Introducing our Summer 2021 Research Assistants!

 

The Asper Centre is excited to welcome eight new research assistants for Summer 2021, three of whom who are working directly through the Factor-Inwentash Faculty of Social Work. This year’s research assistants will be taking on many new and existing projects, including an upcoming podcast series and a ground-level Charter challenge to Canada’s voting age.

2021 Asper Centre Summer Research Assistants

Leila Far Soares

Leila will be entering her 2L year at the University of Toronto Faculty of Law. She received her undergraduate degree from the University of Toronto, where she double-majored in criminology and ethics, society & law. During her 1L year, Leila was an associate editor at the University’s Law Review as well as a member of the Asper Centre’s Prisoners’ Rights Working Group. She continues to work with the Centre this summer and her research focus is on the judicial treatment of the open court principle in the context of administrative tribunals as well as the Centre’s Law Foundation of Ontario-funded police accountability project. Additionally, she is assisting on the constitutional challenge to Canada’s voting age. In her free time, Leila enjoys reading, travelling, and watching movies.

 

Wei Yang

Wei will be entering his 2L year at the University of Toronto Faculty of Law. He completed his undergraduate studies at the University of Toronto, majoring in Political Science and Ethics Society & Law. In addition to his research role on many upcoming Asper Centre projects, he will also be working with the Centre on the ground-level constitutional challenge to Canada’s voting age. The Charter declares that all Canadians have the right to vote (s. 3) and to equality and non-discrimination (including on the basis of age) (s. 15). The current voting age of 18 years old thus infringes the Charter rights of young Canadians and weakens our democracy. In 1L, Wei was a member of the Asper Centre’s Refugee and Immigration Law Working Group. He is also the Co-President of UofT Law’s Asia Law Society for the 2021 – 2022 academic year.
 

Alison Schwenk

Alison just completed her 1L year at the University of Toronto Faculty of Law. She graduated from McGill University, majoring in Political Science. Alison will be focused on long-term projects with the Asper Centre, and is currently working with Executive Director Cheryl Milne on Clinic training responsibilities and the “Children, Youth and the Law” course at the Faculty of Law. During 1L, Alison was a member of the Asper Centre’s Indigenous Rights Working Group, where she conducted research on civil oversight of law enforcement and its impact on Indigenous peoples. She loves completing jigsaw puzzles, crosswords and sudoku (Alison also still plays the 2048 puzzle game!)
 

Eunwoo Lee

Eunwoo is an incoming 3L student at the University of Toronto Faculty of Law. He studied political science at York University, Glendon Campus. Eunwoo will be researching recent case law citing the United Nations Convention on the Rights of the Child (UNCRC). Given that judicial citations of the UNCRC is a relatively new phenomenon, Eunwoo hopes to discover trends and themes across the case law and how the Convention is being applied across Canada. This research will be used to develop presentable content at the National Judicial Institute Conference in 2022. Eunwoo loves to spend his free time playing jazz and funk guitar.

 

Szymon Rodomar

Szymon will be entering his 3L year at the University of Toronto Faculty of Law. He studied international development, politics and sociology at Trent University. Szymon is laying the groundwork for the Asper Centre’s Podcast Project. He is currently conducting research on constitutional law cases that the Asper Centre and Faculty of Law alumni have been involved in, brainstorming possible topics and case law to discuss in each new episode. Szymon also volunteers with Law in Action Within Schools (LAWS), a education program hosted by the University of Toronto Faculty of Law and Osgoode Hall Law School that provides students from four Toronto-area high schools with a variety of extracurricular opportunities related to law and justice. Szymon is an avid runner and enjoys cooking (although he also enjoys running to visit new restaurants as well!).

Toolkit for Evidence-Based Child Protection Research Assistants (at the Factor-Inwentash Faculty of Social Work)

Alina Valachi

Alina is currently completing her dual JD/MSW degrees at the University of Toronto. She received her B Eng from McGill University and BSW from Dalhousie University. Alina is working at the Factor-Inwentash Faculty of Social Work as the Project Manager of the Toolkit for Evidence-Based Child Protection Practice project. This project is a Law Foundation of Ontario-funded collaboration between Dr Barbara Fallon at the Factor-Inwentash Faculty of Social Work and the David Asper Centre. This project aims to synthesize legislation, case law and social science literature in key areas of child protection practice to ensure that decisions made in the justice system reflect the best interests of children and families involved in the child welfare system. She is also the Project Lead of the Pro Bono Students Canada (PBSC) Trans ID Clinic at Friends of Ruby. In her free time, Alina enjoys mountain biking with her children and reading philosophy.

David Baldridge

David is an incoming 2L student at the University of Toronto Faculty of Law. He completed his undergraduate studies at the University of Toronto, majoring in Economics and Political Science. David is also working at on the Toolkit for Evidence-Based Child Protection Practice project this summer at the Factor-Inwentash Faculty of Social Work, where he is primarily focusing on researching relevant case law. During his 1L year, David was a member of the Prisoners’ Rights Working Group at the Asper Centre. He was also involved in the Faculty of Law’s Privacy and Cybersecurity Law Group. Outside of law school, you will see David playing trumpet in orchestras, jazz ensembles and chamber groups.
 

Alison Gillanders

Alison is a graduate of McGill University, majoring in International Development Studies and minoring in Philosophy. She is a research assistant for the Toolkit for Evidence-Based Child Protection Practice project at the Factor-Inwentash Faculty of Social Work. Alison will be expanding upon the project by creating new templates on matters such as openness in adoption, legislation and the case law. As part of the project, Alison will be focusing on research in the social science literature. At McGill, she was a Director of Sponsorship for McGill Women in Leadership. She eagerly awaits Toronto’s gradual reopening so she can continue biking and exploring new parks and other destinations around the city.

An Introduction to the Duty to Consult

by Annie Chan

Arising from the Honour of the Crown, the duty to consult is a central tool in the protection of Aboriginal rights and the promotion of Crown-Indigenous reconciliation in Canada. As summarized by Professor Kerry Wilkins, adjunct professor at the University of Toronto Faculty of Law, the “Crown has a duty to consult a given Indigenous community when it is contemplating conduct that to its knowledge might have an appreciable adverse impact on an Aboriginal or treaty right that [the] community has or credibly claims”. Despite a series of notable and high-profile cases, there remains significant ambiguity in the law surrounding this important duty.

On Friday, January 22, 2021, the Asper Centre’s Climate Justice student working group and the Indigenous Initiatives Office (IIO) at the Faculty of Law convened a panel discussion titled An Introduction to s.35 and the Duty to Consult, providing an opportunity for the law school community to learn about the current state of the duty to consult and engage with open questions surrounding the doctrine. The panel was moderated by Professor Kerry Wilkins who was joined by Joel Morales (Counsel at Olthuis Kleer Townshend LLP) and Candice Telfer (Acting Director of the Legal Services Branch in Ontario’s Ministry of Indigenous Affairs). Elder Constance Simmonds (Cree-Metis Knowledge Keeper and Elder-in-Residence at the Faculty of Law) opened and closed the panel with her thoughts and prayers. The student organizers of the event (Maddie Andrew-Gee, Yara Willox and Haleigh Ryan) drafted a Primer about the Duty to Consult, as background to the event, with additional recommended readings.

Professor Wilkins began the discussion with a brief overview of the law on the Duty to Consult, beginning with its first mention in R v Sparrow as a relevant and possibly necessary component to the Crown’s successful justification of any infringement of an Aboriginal right. The duty is triggered by 3 elements: 1) Crown knowledge (of the asserted or proven Aboriginal right); 2) Crown conduct (excluding legislative activity); and 3) potential for adverse impact (above the de minimis threshold). Once the duty has been triggered, its content and scope are proportionate to the preliminary assessment of the strength of the Indigenous community’s claim and the likely severity of the adverse impact.

This notion of a “preliminary assessment” gives rise to several questions. Assuming the Crown is responsible for conducting the assessment, do they have a duty to share the results with the Indigenous community and provide them with an opportunity to correct it? Is the assessment a constitutionally necessary part of the consultation exercise? Morales argued that “if there is going to be a preliminary assessment, the Indigenous group should have a say in what goes into that” particularly where there are sacred sites or interests being impacted that were previously undisclosed due to concerns arising from colonial practices. Telfer contended that the government should still be entitled to privilege for any legal advice they utilize as part of the assessment but agreed that Indigenous communities should be given an opportunity to “fill the gaps” where the Crown is missing information. Wilkins noted that the Supreme Court’s judgment in Beckman v Little Salmon/Carmacks First Nation [1] suggests that a formal preliminary assessment is not strictly necessary so long as the required level of consultation is ultimately discharged. Nevertheless, the panelists agreed that whether or not it is legally required, a collaborative and transparent assessment is in the interests of both parties as a means of “promoting engagement and negotiation between Indigenous communities and government decision-makers.”

Another practical issue that arises with the duty to consult is that while there are numerous instances in which such a duty may be triggered, Indigenous communities have historically and continue to lack resources to fully participate. Given this reality, to what extent does the Crown have a responsibility to facilitate Indigenous participation by providing funding or resources? In responding to this question, both panelists stressed the importance of meaningful Indigenous participation in consultation. For the Crown, providing funding is important not only from a legal perspective but also a policy one because “if a community can’t meaningfully engage in consultation, there are [legal and pragmatic] risks for the government in moving forward,” said Telfer. While noting that some government funding is available, Morales framed the issue of adequacy of funding in terms of the “friction” between processes that the Indigenous community believes to be necessary and those that the Crown is willing to fund. From a legal standpoint, Wilkins noted that there was no case law establishing a strict legal requirement for the Crown to provide funding but the SCC has appeared to take into account the presence or absence of funding in its overall appraisal of whether the Crown’s consultation was sufficient [2]. Elaborating on this point, Morales cited Saugeen First Nation v Ontario [3] where the Court held that “[the parties] should not have reasonably expected the First Nation to absorb all the consultation costs” where the “expense of the consultation arose out of the proponent’s desire to see the project through and the Crown’s desire to see it move ahead”.

The panel then addressed a further significant practical issue of ascertaining which rights-holders need to be consulted where there is controversy about who legitimately speaks for the community. Given that the tension was itself created by the government’s imposition of the Indian Act’s Band Council model on Indigenous communities’ traditional governing structures, Morales suggested that “[Indigenous communities] should be allowed to work it out [internally] before the consultation projects happen.” While this would inevitably create delays, Morales noted that “Indigenous communities have waited a long time to even be at the table” and “shouldn’t be seen to be holding up projects due to government structures and policies being imposed on them unilaterally”. While Telfer agreed that she would be uncomfortable with the government imposing a view as to the legitimate authority where the community itself is fractured, “on a pragmatic level, there are decisions the government needs to make […] with immediate and broad impacts where time may be a luxury”. In such circumstances, “we need to think about meaningful engagement across these divisions in order to move forward,” added Telfer. “One option the Crown has,” Wilkins suggested, “is to consult with all the different conflicting claimants to make sure it has the benefit of all points of view.” However, this may be complicated where one group refuses to participate if another group is consulted.

Ultimately, as Wilkins remarked in closing, in many aspects of the doctrine on the duty to consult “the Supreme Court of Canada has left itself and lower Courts with great flexibility to reach the result they want to reach in particular cases.” As a result, there remains significant inconsistency in the doctrine affecting its utility as a tool for reconciliation. Nevertheless, as Elder Constance Simmonds reminded us in closing, as human beings “we all have a stake in protecting the land and the water;” thus, “for future generations, these are really important conversations.”

A recording of the webinar is available here.

[1] 2010 SCC 53

[2] See Clyde River (Hamlet) v Petroleum Geo-Services Inc., 2017 SCC 40 and Chippewas of the Thames First Nation v Enbridge Pipelines Inc., 2017 SCC 41.

[3] 2017 ONSC 3456

Annie Chan is a 1L JD student at the Faculty of Law and is currently an Asper Centre work-study student.

 

Meet Nader Hasan, the Asper Centre’s New Constitutional Litigator-in-Residence

By Amy Chen

Nader Hasan, a partner at Stockwoods LLP and one of Canada’s leading appellate lawyers, will be co-teaching the Asper Centre’s clinic course this fall as the constitutional litigator-in-residence. He graciously sat down with me to discuss his legal education, career history, and hopes for the upcoming term.

Mr. Hasan has a long and varied career in criminal, constitutional, and regulatory law. Surprisingly, law school was not always the plan. “Like many children of immigrants, there was the expectation and hope that I would eventually become a doctor,” Mr. Hasan said. However, “along the way, I became really passionate about various social justice and human rights issues, both in the US, Canada, and around the world. That sparked my intellectual interest in the law.” His interest in the law was cemented after completing his undergraduate degree at Harvard in international human rights, as well as his Masters of Philosophy in international studies at Cambridge. Ultimately, he decided to begin his law career at the University of Toronto.

Mr. Hasan’s interest in constitutional law began in Professor Lorraine Weinrib’s constitutional law small group: “I learned about the power of the Charter, and how, if done properly and effectively, a constitutionally entrenched bill of rights could truly be a weapon on the side of good and justice… I knew early on in law school that I was very passionate about constitutional law, public law, and criminal law.” However, when considering heavy debt load and his need to care for his aging parents, Mr. Hasan began his career in a corporate firm in New York. Although Mr. Hasan was doing a lot of pro bono work on behalf of asylum seekers and the wrongfully convicted, he was only able to work on it in “from 10 pm to 3 am” after billing his normal hours. Still, he considered this a crucial step in his career: “in many ways it was a typical “Big Law” experience, but through this process I was able to learn a lot about what it meant to be a good lawyer, as well as the types of careers open to lawyers.”

Eventually, he returned to Canada to pursue a criminal/constitutional law career. Since then, Mr. Hasan has appeared as counsel in a number of high-profile constitutional law cases, including acting as lead counsel to the landmark Indigenous rights case Clyde River v. Petroleum Geo‑Services Inc. Most of the major cases he was involved in had humble beginnings: “these cases that end up at the Supreme Court of Canada, you don’t get there without a very carefully constructed record from the ground up, by interviewing people and doing your legal research. It is not glamorous, but all meaningful, with an important end goal in sight.” Right now, Mr. Hasan is working as lead counsel in Mathur et al v. HMQ, a constitutional challenge against Ontario’s greenhouse gas emissions targets. His rationale for working on this case was simple: “as a human being living in this day and age, we all have an obligation to move hearts and minds when it comes to climate change. I happen to be trained as a constitutional lawyer, and the way I know how to make a difference is constitutional litigation.”

At the Asper Centre this fall, Mr. Hasan will bring with him not just his significant constitutional litigation experiences, but also his extensive teaching and mentorship experiences. He has served as an adjunct professor at the University of Toronto law faculty since 2010, teaching the popular Crime and Punishment course and the criminal appellate externship. He hopes to nurture the passions that Asper Centre clinic students have for constitutional law: “I’m sure students have been told that you can’t make money in constitutional law, but if this is something you want to do, there are certainly avenues to pursue a constitutional law career.” He will illustrate these avenues by sharing his own experiences alongside the experiences of Asper Centre director Cheryl Milne and other guest speakers. Although this year’s clinic course will be unique, given that some students will be attending remotely, Mr. Hasan is optimistic that the course will proceed smoothly.

To end the interview, I asked Mr. Hasan what he believes to be the qualities that make a good constitutional lawyer. He did not hesitate in giving his answer – “it’s all about hard work and passion.” A strong case is comprised of dedicated people who are “willing to work whatever hours it takes with an unyielding attitude, knowing that they are fighting on the side of justice.”

The interview has been edited for clarity.

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

Young Climate Activists Attempt to Hold Province Accountable for Inadequate Emissions Target

By Amy Chen

In late 2019, Ecojustice and Stockwoods LLP initiated a constitutional challenge (“the Application”) against Ontario’s greenhouse gas reduction target on behalf of seven young climate activists (the “Applicants”). Ontario responded with a motion to strike. Mathur et al v Her Majesty the Queen in Right of Ontario was heard via teleconference on July 13, 2020, with judgment reserved.  The Applicants were represented by Nader Hasan, the Asper Centre’s upcoming constitutional litigator-in-residence, and Justin Safayeni.

Background

In 2018, the Ford provincial government passed the Cap and Trade Cancellation Act (“CTCA”), repealing the Climate Change Mitigation and Low-Carbon Economy Act (“old Climate Change Act”). Under s. 3(1) of the CTCA, the provincial government “shall establish targets for the reduction of greenhouse gas emissions in Ontario and may revise the targets from time to time”. The new target is set out in the province’s new Environmental Plan: “Ontario will reduce its emissions by 30% below 2005 levels by 2030”.  In comparison, the old target (when calibrated) was to reduce the emissions by about 45%.

The public interest Applicants (Sophia Mathur, Zoe Keary-Matzner, Shaelyn Wabegijig, Shelby Gagnon, Alex Neufeldt, Madison Dyck, Beze Gray) in the present case are climate activists between the ages of 13 and 24. The Applicants argue that the new target, as well as the repeal of the old Climate Change Act, violates the rights of Ontario youth and future generations under ss. 7 and 15 of the Charter. Ontario is exacerbating the current climate emergency and threatening the lives of all Ontarians by weakening the province’s target. Canada has an international obligation, under the Paris Agreement, to limit global warming to 1.5 oC above pre-industrial levels and prevent the effects of climate change from becoming irreversible. Ontario’s greenhouse gas emission levels will be too high to meet this obligation even if the target is fulfilled, making the target arbitrary and irrational. The Applicants seek mandatory orders requiring Ontario to set a “science-based” greenhouse gas reduction target for 2030 and to revise its climate action plan accordingly.

Summary of Motion Hearing

The issue of the motion was whether the Application should be struck for disclosing no reasonable cause of action.  The hearing primarily revolved around three issues: (1) whether the Application is justiciable, (2) whether the claims within the Application are “inherently speculative in nature”, and (3) whether the Application requires the recognition of positive rights, and if so, whether the Application can be struck on that basis.

(1) Whether the Application is Justiciable

Ontario’s first argument was that the Application is non-justiciable, or that the courts do not have the institutional capacity or legitimacy to adjudicate on this case. Ontario relied on Tanudjaja v Attorney General of Canada, a Charter challenge against the “social conditions” created by the federal and provincial governments that perpetuate homelessness and inadequate housing. The Ontario Court of Appeal found the case to be non-justiciable because there was “no judicially discoverable and manageable standard for assessing… whether [the governments’] housing policy is adequate”. Ontario argued that this Application, like Tanudjaja, asks the Court to assess the soundness of public policy, which is beyond its institutional capacity. The target is a piece of public policy that outlines Ontario’s “aspirations” regarding climate action, not a legally binding commitment.  The Applicants are asking Ontario to establish a “science-based” target that would allow for a “stable climate system”; these are not concrete, legal parameters that could be judicially reviewed.

The Applicants argue that the target is a policy made in pursuant to a statutory mandate (the CTCA), which falls under the definition of “law” for the purposes of a Charter challenge (Greater Vancouver Transportation Authority v. Canadian Federation of Students). The Applicants are challenging actual laws, not merely “social conditions”, and seeking relief defined by scientifically knowable standards. These standards can be judicially determined and have been judicially determined by courts in international jurisdictions. Neither complexity nor novelty can justify striking the claim.

(2) Whether the Application is “Inherently Speculative In Nature”

Section 7 Charter claims cannot be premised on speculations about the effects of government action (Operation Dismantle v. The Queen).  Ontario’s second argument was that the Applicants’ section 7 claims are speculative and incapable of being proven – the claims assume that the target determines actual emissions, that the target will not change, and that federal policy will not have an effect on Ontario’s emissions.

The Applicants argue that they fully intend to prove their claims based on expert evidence, and whether they would be successful in doing so should be determined at a hearing on its merits. As per Bedford v Canada and Canada v PHS Community Services Society, Charter applicants only have to establish a “real and substantial connection” between the impugned government conduct and the alleged harm. The Applicants are allowed to seek relief for potential future harms even if the government is not the dominant cause of these future harms.

(3)The Issue of Positive Rights

Ontario’s final arguments concerned the government’s positive obligations. First, Ontario does not have any constitutional obligations to keep the old Climate Change Act. Unless there was a constitutional obligation to enact the old legislation, the Ontario legislature is free to repeal and replace it (Barbra Schlifer Commemorative Clinic v. Canada). Second, the Applicant is asking Ontario to take positive steps to combat the adverse effects of climate change, even though neither ss. 15 or 7 of the Charter gives individuals positive rights. Although Gosselin v. Québec left open the possibility that there may be “special circumstances” where positive rights could be recognized, many appellate cases have declined to recognize these positive rights. The lower courts are therefore bound by precedent until the Supreme Court of Canada changes the law (Tanudjaja, trial decision).

The Applicants argue that this case does not require the recognition of positive rights. This case is not merely challenging the repeal of legislation or government inaction, but directly challenging government action. The Ontario government regulates, authorizes, and incentivizes dangerous levels of greenhouse gas emissions through the CTCA and the target. The law is clear that this authorization and regulation is enough to constitute a reasonable cause of action (Dixon v. Director, Ministry of the Environment). The Applicants do not seek a declaration regarding HOW the target is to be achieved, and hence are not demanding any positive obligations from the government. They are merely demanding that the target and the climate action plan be constitutionally compliant.  Even if this Application requires the recognition of positive rights, many courts have relied on Gosselin to deny motions to strike. To strike the claim at this stage would freeze section 7 rights in a manner that is contrary to the “living tree” constitutional interpretive principle.

What Next?

The outcome of this motion will serve as a critical turning point in the fight for climate justice by answering one key question:  Can the provincial government be held legally accountable for its inadequate climate action plan? In an interview with the Asper Centre, Mr. Hasan posited that there could be positive outcomes for climate justice whether the claim is struck or not. If the claim is struck, the Applicants would likely appeal the decision; such an outcome would give the appellate courts an opportunity to consider the complex legal issues involved and set a precedent for climate change litigation in Canada. If the claim proceeds, the Applicants would be permitted to present their evidentiary record. A judge would hear “striking and chilling” testimonies regarding the catastrophic effects of climate change and the fact that these effects will become irreversible if drastic action is not taken. As stated by Mr. Hasan: “I feel quite confident that, if we ever get the evidentiary record in front of a judge, the judges are going to want to do the right thing.”

Additional arguments were raised in the parties’ written submissions. Ontario’s arguments are stated in their notice of motion to strike. The Applicant’s arguments can be found in their factum and on their website.

For more information regarding our governments’ ss. 7 and 15 constitutional obligations to address  climate change, see the Asper Centre’s UTEA working group publication- “Give our Children A Future: The Moral and Legal Obligations of the Government of Canada to Act on Climate Change”.

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

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

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

by Amy Chen

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

Background

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

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

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

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

The Asper Centre’s Position

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

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

The Supreme Court Judgment

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

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

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

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

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