Asper Centre Event

Asper Centre formally launches its Police Complaints Guide for Ontario

Posted on by Tal Schreier

by Daniel Minden

On March 26, 2026, the Asper Centre formally launched its new Practical Guide to Police Oversight, a resource designed to help people in Ontario navigate Ontario’s police complaints system. To mark the occasion, the Asper Centre held an event which brought together Jackman Law students and staff, representatives from several Toronto legal clinics, and officials from police oversight agencies. The event featured remarks from Joseph Maiorano, Deputy Inspector General of Policing of Ontario; Stephen Leach, Complaints Director at the Law Enforcement Complaints Agency (LECA); Emily Hill, Senior Staff Lawyer at Aboriginal Legal Services; and Sarah Strban, a criminal defence lawyer in Toronto.

In her introductory remarks, Tal Schreier, Program Coordinator at the Asper Centre, noted that the Police Complaints Guide project originated in 2017. During the summer of 2017, Sarah Strban, then a student at the Faculty of Law, worked as a researcher for renowned Canadian constitutional law expert Mary Eberts in the context of the National Inquiry into Missing and Murdered Indigenous Women and Girls. Her research uncovered a lack of public information about the police complaints process in Canada. Following her summer fellowship, Strban convened an Asper Centre working group which carried on with this research. In response to Sarah’s working group research, the Asper Centre sought and received funding from the Law Foundation of Ontario (LFO) to create the guide. However, the newly elected provincial government led by Doug Ford was in the midst of altering the police oversight legislative framework. In 2019, the Legislative Assembly of Ontario passed the Community Safety and Policing Act (“CSPA”) which reformed the province’s police complaints system. The Asper Centre paused the project until the CSPA entered into force and was fully implemented. With the new police complaints system in effect as of 2024, the Asper Centre completed the drafting and translations of the guide in 2025.

The guests of honour lauded the guide as a valuable resource for the public and explained their organizations’ roles in Ontario’s new police oversight system. Joseph Maiorano, Deputy Inspector General of Policing, noted that the Inspectorate’s mandate is to ensure the compliance of police services and boards with the CSPA. The Inspectorate achieves this task through inspections, investigations, and advisory services, Maiorano said. To fulfil its mandate, the Inspectorate is empowered to issue compliance directions, remove members of a police services board, and appoint administrators to administer a police service. The Inspectorate also includes a Centre of Data Intelligence and Innovation, which conducts research and analysis to improve policing in Ontario.

Maiorano also provided an update on the Inspectorate’s recent work, highlighting its inspection of the Thunder Bay Police Service and Thunder Bay Police Service Board. In addition, Maiorano underscored the Inspector General’s recent decision to launch an inspection of police integrity and anti-corruption practices across Ontario, which will examine five areas: supervision of officers, vetting of recruits and officers, access to databases, evidence management, and substance use related to fitness for duty.

The event also featured remarks from Stephen Leach, Complaints Director at LECA. Although members of the public can submit complaints about police conduct directly to LECA, these complaints are usually referred to the police service whose employees’ conduct is at issue. LECA itself rarely decides to retain complaints for investigation. Rather, LECA functions as an independent oversight body which is set up to review results of investigations conducted by police agencies. LECA can confirm or modify these results or order new investigations.

Leach argued that LECA has made substantial progress in remedying the shortcomings of its predecessor organization, the Office of the Independent Police Review Director (OIPRD), which existed until April 2024. According to Leach, the OPIRD had a backlog of 1,000 cases. Leach claimed that LECA has improved those metrics significantly and is now complying with the 120-day limit set out in the CSPA. Leach also lauded the provision in the CSPA which requires police chiefs to advise LECA of possible incidents of misconduct affecting the public and claimed that LECA receives 10-15 such notifications per week.

Following the remarks by Leach, Emily Hill of Aboriginal Legal Services (ALS) explained that her organization frequently helps clients address police misconduct. According to Hill, ALS often represents families in inquests following deaths of individuals in police custody or use-of-force incidents. ALS also assists clients in making complaints about police through the LECA process, filing human rights complaints where discriminatory police conduct is at issue, and contacting police to report crimes. For Hill, the Police Complaints Guide is a valuable resource which will help people in Ontario understand their options for police complaints and inform Ontario residents about the outcomes that they can realistically expect. Hill also commented on the potential use of restorative justice practices in resolving police complaints, noting that they can be particularly effective where the parties have an ongoing relationship, a shared interest in continued collaboration, and a commitment to improving policing in the community.

Finally, Toronto criminal defence lawyer Sarah Strban, who worked on the Guide during her studies at the Faculty of Law, elaborated on the origins of the guide. Strban noted that her initial research into police oversight in Ontario was conducted for Mary Eberts, who served as counsel to the Women’s Legal Education and Action Fund (LEAF) at the National Inquiry into Missing and Murdered Indigenous Women and Girls. With the benefit of Strban’s research, Eberts asked the National Inquiry to expand its mandate to encompass police oversight. Although the National Inquiry declined to do so, Strban’s summer research became a “passion project” and led her to convene the student-led working group at the Asper Centre, which continued to examine the police complaints process. Now that the project has come to fruition, Strban believes that the guide will be a valuable resource for people in Ontario, in particular for those who cannot afford to hire a lawyer.

The Asper Centre’s Practical Guide to Police Oversight, funded by the Law Foundation of Ontario, is available online in English, French, and Oji-Cree [Anishininiimowin / ᐊᓂᐦᔑᓂᓃᒧᐏᐣ] and in print at many legal clinics across Ontario.

Daniel Minden is a Research and Communications Assistant with the Asper Centre. He is a 1L JD candidate at the University of Toronto Jackman Faculty of Law.

Federal government needs a stronger foreign affairs power, H. Scott Fairley argues

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By Daniel Minden

Canadian federalism jurisprudence should provide the federal government with firmer ground to exercise authority over foreign affairs, Toronto lawyer H. Scott Fairley argued last week.  

On February 5, 2026, the David Asper Centre for Constitutional Rights hosted H. Scott Fairley, with Professor David Schneiderman as discussant, for a Constitutional Roundtable at Jackman Law. Fairley, a partner at Cambridge LLP, presented themes from his recent book Foreign Affairs in the Canadian Constitution (UBC Press, 2025). Fairley argued that an overly broad provincial role in foreign affairs displays disunity and invites aggression, citing James Madison, who wrote that if his country was to be “one nation in any respect, it clearly ought to be in respect to other nations.” 

Historical evolution of the foreign affairs power 

Fairley began by providing an overview of the evolution of the federal foreign affairs power since 1867. Unlike the written constitutions of other federations, Fairley noted that Canada’s Constitution Act, 1867 mostly leaves the issue of foreign affairs unaddressed. This was deliberate, Fairley contended, since Canada’s foreign relations were handled by the British Empire before the First World War. Illustrating this point, s. 132 of the Constitution Act, 1867 gives the federal Parliament “all Powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries.”  

While s. 132 might have been fit for purpose at the time of Confederation, following the 1923 Canada-U.S. Halibut Treaty Canada began to negotiate its own international treaties. As Canada forged an independent foreign policy in the years that followed, Fairley noted that s. 132 became moribund, since the provision only protects federal authority to implement treaties negotiated by the British Empire.  

As the utility of s. 132 faded, provincial governments, especially the government of Québec, began to assert themselves as international actors. In the 1960s, Québec adopted the Gérin-Lajoie doctrine and claimed a right to conduct international relations in all areas of provincial jurisdiction. 

Tracing the evolution of jurisprudence 

Fairley noted that constitutional jurisprudence in Canada has both protected and constrained the federal government’s ability to implement treaties.  

In the Aeronautics Reference [1931] UKPC 93 (BAILII) and Radio Reference [1932] UKPC 7 (BAILII), the Judicial Committee of the Privy Council (JCPC) held that broadcasting and aeronautics fell within the federal vires, relying in part on the fact that international treaties governed the two matters. However, in the Labour Conventions Reference [1937] UKPC 6 (BAILII), the JCPC held that although the federal government could enter into treaties, the performance of those treaty obligations “depends upon the authority of the competent legislature or legislatures.” In other words, the federal government could not intrude on a provincial vires on the basis that Canada needed to fulfil its treaty obligations. 

The Charter and judicial review of the royal prerogative 

Fairley also pointed out the consequential role of the Charter in enabling courts to review federal Cabinet decisions involving foreign affairs issues. The foreign affairs power exercised by Canada has its basis not in the text of the Constitution Act, 1867 but in the vesting of the royal prerogative in the Canadian government. Until a few decades ago, courts regarded the exercise of the royal prerogative as non-reviewable, Fairley contended. However, the Charter of Rights and Freedoms led courts to accept the reviewability of Cabinet decisions on foreign affairs.  

In the landmark case Operation Dismantle v. The Queen [1985] 1 SCR 441, the Supreme Court of Canada held that “decisions of the federal cabinet are reviewable by the courts under the Charter, and the government bears a general duty to act in accordance with the Charter’s dictates.” The Supreme Court reaffirmed this principle in Canada (Prime Minister) v. Khadr [2010] 1 SCR 44, when it held that “in the case of refusal by a government to abide by constitutional constraints, courts are empowered to make orders ensuring that the government’s foreign affairs prerogative is exercised in accordance with the constitution.”  

A proposed addition to the national concern doctrine 

Returning to the topic of federalism, Fairley argued that the Supreme Court of Canada should modify its test for the national concern doctrine so that the federal government can more easily claim jurisdiction over foreign affairs matters. 

As the Supreme Court of Canada held most recently in Reference re Greenhouse Gas Pollution Pricing Act (“Greenhouse Gas”), for a matter to be a matter of national concern, over which the federal government can claim jurisdiction under its Peace, Order, and Good Government (POGG) power, the matter must satisfy a three-part test. The matter must (a) be of sufficient concern to Canada as a whole, (b) have a singleness, distinctiveness, and indivisibility that clearly distinguishes it from matters of provincial concern (c) have a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the constitution.  

In Greenhouse Gas the Court also held that part (b) of the test may include a consideration of “the effect on extra‑provincial interests of a provincial failure to deal effectively with the control or regulation of the intra‑provincial aspects of the matter.” This seems to have led Fairley to adopt a proposed addition to the test, which could cut in favour of many foreign affairs issues being intra vires the federal government.  

In his lecture, Fairley proposed that the Supreme Court should add to the test that “national incapacity to address a matter of international concern independent of collective action [through a treaty]” should also be relevant to the determination of distinctiveness and indivisibility under the national concern doctrine. This would enable Canada to argue that global challenges such as pandemics and climate change, which require collective action, are within federal jurisdiction.  

Driving a truck through federal-provincial equilibrium? 

Professor David Schneiderman asked Fairley to consider whether this proposed addition to the national concern doctrine test might weigh too heavily in favour of federal power, threatening the constitutional equilibrium between the provinces and the federal government. Fairley responded that his proposal is consistent with equilibrium in its modern form, noting that Canadian federalism jurisprudence has long abandoned the notion of federal or provincial watertight compartments.  

Fairley argued that any notion that each order of government can act within sterile autonomous spheres divorced from Canada’s obligations abroad is no longer realistic. Rather, there now exists an extensive overlap between the provincial vires and federal vires as the doctrine of cooperative federalism appreciates. For Fairley, despite the importance of federal-provincial cooperation, Canadian courts must appreciate the distinctiveness of matters requiring collective action, where Canada depends on other nations and other nations depend on Canada.  

Fairley wrapped up his talk with a classical allusion by evoking the memory of Themistocles, who helped to unify Athens with its neighbour Piraeus. That unity was essential in enabling Athens to defeat an invasion by a more powerful Persian force. 

Daniel Minden is a Research and Communications Assistant with the Asper Centre. He is a 1L JD candidate at the University of Toronto Jackman Faculty of Law. 

Re-opening the Gosselin door: the Asper Centre hosts a Symposium on Litigating Positive Rights

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By Daniel Minden

Twenty-four years after Gosselin v. Québec, 2002 SCC 84, in which the Supreme Court of Canada left the door open for the recognition of freestanding, positive rights under the Canadian Charter of Rights and Freedoms, a series of experts hosted by the Asper Centre argued that litigators should renew the push for judicial enforcement of positive rights. 

On January 16, 2026, the David Asper Centre for Constitutional Rights hosted a symposium on litigating positive rights under the Charter at the Henry N.R. Jackman Faculty of Law. Co-chaired by the Cheryl Milne of the Asper Centre and Professor David Schneiderman of the Jackman Faculty of Law, the event considered how litigators can seize the potential of the Charter to argue that governments have positive constitutional obligations to their citizens – including in the areas of climate, housing, and health policy. This blog post focuses on selected portions of the Symposium’s plenary sessions, although the day’s agenda also included concurrent panels covering specific policy areas. 

Enforcing positive social rights in an anti-democratic era 

In a keynote address to launch the symposium, Professor Aoife Nolan of the University of Nottingham School of Law set the tone for the day. Nolan argued that democracy and social rights are co-dependent, and that litigators have a role to play in protecting both.  

Drawing on her experience as President of the Council of Europe’s European Committee of Social Rights, Nolan contended that positive rights litigation is an important means of reinforcing and sustaining democracy. Nolan noted that her quasi-judicial body has held that social rights permit the exercise of democratic rights: in European Roma Rights Centre (ERRC) v. Greece (Complaint No. 15/2003), the Committee found that the right to housing enabled the exercise of political rights. Nolan also argued that healthy democracies are best able to fulfil social rights, referring to Nobel laureate Amartya Sen’s thesis that functioning democracies with a free press do not experience substantial famines. 

The connection between social rights and democracy can help to explain the rise of anti-democratic forces, Nolan argued, referencing research which demonstrates a positive correlation between citizens’ concerns over access to goods and services, and support for far-right parties. In a call to action to attendees, Nolan insisted that litigation is a “key mechanism to flag gaps and bring about government action in areas such as housing, social protection, and employment,” which in turn, helps to maintain confidence in democracy.  

Room for optimism about positive rights in Canada? 

Following Nolan’s lecture, Professor Joel Bakan of the University of British Columbia’s Allard School of Law provided an historical overview of attempts to litigate positive Charter rights in Canada. Bakan recounted that Canadian courts have persistently rejected the notion that the Charter protects ‘freestanding’ positive rights, i.e., rights that “obligate state actors to provide some protection or benefit regardless of whether they have already provided a version of that protection or benefit.” In contrast, Bakan asserted that Canadian courts have been willing to recognize ‘contingent’ positive rights, i.e. rights which “obligate state actors to extend or expand some protection or benefit they have already provided a version of.” Bakan noted Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC) and Vriend v. Alberta, 1998 CanLII 816 (SCC), as examples of the Supreme Court recognizing contingent positive rights.  

In the landmark Gosselin case, the Supreme Court rejected an attempt to establish a freestanding positive right claimed by a welfare recipient appellant. The Court held that “nothing in the jurisprudence thus far suggests that s. 7 places a positive obligation on the state to ensure that each person enjoys life, liberty or security of the person. Rather, s. 7 has been interpreted as restricting the state’s ability to deprive people of these.” The Court found that “such a deprivation does not exist in the case at bar,” but also left the door open to recognizing positive obligations created by s. 7 in a future case.  

Dissenting Justice Louise Arbour took a broader view of the word ‘deprive.’ She found that “there is no sense in which the actual language of s. 7 limits its application to circumstances where there has been positive state interference,” since the “concept of deprivation is sufficiently broad to embrace withholdings that have the effect of erecting barriers in the way of the attainment of some object.” Bakan argued that in later contingent positive rights cases, the Court has seemingly embraced Arbour’s expansive understanding of ‘deprivation.’ In Bakan’s interpretation, the Supreme Court’s jurisprudence in which it has recognized contingent positive rights “depend upon and affirm” Arbour’s view that “a right can be deprived, breached, violated [or] limited by omission as much as by action.” In Bakan’s view, the court’s simultaneous acceptance of contingent positive rights and rejection of freestanding positive rights is inconsistent.  

Finally, Bakan addressed the concern that freestanding positive rights risk transforming judges into legislators. While acknowledging the need for caution, Bakan pointed to Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, as a proof of concept for navigating justiciability issues. In Doucet-Boudreau, the trial judge held that the province of Nova Scotia had to deploy its best efforts to uphold French-language education rights in the province. Rather than ordering a specific policy solution for the Nova Scotia government to pursue, the trial judge retained jurisdiction and monitored the government’s progress. The Supreme Court upheld the trial judge’s remedy as an appropriate exercise of judicial authority since the remedy left “detailed choices of means largely to the executive.” For Bakan, Doucet-Boudreau indicates how freestanding positive rights arising from Charter interpretation (as opposed to textually explicit positive rights such as ss. 14 and 23) might be judicially enforced in Canada if recognized by the Court. 

Bakan was followed by New York University JSD student Henry Federer and Osgoode Hall Law School Assistant Professor Anthony Sangiuliano, who presented their upcoming articles on positive rights. As an alternative to the dichotomy between positive and negative rights, Federer proposed a ‘two-tier’ methodology for characterizing Charter rights which initially characterizes a right as imposing a negative duty on the state or imposing a positive obligation on the state. Then, the methodology characterizes the right a second time to elucidate whether the right, once engaged, creates a secondary duty or obligation for the state.  

Following Federer’s presentation, Sangiuliano argued that positive constitutional rights are predicated on findings that state omissions have caused a violation of the relevant right. Sangiuliano posited that such findings are not empirical, but normative: such a finding is predicated on the notion that the state has a duty to prevent an outcome. For Sangiuliano, the ‘exposition’ of judicial decisions can help reveal the normative assumptions that underly judicial findings of state omissions.  

Addressing judicial anxieties about positive rights 

The separation of powers concerns referenced by Bakan were also addressed in an afternoon plenary session on judicial anxieties about positive rights. Associate Professor Benjamin Perryman of the University of New Brunswick argued that the separation of powers between the three branches of government is a misnomer and should be reconceived as the overlapping of powers. Perryman contended that the judiciary has a role in explaining how the overlap ought to function in practice and pointed towards foreign jurisprudence to indicate how Canadian courts might go about this task. 

Both Professor Kent Roach of Jackman Law and Professor Margot Young of the University of British Columbia’s Allard School of Law argued forcefully against a distinction between positive and negative rights at all. Roach noted that the Charter rights implicated in criminal law, though often framed in negative terms in the text of the Charter, in effect create positive obligations for the state. For instance, s. 12 implicitly requires the state to invest in correctional facilities so that they do not amount to venues for cruel and unusual punishment. For Roach, the positive versus negative rights dichotomy is a false distinction.  

Young made a similar argument, asserting that the Charter is at a moment of “existential crisis” because Canadian courts have “failed to give force to the full potential for the Charter as an instrument of social justice.” Young argued that the Supreme Court’s concept of substantive equality in interpreting s. 15(1) requires recognition of positive state obligations if it is to mean anything – and that a real commitment to social equality requires doing away with the distinction between positive and negative obligations.  

Young quoted from the American scholar S. F. Kreimer, who writes that “appropriate verbal manipulations can easily move most cases across the line between positive and negative obligations,” and from the University of Ottawa’s Martha Jackman, who has written that “the distinction between state action and inaction, and between positive and negative rights, has been entirely discredited under international human rights law.” Young asserted that the courts’ proclivity to distinguish between positive and negative rights is explained by a desire to protect the separation of powers. For Young, however, the separation of powers “requires judicial enforcement of the Charter to its full remedial purpose.” 

This afternoon plenary panel also included a presentation by Associate Professor Angela Cameron of the University of Ottawa and Toronto lawyer Lara Koerner-Yeo of JFK Law LLP, who examined the role of the presumption of conformity (between Canadian legislation and international treaty obligations) in ss. 7 and 15 Charter litigation. Research by Cameron and Koerner-Yeo indicates very little litigation in which the presumption of conformity has been raised in support of positive rights claims. However, Cameron and Koerner-Yeo noted that the presumption is increasingly invoked in s. 35 litigation.  

Daniel Minden is a Research and Communications Assistant with the Asper Centre. He is a 1L JD candidate at the University of Toronto Jackman Faculty of Law. 

David Rabban argues for a distinct theory of the right to academic freedom, as the U.S. and state governments tighten the screws on universities

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By Daniel Minden

As the Trump administration and state governments ramp up efforts to regulate American universities, David M. Rabban, an expert on the law of academic freedom and professor at the University of Texas School of Law, highlights that the U.S. Supreme Court has recognized a distinct right to academic freedom under the First Amendment of the U.S. Constitution – but argues that this distinct right must be properly elaborated by courts and theorized by scholars. 

On November 13, 2025, Rabban was hosted by the David Asper Centre for Constitutional Rights and the H.R. Jackman Faculty of Law Program on the Critical Analysis of Law for a lecture covering the interpretation of academic freedom as a First Amendment right.  

The foundational Sweezy and Keyishian decisions 

Rabban noted that although the text of the First Amendment does not explicitly refer to academic freedom, the Supreme Court of the United States identified academic freedom as a distinct right under the First Amendment in Sweezy v. New Hampshire, 354 U.S. 234 (1957), a McCarthy-era case arising from the state of New Hampshire’s investigation of a Marxist professor. In another landmark case, Keyishian v. Board of Regents 385 U.S. 589 (1967), the Court held that “Academic freedom is a special concern of the First Amendment” – an idea cited in hundreds of subsequent cases. 

Despite the Court’s holding in Keyishian, Rabban argues that the Court has never adequately explained why academic freedom is “special,” and that the large majority of academic freedom cases lack a substantive analysis. To fill in the gaps, Rabban has focused on interpreting the meaning of academic freedom through research presented in his new book, Academic Freedom: From Professional Norm to First Amendment Right. 

Interpreting the right to academic freedom 

What exactly is protected by the right to academic freedom as currently understood by American courts? Rabban finds that courts have principally protected the content of teaching and research. At times, they extended the freedom further, to protect, for instance, the confidentiality of classroom discussions, the confidentiality of medical records, and confidentiality guarantees extended by historians to interviewees previously involved in the Irish Republican Army. 

Other aspects of professors’ conduct have been treated inconsistently by courts. In some instances, courts have protected pedagogical decisions by professors when those decisions were justified on academic grounds as determined by peer academics. However, in Trustees of Indiana University v. Curry, No. 18-1146 (7th Cir. 2019), the United States Court of Appeals, Seventh Circuit, found that the plaintiffs’ argument that the use of fetal tissue in research was protected by the First Amendment was a “non-starter” since the statute forbidding the practice “regulates conduct, not speech.” 

Professors’ “intramural speech,” specifically, their comments about university policies or public issues outside of their domain of specialty, has also been treated inconsistently by courts. Some decisions have extended the right to academic freedom to include a professor’s comments about university policies, but in most cases, courts have decided cases pertaining to intramural speech under the broader First Amendment umbrella.  

In addition to professors, the U.S. Supreme Court has also protected the right of institutions to academic freedom. In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the Court affirmed a concurring decision from Sweezy which found that the “four essential freedoms” of a university are the rights “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” 

The insufficiency of general First Amendment rights when applied to professors 

Why is a specific right to academic freedom required, given the broader First Amendment? Rabban argues that general First Amendment rights as applied to professors are inadequate, necessitating the specific right. 

To be protected speech under the general First Amendment, speech by public employees must be about matters of “public concern.” In cases involving professors, courts have excluded from the “public concern” such categories as “abstract theorizing,” criticism of university administrators, and comments by professors protesting the denial of tenure to other professors. These categories of speech are fundamental to the work of any professor but are left unprotected by general First Amendment rights, argues Rabban. 

In addition, in Garcetti v. Ceballos, 547 U.S. 410 (2006), the U.S. Supreme Court held that the speech of public officials “pursuant to their official duties” is not protected under the First Amendment. Obviously, this rule restricting the scope of First Amendment rights would massively impede the protection enjoyed by professors, if applied to them. The Court even recognized the possible need to exclude professors from the Garcetti rule, but since the facts of the case did not involve academic freedom, the Court left aside the issue of the rule’s applicability to professors. 

The need to theorize the right to academic freedom as a distinct First Amendment right 

To compensate for the failure of the general First Amendment Rights to adequately protect professors, a specific right to academic freedom is needed, says Rabban. A proper theory of the right to academic freedom can both justify its existence and define its scope. Given the lack of U.S. Supreme Court jurisprudence adequately laying out the justification and scope of the right to academic freedom, Rabban has taken on this work himself.  

As a starting point, Rabban cites a publication by the American Association of University Professors (AAUP) which contains, in his view, the best justification of academic freedom. The AAUP highlights professors’ unique function in society, which is to apply their expertise to the pursuit and dissemination of knowledge which is a benefit to society, a role which would necessarily be impeded if professors could not reach academic conclusions that meet academic standards but offend legislators or members of the public. 

For Rabban, this unique role of the professor in society justifies the existence of a separate First Amendment right to academic freedom. The justification of the right can also help determine its scope. Rabban argues that the scope of the right must include pedagogical decisions and speech about educational issues at universities – but since the theory of the right relies on expertise to justify specific rights to academic freedom, the intramural expression of professors outside their expertise should not be protected by the right to academic freedom. 

Academic freedom in Canada 

During the question-and-answer period, one questioner noted that in Canada, the content of the right to academic freedom is generally seen as the right of professors not to be sanctioned by universities for exercising their general freedom of expression rights. The questioner noted that this Canadian conception of academic freedom is generally protected through collective agreements, rather than constitutional litigation. The efficacy of protecting academic freedom in Canada through collective bargaining is only possible because Canada has a much higher rate of faculty union membership as compared to the United States. 

Current challenges in the United States 

In concluding his talk, Rabban highlighted the current pressure being exerted by the U.S. federal government and state governments on academic freedom rights. Though Rabban accepts that legislatures do have a role in determining the general curriculum requirements for public universities, he contends that through their recent acts, legislatures are inappropriately supplanting the role of universities by determining the specific content of courses. These state acts are far more intrusive than previous state interventions such as the Cold War-era questioning of Professor Sweezy, argues Rabban.  

Even though current state regulations have created a chilling effect and rendered certain American professors hesitant to teach about topics such as race and sex, Rabban argues that the right to academic freedom matters and is worth exercising despite the risk of penalties such as forced early retirement. Rabban notes that in times of totalitarian rule, academics have given up a great deal, including their liberty, to preserve the right to academic freedom. Rabban’s advice to academic colleagues is not to be chilled, and to exercise their rights. 

Daniel Minden is a Research and Communications Assistant with the Asper Centre. He is a 1L JD candidate at the University of Toronto Jackman Faculty of Law.

Asper Centre hosts panel on Indigenous Child Welfare and Self-Governance

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by Taoran Li

On 31 October 2024, the Asper Centre’s Indigenous Rights Working Group presented a panel event to unpack the significant legal issues and potential future implications of two recent decisions on Indigenous child welfare and self-governance. The decisions Haaland v Brackeen, 599 U.S 255 (2023) issued by the Supreme Court of the United States and Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5  issued by the Supreme Court of Canada, determined the validity of federal legislation introduced to address historic and ongoing harms caused by the apprehension of Indigenous children from their families by settler governments in both Canada and the United States.

The panel, moderated by Cheryl Milne, the Executive Director of the Asper Centre, consisted of Maggie Blackhawk, professor at New York University and teacher of federal Indian law, constitutional law and legislation; Sara Mainville, partner at JFK Law LLP and Chief of Couchiching First Nation; and, Professor John Borrows, the Loveland Chair in Indigenous Law at the University of Toronto Faculty of Law.

The idea for the panel and the questions formed for the panelists were the result of research conducted by the Asper Centre’s Indigenous Rights Working Group in 2023. Isabel Klassen-Marshall, one of the co-leaders for the Working Group began the discussion by introducing the facts and issues in the two cases. In Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 the Canadian Supreme Court considered the validity of “An Act Respecting First Nations, Inuit and Metis Children, Youth and Families” or Bill C-92, an Act passed by Parliament in 2019. The Act formally recognized the inherent Aboriginal right of self-government, including jurisdiction over child and family services and established mechanisms through which Indigenous communities can exercise their authority, either by enacting their own laws or through coordination agreements negotiated with federal and provincial governments.

In response to a reference question triggered by the Attorney-General of Quebec, the Quebec Court of Appeal held the provisions in the Act to be valid, except for the provisions which gave Indigenous laws the force of federal law. Upon appeal to the Supreme Court, the Supreme Court of Canada upheld the Act as a whole as constitutionally valid. The Supreme Court’s approach differed from the Quebec Court by recognizing constitutionality through a federalism analysis, rather than a finding of a generic s 35 right to self-government over child and family services. The Court held that the Parliament’s explicit affirmation of an inherent right to self-government was an expression of Parliament’s position on the scope of s 35, rather than any amendment of the Constitution or actual recognition of a s 35 right.

Haaland v Brackeen related to a constitutional challenge to the Indian Child Welfare Act (ICWA), brought by the State of Texas, three families who wished to adopt or foster Indigenous children and an Indigenous woman who wanted non-Indigenous parents to adopt her biological child. The ICWA is a federal law enacted in 1978 providing for minimum standards for foster care and adoption cases involving Indigenous children. It overrides aspects of state family law to preserve the stability of tribal nations and communities, including a placement preference in adoption cases for relatives, members of the child’s tribe, and members of other Indigenous families. The claimants’ challenge comprised many grounds, including that Congress lacked the authority to enact ICWA and that ICWA violated the Equal Protection Clause as the law prioritized placement of children based on race rather than understandings of Indigenous nationhood. The U.S. Supreme Court dismissed the challenge and upheld ICWA. In doing so, it confirmed Congress has a broad plenary power to legislate with respect to different tribal nations. The equal protection claim was dismissed on the basis of standing.

The panel discussion covered many practical and theoretical implications of the decisions: from the mechanisms and architecture of Bill C-92 for resolving conflict between Indigenous and provincial laws and individual and collective rights, to how the decisions impact the existing division of powers regarding child welfare between federal and provincial governments, to how the lower courts are already interpreting and applying the legislation. A strong theme throughout the discussion was the underlying colonial dimension to the decisions and the unresolved question of inherent Indigenous self-government. Professor Borrows noted that by only recognising that the Bill C-92 legislation “acts as if” there is inherent right to self-government under s 35, the Supreme Court of Canada is not committed to uphold or deny the fact that Indigenous peoples might have an inherent right to self-government in their relationship to their child and family services. On the other hand, Professor Borrows commented this incrementalism has a positive element as Parliament binds itself to proceed as if that right already exists and allows parties to gain experience in exercising responsibilities with regards to child well-being.

Similarly, the colonial dimension also permeates through Haaland v Brackeen in the context of American colonialism. Professor Blackhawk explained that the Supreme Court in upholding ICWA both reaffirmed the power of American colonialism but also expressed concerns over its limits. The Court reaffirmed American colonialism by confirming the power Congress had to colonize Native Americans within the territorial borders of the United States lies in the “powers inherent in sovereignty” in the Constitution of the United States. This term captures a body of laws from the 18th and 19th centuries founded upon concepts such as the law of nations and natural law, which rested on the right of “civilized nations” to govern “savage nations” through forms of colonization. The body of laws was eventually flattened into the plenary power doctrine, where the court withheld using its own review power to oversee the process of colonialism due to the political branches possessing “plenary power”. In this sense, Haaland v Brackeen represents an odd juncture where reconstruction amendments that aim to solve the failure of human enslavement are also furthering the American colonial project.

Sara Mainville brought a critical practitioner viewpoint to the panel and explained the available mechanisms to Indigenous governing bodies in Canada to enforce their own laws and how those mechanisms would interact with existing provincial enforcement systems and laws. Sara first drove home the message that the 19th century governance of the Indian Act is still a reality for Indigenous peoples in Canada, and that governance capacity for Indigenous communities presents a great challenge. However, Bill C-92 does assist Indigenous governing bodies, including section 20(3) of the Act which provides that the laws of an Indigenous governing body who has entered into a coordination agreement, or made reasonable efforts to do so for one year, will have the force of federal law. This section is an example of innovation in Bill C-92 that helps to resolve issues in advance of coordination agreement negotiations.

To reiterate a point made by Professor Blackhawk, there is space for colonized people to share strategies that have been empowering in their colonial jurisdictions. The panel is illustrative of the merits of this.

View the webcast of the panel discussion HERE.

Taoran Li is a Research and Communications Assistant with the Asper Centre. She is an international student from New Zealand attending the Master of Laws program at the University of Toronto Faculty of Law.