Asper Centre interventions

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.

A Clear and Decisive Supreme Court Ruling on Public Interest Standing: Attorney General of British Columbia v. Council of Canadians with Disabilities

Posted on by Student

by Caitlin Salvino

On June 23rd, 2022 the Supreme Court of Canada (SCC) released its decision in Attorney General of British Columbia v. Council of Canadians with Disabilities.[1] This ruling reaffirms the important role of public interest standing in systemic litigation and will have long lasting impacts on future Charter litigation.

Public Interest Standing

All cases heard by the courts require parties to have standing.[2] In most cases parties have private interest standing through a direct legal interest in the case.[3] In some cases, there are no parties with private interest standing and a party may apply for public interest standing to pursue the litigation. The courts have long recognised that there must be limitations on public interest standing to avoid over-burdening the courts, deter “busybody” litigants, and maintain the appropriate role of the courts within Canada’s constitutional democracy.[4] The courts have thus developed a test to determine whether public interest standing should be granted.[5]

The leading case on public interest standing is Canada v Downtown Eastside Sex Workers United Against Violence Society.[6] In Downtown Eastside Sex Workers, the SCC established that the court will consider three factors in assessing public interest standing: (1) if there is a serious and justiciable issue;[7] (2) if the claimant has a genuine interest in the proceedings ;[8] and (3) if the litigation is a reasonable and effective means to bring forward the challenge.[9] Furthermore, the SCC stipulated that these three public interest standing factors should not be assessed as a checklist. Instead, the factors should be assessed cumulatively through a purposeful and flexible interpretive approach.[10]

Council of Canadians with Disabilities and the Jurisprudence on Public Interest Standing

Despite the criteria laid out in Downtown Eastside Sex Workers, less than ten years later the SCC granted leave  in Council of Canadians with Disabilities.[11]  The Council of Canadians with Disabilities (CCD) had sought public interest standing to challenge the constitutionality of the British Columbia’s Health Care (Consent) Act, Mental Health Act and Representation Agreement Act. This combined legislative scheme permits the administration of psychiatric medical treatment to patients living with disabilities related to mental health and mental illness without their consent. Unlike all other forms of medical treatment, when a patient is being involuntarily held in a mental health facility, psychiatric treatment can be administered without the consent of the patient or the patient’s identified substitute decision-maker.[12] The CCD argued that this legislative scheme violated sections 7 and 15 of the Charter in a way that could not be justified under section 1.[13]

Initially, the constitutional challenge was brought by individuals with private interest standing who had undergone non-consensual psychiatric treatment. The CCD was supporting this litigation as a co-plaintiff. However, the individual plaintiffs subsequently withdrew from the proceedings after the Attorney General of British Columbia requested their medical records.[14] The CCD then pursued the Charter claims independently by seeking public interest standing, which the Attorney General of British Columbia challenged. At the court of first instance, the Attorney General’s summary trial motion was granted and the CCD was denied public interest standing.[15] On appeal, the British Columbia Court of Appeal granted the CCD public interest standing.[16] The case was then granted leave to appeal to the SCC.[17]

In Council of Canadians with Disabilities, the SCC unanimously reaffirmed the public interest standing analysis established in Downtown Eastside Sex Workers. This decision is significant because it addresses interpretive gaps that remained from Downtown Eastside Sex Workers and sends a strong message affirming the important role of public interest standing parties within Canada’s constitutional democracy.

First, the SCC in Council of Canadians with Disabilities provided additional guidance on the public interest standing analysis. The court rejected the CCD’s argument, and the Court of Appeal’s finding, that the principles of legality and access to justice should merit particular weight in the public interest standing analysis.[18] Instead, the SCC held that the principles of legality and access to justice permeate all three factors that a court must consider when deciding whether to grant public interest standing.[19] The principle of legality is linked to the rule of law by requiring that there are reasonable ways for individuals to challenge the legality of State action.[20] The principle of access to justice is symbiotically linked to public interest standing by providing an avenue to challenge the legality of State action and uphold the rule of law.[21]  The SCC noted that the dual principles of legality and access to justice are most relevant to the consideration of the third factor in the public interest standing  analysis[22] but cautioned against courts interpreting these principles as “hard and fast requirements or free-standing, independently operating tests”.[23]

Second, the SCC clarified the requirement of a sufficient factual setting for cases where parties are granted public interest standing. The SCC established that there is no strict requirement that public interest litigation always be in partnership with a directly affected co-plaintiff.[24] Such an interpretation would undermine the principles of legality and access to justice by creating barriers to litigation for marginalised populations. Instead, the SCC held that parties seeking public interest standing must “show that a sufficiently concrete and well-developed factual setting will be forthcoming at trial”.[25] The SCC reasoned that at the pre-liminary stages it is unnecessary for the party seeking public interest to provide trial-level evidence. However, the courts retain the ability to reconsider standing at any point of the proceeding if there is not a sufficient evidentiary record to conduct the trial.[26]

Finally, the SCC decision in Council of Canadians with Disabilities is significant because it represents a vindication of the public interest work of  CCD, and uplifts the importance of public interest standing in systemic litigation. The CCD first filed the original notice of civil claim in 2016 and had been litigating the preliminary issue of standing for six years.[27] Rather than referring the case back to the British Columbia Supreme Court for re-consideration, the SCC granted the CCD public interest standing because “it is in the interests of justice”.[28]

This decision also sends a message to governments who seek to shut down public interest litigation on behalf of vulnerable populations at preliminary stages. The SCC makes clear that the threshold to establish public interest standing should not be onerous and should only be denied in limited circumstances. This message is in part demonstrated through the SCC’s decision to grant special costs in favour of the CCD.[29] Special costs requires the losing party to cover the full costs of the litigation and is much higher than the standard “party costs” that usually only cover 30% to 40% of the actual litigation costs incurred.[30] The SCC, through this decision and the awarding of special costs, sends a cautionary message to government’s considering challenging public interest litigation based on standing.

The David Asper Centre Intervention in Council of Canadians with Disabilities

The David Asper Centre for Constitutional Rights participated as an intervener in Council of Canadians with Disabilities. Through their intervention factum, the Asper Centre focused on the role of public interest standing as a mechanism in litigation pursuing a remedy under section 52(1) Constitution Act, 1982. Section 52(1), also known as the Constitution’s “supremacy clause”,[31] establishes that “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force and effect”.[32]  The Asper Centre argued that section 52(1) is a systemic remedy that does not require an individual plaintiff.[33]  In their factum, the Asper Centre also highlighted challenges associated with class actions, which could become one of the only viable ways for parties to pursue litigation for Charter rights violations if public interest standing were to be restricted.[34]

In Council of Canadians with Disabilities, without referencing the Asper Centre, the SCC adopted its stance on the challenges associated with class actions as an alternative means to pursue litigation.[35] Following the release of the decision in Council of Canadians with Disabilities, the Asper Centre Executive Director Cheryl Milne shared that the SCC “listened to the submissions of the CCD and the Asper Centre, that relying upon class action litigation as a more effective means of bringing this claim forward is questionable. [The SCC] note[s] that class actions are ‘rife with unknowns,’ including the fact that their primary focus is on damages and not always the systemic issue raised by a public interest litigant”.[36]

Looking Ahead

The unanimous SCC decision in Council of Canadians with Disabilities reaffirms and fills the gaps in the existing jurisprudence on public interest standing. The SCC released a clear and decisive ruling on the importance of the parties with public interest standing pursuing systemic litigation on behalf of vulnerable populations. Moving forward, the decision Council of Canadians with Disabilities is likely to increase access to justice for vulnerable populations and ensure that potential State Charter infringements are accountable under the rule of law.

The Asper Centre intervention factum in Council of Canadians with Disabilities can be read here. 

Caitlin Salvino is a JD Candidate at the Faculty of Law and is the Asper Centre’s 2022 summer Research Assistant.

 

[1] British Columbia (Attorney General) v Council of Canadians with Disabilities, 2022 SCC 27 [Council of Canadians with Disabilities].

[2] Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, at para 1 [Downtown Eastside Sex Workers].

[3] Mia Reimers, “Constitutional Challenges: Public Interest Standing”, (26 September 2014), online: Centre for Constitutional Studies <https://www.constitutionalstudies.ca/2014/09/constitutional-challenges-public-interest-standing/>.

[4] Downtown Eastside Sex Workers, supra note 2 at para 1.

[5] Ibid at para 2.

[6] Downtown Eastside Sex Workers, supra note 2.

[7] Ibid at paras 39–42.

[8] Ibid at para 43.

[9] The third stage of the public interest standing analysis adjusted the precedent from Minister of Justice of Canada v. Borowski. In Borowski, the SCC held that the third public interest standing factor required that the party seeking public interest standing show that: “there is no other reasonable and effective manner in which the issue may be brought before the Court”. The SCC in Downtown Eastside Sex Workers altered the rigid Borowski third factor from requiring that litigation is the most effective means of bringing forward the case to requiring that the litigation is an effective means of bringing forward the case. See Minister of Justice of Canada v Borowski, [1981] 2 SCR 575, 130 DLR (3d) 588 and  Downtown Eastside Sex Workers, supra note 2 at paras 19–20, 44.

[10] The SCC affirmed the purposeful and flexible interpretive approach to public interest standing that was established in Canadian Council of Churches v. Canada (Minister of Employment and Immigration). See Downtown Eastside Sex Workers, supra note 2 at para 23 citing Canadian Council of Churches v Canada (Minister of Employment and Immigration), [1992] 1 SCR 236, 88 DLR (4th) 193, at 252.

[11] Council of Canadians with Disabilities, supra note 1.

[12] Ibid at para 8.

[13] Ibid.

[14] Ibid at paras 9–10. Also see Council of Canadians with Disabilities v British Columbia (Attorney General), 2020 BCCA 241, at para 21 [Council of Canadians with Disabilities BCCA].

[15] MacLaren v British Columbia (Attorney General), 2018 BCSC 1753.

[16] Council of Canadians with Disabilities BCCA, supra note 14.

[17] Attorney General of British Columbia v. Council of Canadians with Disabilities, 2022 SCC 27, leave to appeal to SCC granted, 2021 CanLII 24821.

[18] Council of Canadians with Disabilities, supra note 1 at para 31.

[19] Ibid at para 56.

[20] Ibid at para 33.

[21] Ibid at para 34.

[22] The third public interest standing factor is whether the litigation is a reasonable and effective means to bring forward the challenge. See Downtown Eastside Sex Workers, supra note 2 at para 44. Also see Council of Canadians with Disabilities, supra note 1 at para 58.

[23] Council of Canadians with Disabilities, supra note 1 at para 69.

[24] Ibid at paras 63–67.

[25] Ibid at para 71.

[26] Ibid at paras 72, 74–75.

[27] Ibid at para 122.

[28] Ibid at para 78.

[29] Ibid at paras 119–123.

[30] Peter J Roberts, “The Thorny issue of Costs and Special Costs”, (3 November 2014), online: Lawson Lundell LLP <https://www.lawsonlundell.com/Commercial-Litigation-and-Dispute-Resolution-Blog/the-thorny-issue-of-costs-and-special-costs>.

[31] Peter Hogg, Constitutional Law of Canada, student ed (Scarborough: Carswell, 2006) at 850.

[32] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 52(1).

[33] Attorney General of British Columbia v. Council of Canadians with Disabilities, 2022 SCC 27 (Factum of Intervener David Asper Centre for Constitutional Rights, at para 6).

[34] Ibid at paras 13-15.

[35] Council of Canadians with Disabilities, supra note 1 at paras 113–116.

[36] Quote provided directly from Executive Director of the Asper Centre Cheryl Milne.

The Curious Case of Section 15 and Courts of First Instance: The Joint Asper Centre, LEAF and West Coast LEAF Intervention in Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al 

Posted on by Student

by Caitlin Salvino

In the Fall of 2022, the Supreme Court of Canada (SCC) will hear the case Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al.[1] The David Asper Centre for Constitutional Rights, West Coast Legal Education and Action Fund (West Coast LEAF), and Women’s Legal Education and Action Fund (LEAF) have been jointly granted intervener status.[2] Their joint intervention focuses on the treatment of claims under section 15 of the Canadian Charter of Rights and Freedoms (Charter) by courts of first instance.

The Safe Third Country Agreement with the United States

In Canada, an individual can apply for refugee status at an official Port of Entry or at an Immigration, Refugees and Citizenship Canada office. To qualify for refugee status the claimant must either: (1) have a well-founded fear of persecution or (2) are at risk of torture, or cruel or unusual punishment in their home countries.[3]

In Canada, the federal government has restricted Port of Entry asylum claims through the Safe Third Country Agreement (STCA) with the United States (US). The STCA bars refugee claimants that arrive at the Canadian border from the US, unless they meet a narrow category of exceptions.[4] The STCA expects refugees to make an asylum claim in the first safe country they enter, in this case the US. The Canadian government maintains that countries will only be recognised as a “safe third country” if they respect human rights and offer a high degree of protection to refugee claimants.[5]  The Immigration and Refugee Protection Act (IRPA) requires the Government of Canada to continuously review the STCA with the US to ensure that it meets  four conditions listed in the IRPA.[6] The STCA with the US has been criticised by refugee and human rights organisations, based on increasing evidence of mistreatment of refugee claimants in the US.[7]

Challenging the Constitutionality of the Safe Third Country Agreement

In 2017, the STCA was jointly challenged by refugee claimants barred under the STCA, together with the Canadian Council of Refugees, Amnesty International and the Canadian Council of Churches. In addition to arguing that provisions of the STCA were ultra vires, the Applicants argued that the combined effect of sections 101(1)(e) of IRPA and 159.3 of the Immigration and Refugee Protection Regulations unjustifiably infringed sections 7 and 15 of the Charter.[8]

Under section 7, the Applicants argued that many asylum seekers rejected under the STCA are automatically imprisoned upon their return to the US as a form of punishment depriving the claimants of their section 7 rights to liberty and security of the person.[9] With respect to section 15, the Applicants argued that the STCA with the US has a disproportionate impact on female-identifying refugee claimants. This claim was supported by evidence of a narrower interpretation of gender persecution asylum claims in the US[10] and a one-year bar on all refugee claims in the US.[11] The one-year ban on refugee claims requires an individual to seek asylum within one year of experiencing persecution – a restriction that poses a barrier for women and 2SLGBTQQIA[12] individuals who experience gender persecution that involve unique forms of trauma that often result in delayed reporting.[13]

The Applicants succeeded at the Federal Court in 2020. The Federal Court declared that the provisions[14] enacting the STCA unjustifiably infringed section 7 of the Charter.[15] The Federal Court held that the STCA was intra vires federal authority and declined to address the arguments put forward on section 15 of the Charter.[16] As a remedy for the section 7 violation, the impugned provisions were declared to have no force or effect and the declaration of invalidity was suspended for six months.[17]

The Federal Court ruling was overturned by the Federal Court of Appeal in 2021.[18] The Federal Court of Appeal agreed with the lower court that the STCA is intra vires the federal authority[19] but disagreed with the findings with respect to section 7 of the Charter.[20] The Federal Court of Appeal, held that the two impugned provisions, which recognise the US as a safe third country, do not cause the harms being challenged under the Charter.[21] Instead, the Federal Court of Appeal held that section 102(3) of IRPA, which includes the criteria for safe third country designation, should have been challenged under judicial review in relation to the alleged harms under the Charter.[22] Regardless of the appropriate approach, the Federal Court of Appeal disagreed with the lower court’s factual findings on section 7, which the Federal Court of Appeal deemed insufficient and unrepresentative of the experiences of refugee claimants on the whole.[23] On section 15, the Federal Court of Appeal agreed with the Federal Court’s approach to judicial restraint and also declined to address the claim based on equality rights.[24]

Joint Asper Centre, LEAF and West Coast LEAF Intervention

In Canada, there is a growing recognition of the relevance of gender-related persecution in refugee asylum claims. Although it is not yet recognised as an independent ground to establish fear of persecution, if claimed, gender-related persecution must be assessed by the Refugee Division panel considering the claim.[25] The assessment of gender-related persecution claims requires an examination of the link between gender persecution and the enumerated grounds in the Refugee Convention.[26]

The Applicants argued that the STCA violated both sections 7 and 15 of the Charter. Under section 15, the Applicants argued that the STCA disproportionately impacts female-identifying refugees[27] and provide an extensive evidentiary record of gender discrimination under the STCA.  After determining that provisions of the STCA unjustifiably infringed section 7 of the Charter the Federal Court declined to address the section 15 claim.[28] In doing so, the Federal Court made no factual findings on the evidence of gender-based discrimination within the STCA legal regime. The Federal Court’s disregard of the section 15 claim was upheld by the Federal Court of Appeal who determined that lower courts are not required to consider all Charter claims because section 15 “does not enjoy ‘superior status in a hierarchy of rights’”.[29]

The joint Asper Centre, West Coast LEAF and LEAF intervention for the upcoming SCC hearing focuses on the Federal Court’s decision to not consider and make factual findings on all Charter issues raised that are supported by an extensive evidentiary record. The joint interveners argue that the Federal Court should have decided the section 15 claim and the refusal to consider the section 15 claim inappropriately applied the doctrine of judicial restraint.[30]

The joint interveners support their position with three arguments. First, a purposive interpretation of the Charter as a whole requires a ruling on all Charter claims raised with an extensive evidentiary record. The Federal Court’s decision to decline considering the section 15 issue altered the subsequent justificatory analysis of section 1 and the appropriate remedy.[31] Second, the lower court erred in its application of the principle of judicial restraint, which does not permit a court to favour one Charter claim over another.[32] This flawed interpretation of the principle of judicial restraint has the practical implication of creating a hierarchy of Charter rights, within which section 15 is relegated to the bottom.[33] Third, the Federal Court’s failure to address the section 15 claim minimises the issue of gender-based violence and historic disadvantage experienced by women and 2SLGBTQQIA individuals.[34]

Looking Ahead

The SCC hearings in Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al. will be heard in Fall 2022.[35] The joint intervention by the Asper Centre, West Coast LEAF and LEAF argues that this case represents a unique opportunity for Canada’s highest court to send a directive to lower courts regarding the treatment of court cases with multiple Charter claims. This guidance on the treatment of multiple Charter claims in a single case is particularly relevant to equality rights under section 15 – a Charter provision that has been historically dismissed[36] and has experienced uncertainty based on its “continual reinvention” in the jurisprudence.[37]

The Asper Centre, West Coast LEAF and LEAF filed their joint intervention factum on June 15, 2022 and it can be read here. 

Caitlin Salvino is a JD Candidate at the Faculty of Law and is the Asper Centre’s 2022 summer Research Assistant.

[1] The date of the SCC hearings for Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al. is October 3, 2022.

[2] Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72, leave to appeal to SCC granted, 2021 CanLII 129759. 

[3] Immigration, Refugees and Citizenship Canada, “How Canada’s refugee system works”, (27 November 2019), online: Government of Canada https://www.canada.ca/en/immigration-refugees-citizenship/services/refugees/canada-role.html.

[4] Immigration, Refugees and Citizenship Canada, “Canada-U.S. Safe Third Country Agreement”, (23 July 2020), online: Government of Canada https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement.html.

[5] Overview of the Canada–United States Safe Third Country Agreement Background Paper, 4, by Madalina Chesoi & Robert Mason, 4 2020-70-E (Library of Parliament, 2021) at 1–2.

[6] The four conditions that are evaluated in each review are: (1) if they are a party to the Refugee Convention and Convention Against Torture; (2) its policies and practices are in line with those two international treaties; (3) its human rights record and (4) whether they are party to an STCA agreement with Canada. See Immigration, Refugees and Citizenship Canada, supra note 3.

[7] “US as a Safe Third Country Infographic”, (June 2017), online: Canadian Council for Refugees <https://ccrweb.ca/en/us-safe-third-country-infographic>; Contesting the Designation of the US as a Safe Third Country, by Amnesty International & Canadian Council for Refugees (2017); “Refugees entering from US and Safe Third Country: FAQ”, (February 2017), online: Canadian Council for Refugees https://ccrweb.ca/en/refugees-entering-us-and-safe-third-country-faq.

[8] Canadian Council for Refugees v Canada (Immigration, Refugees and Citizenship), 2020 FC 770, at paras 82–83 [Canadian Council for Refugees FC].

[9] Ibid.

[10] Ibid at para 151.

[11]  Ibid at para 153.

[12] The acronym 2SLGBTQQIA refers to Two-Spirit, lesbian, gay, bisexual, transgender, queer, questioning, intersex and asexual.

[13]  Canadian Council for Refugees FC, supra note 8 at para 153.

[14] Immigration and Refugee Protection Act, SC 2001, c 27, s 101(1)(e), 159.3.

[15] Canadian Council for Refugees FC, supra note 8 at para 162.

[16] Ibid at paras 151–154.

[17] Ibid at para 163.

[18] Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72, at para 179 [Canadian Council for Refugees FCA 2021].

[19] Ibid at para 179.

[20] Ibid at paras 132–168.

[21] Ibid at paras 46–47.

[22] Ibid at paras 92–93.

[23] Ibid at paras 132–168.

[24] Ibid at paras 169–174.

[25] Immigration and Refugee Board of Canada, Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution, online: https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir04.aspx.

[26] The enumerated grounds under the Refugee Convention are having a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. See UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, 1951.

[27] Canadian Council for Refugees FC, supra note 8 at para 151.

[28]  Ibid at para 154.

[29] Canadian Council for Refugees FCA 2021, supra note 19 at para 172 citing Gosselin, supra note 25 at para 26.

[30] Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72, leave to appeal to SCC granted, 2021 CanLII 129759 (Factum of Joint Interveners Asper Centre, West Coast LEAF and LEAF, at para 3).

[31] Ibid at para 4.

[32] Ibid at para 18.

[33] Ibid at para 4.

[34] Ibid at para 26.

[35] The date of the SCC hearings for Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al.is October 3, 2022.

[36] Bruce Ryder & Taufiq Hashmani, “Managing Charter Equality Rights: The Supreme Court of Canada’s Disposition of Leave to Appeal Applications in Section 15 Cases, 1989-2010” (2010) 51 SCLR 505; Jonnette Watson Hamilton & Jennifer Koshan, “Adverse Impact: The Supreme Court’s Approach to Adverse Effects Discrimination under Section 15 of the Charter” (2014) 19 Rev Const Stud 191.

[37] Jennifer Koshan & Jonnette Watson Hamilton, “The Continual Reinvention of Section 15 of the Charter” (2013) 64 UNBLJ 19.

Moving Towards Substantive Equality in Sentencing: R v Morris

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by: Bailey Fox

Introduction

In R v Morris, 2021 ONCA 680, the Ontario Court of Appeal (OCA) considered the impact and role of anti-Black racism in sentencing. The Asper Centre intervened in the appeal, specifically on the issue of whether an offender is required to prove a causal link between systemic racism and the offence. The Court’s decision is both ground-breaking, in recognizing the impact of systemic racism in sentencing, but aspects of the decision also limit the impact it may have in realizing substantive equality.

Mr. Morris was found guilty of gun-related offences, including possession of a loaded handgun. The sentencing judge, having accepted pre-trial sentencing reports detailing the impact of anti-black racism on Mr. Morris’ life and actions, sentenced him to a mitigated 15-month sentence. The Crown appealed the sentence, arguing that it is unfit and not commensurate with the seriousness of the offence. The Court of Appeal agreed with the Crown and increased Mr. Morris’ sentence to two years but stayed the sentence. In lengthy reasons, the Court clarified the role of anti-Black racism in assessing the offender’s blameworthiness, how to prove the impact of systemic racism, and the interaction between the fact of racism and sentencing principles.

Taking Steps…

Aspects of the decision are important for defence lawyers hoping to advance substantive equality in the criminal law. Specifically, the Ontario Court of Appeal acknowledged the existence and negative effects of anti-Black racism in society and in the criminal justice system. The Court held that anti-Black racism should be considered in the sentencing process, specifically in assessing the offender’s moral blameworthiness. Importantly from an access to justice perspective, the OCA held that judges may take judicial notice of anti-Black racism and Black individuals should not be required to tender expert reports detailing the existence of anti-Black racism and its impact on them.

The Court also held that an offender need not demonstrate a causal link between systemic racism and the relevant offence, a holding in line with the Asper Centre’s submissions and the objectives of substantive equality. As an intervenor, the Asper Centre submitted that an offender should not be required to prove a causal link between systemic anti-black racism and the offending conduct. The Asper Centre highlighted that proving such a causal link is not required in other circumstances, such as in the case of youthful offenders or offenders with mental illness. The Asper Centre also submitted that the requirement to prove a causal link is not compatible with the objectives of substantive equality. While an offender may show evidence of how systemic factors affected them, a requirement to demonstrate a causal link would place an undue evidentiary burden on offenders. In holding that a causal link is not required, the Ontario Court of Appeal’s reasons largely mirror the Asper Centre’s submissions on this point. The Court held that while there must be some connection between systemic racism and the criminal conduct, causation “plays no role when considering the impact of an offender’s background or circumstances on sentencing” (para 96 – 97) The court concluded that social context evidence can be useful in explaining the offence and mitigating the offender’s moral culpability (para 99).

…Cautiously…

However, the Court also limited the utility and scope of recognizing anti-Black racism in sentencing. First, the Court held that sentencing judges may only take the role of anti-Black racism into account when considering the offender’s moral culpability but not in considering the seriousness of the offence (para 75). According to sentencing principles, the more serious the offence – and gun-related offences are generally considered more serious – the more a sentence should emphasize the principles of denunciation and deterrence. The OCA held that anti-Black racism cannot reduce an evaluation of the seriousness of the offence and therefore deterrence and denunciation remain important objectives when sentencing Black individuals. This holding however, maintains a cognitive dissonance between society’s collective responsibility for systemic racism and the individual’s conduct – that anti-Black racism does not affect the principle of denunciation impedes both recognizing the impact of racism and addressing it. In concluding that the sentencing judge erred in taking anti-Black racism into account in the context of assessing the seriousness of the offence, the Court of Appeal signals that systemic racism can affect sentencing, but only to a point.

While the case did not explicitly invoke the Charter’s s.15 equality guarantee, the Court’s analysis is very thin on the interaction between s.15, and the goal of substantive equality, and sentencing. Specifically, while recognizing that an offender need not demonstrate a causal connection between the offence and racism, the Court held that a judge may take systemic racism into account and not that they must. Unlike the Nova Scotia Court of Appeal’s decision in R v Anderson, 2021 NSCA 62, the Court did not go so far as to say that it is an error of law if a sentencing judge fails to consider the impact of systemic anti-Black racism. This is unfortunate because under R v Morris, it remains the defence lawyer’s responsibility to raise the issue, and it is within the sentencing judge’s discretion as to how to apply such considerations. This could lead to uneven application of the Court’s findings in R v Morris.

While recognizing the fact of systemic anti-Black racism, the Court’s decision also clings to some conventional individual responsibility and tough on crime narratives in sentencing, therefore limiting the impact of the decision. Notably, the Court overturned the sentencing judge’s finding of fact on why Mr. Morris fled from the police. The sentencing judge had found that Mr. Morris fled at least in part because of an ‘impulsive reaction’ based on his fear of the police and that he would not be treated fairly. However, the OCA held that the ‘only reasonable inference’ is that Mr. Morris fled to avoid being caught (para 171). The Court does not explain why this is the only reasonable inference, or why it was an error to consider the systemic racism often reflected in policing of Black communities in this finding of fact. Similarly, the Court noted that members of the community would not consider “more lenient” sentences for gun crimes as advancing social equality (para 85). This finding, first, reflects and embeds an understanding of conditional sentences as lenient, as opposed to commensurate with the offender’s circumstances. Second, it assigns a ‘tough on crime’ perspective to the community without considering the impact of incarceration on community well-being. In embedding these perspectives in a decision while also recognizing that anti-Black systemic racism may be considered in sentencing, the Court limits the reach of the latter finding.

Conclusion

R v Morris is a promising step in the direction of promoting substantive equality in sentencing. The Court recognized that judges may take judicial notice of anti-Black racism and that offenders need not prove a causal link, holdings that will promote consideration of racism in sentencing. However, in limiting the role of systemic racism in the sentencing process while clinging to a tough on crime perspective, the Court limited the impact of its finding therefore inhibiting the potential for achieving substantive equality in the sentencing process.

Bailey Fox is a Research Assistant with the Asper Centre and is currently an LLM student at the University of Toronto, Faculty of Law.

The Positives of Campaigning: City of Toronto and Freedom of Expression at the Supreme Court

Posted on by Student

by Bailey Fox

Introduction

On October 1, 2021, the Supreme Court of Canada (SCC) released its decision in Toronto (City) v Ontario (Attorney General), 2021 SCC 34 [City of Toronto]. In the 5-4 decision, the Supreme Court held that the legislation that reduced the size of Toronto City Council during an ongoing municipal election did not violate the Constitution’s guarantee of freedom of expression. The Court also held that unwritten constitutional principles cannot, on their own, invalidate legislation.

The Asper Centre intervened in the case, specifically on the issue of the scope of freedom of expression in the context of municipal elections. The decision, while resolving the immediate dispute, raises many new questions about the future of the Charter of Rights and Freedoms’ s.2(b) guarantee of freedom of expression. The divide between the majority and dissenting opinion on the role of unwritten constitutional principles also highlights the existing divide between the Supreme Court’s judges regarding Charter interpretation.

Background

On July 27, 2018, shortly after being elected, the Ontario government tabled the Better Local Government Act, SO 2018, c 11 [BLGA]. The BLGA reduced the number of wards in the City of Toronto from 47 to 25 during the City’s ongoing election. The BLGA upended the election, eliminating 22 wards and requiring candidates to pivot their campaigns to new or unfamiliar districts.

Shortly after being enacted on August 14, 2018, a number of parties, including affected candidates and the City of Toronto brought an application seeking to invalidate the BLGA. The parties advanced a few constitutional arguments, including that the BLGA violated ss.2(b) and s.15(1) (equality rights) of the Charter, as well as the unwritten constitutional principles of democracy and the rule of law. The application was heard on an expedited basis on September 9, 2018. In City of Toronto et al v Ontario (Attorney General), 2018 ONSC 5151, the application judge held that the BLGA violated both candidates’ and electors’ s.2(b) rights and could not be justified under s.1 of the Charter. Given the s.2(b) violation, the application judge held that it was not necessary to consider the role of unwritten constitutional principles. The application judge invalidated the legislation and restored the 47-ward format for the election.

The government sought an appeal, and an urgent stay, of the application judge’s decision at the Ontario Court of Appeal (OCA). In its stay decision, the OCA found that candidates were seeking a positive right to a particular platform, and held that the BLGA did not substantially interfere with expressive freedom. Based on the stay decision, the BLGA remained in force and Toronto’s election proceeded on a 25-ward basis.

A little over a year later, the appeal was heard and decided on its merits. The Asper Centre intervened in the appeal. In Toronto (City) v Ontario (Attorney General), 2019 ONCA 732, the OCA reversed the application judge’s decision and affirmed the constitutionality of the BLGA. Justice Miller, writing for the majority, characterized the claim as a positive one – that the claimants were seeking access to a statutory platform as opposed to freedom from government interference in electoral expression. Applying the case of Baier v Alberta, 2007 SCC 31 [Baier], the Court held that the claimants must demonstrate a substantial interference with freedom of expression but have failed to do so since the government is not required to ensure the effectiveness of expression.

In dissent, Justices Nordheimer and MacPherson would have denied the appeal on a finding that the BLGA violated all electoral participants’ s.2(b) rights. The dissenting justices largely adopted the submissions of the Asper Centre on this point.

The City of Toronto appealed the OCA’s decision.

The Supreme Court’s Decision

Majority

Chief Justice Wagner and Justice Brown wrote the 5-judge majority decision. Like the OCA, the SCC characterized the claim as a positive one, that is that the claimants were seeking access to a particular statutory platform (a 47-ward council). Noting that this appeal was an opportunity to ‘affirm and clarify’ the Baier framework, the Court held that when claimants are seeking to impose an obligation on the government to provide access to a statutory platform for expression, the s.2(b) claim is a positive one (para 24). In such cases, the claimant must demonstrate that lack of access to a statutory platform has substantially interfered with, or “radically frustrated”, expression to such an extent that expression is “effectively precluded” (para 26).

Applying the Baier framework, the Court held that the claim was a positive one, however the City had not demonstrated substantial interference with expression. The Court noted that the Act did not prevent candidates from engaging in political speech or impose conditions on the content or meaning of speech. The Court rejected submissions that the BLGA rendered prior campaigning meaningless, noting that government action that makes prior speech less effective is not a substantial interference with s.2(b). The Court concluded that candidates’ freedom of expression was not radically frustrated and therefore the BLGA did not violate s.2(b).

On the question of the role of unwritten constitutional principles in Charter interpretation, the Court held that these principles – like democracy and the rule of law – could be used for exactly that, and nothing more. Adopting a textual approach to constitutional interpretation, the Court held that unwritten constitutional principles represent general principles underlying the constitutional order, and while they may assist the Court as interpretative tools or to develop structural doctrine, these principles do not have independent legal force.

Dissent

Justice Abella penned the reasons on behalf of the four dissenting judges. They would have allowed the appeal based on a finding that the BLGA violated s.2(b) of the Charter.

The dissent rejected the Baier framework and would have applied the test for a s.2(b) violation from Irwin Toy Ltd v Quebec, [1989] 1 SCR 927 [Irwin Toy]. Justice Abella noted that Baier only applies to circumstances where an existing statutory platform is underinclusive, and characterized the claim in this case as government interference with expressive rights attached to an electoral process (para 151). Applying the Irwin Toy framework, Justice Abella held that the BLGA’s timing “interfered with the rights of all participants in the electoral process to engage in meaningful reciprocal political discourse” (para 157). Justice Abella held that since the government had not provided any justification for the legislation’s timing, it could not be saved under s.1.

Justice Abella also commented on the role of unwritten constitutional principles, holding that they are independent of, and form the backdrop to, the written text of the constitution. These principles represent society’s normative commitments and therefore have independent legal force. Per the dissent, in rare cases, unwritten constitutional principles may invalidate legislation that has otherwise escaped the reach of an express constitutional provision.

Where do we go from here?

The majority’s critique of Irwin Toy and affirmation of Baier is notable and perhaps concerning. The majority notes at para 14 that Irwin Toy “has been criticized for setting too low a bar for establishing a s. 2(b) limitation…”. The analysis then continues with a discussion of s.2(b)’s internal limits, the distinction between positive and negative claims, and an affirmation of Baier. While this is a legitimate and existing critique of Irwin Toy, the Court does not expand on why such a broad test is at odds with the text of s.2(b), is normatively problematic, or why or whether it should be changed. However, the Court’s decision has the effect of limiting the applicability of the Irwin Toy framework, and potentially narrowing the scope of s.2(b), and thus adding complexity to s.2(b) litigation. As noted in the dissent at para 155, claimants must now meet a preliminary burden of demonstrating that their s.2(b) claim is a negative entitlement. Adding this inquiry to the s.2(b) analysis is especially concerning given that the distinction between positive and negative entitlement is easily malleable (again, a critique noted by the dissent at para 152 and previous SCC jurisprudence).

Also of note is the very high bar the Court states is required to establish a s.2(b) violation under Baier/City of Toronto. To succeed under this framework a claimant must show that lack of access to a statutory platform has radically frustrated expression to the extent that it is effectively precluded. The substantial interference standard (which was imported from the freedom of association jurisprudence and has since been impugned in that context; see City of Toronto at para 21) thereby recognizes that some interference with expressive freedom is constitutionally permissible. City of Toronto ignites a latent question about s.2(b)’s internal limits and elevates the bar that claimants must meet if a Court considers the claim a positive one.

The decision’s discussion of unwritten constitutional principles also reflects an ongoing divide among SCC judges between a textual and liberal/purposive interpretation of the Charter. While both opinions resolved the dispute on s.2(b) grounds, they nevertheless included a sustained discussion in obiter on unwritten constitutional principles. The majority subscribes a limited role for purposive interpretation, and later notes that notes that unwritten constitutional principles may assist with constitutional interpretation, but only where the test is not sufficiently definitive (para 65). But what is notably absent is any engagement by the majority with the purpose of s.2(b), or the impact of the principle of democracy on the analysis of a case where the scope of s.2(b) is at issue. While Justice Abella recognizes that freedom of expression includes the right to engage in political discourse (paras 114 – 122), the relevance of political discourse or the election context takes a backseat in the majority’s decision. This, in addition to emphasizing the distinction between a positive and a negative claim, is a marked departure from earlier jurisprudence like Irwin Toy that emphasized the purpose of freedom of expression, and  its connection to political discourse, and a broad scope for s.2(b).

In conclusion, the case that came to the Supreme Court was concerned with mid-election reform to Toronto City Council’s structure. However, in destabilizing the s.2(b) framework and narrowing the applicability of unwritten constitutional principles, the SCC’s decision leaves constitutional litigators, scholars, and students with many questions about the future of s.2(b) and constitutional interpretation.

Bailey Fox is a Research Assistant with the Asper Centre and is currently an LLM student at the University of Toronto, Faculty of Law.