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. 

Introducing our 2020 Summer Research Assistants

The Asper Centre welcomes four new research assistants for the summer of 2020. Despite these unusual times, everyone is busy with exciting projects, including two interventions at the Supreme Court of Canada.

Amy Jun Chen

Amy received her Bachelors of Arts and Science from McMaster University, where she developed her interests in constitutional law, public policy, and intersectional equity. Amy just completed her 1L year at U of T Law. On top of various research tasks and website duties for the Asper Centre, Amy is working on the Asper Centre’s upcoming intervention in R v. Chouhan. The case concerns the constitutionality of the abolition of peremptory challenges in jury selection, and whether this abolition infringes on ss. 7, 11(d), or 11(f) of the Charter. The abolition of peremptory challenges is a positive step towards creating more representative juries, as minority jurors can no longer be excluded from the jury panel without cause. Amy will also be working on the Asper Centre’s constitutional challenge to the voting age in Canada. Outside of law school, Amy enjoys listening to podcasts and playing Animal Crossing.

 

Adrienne Ralph

Adrienne just completed her 1L year, and is a graduate from McMaster University’s Arts and Science Program. This summer, she will be working on the Asper Centre’s intervention in the City of Toronto v. Attorney General Ontario case at the Supreme Court. This case is centred around the constitutionality of the Ontario Government’s 2018 decision to reduce the number of municipal ridings mid-election, particularly whether it infringes upon section 2b) of the Charter. Adrienne’s legal interests include constitutional, criminal, and labour law, especially their intersections with human rights and social justice. Beyond the law, she is an avid baker (don’t ask about her sourdough starter, though) and is passionate about public transit (definitely ask her about this). She is also the incoming Diversions Editor for Ultra Vires, the independent student newspaper of the Faculty of Law. Adrienne is very excited to be working with the Asper Centre this summer, especially on this case, as it has such potential to affect freedom of expression and election law in Canada.

Angela Gu

Angela completed her undergraduate studies at the University of Toronto, where she majored in Ethics, Society and Law and minored in French Studies and Environmental Biology. She has just completed her first year at U of T Law. This summer, she is working on a report summarizing the discussions from the Media Freedom Symposium held in March 2020 at the Faculty of Law. The report covers the current state of media freedom in Canada, as well as recommendations for moving forward. She is excited to delve into the nuances of media freedom, especially understanding the unique challenges posed by the online media ecosystem. Outside of the Asper Centre, she is volunteering at News Decoder, a non-profit that works towards promoting youth global citizenship education through media literacy and journalistic skills.  When not in front of her computer, Angela is perfecting her sourdough loaves and training to run a faster half-marathon. She’s ready to start delivering bread to friends within running distance.

Matthew Mohtadi

Matthew is a graduate from the University of Toronto, completing a double major in Criminology and Sociology. He has just completed his 2L year at U of T Law. This summer, Matthew is drafting a memo to consolidate the research of the Asper Centre’s Sex Workers’ Rights Student Working Group from the past academic year. The purpose of the memo is to provide potential public interest litigants with a constitutional analysis of the Protection of Communities and Exploited Persons Act (PCEPA). The PCEPA was created in response to the decision in Bedford v. Canada, and contains new provisions that criminalize the purchase of sexual services in Canada. The new provisions may still be unconstitutional as many of the harms identified in Bedford continue to be perpetuated. The memo will focus on how ss. 2(b), 7, and 15 of the Charter could be used to strike down these provisions of the PCEPA.

 

Ontario Court of Appeal Rules G20 Protester’s Rights Violated by Police

 

Ten years after Toronto hosted the G20 summit, a civil suit launched against the Toronto police has finally been resolved by the Ontario Court of Appeal. The decision—Stewart v. Toronto (Police Services Board)—represents a strong affirmation of the constitutional right to protest, especially in public spaces like parks.

The case arose out of the G20 summit held in Toronto in 2010. A group of activists had organized a public rally in Allan Gardens, a public park in downtown Toronto. Based on vague reports of potential violence by “Black Bloc” protesters, the police set up an indiscriminate perimeter around the park the day before the rally and required all those wishing to participate in the protest to submit to a search of their personal belongings. The police also seized items that they believed could be used to defeat the effects of tear gas and pepper spray, such as goggles, bandanas, and vinegar.

The police stopped the appellant, Luke Stewart, and told him they were searching all protesters under the authority of the Trespass to Property Act. Mr. Stewart refused to consent to the search, believing it to be unconstitutional. When he attempted to move past the police perimeter, he was forcibly detained. The police then searched his bag and confiscated a pair of swimming goggles.

Mr. Stewart brought a lawsuit against the police in 2011, seeking Charter damages for violation of his freedom of expression, right not to be arbitrarily detained, and right to be secure against unreasonable search or seizure. The Superior Court dismissed his claim in 2018, ruling that the police had the requisite search powers and did not infringe any of his constitutional rights.

The Canadian Civil Liberties Association (CCLA) intervened in this case at both the trial level and at the appeal, arguing for limits on the power of police to interfere with the rights of protesters.

Winston Gee headshot

Winston Gee

Winston Gee, an associate at Torys LLP and former Asper Centre Clinic student, presented the CCLA’s submissions at the hearing of the appeal.

In reasons written by Justice Brown, the Court of Appeal agreed with the CCLA that the police had no legal authority for their actions. It overturned each of the trial judge’s rulings and awarded Mr. Stewart $500 in Charter damages. The Court also affirmed the fundamental importance of free political expression, especially in public parks:

“Our civil liberties tradition recognizes that public parks, such as Allan Gardens, are civic spaces naturally compatible with the public expression of views, whether the content of those views support or dissent from the popular sentiments of the day… The freedom to engage in the peaceful public expression of political views is central to our conception of a free and democratic society. Freedom of expression requires zealous protection.”

Despite the low damages award, Gee was pleased that “the Court accepted one of our central submissions at the hearing—that the Trespass to Property Act does not create any substantive property rights but is merely a mechanism to enforce existing rights that come from other sources, such as the common law.” As a result, the Act could not be used by the police to impose “conditions of entry” of their choosing. That power properly belonged to the City as the common law owner and occupier of the park—and it is subject always to the Charter.

Gee said that his work on this case “benefitted immensely from my time at the Asper Centre. That’s where I first gained experience with appellate advocacy, including by learning from leading constitutional litigators like Mary Eberts and Marlys Edwardh. I also had the opportunity to assist with the Asper Centre’s intervention in Henry v. British Columbia (Attorney General), one of the Supreme Court’s leading cases on Charter damages. That experience was particularly relevant to this case.”

Gee also thanked his colleagues at Torys for providing excellent mentorship and for giving him the opportunity to argue such an important case.

by T. Schreier, with Winston Gee (JD/MPP UTLaw 2017)