Asper Centre Students

Introducing our 2020 Summer Research Assistants

Posted on by Student

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

Posted on by Tal Schreier

 

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)

Reflections on the Asper Centre Intervention in Ontario v. G

Posted on by Tal Schreier

By Jeffrey Wang

As a clinic student this term, I had the opportunity to hear the Asper Centre’s oral arguments in its intervention at the Supreme Court of Canada in the appeal of Ontario v. G, which took place on February 20, 2020. The appeal concerned the constitutionality of the Ontario and federal sex offender registry laws, which required offenders found not criminally responsible (NCR) to report to the registry for life, even if they had been absolutely discharged by the Ontario Review Board (ORB). Offenders not found NCR who receive an absolute discharge, record suspension, or pardon do not have to report to the registries. In this way, the claimant, G, who was found to be NCR after his criminal trial, argued that the Ontario and federal sex offender registry laws violated his s. 7 and s. 15 rights under the Charter.

Justice Doherty for the Ontario Court of Appeal did not find a s. 7 violation. However, he recognized that the sex offender registries drew a discriminatory distinction based on the ground of mental disability under s. 15 of the Charter, since the law reinforces the stereotype that NCR offenders are indeterminately dangerous. Under s. 1, the court focused on the fact that the reporting requirements for NCR offenders did not have any “exit ramps” even though similar “exit ramps” are available for non-NCR offenders. Justice Doherty found that this was not a minimal impairment of s. 15 rights and struck down the laws.

Supported by the faculty of law’s Professor Kent Roach, the Asper Center intervened in this appeal on the issue of remedies, specifically about when delayed declarations of invalidity intersect with the need for constitutional exemptions in Charter litigation.  In this case, the Ontario Court of Appeal suspended the declaration of invalidity for one year in order to allow the legislature to amend the impugned laws. However, Justice Doherty exempted the applicant G from this suspension, which meant that G was removed from the sex offender registry reporting requirements, effective immediately. This was controversial, since the Supreme Court in R v Demers had expressly advised against exempting individual claimants from suspended declarations. The Asper Center argued that the Demers rule must be overturned. This is due to the fact that the Supreme Court has exempted individual claimants from suspended declarations in the past, such as in Corbiere and Carter. In addition, without the ability to exempt claimants from suspended declarations, individual claimants must wait until the completion of the suspended declaration in order to receive any benefits of their successful claim. The Asper Center also argued that the Supreme Court should only use suspended declarations of invalidity as a remedy when it is justified as necessary and proportional. This is in line with international practices such as the Hong Kong courts’ use of suspended declarations as well as the Supreme Court’s own jurisprudence on other constitutional remedies. Furthermore, many scholars are critical of the overuse of suspended declarations of invalidity since the remedy creates uncertainty and allows laws to continue violating Charter rights during the suspension.

My experience working on this case provided me with an invaluable look into appellate advocacy. At the Supreme Court, the arguments focused on if the sex offender registry laws violated s. 15 of the Charter and security of the person under s. 7. Many of the Justices were critical of the government’s s. 15 argument, asking numerous questions on the implications of their evidence that NCR offenders are more likely than the average population to commit another offence. Although the Asper Center was only given five minutes, Asper Centre Executive Director Cheryl Milne effectively addressed all of our arguments, and the Justices seemed receptive. It was exciting to see the research I conducted on Hong Kong’s jurisprudence not only be included in our factum, but also mentioned in our oral arguments. Ultimately, we will have to wait to see if the Supreme Court will take our invitation to re-imagine the use of suspended declarations of invalidity as a constitutional remedy.

Jeffrey Wang is a 2L JD student at the Faculty of Law and is the current Half-time Asper Centre Clinic student.

Asper Centre students mark Student Law Clinic Global Day of Action

Posted on by Tal Schreier

Back row (left to right): Mackenzie Cumberland; Clara Pencer; Leah Kelley; and Florian Nagy. Front row (left to right): Madeleine Carswell; Keely Kinley; and Yara Willox. Members not pictured: Madeleine Andrew-Gee; Adam LaRiviere; Leora Chapman; Haleigh Ryan; and Courtney Cowan. via @UTLaw 

November 18, 2019 marks a Global Day of Action against air pollution by more than 30 student law clinics from around the world.

The Climate Justice student working group at the David Asper Centre for Constitutional Rights at the University of Toronto’s Faculty of Law is calling on the provincial and federal governments to take meaningful action to curb emissions in Ontario.

“The recent federal election and the wave of climate strikes by young people have brought a renewed focus on climate-related issues,” says second-year law student Keely Kinley. “The idea that our Constitution could be used to safeguard and strengthen environmental rights is gaining momentum.”

The David Asper Centre is devoted to realizing constitutional rights through advocacy, research, and education, and plays a vital role in articulating Canada’s constitutional vision to the world. U of T law students can become involved in the Asper Centre’s work by volunteering with one of their student working groups. The student-led initiatives bring together 10-15 students to undertake research and advocacy in conjunction with academics, civil society groups, or members of the bar on Charter rights advocacy or current constitutional law issues.

“As a student law clinic with a commitment to social justice, the Asper Centre is committed to raising awareness of the issue of climate change in our teaching, research and activism, and to finding ways to support law students to contribute to the struggle for climate justice through the Canadian Charter of Rights and Freedoms,” says Cheryl Milne, the centre’s executive director.

Approximately forty percent of Canada’s petrochemical industry is condensed into a 15-square-mile area in Sarnia, Ontario known as Chemical Valley. The student working group highlighted Chemical Valley as an example of a place where years of government inaction and an inadequate emissions regulation has resulted in a health and environmental crisis.

Just south of the city are the traditional lands of the Aamjiwnaang First Nation community. Members of the Aamjiwnaang First Nation have been asking the government to review emissions standards for years, to no avail. A whistleblower has lodged three complaints over the past decade alleging inadequate engagement with the Aamjiwnaang community.

The Climate Justice working group also cites a 2017 report of the Environmental Commissioner of Ontario that observed that “Indigenous people and communities are disproportionately affected by environmental problems.”

“There are strong arguments to be made that both the provincial and federal governments have duties under the Canadian Charter of Rights and Freedoms to protect the Aamjiwnaang community and other residents of Chemical Valley from the harms of pollution,” says Kinley.

Section 7 and Section 15 of the Charter could both be invoked in order to protect individuals from insufficient government action in the sphere of environmental rights.

“There are any number of examples we could have chosen from. Unfortunately, Chemical Valley is just one example of where the different levels of government have failed in their obligations towards local communities,” says Yara Willox, a second-year law student. “We were happy to learn about the Ontario government’s decision to begin a two-year health study in Sarnia this fall, but it’s not enough.”

Kinley adds that a group of young Canadians recently initiated a lawsuit against the federal government for infringing their Charter rights by not taking sufficient steps to combat climate change.

“There is international precedent for this sort of litigation, and we’ll be paying close attention to the outcome.”

With files from the Climate Justice working group

Read the Climate Justice working group’s op-ed

Asper Centre students call on the Ontario and federal governments to act on air pollution

Posted on by Tal Schreier

via UofT Faculty of Law News: https://www.law.utoronto.ca//news/students-call-ontario-and-federal-governments-act-air-pollution

Monday, November 18, 2019

 

Today, November 18th, is the Student Law Clinic Global Day of Action for Climate Justice. We are a student working group at the University of Toronto Faculty of Law and, on this day, we call on our provincial and federal governments to take meaningful action to curb emissions in Ontario. The harmful consequences of air pollution are widespread and government inaction only exacerbates them. In Sarnia’s “Chemical Valley”, for example, where petrochemical facilities are responsible for around 10% of Ontario’s total emissions, the government’s inadequate regulations and foot-dragging have contributed to a health and environmental crisis.

The health data speaks for itself. Sarnia’s cancer rates are significantly higher than the rest of Canada’s. In the Aamjiwnaang First Nation community, whose traditional lands are just south of the city, the birth ratio of baby girls to boys is nearly 2:1. A wide range of respiratory problems and conditions that impair lung function have been linked to the pollutants emitted by Chemical Valley’s oil refineries and chemical plants. The list goes on. These findings are deeply troubling and should have spurred government action long ago. While we are encouraged that the provincial government will begin a two-year health study in Sarnia this fall, this is, in itself, insufficient.

Last month, a whistleblower painted a damning picture of the government’s response to air pollution in Chemical Valley. The whistleblower lodged three complaints between 2009 and 2019 alleging inadequate engagement with the Aamjiwnaang community. The Ontario government’s reluctance to take effective action on this issue is, unfortunately, not without precedent. In 2018, Ecojustice brought an application for review of the province’s air quality standards pursuant to Ontario’s Environmental Bill of Rights on behalf of two affected individuals. The government did not change its course.

Fortunately, there is another way to hold our governments accountable. The idea of using the Constitution to defend environmental rights is gaining momentum. Both the provincial and federal governments have clear duties under the Canadian Charter of Rights and Freedoms to protect the Aamjiwnaang community and other residents of Chemical Valley from the pollution that affects their land and their persons.

Section 7 of the Charter recognizes every individual’s right to life, liberty and security of the per-son. It encompasses the right to be free from physical or psychological harm resulting from gov-ernment actions or omissions, and could arguably be invoked to protect individuals from future harm. The negative health outcomes in Chemical Valley, if they are conclusively linked to deficient regulations, could form the basis of a section 7 claim.

Section 15 of the Charter protects individuals from discrimination. A law or policy that inordinately affects individuals on the basis of race, ethnic origin, or other grounds may constitute discrimination under the Constitution. Following a recent visit to Canada, the United Nations Special Rapporteur on human rights and hazardous substances and wastes, Mr. Baskut Tuncak, not-ed not only the inadequacy of the existing regulatory framework, but also its “deeply unsettling” impact on the Aamjiwnaang First Nation. A 2017 report of the Environmental Commissioner of Ontario similarly observed that “Indigenous people and communities are disproportionately affected by environmental problems.” The recently reelected Liberal government ought to be especially concerned about these findings, given its campaign promise to fully implement the UN Declaration on the Rights of Indigenous Peoples, which recognizes Indigenous peoples’ “right to the conservation and protection of the environment.”

Governments have a legal duty to correct the harmful and discriminatory regulatory schemes and environmental policies that are endangering communities across Canada. From Chemical Valley to Alberta’s tar sands, the dire consequences of government inaction are becoming increasingly clear. Last month’s federal election revealed voters’ renewed focus on climate-related issues. Climate strikes galvanized students across the country and drew attention to the social inequalities that flow from bad environmental policy. A group of young Canadians recently initiated a lawsuit against the federal government for infringing their Charter rights by not taking sufficient steps to combat climate change. These developments show that Canadians want better air quality, sustainability, and environmental rights. Provincial and federal governments should take note and take action before it’s too late.

Climate Justice working group members:

1Ls (first-year law students):
Clara Pencer
Adam LaRiviere
Mackenzie Cumberland
Madeleine Andrew-Gee
Leah Kelley
Leora Chapman
Courtney Cowan
Florian Nagy
Madeleine Carswell
Haleigh Ryan

Group leaders:
Yara Willox (2L)
Keely Kinley (2L)