Asper Centre Symposium

Re-opening the Gosselin door: the Asper Centre hosts a Symposium on Litigating Positive Rights

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By Daniel Minden

Twenty-four years after Gosselin v. Québec, 2002 SCC 84, in which the Supreme Court of Canada left the door open for the recognition of freestanding, positive rights under the Canadian Charter of Rights and Freedoms, a series of experts hosted by the Asper Centre argued that litigators should renew the push for judicial enforcement of positive rights. 

On January 16, 2026, the David Asper Centre for Constitutional Rights hosted a symposium on litigating positive rights under the Charter at the Henry N.R. Jackman Faculty of Law. Co-chaired by the Cheryl Milne of the Asper Centre and Professor David Schneiderman of the Jackman Faculty of Law, the event considered how litigators can seize the potential of the Charter to argue that governments have positive constitutional obligations to their citizens – including in the areas of climate, housing, and health policy. This blog post focuses on selected portions of the Symposium’s plenary sessions, although the day’s agenda also included concurrent panels covering specific policy areas. 

Enforcing positive social rights in an anti-democratic era 

In a keynote address to launch the symposium, Professor Aoife Nolan of the University of Nottingham School of Law set the tone for the day. Nolan argued that democracy and social rights are co-dependent, and that litigators have a role to play in protecting both.  

Drawing on her experience as President of the Council of Europe’s European Committee of Social Rights, Nolan contended that positive rights litigation is an important means of reinforcing and sustaining democracy. Nolan noted that her quasi-judicial body has held that social rights permit the exercise of democratic rights: in European Roma Rights Centre (ERRC) v. Greece (Complaint No. 15/2003), the Committee found that the right to housing enabled the exercise of political rights. Nolan also argued that healthy democracies are best able to fulfil social rights, referring to Nobel laureate Amartya Sen’s thesis that functioning democracies with a free press do not experience substantial famines. 

The connection between social rights and democracy can help to explain the rise of anti-democratic forces, Nolan argued, referencing research which demonstrates a positive correlation between citizens’ concerns over access to goods and services, and support for far-right parties. In a call to action to attendees, Nolan insisted that litigation is a “key mechanism to flag gaps and bring about government action in areas such as housing, social protection, and employment,” which in turn, helps to maintain confidence in democracy.  

Room for optimism about positive rights in Canada? 

Following Nolan’s lecture, Professor Joel Bakan of the University of British Columbia’s Allard School of Law provided an historical overview of attempts to litigate positive Charter rights in Canada. Bakan recounted that Canadian courts have persistently rejected the notion that the Charter protects ‘freestanding’ positive rights, i.e., rights that “obligate state actors to provide some protection or benefit regardless of whether they have already provided a version of that protection or benefit.” In contrast, Bakan asserted that Canadian courts have been willing to recognize ‘contingent’ positive rights, i.e. rights which “obligate state actors to extend or expand some protection or benefit they have already provided a version of.” Bakan noted Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC) and Vriend v. Alberta, 1998 CanLII 816 (SCC), as examples of the Supreme Court recognizing contingent positive rights.  

In the landmark Gosselin case, the Supreme Court rejected an attempt to establish a freestanding positive right claimed by a welfare recipient appellant. The Court held that “nothing in the jurisprudence thus far suggests that s. 7 places a positive obligation on the state to ensure that each person enjoys life, liberty or security of the person. Rather, s. 7 has been interpreted as restricting the state’s ability to deprive people of these.” The Court found that “such a deprivation does not exist in the case at bar,” but also left the door open to recognizing positive obligations created by s. 7 in a future case.  

Dissenting Justice Louise Arbour took a broader view of the word ‘deprive.’ She found that “there is no sense in which the actual language of s. 7 limits its application to circumstances where there has been positive state interference,” since the “concept of deprivation is sufficiently broad to embrace withholdings that have the effect of erecting barriers in the way of the attainment of some object.” Bakan argued that in later contingent positive rights cases, the Court has seemingly embraced Arbour’s expansive understanding of ‘deprivation.’ In Bakan’s interpretation, the Supreme Court’s jurisprudence in which it has recognized contingent positive rights “depend upon and affirm” Arbour’s view that “a right can be deprived, breached, violated [or] limited by omission as much as by action.” In Bakan’s view, the court’s simultaneous acceptance of contingent positive rights and rejection of freestanding positive rights is inconsistent.  

Finally, Bakan addressed the concern that freestanding positive rights risk transforming judges into legislators. While acknowledging the need for caution, Bakan pointed to Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, as a proof of concept for navigating justiciability issues. In Doucet-Boudreau, the trial judge held that the province of Nova Scotia had to deploy its best efforts to uphold French-language education rights in the province. Rather than ordering a specific policy solution for the Nova Scotia government to pursue, the trial judge retained jurisdiction and monitored the government’s progress. The Supreme Court upheld the trial judge’s remedy as an appropriate exercise of judicial authority since the remedy left “detailed choices of means largely to the executive.” For Bakan, Doucet-Boudreau indicates how freestanding positive rights arising from Charter interpretation (as opposed to textually explicit positive rights such as ss. 14 and 23) might be judicially enforced in Canada if recognized by the Court. 

Bakan was followed by New York University JSD student Henry Federer and Osgoode Hall Law School Assistant Professor Anthony Sangiuliano, who presented their upcoming articles on positive rights. As an alternative to the dichotomy between positive and negative rights, Federer proposed a ‘two-tier’ methodology for characterizing Charter rights which initially characterizes a right as imposing a negative duty on the state or imposing a positive obligation on the state. Then, the methodology characterizes the right a second time to elucidate whether the right, once engaged, creates a secondary duty or obligation for the state.  

Following Federer’s presentation, Sangiuliano argued that positive constitutional rights are predicated on findings that state omissions have caused a violation of the relevant right. Sangiuliano posited that such findings are not empirical, but normative: such a finding is predicated on the notion that the state has a duty to prevent an outcome. For Sangiuliano, the ‘exposition’ of judicial decisions can help reveal the normative assumptions that underly judicial findings of state omissions.  

Addressing judicial anxieties about positive rights 

The separation of powers concerns referenced by Bakan were also addressed in an afternoon plenary session on judicial anxieties about positive rights. Associate Professor Benjamin Perryman of the University of New Brunswick argued that the separation of powers between the three branches of government is a misnomer and should be reconceived as the overlapping of powers. Perryman contended that the judiciary has a role in explaining how the overlap ought to function in practice and pointed towards foreign jurisprudence to indicate how Canadian courts might go about this task. 

Both Professor Kent Roach of Jackman Law and Professor Margot Young of the University of British Columbia’s Allard School of Law argued forcefully against a distinction between positive and negative rights at all. Roach noted that the Charter rights implicated in criminal law, though often framed in negative terms in the text of the Charter, in effect create positive obligations for the state. For instance, s. 12 implicitly requires the state to invest in correctional facilities so that they do not amount to venues for cruel and unusual punishment. For Roach, the positive versus negative rights dichotomy is a false distinction.  

Young made a similar argument, asserting that the Charter is at a moment of “existential crisis” because Canadian courts have “failed to give force to the full potential for the Charter as an instrument of social justice.” Young argued that the Supreme Court’s concept of substantive equality in interpreting s. 15(1) requires recognition of positive state obligations if it is to mean anything – and that a real commitment to social equality requires doing away with the distinction between positive and negative obligations.  

Young quoted from the American scholar S. F. Kreimer, who writes that “appropriate verbal manipulations can easily move most cases across the line between positive and negative obligations,” and from the University of Ottawa’s Martha Jackman, who has written that “the distinction between state action and inaction, and between positive and negative rights, has been entirely discredited under international human rights law.” Young asserted that the courts’ proclivity to distinguish between positive and negative rights is explained by a desire to protect the separation of powers. For Young, however, the separation of powers “requires judicial enforcement of the Charter to its full remedial purpose.” 

This afternoon plenary panel also included a presentation by Associate Professor Angela Cameron of the University of Ottawa and Toronto lawyer Lara Koerner-Yeo of JFK Law LLP, who examined the role of the presumption of conformity (between Canadian legislation and international treaty obligations) in ss. 7 and 15 Charter litigation. Research by Cameron and Koerner-Yeo indicates very little litigation in which the presumption of conformity has been raised in support of positive rights claims. However, Cameron and Koerner-Yeo noted that the presumption is increasingly invoked in s. 35 litigation.  

Daniel Minden is a Research and Communications Assistant with the Asper Centre. He is a 1L JD candidate at the University of Toronto Jackman Faculty of Law. 

Call for Papers: Litigating Positive Rights symposium

Posted on by Tal Schreier

Re-Opening the Door: Litigating Positive Rights under the Canadian Charter of Rights and Freedoms

The David Asper Centre for Constitutional Rights (the Asper Centre) invites papers for a one-day symposium on litigating positive rights under the Charter. The symposium’s goal is to develop our understanding of positive rights in Canada, especially the challenges they currently face and the issues that might arise if positive rights were more robustly recognized under the Charter. The symposium, which will add to the decades-long conversation in Canada among scholars and courts about positive rights, will take place on Friday January 16, 2026, at the Faculty of Law, University of Toronto.

Two decades ago, in Gosselin, the Supreme Court of Canada left the door open to an expansive view of positive rights claims under the Charter. Since then, however, courts across the country have failed to recognize them. Underpinned by caution and concern, this pattern holds across diverse contexts, from the welfare context to the asylum context. Yet, climate change and growing economic inequality have renewed the push for positive rights. Take Mathur v Ontario, for example, the first Charter case concerning climate change to be decided after a full hearing, or the recent housing cases testing the precedent of Tanudjaja v Attorney General of Canada et al. In both contexts, litigants have sought relief for urgent and wide-ranging social issues that are difficult to conceptualize or remedy via a purely negative rights framework. These issues, and the litigation they have spawned, invite a closer inspection of positive rights under the Charter.

Against this backdrop, the Asper Centre is seeking submissions from both scholars and practitioners that address the following key questions:

  • Is there truly a distinction between positive rights and negative rights under the Charter?
  • What role should Canadian courts play with respect to positive rights, specifically vis-à-vis Parliament and provincial legislatures? How is this affected by the principles underpinning the separation of powers?
  • What practical challenges does litigating positive rights pose in areas such as climate change and equality rights?
  • What is the nature of the social science evidence required to argue or defend these cases?
  • What does constitutional experience abroad teach us about the potential for positive rights under the Charter?
  • What are the remedial options for positive rights claims?
  • What lessons or impacts could be drawn from international law examples?

Located within the University of Toronto Faculty of Law, the Asper Centre is devoted to advocacy, research, and education on constitutional rights in Canada. Since its inception in 2008, the Asper Centre has hosted many conferences and symposia focused on various aspects of Charter and public interest litigation. In 2018, the Asper Centre convened a Public Interest Litigation Conference, focusing on legal strategies for successful public interest litigation and similarly in 2023 held a symposium focusing on equality rights litigation. The resulting papers were published by LexisNexis Canada in the books Public Interest Litigation in Canada and Litigating Equality, with corresponding volumes of the Supreme Court Law Review. This symposium seeks to build on the themes explored in earlier events to contribute to the practical scholarship on public interest litigation and to produce a follow-up publication to these earlier works.

Those interested in participating should send an Abstract (250 words maximum) of your intended paper to Tal Schreier (tal.schreier@utoronto.ca), the Asper Centre’s Program Coordinator. Papers may be at any stage of development, but participants will be expected to circulate a paper of at least 5000 words (final papers should be 5000-10,000 words). Alternatively, we welcome shorter case comments of approximately 2500 words that focus on a single court decision.

Deadline for proposals: June 30, 2025.

Litigating Equality in Canada Symposium

In the past decade, several decisions from the Supreme Court of Canada have articulated a revised understanding of the way that section 15 of the Charter is to be applied in Charter litigation. In particular, Fraser has been interpreted by some as modifying the approach by claimants in establishing a section 15 breach and placing more focus on the government’s burden of justification. Most recently, Sharma has articulated an evidentiary burden as part of the test. The Courts have also been challenged to examine the implication of equality rights in Charter challenges and sentencing cases in the criminal law context in ways that place a heavy focus on racial inequities. The events of the summer of 2020 and the Black Lives Matter movement have highlighted the importance of cases such as R v Sharma and R v Morris, that have recently been considered by our courts. The Supreme Court of Canada has also shown an increasing interest in scholarship in the analysis of the law, while at the same time, we are seeing an increased interest and influence of interveners in these cases.

In light of the above developments, the Asper Centre convened a one-day Symposium (in-person and via Webinar) on Friday May 26th, 2023, to critically examine the status and future of equality litigation in Canada. The Symposium was aimed at both practitioners (lawyers and NGOs) who are engaged in public interest litigation and scholars and students who study and analyze the impact of these cases.

Some of the themes that were covered in the Symposium include an analysis of the recent Supreme Court rulings under s.15 of the Charter and their impact on litigation strategies on behalf equality seeking groups and the government; whether and how interveners have made an impact on these cases; the nature of the evidence required to successfully argue or defend these cases; and, lessons from successful as well as unsuccessful litigation in this area extracted from individual cases.

This Symposium builds on some of the themes explored in the Asper Centre’s 2018 Public interest Litigation Conference (and the publication following that Conference) in order to contribute to the practical scholarship on equality litigation in Canada and to produce a follow-up publication to this earlier work.

The Symposium included a morning plenary session on the role of interveners in equality litigation in Canada, a closing panel offering reflections and perspectives from the bench, as well as a full day of panel discussions by academics and practitioners focusing on the above-noted issues.

Link to the BOOK published following the Symposium

View Symposium AGENDA with Speakers Bios and Abstracts

View archived webcast of the Symposium

Immigration Detention Symposium: CARL Toolkit and Case law Compendium

Posted on by Tal Schreier

by Delia Luca and Jacob Webster

The final panel of the Asper Centre Immigration Detention Symposium held on March 15, 2019 focused on the Immigration Detention Toolkit (Toolkit) recently launched by the Canadian Association of Refugee Laywers (CARL) and the Asper Centre Clinic’s Compendium of jurisprudence related to the Immigration and Refugee Board’s (IRB) External Audit, soon to be available. In conjunction, the panellists advanced strategies for addressing the ongoing challenges in Canada’s immigration detention system and illuminated the discrepancies between the expectations articulated by the courts and the practice of the IRB’s Immigration Division (ID). The panelists were Jamie Chai Yun Liew, Associate Professor at the University of Ottawa and co-leader of CARL working group on Immigration Detention, Aris Daghighian, an Associate at Green and Spiegel LLP and member of CARL’s Working Group on Immigration Detention, Devon Johnson, a JD Candidate at UofT Law and Asper Centre Clinic Student and Jim Molos a JD Candidate at UofT Law and Asper Centre Clinic Student. The panel was moderated by Enbal Singer a 3L at UofT Law and co-leader of the Asper Centre’s student working group on Immigration and Refugee Law.

The Immigration Detention Toolkit

The Immigration Detention Toolkit was devised by CARL in order to provide recommendations on the steps counsel can take to ensure the fairest process possible outcomes for their clients in immigration detention.  The panelists modestly acknowledged that the Toolkit is a “living document”, an evolving document, that ought to be updated to reflect criticisms and recommendations. The Toolkit is the product of laudable advocacy across the country, in response to the Immigration and Refugee Board’s (IRB) External Audit. The panelists cautioned that the Toolkit should not be used in isolation, as it is meant to be employed by counsel in conjunction with the Chairperson’s Guidelines.

While touched on throughout the panel, the need to ensure fair representation for clients in the face of relatively unprincipled judgments strikes us as meriting a more elaborate discussion. How should counsel approach discrepancies and a lack of transparency with respect to the immigration detention system? The Toolkit seeks to aid counsel in discerning what they should demand of the ID. For instance, counsel must ask for sufficient disclosure in order to hold the Canada Border Service Agency’s (CBSA) officials accountable, CBSA should provide reasonable notice of the evidence or information that will be relied upon at the detention review, including any evidence that may exculpate the detainee. Knowing the right questions and making appropriate demands on behalf of clients is especially relevant in a legal forum where government officials and the ID have seemingly broad discretion.

The panel also touched upon the question of how to properly articulate detainee’s mental illness, addiction and other vulnerabilities. As legal practitioners working with vulnerable clients, one must acknowledge and represent their client’s circumstances in a manner that does not disaffirm their agency and active role throughout the process. Despite societal efforts at creating a safe environment where said vulnerabilities may be discussed openly, detainees’ suffering from various conditions continue to be stigmatized. In such cases, counsel must assess their client’s situation, identify the need to appoint a Designated Representation (DR) and inform the ID accordingly.

The Toolkit advances recommendations of how to relate to the vulnerability of detainees and encourage the courts to consider their vulnerability in a substantive, rather than merely procedural manner. Counsel must demonstrate that their client’s vulnerability should not be taken as a flight risk or risk to the public. Furthermore, counsel must highlight that the detainee’s mental health or addiction is not voluntary and may inhibit one’s capacity. In doing so, counsel must not severely victimize the client in a manner that strips the client of their perceived ability to improve their condition. This issue invokes the rising demands upon immigration lawyers to think creatively, as evidenced by the advent of using habeas corpus under section 10(c) of the Canadian Charter of Rights and Freedoms (“Charter”) on behalf of clients, to grant them relief from arbitrary state detention. All in all, in the face of broad discretion, counsel must challenge Canada Border Services Agency (CBSA) submissions and force adequate disclosure. As per the words of one of the panelists, counsel has the duty to “put CBSA’s feet to the fire” in hopes of facilitating a fair and just process.

A Compendium of Federal Court Jurisprudence

As clinic students at the Asper Centre last term, Jim Molos and Devon Johnson conducted a survey of relevant Federal Court case law and compiled a compendium of jurisprudence to assist practitioners in martialling precedent to advocate for their clients’ best interests in immigration detention hearings. Their presentation emphasized the minimum standards for lawful immigration detention and their interpretation under section 7 of the Charter in Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9. Molos stressed the importance of effective advocacy. Although the constitutionality of the Immigration and Refugee Protection Act (IRPA) has been affirmed by courts, particular detentions may still be unconstitutional. With relation to disclosure, it was stressed that section 7 of the Charter protects the right against having a case brought on undisclosed evidence. Thus, counsel should ensure that the Minister’s case is challenged effectively.

The latter half of Molos and Johnson’s presentation focused on alternatives to detention under section 58(3) of the IRPA. The panellists emphasized that all conditions imposed on release should be viewed as an imposition of liberty and thus must be subject to ongoing review in a way that ensures that the impositions do not deprive liberty disproportionate to risk.

In the question and answer period that followed the panel, an audience member questioned whether the CARL Toolkit is written in a manner accessible to unrepresented detainees or published in multiple languages. Liew and Daghighian acknowledged that this was an important suggestion and that while the Toolkit was written in an accessible manner, it was probably not accessible enough for a self-represented litigant. This speaks to the evolving nature of the document.

The CARL Toolkit is available here and the Asper Centre Federal Court Case law Compendium is forthcoming. The presentation used by Liew and Daghighian during the panel is available here and the presentation used by Molos and Johnson is available here.

Delia Luca and Jacob Webster are both 1L JD Candidates at the Faculty of Law and members of the Asper Centre’s Immigration & Refugee Law student working group. 

Immigration Detention Symposium: Responding to the IRB’s External Audit

Posted on by Tal Schreier

 

by Olivia Martin and Adrian Ling

The first session of the Asper Center’s Immigration Detention Symposium, held on March 15, 2019 at the University of Toronto Faculty of Law, featured a panel discussing the 2018 Immigration and Refugee Board’s (IRB) External Audit report on Immigration Detention. Kathy Laird, a Toronto lawyer and author of the report, audited 312 immigration detention hearings for 20 different files selected on a random basis. She opened the panel by explaining that her task in completing the audit was to review the fairness of the process in order to ensure that the results of these detention hearings matched the evidence that was produced.

Laird candidly shared she was “shocked” by what she found when listening to the hearings and elaborated that some key themes were inconsistent and inaccurate factual findings and changing adjudicators within a single file. She shared one particularly impactful example of an individual who, in a single hearing, had his release plan turned down because it did not include drug counselling; it was in an urban setting, and it was too close to family where the last issue had occurred. However, in a subsequent hearing with a different adjudicator, a second release plan for the same individual was also turned down because it included unnecessary drug counselling, it was in a rural setting, and it was too far from family.

Aviva Basman and Nancy Weisman presented after Laird. Both were from the Immigration Division of the IRB, where Basman is Assistant Deputy Chairperson and Weisman is Senior Counsel.  As it turns out, the IRB began formulating a new set of detention policy guidelines in response to the problems found in Laird’s Audit. Additionally, between the time of the report and now, the Board had already begun implementing procedures in an effort to improve the system. Basman described a number of these changes, while Weisman spent the majority of her time outlining some of the new policies that were to be implemented in the guidelines.

Some of the changes Basman described related to the continuity of expertise in a detainee’s file. These included ensuring the same member of the Board (who would roughly fill the role of a judge in these decisions) would preside over each of a detainee’s hearings and making sure that the detainees’ bondspeople were being interviewed by members directly. It was surprising to us that this was not already the case, as it seems like the most intuitive way for these hearings to occur. Additionally, Basman was happy to announce that the new cohort of Board members recently hired all had experience in immigration and refugee law or detention work.

Weisman announced that the IRB’s detention guidelines would be published by the following Monday and highlighted some of its most significant shifts. The new policy de-emphasizes some of the categorical approaches that had been used before. For example, a lack of family ties to Canada is no longer dispositive of a person being a flight risk. Additionally, the new guidelines mandate a Stinchcombe-like breadth of ministerial disclosure and an active consideration of all possible alternatives to detention.

Hanna Gros, from the International Human Rights Program at the University of Toronto, emphasized that immigration detainees are held on administrative grounds, not criminal grounds. She highlighted that immigration detention is not a punishment, despite the fact that nearly a third of detainees were held in corrections centres last year, and immigration detainees are generally detained for reasons completely unrelated to public safety, most often including issues of unclear identity or potential flight risk.

Sarah Boyd, an associate at Jackman and Associates who works directly with detainees, spent time discussing what a procedurally fair detention hearing might look like. Boyd passionately emphasized that a procedurally fair detention hearing would look like any other procedurally fair hearing, featuring two parties coming to the table with the same information and being treated equally by the tribunal. However, from Boyd’s point of view, there are barriers that currently make many detention hearings less than fair for detainees, including the different standards that the detainee’s counsel and the CBSA officers are held to. While the detainee’s counsel is standing at the metal detector removing staples from paperwork as required, the CBSA officer is often in the hearing room chatting about their weekend with the Board member presiding over the hearing.

Despite their criticism, both Gros and Boyd expressed optimism that the IRB’s new detention guidelines would address a number of the concerns they discussed in the panel, with Gros noting that the guidelines are “crucial first steps in the right direction, but not the ultimate solution.”

Overall, the group shared a consensus that there is still need for further improvement and that the required change requires a concerted effort from all the stakeholders involved.

View a recording of the panel here.

Access the RESOURCES from the Immigration Detention Symposium here.

Olivia Martin and Adrian Ling are 1L JD Candidates at the Faculty of Law and members of the Asper Centre Immigration and Refugee Law student working group.