Asper Centre Event

Asper Centre Celebrates 15th Anniversary

Posted on by Tal Schreier

Jutta Brunnée, Faculty of Law Dean, University Professor and James Marshall Tory Dean’s Chair in conversation with
Asper Centre Executive Director Cheryl Milne

The David Asper Centre for Constitutional Rights celebrated 15 years at their special anniversary event on November 15, 2023.

Located within the University of Toronto Faculty of Law, the Centre and is devoted to advocacy, research, and education around constitutional rights in Canada.

With the establishment of the Asper Centre, made possible through the generous benefaction of Faculty of Law alumnus David Asper (LLM 2007), U of T is one of only a small number of schools internationally that play active roles in constitutional debates with practical impacts on constitutional rights. In addition to its innovative programs, the Centre houses a legal clinic that brings together students, faculty members, and members of the legal profession to work on significant, ground-breaking constitutional cases.

Since 2008, the centre has:

  • Led 38 Supreme Court of Canada interventions
  • Held 54 constitutional roundtables and 13 conferences/symposia
  • Supported 45 student working groups
  • Hosted 11 Constitutional Litigators-in-Residence
  • Released 37 publications

At the in-person live podcast recording of Charter: A Course (Season 3), Dean Jutta Brunnée interviewed the Asper Centre’s Executive Director, Cheryl Milne, who has been with the Centre since its inception.

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Constitutional Litigator-in-Residence, Ewa Krajewska (photo far left) interviewed Asper Centre Clinic alumni (photo second from left to right): Keely Kinley (JD 2021), Ryan Deshpande (JD 2021), Geetha Philipupillai (JD 2017), and Neil Abraham (JD 2016).

This event celebrated the Asper Centre’s commitment to articulating Canada’s constitutional vision to the broader world.

Special thanks to the evening’s participants and to all who attended!

Asper Centre 2022-2023 Annual Report

Watch the Charter @ 40: The Asper Centre brought together its past Constitutional Litigators-in-Residence for a special conversation with Executive Director, Cheryl Milne, reflecting on the Charter of Rights and Freedoms at 40 years.

From U of T Law website at https://www.law.utoronto.ca/news/asper-centre-15th-anniversary

Asper Centre’s 15th Anniversary Celebration

The David Asper Centre for Constitutional Rights is celebrating 15 years of advocacy, research and education with a special anniversary event taking place on November 15th, 2023.

Please join us for an in-person live podcast recording of Charter: A Course, featuring U of T Law Dean Jutta Brunnée interviewing Cheryl Milne (Executive Director, Asper Centre), followed by Ewa Krajewska (the Asper Centre’s current Constitutional Litigator in Residence) interviewing Asper Centre Alumni: Neil Abraham (JD 2016), Ryan Deshpande (JD 2021), Keely Kinley (JD 2021), and Geetha Philipupillai (JD 2017).

The live podcast recording will be followed by an intimate cocktail reception. Registration Required.

REGISTER HERE

 

COVID-19 Contact Tracing and Uncharted Constitutional Waters

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by Amy Chen

On July 29, 2020, Lisa Austin, Andrea Slane, Vincent Chiao, and David Lie joined Director Cheryl Milne of the Asper Centre to discuss their collaborative research paper: Test, Trace, and Isolate: COVID-19 and the Canadian Constitution. The paper (also co-authored with Beth Coleman, Martha Shaffer, and François Tanguay-Renaud) reviews the benefits, limitations, and constitutional implications of contact tracing apps. The webinar can be viewed online here.

What are Contact Tracing Apps?

Dr. Lie began the panel by giving an overview of the different types of contact tracing apps. Contact tracing is a method for controlling infectious disease outbreaks by identifying, notifying, and monitoring individuals who have been exposed to the disease. In response to the COVID-19 pandemic, countries have been utilizing smartphone apps to conduct digital contact tracing in conjunction with manual human contact tracing. These apps fall into two categories – apps that are centralized and integrated with manual human contact tracing, and apps that are decentralized and work parallel to manual tracing. Dr. Slane noted that different liberal democracies have tried different frameworks. Australia and Singapore have adopted the centralized approach; Germany, Austria, and Switzerland have adopted the decentralized approach; some countries (i.e. Bahrain, Kuwait) have tried more privacy-intrusive apps that collect GPS data.

Ontario will be using the decentralized model through an API developed and supported by Apple and Google. The app, which is currently in its beta testing phase, uses Bluetooth to communicate with other phones that have the app installed. This allows the app to track and record the names of those who have come into close contact. If an individual tests positive for COVID-19, they can voluntarily upload the list of recorded names onto the app’s server. If other users have been in contact with the same individuals, they will be notified through the app. The app may also show a “risk score” and recommend high-risk individuals to get tested.

Pros and Cons of the Decentralized Framework

There are two upsides to this decentralized framework: 1) it is technologically supported by Apple/Google and 2) it is more privacy-protective. However, the panelists stressed that this also means that there are many downsides. First, Professor Austin noted that Apple and Google’s role has not been sufficiently scrutinized. The app will be governed by the technical decisions of these large technological companies rather than the decisions of our democratically elected governments. While Australia has experienced some technical difficulties with their centralized app, their government has been able to pass legislation regarding data control and usage.

Second, a privacy-protective app means that the data is limited in its accuracy and effectiveness. Dr. Lie pointed out all the ways in which the data could be distorted. The app relies entirely on individuals to voluntarily report their positive diagnoses, which means that many positive cases could be missed. Users could put fake names on their phones or repeatedly change their names, which makes it harder to track infected individuals. Proximity data, which is calculated based on the strength of the phones’ Bluetooth signals, could be inaccurate if the signals are disrupted. It is uncertain what percentage of the population needs to get the app for it to be effective. It is even uncertain whether digital contact tracing would supplement manual contact tracing efforts.

The most concerning aspect about the decentralized approach is that health authorities will only have limited access to the data collected by the app. Health authorities would not be able to contact infected individuals and provide them with education and health support. They would not be able to assess the effectiveness of the app, particularly its effectiveness for vulnerable communities. Dr. Slane indicated that the app will not be accessible for individuals who do not have access to smartphones, who have language barriers, who distrust technology, and who distrust state action or surveillance. Publicly accessible data is needed to develop effective targeted approaches for communities that are disproportionately affected by the pandemic.

Digital Contact Tracing and the Charter

Digital contact tracing requires a balancing between our personal privacy rights and public health outcomes. As explained by Professor Austin and Professor Chiao, the Charter is an important framework in assessing how to balance these rights in a way that is justifiable in a free and democratic society.

The Federal Privacy Commissioner has stated that data collected by the apps must be used in a way that is consistent with the principles of necessity and proportionality. What that means is hard to assess ex ante since we are in “uncharted waters”, but there are several contextual factors to keep in mind. First, we would need to know exactly what Ontario’s public health goal is in pushing out contact tracing apps. If the goal is to make manual tracing more effective, it may be harder for the government to justify why a decentralized privacy-protective app is necessary or proportional.  Second, privacy rights dictated by the Charter are traditionally assessed a criminal “state vs. individual” context. While courts may be concerned with protecting individuals from the overreach of state power in the criminal context, individual privacy rights may be given less weight in the context of a public health emergency. Finally, how the rights will be balanced will likely be determined through political decisions rather than through legal decisions.  If the app is widely perceived to be effective, courts are unlikely to disturb the government’s decision. If the app is perceived to be ineffective, the government will likely take actions without prompting from the courts.

Digital contact tracing could engage both s. 7 and s. 8 Charter interests. The apps could engage an individual’s interests in life, liberty, and security if the data was used to enforce quarantine or lift isolation measures in an unsafe manner. Whether the principles of fundamental justice would be violated would depend on a multitude of variables that cannot be determined at this time. In addition, the apps could engage our privacy interests associated with our anonymity or our biological cores. The nature and scope of the section 8 right would be context-specific. For instance, individuals may inadvertently waive or diminish their reasonable expectation of privacy by volunteering data and accepting the terms and conditions of the app. On the other hand, section 8 may protect individual privacy if data was used for purposes that were not consented to (i.e. law enforcement, immigration). Individual privacy rights may also be engaged in circumstances that are not governed by the Charter. Businesses may conduct informal voluntary screening questionnaires as a condition for accessing services, or employers may ask employees to use the digital tracing apps in the workplace. These issues would have to be dealt with through quasi-constitutional private sector data protection laws.

Ultimately, the panelists argue that digital contact tracing must be integrated alongside traditional human contact tracing for there to be effective health outcomes. Given the shifting public health landscape, the scope of the legal ramifications of contact tracing apps is still unknown. The panelists stressed that public trust in the app, our governments, and our public health authorities will be crucial in determining the effectiveness of digital contact tracing.

Amy (Jun) Chen is a 1L JD Candidate at the Faculty of Law and is the Asper Centre’s current summer Research Assistant.

Careers in Constitutional Law

Posted on by Tal Schreier

by Kylie de Chastelain

Many students are fascinated by the constitutional issues they engage with in the classroom and the Asper Centre regularly receives questions about how to work towards a career in Constitutional law. To help address these questions, the Asper Centre hosted a panel discussion on February 12th, 2020, entitled: “Careers in Constitutional Law.”

Four brilliant lawyers were invited to share about their experiences in constitutional law practice. Emily Chan, a staff lawyer at Justice for Children and Youth, was joined by Sinéad Dearman, an Associate at Olthuis Kleer Townshend LLP; Geetha Philipupillai, an Associate at Goldblatt Partners; and Padraic Ryan, Counsel at the Constitutional Law Branch of the Ministry of the Attorney General of Ontario. Each panelist spoke about the realities of long-term litigation, working with rotating governments, and the complexities of constitutional law. The panelists’ career experiences are detailed below, followed by a round-up of their best advice for aspiring constitutional lawyers. As you’ll see, there’s more than one path towards working in constitutional law.

Emily Chan

Staff Lawyer, Litigation and Community Development, Justice for Children and Youth

Emily Chan’s day-to-day work is very diverse, ranging from privacy law to human rights matters and constitutional law issues. Her official title is “Community Development Lawyer” – a role which suits her passion for advocacy and community organizing. Initially, Emily never planned on having a litigation career; preferring research and writing to public speaking and debate. Despite this, litigation now comprises a significant portion of her practice.

Emily has represented Justice for Children and Youth before the Supreme Court of Canada on a number of interventions. Notable among these are Prime Minister of Canada v Khadr, 2010; an intervention about Omar Khadr and the rights of children who are found in armed combat overseas, and Kanthasamy v Canada, 2015; a case that considered the best interests of a minor who sought refugee protection in Canada on humanitarian grounds. Interventions such as these frequently involve Charter-based challenges – as was the case in Khadr, where Emily’s arguments on behalf of Justice for Children and Youth focused on Khadr’s section 7 Charter rights to life, liberty, and security of the person. Ultimately, Emily’s work – while not exclusively constitutional – does involve a significant amount of constitutional law; proof that a career in constitutional law doesn’t have to be “all or nothing.”

Sinéad Dearman

Associate, Olthuis Kleer Townshend LLP

Sinéad was called to the bar in 2018 and was a member of the Indigenous Law students Association while at the University of Toronto’s Faculty of Law. She works in child protection law and represents a variety of First Nations governments in matters relating to child welfare and custody. This work is demanding, and Sinéad spends approximately 75% of her time travelling to remote First Nations communities across Ontario, where she meets with band governments and stakeholders and represents them in child welfare cases. In addition to child protection work, Sinéad has appeared before the Canadian Human Rights Tribunal, suing the Canadian government for discriminatory underfunding in public services (see: First Nations Child and Family Caring Society of Canada v Canada, 2019). Sinéad also works in Indigenous law-making; helping First Nations to refine and uphold their legal traditions and advocating for their inclusion within the broader Canadian legal system.

Sinéad believes that in order to practice Indigenous law, and constitutional law more broadly, you have to be able to show up in “mind, body, and spirit.” The work requires more than intellect; it requires being present and involved beyond the law. For Sinéad, this has often meant being in ceremony with her clients and becoming involved in the community beyond what might be expected in a non-Indigenous lawyer-client relationship.

Geetha Philipupillai

Associate, Goldblatt Partners

Geetha was also called to the bar in 2018, and one month later found herself working on the high-profile case involving Premier Ford’s reduction of Toronto City Council seats (see: The City of Toronto v Ontario (Attorney General), 2018). Although Geetha does not generally practice in labour law, the case presented an opportunity to represent union clients with a vested interest in the structure of Toronto’s city council. It was valuable, she said, to have the opportunity to work on a constitutional case, even if it was not in a practice area she typically engages with. In general, Geetha’s day-to-day work at Goldblatt involves employment law, civil class action suits, and claims from LawPro; the company that provides Ontario lawyers with professional liability insurance. Geetha’s work with LawPro frequently involves defending lawyers against claims of negligence.

In addition to all of this, Geetha, who was an Asper Centre Clinic student, served as pro-bono junior counsel to the Asper Centre on the Morris intervention. This case is challenging criminal law sentencing with respect to systemic racism and specifically anti-black racism. The Asper Centre’s intervention focuses on the need for substantive equality in sentencing and the corresponding rights engaged by s. 15 of the Charter. For Geetha, working in constitutional law has meant making the most of the opportunities that come her way. Although her legal work is not exclusively constitutional, she has chosen to make this an area of focus in her career.

Padraic Ryan

Counsel, Constitutional Law Branch, Ministry of the Attorney General of Ontario

Padraic always knew that he was interested in constitutional law and litigation, and endeavoured to work in government jobs instead of full-service Bay Street firms as a result. As a member of the Constitutional Law Branch, Padraic’s work is exclusively constitutional. In essence, he supports branches of the ministry that have constitutional questions or claims before them. Typically, these claims relate to statutes or policies that are being challenged, and while Padraic’s work involves a significant amount of litigation, he also provides advice to government ministries facing this kind of claim.

The work is full of variety, and Padraic says that one of the best parts of his job is the constant learning. In this kind of work, you never feel as though you’ve “specialized” or “mastered” a particular area of law – instead, you’re constantly learning about statutes you never knew existed and consulting with government ministries across a broad range of practice areas. By way of example, Padraic says he has worked on fire code prosecutions, labour relations issues, and interventions relating to federal immigration law. The challenges of government work are ever-present, he says, and dealing with election cycles, changing governments, and funding constraints can make his job very interesting. For those interested in a diverse range of legal issues that all engage constitutional law, a government position like Padraic’s might be the perfect fit.

Career Tips for Aspiring Constitutional Lawyers

  • Take a variety of courses. Emily advises that you take a variety of courses while you’re in law school because constitutional questions can arise in “any area of law.” Having a bit of knowledge across practice areas is helpful, because you simply can’t anticipate all the areas of law you might end up working in. Emily pointed to her own experience, noting that although she doesn’t practice refugee and immigration law, much of her constitutional work has involved Charter-based advocacy for refugee children and youth. Having the legal context that comes from a bit of coursework experience is highly valuable.
  • Have a demonstrated interest. All the panelists agree that, when it comes to hiring, it’s nice to see an applicant with a clear interest or passion. Whether it’s through your extra-curriculars, course selection, non-law school activities, or the organizations you belong to, make sure to highlight what you are interested in. Padraic emphasized that this doesn’t mean you must do every single extra-curricular related to constitutional law; but it’s good to be able to show participation in at least one or two constitutionally-related activities if this is something you are hoping to practice later on. The Asper Centre offers some fantastic ways to get involved, including: The Constitutional Law Clinic, Student Working Groups, and Summer Fellowship Program.
  • Consider administrative law. Geetha and Padraic suggest that administrative law is a great area of focus for constitutional-law hopefuls. Administrative law contains many of the same legal themes as constitutional law, and has the advantage of being highly marketable in the legal world. Geetha emphasized that administrative law can also be useful in practice because often constitutional challenges are brought by people who are unable to finance protracted litigation. When you understand administrative law well, you are better able to advise clients as to their strategic options and help them to achieve their goals without engaging in costly litigation.
  • Remember that your law practice will likely be diverse. With the exception of Padraic, who works in a role exclusively devoted to constitutional law, none of the panelists focus solely on constitutional work. Instead, constitutional law is simply one of many practice areas they engage in. Remember that it is rare to find a full-time job in constitutional law. Instead, think about adjacent practice areas that you are passionate about, and jump at the chance to do constitutional work when you can.
  • Don’t worry if the path isn’t straight. Sinéad says that while law school can be challenging intellectually, mentally, and emotionally, do your best to stick with it. Remember that law school and legal practice look very different, and being a young lawyer is nothing like being a young law student. Rely on the routines and activities that make you feel good and give you a sense of meaning beyond law school, and try not to get caught up in comparison and competition. As Padraic says, it’s better to think about the kind of work you want to do, and where you think you’ll fit best career-wise than to spend time trying to “check boxes” for the sake of it.

Kylie de Chastelain is a 1L student of law at the University of Toronto and the current Asper Centre work-study student.

Substantive Equality in Sentencing: Morris and Sharma

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by Mashoka Maimona

On January 22, 2020, the Asper Centre hosted three lawyers involved in two cases before the Ontario Court of Appeal (ONCA) in which the Asper Centre intervened — R v Morris and R v Sharma — which consider how historical and social context can invaluably inform the sentencing process for marginalized people.  Emily Hill (Aboriginal Legal Services, intervener in Sharma and Morris), Jessica Orkin (Goldblatt Partners, counsel for Asper Centre in Sharma), and Nader Hasan (Stockwoods LLP, counsel for Asper Centre in Morris) participated in a dynamic panel, moderated by Professor Hamish Stewart of the University of Toronto’s Faculty of Law, discussing how historical disadvantage can be considered in sentencing to achieve substantive equality for marginalized groups.

Hasan started the panel discussion by describing Morris and Sharma as seminal cases that motivate one to become a criminal lawyer. Sharma is a constitutional challenge to ss. 742.1(c) and (e)(ii) of the Criminal Code, which eliminate conditional sentences for certain offences with mandatory minimum custodial sentences. Sharma is a young, mixed Indigenous mother convicted of a drug importation offence, who sought a conditional sentence so she could continue caring for her child. She would have been a suitable candidate for such a sentence but for these provisions preventing drug importers from receiving a conditional sentence.

Sharma’s circumstances illustrate that despite the Supreme Court’s (SCC) aspirations in Gladue, incarceration rates for Indigenous people in Canada continue to increase. Gladue outlined how the principle of restraint in s. 718.2(e) of the Criminal Code should be applied while taking into account the history of colonialism and bias in the criminal justice system when sentencing Indigenous offenders. That was more than two decades ago. “The Indigenization of Canada’s prison population is nothing short of a national travesty,” according to Correctional Investigator of Canada Ivan Zinger in a troubling statement released a day before this panel. He warned that number and proportion of Indigenous individuals under federal sentence has reached new historic highs (30% of the total inmate population, compared to 5% of the Canadian population) due to “disturbing and entrenched imbalances.” The numbers are even more troubling for Indigenous women, who now make up 42% of female inmates.

Sharma is about addressing these statistics and the crisis of Indigenous overrepresentation, “pushing the court to get to a solution,” according to Hill. When the justice system criminalizes acts that Indigenous women often turn to out of desperation due to high rates of poverty and food insecurity, conditional sentences are an essential and effective tool for keeping Indigenous people out of jail so that they can serve their sentences in the community, while maintaining jobs, schooling, and caring for their families and children. Hill also raised the difficulties of relying on the Charter’s s. 15 equality argument in Sharma, with the trial judgement barely engaging (or agreeing) with their points — despite that Truth and Reconciliation Commission called for the federal government to allow judges to depart from mandatory minimum sentences and restrictions on conditional sentences (which the government committed to). The SCC’s 2018 decision in Alliance, tackling an amended s. 15 analysis involving the removal of a legislative remedial scheme (pay equity in that case), could have been a “game-changer” in Sharma, suggested Orkin. “Everybody has been looking to ways to advance equality arguments other than through s. 15, because the test in s. 15 is so inchoate, onerous, and unpredictable,” she said, including through s. 12 (cruel and unusual treatment or punishment).

In Morris, the ONCA will consider how systemic factors should shape the sentencing framework for Black Canadians. Morris, a Black man, was convicted of possession of illegal firearms and received a 12-month sentence, reduced from 15 months for Charter breaches. In his decision, the sentencing judge was mindful of the personal social context in which Morris committed the offence (among other mitigating and aggravating factors), referencing reports from anti-Black racism experts to paint a picture of Morris as a product of systemic discrimination, which colours the lived experiences of many Black Canadians. The Crown appealed the sentence on the ground, among others, that the judge erred by imposing an unfit sentence.

Hasan pointed to a predecessor to Morris from 2004, R v Hamilton, where two single Black mothers were found guilty of smuggling cocaine. They asked the court to consider a Gladue-like framework to impose conditional sentences, as they were similarly situated to Indigenous offenders, with life experiences shaped by the legacies of colonialism and systemic racism. While the trial judge imposed conditional sentences on the two women, the ONCA found he erred in concluding that conditional sentences were appropriate because of the effects of systemic racism, making it clear that an offender’s membership in a historically disadvantaged group does not justify a lesser sentence. Hasan believes the time has come to revisit and overturn the ONCA judgment. Sixteen years later, the impact of systemic racism on Black Canadians — although different historical circumstances than Indigenous peoples — is now accepted as fact by mainstream society.

While the Crown in Morris agrees that systemic factors such as historical disadvantage can be considered in sentencing cases involving Black Canadians, they want to set up obstacles to access a remedial Gladue-type framework for Black Canadians with a high evidentiary onus. “The Crown wants the accused person to prove that systemic racism caused his or her offending behaviour. How do we prove that?” asked Hasan. The SCC has rejected the “causal link” requirement in the context of Indigenous sentencing in R v Ipeelee.  “Youth is a mitigating factor in a sentencing process. But we never ask a young person to prove how your youth caused you to commit this particular offence. It’s nonsensical. It’s an impossible burden,” Hasan said, a burden even experts struggle to meet. Furthermore, the Asper Centre argues it is unfair to ask marginalized people to demonstrate their life circumstances “caused” their crime, putting forward more robust guidelines for considering these factors informed by substantive equality principles.

While it makes sense that Morris be the next leap after Gladue for a remedial framework in sentencing, Hasan agreed that there may be a concern among jurists of this “slippery slope” argument opening up the “floodgates.” The fear may be that every racialized accused will use this argument. “That is not an elegant argument or a legal argument. But it is a real hurdle,” he said. Orkin added that some of that fear comes from a fundamental misunderstanding of what Gladue is trying to do (as SCC outlined in Ipeelee): it is not a “get out of jail free card,” but about realizing the goal of a fit sentence guided by the principles of substantive equality, which help achieve that goal.

Orkin discussed the benefits and challenges to representing joint public interest intervenor clients in test case litigation. The Asper Centre and the Women’s Legal Education and Action Fund (LEAF) are jointly intervening in Sharma, with Orkin representing both clients as a single party. “There are particular challenges in the criminal justice sphere, in some cases, for working with public interest groups like LEAF, whose perspective draws on different feminist strands,” she said. While defence counsel is focused on the accused, in many contexts, the feminist concern is on the complainant. While not an issue in Sharma or Morris, if conditional sentencing falls for Sharma, for example, it would also fall for a wide array of cases that include various sexual offences. So, dealing with different organizations could result in joint clients disagreeing because of their divergent public interest policy lens on an issue, mirroring society’s diverse conceptions of what the criminal justice is and who it serves.

Mashoka Maimona is a 2L JD student at the Faculty of Law and was an Asper Centre Clinic student in Fall 2019.