Charter

Federal government needs a stronger foreign affairs power, H. Scott Fairley argues

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By Daniel Minden

Canadian federalism jurisprudence should provide the federal government with firmer ground to exercise authority over foreign affairs, Toronto lawyer H. Scott Fairley argued last week.  

On February 5, 2026, the David Asper Centre for Constitutional Rights hosted H. Scott Fairley, with Professor David Schneiderman as discussant, for a Constitutional Roundtable at Jackman Law. Fairley, a partner at Cambridge LLP, presented themes from his recent book Foreign Affairs in the Canadian Constitution (UBC Press, 2025). Fairley argued that an overly broad provincial role in foreign affairs displays disunity and invites aggression, citing James Madison, who wrote that if his country was to be “one nation in any respect, it clearly ought to be in respect to other nations.” 

Historical evolution of the foreign affairs power 

Fairley began by providing an overview of the evolution of the federal foreign affairs power since 1867. Unlike the written constitutions of other federations, Fairley noted that Canada’s Constitution Act, 1867 mostly leaves the issue of foreign affairs unaddressed. This was deliberate, Fairley contended, since Canada’s foreign relations were handled by the British Empire before the First World War. Illustrating this point, s. 132 of the Constitution Act, 1867 gives the federal Parliament “all Powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries.”  

While s. 132 might have been fit for purpose at the time of Confederation, following the 1923 Canada-U.S. Halibut Treaty Canada began to negotiate its own international treaties. As Canada forged an independent foreign policy in the years that followed, Fairley noted that s. 132 became moribund, since the provision only protects federal authority to implement treaties negotiated by the British Empire.  

As the utility of s. 132 faded, provincial governments, especially the government of Québec, began to assert themselves as international actors. In the 1960s, Québec adopted the Gérin-Lajoie doctrine and claimed a right to conduct international relations in all areas of provincial jurisdiction. 

Tracing the evolution of jurisprudence 

Fairley noted that constitutional jurisprudence in Canada has both protected and constrained the federal government’s ability to implement treaties.  

In the Aeronautics Reference [1931] UKPC 93 (BAILII) and Radio Reference [1932] UKPC 7 (BAILII), the Judicial Committee of the Privy Council (JCPC) held that broadcasting and aeronautics fell within the federal vires, relying in part on the fact that international treaties governed the two matters. However, in the Labour Conventions Reference [1937] UKPC 6 (BAILII), the JCPC held that although the federal government could enter into treaties, the performance of those treaty obligations “depends upon the authority of the competent legislature or legislatures.” In other words, the federal government could not intrude on a provincial vires on the basis that Canada needed to fulfil its treaty obligations. 

The Charter and judicial review of the royal prerogative 

Fairley also pointed out the consequential role of the Charter in enabling courts to review federal Cabinet decisions involving foreign affairs issues. The foreign affairs power exercised by Canada has its basis not in the text of the Constitution Act, 1867 but in the vesting of the royal prerogative in the Canadian government. Until a few decades ago, courts regarded the exercise of the royal prerogative as non-reviewable, Fairley contended. However, the Charter of Rights and Freedoms led courts to accept the reviewability of Cabinet decisions on foreign affairs.  

In the landmark case Operation Dismantle v. The Queen [1985] 1 SCR 441, the Supreme Court of Canada held that “decisions of the federal cabinet are reviewable by the courts under the Charter, and the government bears a general duty to act in accordance with the Charter’s dictates.” The Supreme Court reaffirmed this principle in Canada (Prime Minister) v. Khadr [2010] 1 SCR 44, when it held that “in the case of refusal by a government to abide by constitutional constraints, courts are empowered to make orders ensuring that the government’s foreign affairs prerogative is exercised in accordance with the constitution.”  

A proposed addition to the national concern doctrine 

Returning to the topic of federalism, Fairley argued that the Supreme Court of Canada should modify its test for the national concern doctrine so that the federal government can more easily claim jurisdiction over foreign affairs matters. 

As the Supreme Court of Canada held most recently in Reference re Greenhouse Gas Pollution Pricing Act (“Greenhouse Gas”), for a matter to be a matter of national concern, over which the federal government can claim jurisdiction under its Peace, Order, and Good Government (POGG) power, the matter must satisfy a three-part test. The matter must (a) be of sufficient concern to Canada as a whole, (b) have a singleness, distinctiveness, and indivisibility that clearly distinguishes it from matters of provincial concern (c) have a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the constitution.  

In Greenhouse Gas the Court also held that part (b) of the test may include a consideration of “the effect on extra‑provincial interests of a provincial failure to deal effectively with the control or regulation of the intra‑provincial aspects of the matter.” This seems to have led Fairley to adopt a proposed addition to the test, which could cut in favour of many foreign affairs issues being intra vires the federal government.  

In his lecture, Fairley proposed that the Supreme Court should add to the test that “national incapacity to address a matter of international concern independent of collective action [through a treaty]” should also be relevant to the determination of distinctiveness and indivisibility under the national concern doctrine. This would enable Canada to argue that global challenges such as pandemics and climate change, which require collective action, are within federal jurisdiction.  

Driving a truck through federal-provincial equilibrium? 

Professor David Schneiderman asked Fairley to consider whether this proposed addition to the national concern doctrine test might weigh too heavily in favour of federal power, threatening the constitutional equilibrium between the provinces and the federal government. Fairley responded that his proposal is consistent with equilibrium in its modern form, noting that Canadian federalism jurisprudence has long abandoned the notion of federal or provincial watertight compartments.  

Fairley argued that any notion that each order of government can act within sterile autonomous spheres divorced from Canada’s obligations abroad is no longer realistic. Rather, there now exists an extensive overlap between the provincial vires and federal vires as the doctrine of cooperative federalism appreciates. For Fairley, despite the importance of federal-provincial cooperation, Canadian courts must appreciate the distinctiveness of matters requiring collective action, where Canada depends on other nations and other nations depend on Canada.  

Fairley wrapped up his talk with a classical allusion by evoking the memory of Themistocles, who helped to unify Athens with its neighbour Piraeus. That unity was essential in enabling Athens to defeat an invasion by a more powerful Persian force. 

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. 

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. 

Statement on Ontario’s Attempts to Avoid its Climate Change Obligations and its Legal Commitments

Posted on by Tal Schreier

Issued by the David Asper Centre for Constitutional Rights on December 9, 2025

The Asper Centre condemns Ontario’s recent legislative efforts to deny its Charter-based obligations with respect to climate change.

In sprawling legislation that was passed as part of its Fall Economic Statement, via Bill 68, the Plan to Protect Ontario Act (Budget Measures), 2025, the Ontario government introduced critical amendments to Ontario’s statutory scheme for combatting climate change. These amendments had nothing to do with the budget, the alleged purpose of Bill 68. Instead, the amendments would, among other things, remove a longstanding provision that committed Ontario to setting greenhouse gas (GHG) emissions reduction targets.

The Ontario government’s legislative move comes as the climate crisis is getting worse, not better. It was also the Ford government, in 2018, that passed the legislative provisions and set the GHG emissions caps now being repealed. Why, then, has the Ontario government sought to do away with a self-imposed duty to set GHG emission targets? And why now?

Critically, Ontario’s legislative move comes after Ontario suffered two legal defeats concerning the emissions targets in issue.  This is not, however, a routine case of a province passing legislation to respond to a court order.  The province is instead attempting to avoid further judicial scrutiny of its GHG emissions targets by simply abdicating its obligations with respect to setting targets altogether. That is, as a result of an Ontario Court of Appeal decision in 2024, Mathur et al. v. Ontario, and the Supreme Court of Canada’s subsequent refusal to hear Ontario’s request to appeal the decision (decided May, 2025), Ontario is currently being forced to proceed to trial on a major climate change issue. The trial would ask whether Ontario’s GHG emissions targets to date have violated the Charter rights of seven youth applicants. By removing its self-imposed GHG emissions targets prior to trial, Ontario’s new legislation attempts to undermine the foundations of the applicants’ legal claim.

As summarized by one of the youth applicants in the case, Zoe Keary-Matzner, Ontario’s actions would attempt to have Ontario, at the last hour, “rewrite the rules” and evade its obligations with respect to climate change:

Less than a week before our day in court, the Ford government blindsided us by stripping away its own climate obligations. It’s deeply disappointing that the government would rather rewrite the rules at the eleventh hour than be accountable to the young people and citizens it’s supposed to serve. By removing these obligations, the government is trying to let itself off the hook for tracking its climate progress. But we are not about to let them get away with it.

Notably, the Mathur applicants have also not been alone in challenging the Ontario government’s failures on climate action. Ontario’s legislative move also comes shortly after the Ontario Auditor General released a report, this October, finding that Ontario was failing to meet basic requirements imposed upon it by the province’s statutory scheme. These failures included Ontario missing its own GHG emissions targets. As summarized in its press release, the Ontario Auditor General found that “Ontario set a legislated target in 2018 to reduce greenhouse gas (GHG) emissions by 30% below 2005 levels by 2030,” but Ontario was projected “to miss this target by at least 3.5 megatonnes — and the gap could be even larger.”

Critically, the Ontario Court of Appeal’s decision in Mathur was not a trivial legal outcome. In Mathur, the applicants have specifically alleged that Ontario’s GHG reductions violated the Charter because they constituted discrimination against youth and younger generations and otherwise violated the applicants’ right to life, liberty, and security. The Court of Appeal then found, in a decision of national significance, that because Ontario had passed legislation intended to combat climate change, Ontario had assumed the burden of creating a climate plan and emissions targets that were Charter compliant. As a practical matter, the Court of Appeal decision was in part a critical decision for climate change efforts in Canada because the applicants in Mathur had successfully established, via unchallenged expert evidence in the court below, that Ontario’s emission target was set lower than the one required by scientific consensus to mitigate climate change. The Court of Appeal’s decision ultimately ruled that a new hearing was required to decide whether Ontario had met its Charter-based obligations.

Further to the Court of Appeal’s order, a hearing in Mathur had been set down for December 1. The matter is now temporarily adjourned. The Asper Centre has been an intervener in the case since the initial Ontario Superior Court of Justice proceedings.

It is not necessary to opine on the legal merits of Ontario’s tactics. That is, does a provincial legislature have the power to evade Charter obligations arising from a statutory scheme by attempting to abandon its longstanding commitments wholesale, and amid a deepening crisis the scheme was designed to prevent? Further, may it do so after the statutory scheme has been the subject of six years of ongoing litigation, and in a way that would frustrate the possibility of the applicants obtaining a Charter remedy that had been open to them prior to this abandonment? Regardless of one’s answer to such questions, Ontario’s tactics are bad policy. They are especially bad policy for any observer concerned about the climate crisis or about ensuring that Ontario lives up to its Charter obligations. Indeed, the material facts cannot be genuinely in dispute. The overwhelming evidence is that climate change is having a disproportionate impact on younger generations, including by way imposing upon them a heightened risk of shortened lifespans, climate-change related illnesses, and other serious harms.

Unfortunately, the issues raised by the passage of Bill 68 do not end there. Despite the public importance of the issues raised by Mathur, a public importance evidenced by the Ontario government’s willingness to attempt to appeal the matter all the way up to the Supreme Court, the Ontario government elected to carry out its legislative repeal in a way that would evade parliamentary and public scrutiny. In the first instance, the environmental law amendments were buried in a complex and sweeping omnibus bill. Any hope of scrutiny was then eliminated when the Plan to Protect Ontario Act was made subject to a time-allocation motion (Motion 11), the effect of which was to limit both debate and the possibility of material amendments to the 67-page bill. Suffice it to say, Charter-engaging legislation requires public and legislative scrutiny at the best of times. The Ontario government’s decision not to defend its actions, when the grounds for its departure was of the utmost importance, is a damning detail in a series of problematic decisions.

The Asper Centre opposes Ontario’s efforts to evade its Charter obligations with respect to climate change, including by way of last-minute legislative provisions that have been shielded from public and parliamentary scrutiny.

Encampments and the Charter Workshop: Charter Challenges, Systemic Barriers, and Indigenous Legal Perspectives

Posted on by Tal Schreier

by Aurora Lawrence and Jay Wai

On February 28, 2025, the Centre for Constitutional Studies at the University of Alberta and the David Asper Centre for Constitutional Rights co-hosted a “Encampments and the Charter” workshop in Edmonton. The event brought together legal scholars and advocates to examine the legal, social, and political dimensions of housing encampments (also called homeless encampments and tent cities) in Canada.

As encampments continue to grow in response to the housing crisis, they have faced a range of governmental responses—many of which are politically and legally contentious.  The workshop explored both procedural and substantive legal issues, focusing on how provincial and municipal governments regulate encampments, and how such regulation is being challenged in court. Discussions centered on the application, advantages, and limitations of Charter rights challenges with respect to encampments, Indigenous legal traditions, and legal barriers to advocacy.  In particular, participants discussed encampments as spaces of harm reduction and mutual aid.

Workshop presenters included Margot Young, Alexandra Flynn, Anna Lund, Martha Jackman, Estair van Wagner, Heidi Kiiwetinepinesiik Stark, Avnish Nanda, Chris Wiebe, Renee Vaugeois, Gerard Kennedy,  Renée McBeth and Shaun Fluker. This blog post synthesizes the major points raised in the workshop.

Charter application in housing encampment litigation

At the heart of legal struggles between encampment residents and municipalities is the question of how the Charter applies and whether it adequately protects unhoused individuals from forced evictions, restrictive bylaws, and criminalization.  One key constitutional issue raised at the workshop was how section 7 of the Charter has been interpreted in ways that limit government obligations toward unhoused individuals. Martha Jackman, a professor emerita of law at the University of Ottawa, examined how courts have treated section 7 as a negative right by focusing on state non-interference rather than recognizing a positive right to housing.

Jackman critiqued cases like Victoria (City) v Adams, which are often viewed as breakthroughs in the fight for encampment rights. By contrast, Jackman argued that they demonstrate the limitations of how courts engage with section 7 Charter claims. In Adams, the Supreme Court of British Columbia held that the municipality could not enforce a by-law that prohibited overnight sheltering in parks when there was inadequate shelter space.[1] This decision was subsequently upheld on appeal.[2] Jackman explained that the claimants in Adams were not arguing for a conditional right to remain in encampments only when there was insufficient shelter space. Instead, they raised the lack of shelter options as just one example of the broader and systemic violations of section 7—violations that also stem from inadequate social assistance, a lack of social services, and the absence of long-term housing. Yet the Court reframed their claim, making the right to remain in an encampment contingent on the availability of shelter spaces. By doing so, the structural argument was reduced into a narrow, site-specific right. Jackman argued that this judicial reframing reflects a broader failure of courts, not advocates.

Margot Young, a professor at Allard Law, described encampment residents as “constitutional castaways”, a term coined by former Chief Justice McLachlin to highlight judicial blindness to systemic inequalities faced by the impoverished.[3] Drawing from her observations at the CRAB Park encampment in Vancouver, Young recounted unconstitutional searches of tents, seizure of belongings, and intimidation by park rangers. This treatment of encampment residents appeared irreconcilable with the decision in Bamberger v Vancouver (Board of Parks and Recreation), which emphasized the need for participation and notice in administrative actions—protections that are routinely ignored on the ground.[4] Young noted that encampment residents face a litany of Charter violations, highlighting the need to recognize not just intersectionality within individual identity but also within the Charter itself. She emphasized that the rights engaged, such as sections 2(d), 7, 8, 12, and 15, should not be considered in isolation. Instead, courts must allow the values recognized in one right to inform and strengthen others, reinforcing Jackman’s call for reading section 7 through a section 15 lens to address systemic inequality.

Jackman referenced G. (J.) v. New Brunswick (Minister of Health and Community Services) to outline a path forward for judicial decisions. In G. (J.), Chief Justice Lamer held that decisions infringing section 7 must provide affected individuals with meaningful participation.[5] Similarly, Jackman argued that encampment residents must have a voice in legal processes that impact their rights. She further advocated for interpreting section 7 through a section 15 lens to ensure that remedies address systemic human rights violations rather than offering temporary solutions grounded in negative section 7 rights.

When the personal belongings of precariously housed people are seized by public or private officials, there are rarely clear processes for recovering them. Alexandra Flynn, Director of the Housing Research Collaborative and Associate Professor at UBC’s Allard School of Law discussed litigating claims for property rights as one potential method for bolstering future housing encampment push back against unlawful state actions.  This is an area where there is currently little jurisprudence. Flynn suggested lack of effective remedies, and legal and procedural barriers that limit access to remedies, as reasons for this scarcity. Flynn emphasized that it is important to continue using all the available tools, including tribunals and small claims courts, when seeking remedies.

Procedural and systemic barriers

Building on these critiques of judicial limitations in encampment cases, litigator Avnish Nanda and Professor Anna Lund of the University of Alberta discussed the procedural and legal barriers they faced in their recent litigation work around homeless encampments in Edmonton and how those compare to the barriers Nanda has encountered in litigation over harm reduction programs. Referencing Margot Young’s essay, “Sleeping Rough and Shooting Up: Taking British Columbia’s Urban Justice Issues to Court,” they characterized litigation on homeless encampments and harm reduction programs as part of a broader movement for social justice, which Young defines as a “call for the alleviation of social and political exclusion, and the reduction of inequalities as a matter of justice, not merely charity, and as a matter of state, not individual, responsibility.”[6]

Nanda had worked on a line of cases where he sought interlocutory injunctions to stop legislation that reduced or obstructed access to government supports and harm reduction programs. The first of these cases, AC and JF v Alberta, laid the foundation for his later work and clarified the test for injunctive relief.[7] In 2020, Alberta lowered the maximum age eligibility of its Support Financial Assistance program for youth who were transitioning out of the child welfare system. Nanda challenged the amended legislation on the grounds that it violated section 7 of the Charter and sought an injunction to suspend the amendment. Compelled by the plaintiffs’ narratives, the Alberta Court of Queen’s Bench (ABQB) granted the injunction.[8] While the injunction was overturned on appeal, the Alberta Court of Appeal affirmed the traditional test for injunctive relief established in RJR-MacDonald, rejecting a more stringent test proposed in Alberta Union of Provincial Employees v Alberta where the government would benefit from a presumption that its legislation was constitutional.[9]

Encampment litigation across Canada relies on injunctions. In provinces such as British Columbia, municipalities must seek injunctions to remove encampments; conversely, in Alberta, the onus is on encampment residents to apply for injunctions to stop evictions. AC and JF was a significant decision because a more stringent test would make this prohibitively difficult for encampment residents to stop evictions. However, the workshop participants acknowledged Stepan Wood’s critique that the less stringent traditional test frequently allowed BC municipalities to obtain injunctions against encampments, prompting removals and evictions.[10]

The ABQB’s decision in AC and JF also revealed a litigation strategy—using narrative to bridge the gaps in the law. In later cases, Nanda again sought injunctive relief against legislation that shut down access to opioid treatment programs and supervised consumption sites, arguing breaches of sections 7, 12, and 15 of the Charter.[11] Not all the injunction applications succeeded, but the courts were willing to engage with the Charter claims. The parallels between encampment and harm reduction litigation make these cases valuable to draw from.

The issue of legal standing poses another barrier to encampment litigation. Renee Vaugeois and Chris Wiebe, co-founder and co-counsel for the Coalition of Justice and Human Rights respectively, reflected on their recent Charter challenge in Alberta which was struck down on standing. The Coalition applied for an interlocutory injunction using public interest standing to stop the City of Edmonton from evicting encampments. The City moved to strike the claim by challenging the Coalition’s request for public interest standing, and the City succeeded. The Alberta Court of King’s Bench refused to grant the Coalition public interest standing on the grounds that they did not have a “real stake or genuine interest” in the issue and that its litigation was not “a reasonable and effective means to bring the case to court” .[12]

Wiebe explained that the Coalition resorted to using public interest standing because the stigma of living in encampments and the frequent displacement of residents made it difficult to find someone who could act as a direct applicant. Moreover, the Coalition was concerned that courts would only consider the harm individual applicants were facing and disregard the harm the overall community would experience if evicted.[13]

Assistant Professor Gerard Kennedy from the University of Alberta examined recent court decisions dealing with public interest standing and noted that Alberta disproportionately denies standing claims. Judges seemed uncomfortable with granting public interest standing and would later dismiss claims on the merits, although these are separate processes. Courts tended to favour individual applicants and factual records that raise narrow issues to avoid any unintended consequences of granting public interest standing. However, this presented a significant issue for precarious populations where stigma and vulnerability prevent individuals from coming forward as direct standing applicants, as was the case in Coalition. Regardless, an individual claimant may not effectively be able to represent the interests of the community.

The workshop participants also acknowledged the adverse effects of litigation on encampments and their homeless population. Vaugeois noted that the City of Edmonton had increased encampment evictions after the Coalition decision and disbanded the Social Development Committee which brought different organizations together to talk strategically about dealing with shelter issues.

Indigenous legal perspectives

Indigenous people have been disproportionately affected by state actions to evict encampments, shut down harm reduction programs, and penalize homelessness through vagrancy bylaws. The fact that they are overrepresented in the homeless population may also trigger a section 15 Charter claim.

While the Charter’s limitations in protecting encampment residents highlight systemic failures, it is crucial to consider how Indigenous legal traditions offer alternative frameworks for addressing housing and community rights. Heidi Kiiwetinepinesiik Stark, Associate Professor at the University of Victoria, discussed how Anishinaabe law highlights collective responsibility of care which contrasts with settler individualism. The Indigenous legal perspective aligns with the understanding that unhoused individuals are part of a larger community and deserve care and support. By centering relational ontologies of care, policy decisions can better reflect our shared responsibility to one another.

Recognizing Indigenous law and jurisdiction can be especially important when encampments are situated on Indigenous land. Estair van Wagner, Associate Professor at the University of Victoria, and Stark highlighted the Beacon Hill Park Trust (Re) case where the Supreme Court of British Columbia had an opportunity to consider Indigenous jurisdiction and failed to do so.[14] Located on Lekwungen territory, Beacon Hill Park was granted to the City of Victoria in 1882 to be held in trust without regard to Lekwungen title.[15] During COVID-19, encampments grew, prompting city enforcement of prohibitions on daytime sheltering within the park. The Court ruled that encampments violated conditions of the park’s trust, focusing on property management rather than obligations to unhoused individuals or Indigenous governance.[16] The Songhees and Esquimalt Nations’ intervener status in the case was limited, excluding broader discussions of Indigenous jurisdiction and title.[17]

Notably, van Wagner emphasized how Beacon Hill Park was framed around private law, narrowing the scope of what was legally relevant. The Friends of Beacon Hill Park Society, a small non-Indigenous nonprofit, played a key role in this framing by arguing that encampments violated the trust’s terms.[18] Their position, which centered on preserving the park for public enjoyment, mobilized private law to exclude discussions of Indigenous jurisdiction, human rights, and obligations to unhoused individuals. Instead of recognizing the complex relationships between the land, Indigenous governance, and encampment residents, the Court deferred to a rigid interpretation of the trust. This case illustrates how legal frameworks continue to prioritize settler interests while limiting space for Indigenous law and authority.

Looking Ahead

The “Encampments and the Charter” workshop represented an important step in bringing together advocates and academics to address the constitutional law and systemic barriers housing encampment residents face. More conversations of this kind are needed to develop legal strategies that challenge the systemic inequalities. Indigenous law and legal traditions, which emphasize collective responsibility and care, offer a crucial alternative to the individualistic framework of the Charter. Centering these perspectives could help reshape legal approaches to housing and community rights in a more just and equitable way.

Aurora Lawrence and Jay Wai are 1L JD Candidates at the University of Toronto Faculty of Law and are members of the Asper Centre Encampments and the Charter working group

[1] 2008 BCSC 1363.

[2] Victoria (City) v Adams, 2009 BCCA 563 [Adams].

[3] R v Prosper, 1994 CanLII 65 (SCC), [1994] 3 SCR 236 at 302.

[4] 2022 BCSC 49 at paras 64, 69.

[5] ​​See 1999 CanLII 653 (SCC), [1999] 3 SCR 46 at para 81.

[6] Margot Young, “Sleeping Rough and Shooting Up: Taking British Columbia’s Urban Justice Issues to Court” in Martha Jackman & Bruce Porter, eds, Advancing Social Rights in Canada (Toronto: Irwin Law, 2014) 413 at 439.

[7] AC and JF v Alberta, 2021 ABCA 24 [AC and JF].

[8] AC and JF v Alberta (19 March 2020), Edmonton, ABQB 2003 04825 (interlocutory judgment transcript).

[9] Alberta Union of Provincial Employees v Alberta, 2019 ABCA 320.

[10] Stepan Wood, “Reconsidering the Test for Interlocutory Injunctions Affecting Homeless Encampments: A critical assessment of BC case law”  (2024) 61:1 OHLJ  161.

[11] Tam v Alberta, 2021 ABQB 156; Moms Stop the Harm Society v Alberta, 2022 ABQB 24; Black v Alberta, 2023 ABKB 123.

[12] Coalition for Justice and Human Rights Ltd v Edmonton (City), 2024 ABKB 26 [Coalition].

[13] Poff v City of Hamilton, 2021 ONSC 7224 at para 137.

[14] 2022 BCSC 284 [Beacon Hill Park].

[15] Ibid at para 19.

[16] Ibid at para 134.

[17] British Columbia v Friends of Beacon Hill Park, 2022 BCCA 383 at para 65.

[18] Ibid at paras 48–49.

LEAF and the Asper Centre welcome the Ontario Court of Appeal’s Decision in R. v. Sharma

Posted on by Student

 

A majority of the Ontario Court of Appeal has struck down Criminal Code provisions which made conditional sentences unavailable for certain offences. The ruling comes in response to Cheyenne Sharma’s constitutional challenge to these provisions, and explicitly acknowledges and draws on the arguments and information provided by LEAF and the Asper Centre in their joint intervention.

Ms. Sharma – a young Indigenous woman, an intergenerational residential school survivor, and a single mother – faced financial hardship and potential eviction for her and her young daughter. She acted as a drug courier, importing 2 kg of cocaine into Canada, and then pleaded guilty to importing drugs.

As an Indigenous person, Ms. Sharma is entitled to the use of the Gladue framework. The Gladue framework is an individualized approach to sentencing that requires judges to consider the impact of systemic factors such as intergenerational trauma of residential schools and the harms of colonial oppression, and to consider alternatives to incarceration when sentencing Indigenous offenders. These options include conditional sentences, a community-based alternative to a custodial sentence.

However, 2012 amendments to the Criminal Code made conditional sentences unavailable for offences with a maximum penalty of 14 years or life in prison, and for offences involving the import, export, trafficking, or production of drugs, with a maximum penalty of 10 years in prison. As a result, Ms. Sharma was not eligible for a conditional sentence. Ms. Sharma argued that the provisions violated her rights under section 15 of the Charter, but the trial judge did not accept these arguments and imposed a custodial sentence.

LEAF and the Asper Centre intervened before the Ontario Court of Appeal to argue that the constitutionality of the provisions needed to be assessed in the context of systemic discrimination against Indigenous people, especially Indigenous women, in the administration of criminal justice.

This discrimination is clearly evident in the overwhelming overincarceration of Indigenous people, particularly Indigenous women, in Canada. In 2017/2018, Indigenous persons represented approximately four percent of the adult population in Canada, but accounted for 30 percent of admissions to provincial or territorial custody, and 28 percent of admissions to federal custody. The crisis of overincarceration has worsened over time. Between 2007/2008 and 2017/2018, for example, the number of admissions of Indigenous women to provincial/territorial custody increased by 66 percent.

The majority’s decision means that conditional sentences will now be an available option for trial judges to consider in sentencing Indigenous offenders for a wide variety of offences, provided other requirements are also met (including that the sentence is less than two years, and serving the sentence in the community will not endanger the community).

Ms. Sharma will not get to see the direct benefit of her victory, having already served her jail sentence before the appeal. The decision, however, will help to ensure that, moving forward, Indigenous offenders receive the benefit of the different approach to sentencing enshrined in the Gladue framework. It will also serve as a small step towards reducing the overincarceration of Indigenous people and in particular Indigenous women.

The majority’s decision represents an important articulation of substantive equality under section 15 of the Charter. Section 15, despite its potential for advancing equality, remains complex and under-applied. The majority’s analysis provides a clear example of how to apply section 15 where an applicant argues that a law appearing neutral on its face is discriminatory in its effect – and illustrates the potential of section 15 to be used as tool for addressing the overincarceration of Indigenous people, and Indigenous women in particular.

“We are extremely pleased with the decision in R. v. Sharma,” said Cheryl Milne, Executive Director of the David Asper Centre for Constitutional Rights. “The Court’s decision affirms our position that substantive equality requires a different approach to criminal justice for Indigenous people. Allowing judges to consider conditional sentences in these cases should help contribute, incrementally, to reducing the overincarceration of Indigenous people.”

“This decision is a breakthrough in how courts think about section 15 of the Charter and criminal law, and affirms the substantive equality rights of Indigenous women in the criminal justice context.” said Megan Stephens, Executive Director and General Counsel of LEAF. “The majority decision is remarkable for both its analytical rigor and its compassion concerning the devastating consequences of the overincarceration of Indigenous women, and the ongoing intergenerational harms to Indigenous women caused by colonialism, sexism, and racism.”

Case Committee and Counsel

LEAF and the Asper Centre’s arguments were informed and supported by a case committee composed of academics and practitioners with expertise in the relevant issues. The committee members for this intervention are (in alphabetical order): Emma Cunliffe (Allard School of Law, University of British Columbia), Gillian Balfour (Department of Sociology, Trent University), Martha Shaffer (University of Toronto Faculty of Law), Mary Eberts OC, Naiomi Metallic (Schulich School of Law, Dalhousie University), Rakhi Ruparelia (Faculty of Law – Common Law Section, University of Ottawa), and Renée Pelletier (Olthius Kleer Townshend LLP).

We are grateful to pro bono counsel Adriel Weaver and Jessica Orkin of Goldblatt Partners LLP, who acted for LEAF and the Asper Centre in this important case.

About Women’s Legal Education and Action Fund (LEAF)

The Women’s Legal Education and Action Fund (LEAF) works to advance the substantive equality rights of women and girls through litigation, law reform, and public education. Since 1985, we have intervened in landmark cases that have advanced equality in Canada—helping to prevent violence, eliminate discrimination in the workplace, provide better maternity benefits, ensure a right to pay equity, and allow access to reproductive freedoms.

To support our work to protect the equality rights of women and girls, please consider donating today.

About David Asper Centre

The David Asper Centre for Constitutional Rights is devoted to realizing constitutional rights through advocacy, research and education. The Centre aims to play a vital role in articulating Canada’s constitutional vision to the broader world. The cornerstone of the Centre is a legal clinic that brings together students, faculty and members of the bar to work on significant constitutional cases and advocacy initiatives. The Centre was established through a generous gift from U of T law alumnus David Asper (LLM ’07). For more information please visit www.aspercentre.ca.

For media inquiries, contact:

Megan Stephens, Executive Director & General Counsel
Women’s Legal Education and Action Fund (LEAF)
T: 416-317-4440
E: m.stephens@leaf.ca

Cheryl Milne, Director
The David Asper Centre for Constitutional Rights
T: 416-540-7619
E: cheryl.milne@utoronto.ca