ontario, 2023 ONSC 2316

[3] Mathur v Ontario, 2023 ONSC 2316 at para 82.

[4] Mathur v Ontario, 2023 ONSC 2316 at para 142.

[5] Mathur v Ontario, 2023 ONSC 2316 at para 178.

[6] Andrews v Law Society of British Columbia, [1989] 1 SCR 143 at 164.

[7] Fraser v Canada (Attorney General), 2020 SCC 28 at paras 92-107, 113.

[8] Ontario (Attorney General) v G, 2020 SCC 38.

[9] Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62.

[10] 1 BvR 2656/18 (2021).

[11] C-565/19 P, C/09/456689 / HA ZA 13-1396.