Asper Centre Students

Reflections on Climate Justice and the Law

Posted on by Tal Schreier

by Carson Cook, Eva Boghosian and Hannah West

As members of the 2023-2024 Environmental Rights Student Working Group at the David Asper Centre for Constitutional Rights, eleven first year students at the University of Toronto Faculty of Law have been researching various legal doctrines, legislation, and case law related to how environmental rights are conceived in Canada, how they can be used/acted upon, and how they might be improved. Their research has covered environmental constitutional litigation like Mathur v Ontario; how Indigenous rights and knowledge interact with environment law; and, legal doctrines from other jurisdictions that provide environmental protection. The outcome of this research will be a guidebook that informs community organizers and activists of the state of environmental rights within Canada.

To take part in the Global Day of Action for Climate Justice, we asked these students to reflect on their research and the potential for climate action within Canada. A common theme, and perhaps a surprising one, was positivity surrounding Canada’s ability to pursue climate action within its legal framework. Though the students identified various issues of implementation, they appreciated finding processes within the Canadian legal system that can support environmental protection and climate action. Students also valued their research as it provided them with an opportunity to learn about other jurisdictions and the processes used internationally that could be adopted within Canada. Though, in addition to issues of implementation, the students noted the legal system only moves in small steps. However, the students noted they felt more empowered to think about furthering climate action with their new knowledge of these environmental legal frameworks.

Another recurring insight from the students was how important education for the general public is for meaningful climate action – highly relevant to the Environmental Rights Working Group’s goal of creating a guidebook for lay-people to understand their legal rights with respect to the environment. As law students and future lawyers, we are in positions of privilege to have the tools and training to research complicated theories and frameworks that greatly affect how climate action is pursued, and we therefore have a duty to help educate those around us. Importantly, the students noted, this education should not simply be providing information, but conducted in a way that empowers people – to build their skills, knowledge, and confidence so that they can work and learn in the environmental space to further change.

Such education builds power for all of us to push for change, as legal professionals or otherwise. This was the final theme from our reflection session with the student researchers – the importance of an analysis of power when working for climate justice. While legal processes can be and have been created to further environmental protection, those processes can be subverted when there is a power imbalance between adversarial parties. While law affects social values, social values also affect the law. The collective power of a community asking for change or participating in decision-making processes is key for climate action to occur. This is not to pin the causes of climate change on individuals, but it is to recognize the agency and power we each hold, and that builds when we work together to tackle otherwise insurmountable problems. The Environmental Rights Working Group has been one small way in which we, as law students, are building power within ourselves, amongst each other, and within our Toronto community.

Carson Cook, Eva Boghosian and Hannah West are JD Candidates at the Faculty of Law and are the Asper Centre Environmental Rights Working Group leaders this year. 

Introducing our Summer 2021 Research Assistants!

Posted on by Student

 

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

Posted on by Tal Schreier

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.

 

The Constitutionality of Canada’s Greenhouse Gas Pollution Pricing Act: A Panel Discussion

The David Asper Centre for Constitutional Rights’ Climate Justice Working Group is pleased to present a panel discussion (online webinar) on November 16th, 2020 at 12:45p.m. about the constitutionality of Canada’s Greenhouse Gas Pollution Pricing Act.

The constitutionality of the Act has been a subject of debate in courts across the country and was most recently the subject of multi-day hearing at the Supreme Court of Canada. The constitutional challenge at the SCC was brought by the governments of Ontario, Alberta and Saskatchewan, who were joined by many interveners who advanced diverse and interesting perspectives.

The Climate Justice working group is looking forward to providing an opportunity for the law school (and broader legal community) to engage with this incredibly important and timely topic. At the event, the Climate Justice working group members will be speaking to counsel for the Attorney General of Canada (Sharlene Telles-Langdon), counsel for the the Attorney General of Ontario (Joshua Hunter) as well as to counsel for Ecojustice (Joshua Ginsberg) and counsel for the Anishinabek Nation and the United Chiefs and Councils of Mnidoo Mnising (Patricia Lawrence).  

Register here

Registration is free and open to the public. Link to the Zoom Webinar will be shared after registration.

Please email tal.schreier@utoronto.ca for questions.

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

Posted on by Student

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.