Charter Litigation

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was also the Ford government, in 2018, that passed the legislative provisions and set the GHG emissions caps now being repealed.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.

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.

A Clear and Decisive Supreme Court Ruling on Public Interest Standing: Attorney General of British Columbia v. Council of Canadians with Disabilities

Posted on by Student

by Caitlin Salvino

On June 23rd, 2022 the Supreme Court of Canada (SCC) released its decision in Attorney General of British Columbia v. Council of Canadians with Disabilities.[1] This ruling reaffirms the important role of public interest standing in systemic litigation and will have long lasting impacts on future Charter litigation.

Public Interest Standing

All cases heard by the courts require parties to have standing.[2] In most cases parties have private interest standing through a direct legal interest in the case.[3] In some cases, there are no parties with private interest standing and a party may apply for public interest standing to pursue the litigation. The courts have long recognised that there must be limitations on public interest standing to avoid over-burdening the courts, deter “busybody” litigants, and maintain the appropriate role of the courts within Canada’s constitutional democracy.[4] The courts have thus developed a test to determine whether public interest standing should be granted.[5]

The leading case on public interest standing is Canada v Downtown Eastside Sex Workers United Against Violence Society.[6] In Downtown Eastside Sex Workers, the SCC established that the court will consider three factors in assessing public interest standing: (1) if there is a serious and justiciable issue;[7] (2) if the claimant has a genuine interest in the proceedings ;[8] and (3) if the litigation is a reasonable and effective means to bring forward the challenge.[9] Furthermore, the SCC stipulated that these three public interest standing factors should not be assessed as a checklist. Instead, the factors should be assessed cumulatively through a purposeful and flexible interpretive approach.[10]

Council of Canadians with Disabilities and the Jurisprudence on Public Interest Standing

Despite the criteria laid out in Downtown Eastside Sex Workers, less than ten years later the SCC granted leave  in Council of Canadians with Disabilities.[11]  The Council of Canadians with Disabilities (CCD) had sought public interest standing to challenge the constitutionality of the British Columbia’s Health Care (Consent) Act, Mental Health Act and Representation Agreement Act. This combined legislative scheme permits the administration of psychiatric medical treatment to patients living with disabilities related to mental health and mental illness without their consent. Unlike all other forms of medical treatment, when a patient is being involuntarily held in a mental health facility, psychiatric treatment can be administered without the consent of the patient or the patient’s identified substitute decision-maker.[12] The CCD argued that this legislative scheme violated sections 7 and 15 of the Charter in a way that could not be justified under section 1.[13]

Initially, the constitutional challenge was brought by individuals with private interest standing who had undergone non-consensual psychiatric treatment. The CCD was supporting this litigation as a co-plaintiff. However, the individual plaintiffs subsequently withdrew from the proceedings after the Attorney General of British Columbia requested their medical records.[14] The CCD then pursued the Charter claims independently by seeking public interest standing, which the Attorney General of British Columbia challenged. At the court of first instance, the Attorney General’s summary trial motion was granted and the CCD was denied public interest standing.[15] On appeal, the British Columbia Court of Appeal granted the CCD public interest standing.[16] The case was then granted leave to appeal to the SCC.[17]

In Council of Canadians with Disabilities, the SCC unanimously reaffirmed the public interest standing analysis established in Downtown Eastside Sex Workers. This decision is significant because it addresses interpretive gaps that remained from Downtown Eastside Sex Workers and sends a strong message affirming the important role of public interest standing parties within Canada’s constitutional democracy.

First, the SCC in Council of Canadians with Disabilities provided additional guidance on the public interest standing analysis. The court rejected the CCD’s argument, and the Court of Appeal’s finding, that the principles of legality and access to justice should merit particular weight in the public interest standing analysis.[18] Instead, the SCC held that the principles of legality and access to justice permeate all three factors that a court must consider when deciding whether to grant public interest standing.[19] The principle of legality is linked to the rule of law by requiring that there are reasonable ways for individuals to challenge the legality of State action.[20] The principle of access to justice is symbiotically linked to public interest standing by providing an avenue to challenge the legality of State action and uphold the rule of law.[21]  The SCC noted that the dual principles of legality and access to justice are most relevant to the consideration of the third factor in the public interest standing  analysis[22] but cautioned against courts interpreting these principles as “hard and fast requirements or free-standing, independently operating tests”.[23]

Second, the SCC clarified the requirement of a sufficient factual setting for cases where parties are granted public interest standing. The SCC established that there is no strict requirement that public interest litigation always be in partnership with a directly affected co-plaintiff.[24] Such an interpretation would undermine the principles of legality and access to justice by creating barriers to litigation for marginalised populations. Instead, the SCC held that parties seeking public interest standing must “show that a sufficiently concrete and well-developed factual setting will be forthcoming at trial”.[25] The SCC reasoned that at the pre-liminary stages it is unnecessary for the party seeking public interest to provide trial-level evidence. However, the courts retain the ability to reconsider standing at any point of the proceeding if there is not a sufficient evidentiary record to conduct the trial.[26]

Finally, the SCC decision in Council of Canadians with Disabilities is significant because it represents a vindication of the public interest work of  CCD, and uplifts the importance of public interest standing in systemic litigation. The CCD first filed the original notice of civil claim in 2016 and had been litigating the preliminary issue of standing for six years.[27] Rather than referring the case back to the British Columbia Supreme Court for re-consideration, the SCC granted the CCD public interest standing because “it is in the interests of justice”.[28]

This decision also sends a message to governments who seek to shut down public interest litigation on behalf of vulnerable populations at preliminary stages. The SCC makes clear that the threshold to establish public interest standing should not be onerous and should only be denied in limited circumstances. This message is in part demonstrated through the SCC’s decision to grant special costs in favour of the CCD.[29] Special costs requires the losing party to cover the full costs of the litigation and is much higher than the standard “party costs” that usually only cover 30% to 40% of the actual litigation costs incurred.[30] The SCC, through this decision and the awarding of special costs, sends a cautionary message to government’s considering challenging public interest litigation based on standing.

The David Asper Centre Intervention in Council of Canadians with Disabilities

The David Asper Centre for Constitutional Rights participated as an intervener in Council of Canadians with Disabilities. Through their intervention factum, the Asper Centre focused on the role of public interest standing as a mechanism in litigation pursuing a remedy under section 52(1) Constitution Act, 1982. Section 52(1), also known as the Constitution’s “supremacy clause”,[31] establishes that “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force and effect”.[32]  The Asper Centre argued that section 52(1) is a systemic remedy that does not require an individual plaintiff.[33]  In their factum, the Asper Centre also highlighted challenges associated with class actions, which could become one of the only viable ways for parties to pursue litigation for Charter rights violations if public interest standing were to be restricted.[34]

In Council of Canadians with Disabilities, without referencing the Asper Centre, the SCC adopted its stance on the challenges associated with class actions as an alternative means to pursue litigation.[35] Following the release of the decision in Council of Canadians with Disabilities, the Asper Centre Executive Director Cheryl Milne shared that the SCC “listened to the submissions of the CCD and the Asper Centre, that relying upon class action litigation as a more effective means of bringing this claim forward is questionable. [The SCC] note[s] that class actions are ‘rife with unknowns,’ including the fact that their primary focus is on damages and not always the systemic issue raised by a public interest litigant”.[36]

Looking Ahead

The unanimous SCC decision in Council of Canadians with Disabilities reaffirms and fills the gaps in the existing jurisprudence on public interest standing. The SCC released a clear and decisive ruling on the importance of the parties with public interest standing pursuing systemic litigation on behalf of vulnerable populations. Moving forward, the decision Council of Canadians with Disabilities is likely to increase access to justice for vulnerable populations and ensure that potential State Charter infringements are accountable under the rule of law.

The Asper Centre intervention factum in Council of Canadians with Disabilities can be read here. 

Caitlin Salvino is a JD Candidate at the Faculty of Law and is the Asper Centre’s 2022 summer Research Assistant.

 

[1] British Columbia (Attorney General) v Council of Canadians with Disabilities, 2022 SCC 27 [Council of Canadians with Disabilities].

[2] Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, at para 1 [Downtown Eastside Sex Workers].

[3] Mia Reimers, “Constitutional Challenges: Public Interest Standing”, (26 September 2014), online: Centre for Constitutional Studies <https://www.constitutionalstudies.ca/2014/09/constitutional-challenges-public-interest-standing/>.

[4] Downtown Eastside Sex Workers, supra note 2 at para 1.

[5] Ibid at para 2.

[6] Downtown Eastside Sex Workers, supra note 2.

[7] Ibid at paras 39–42.

[8] Ibid at para 43.

[9] The third stage of the public interest standing analysis adjusted the precedent from Minister of Justice of Canada v. Borowski. In Borowski, the SCC held that the third public interest standing factor required that the party seeking public interest standing show that: “there is no other reasonable and effective manner in which the issue may be brought before the Court”. The SCC in Downtown Eastside Sex Workers altered the rigid Borowski third factor from requiring that litigation is the most effective means of bringing forward the case to requiring that the litigation is an effective means of bringing forward the case. See Minister of Justice of Canada v Borowski, [1981] 2 SCR 575, 130 DLR (3d) 588 and  Downtown Eastside Sex Workers, supra note 2 at paras 19–20, 44.

[10] The SCC affirmed the purposeful and flexible interpretive approach to public interest standing that was established in Canadian Council of Churches v. Canada (Minister of Employment and Immigration). See Downtown Eastside Sex Workers, supra note 2 at para 23 citing Canadian Council of Churches v Canada (Minister of Employment and Immigration), [1992] 1 SCR 236, 88 DLR (4th) 193, at 252.

[11] Council of Canadians with Disabilities, supra note 1.

[12] Ibid at para 8.

[13] Ibid.

[14] Ibid at paras 9–10. Also see Council of Canadians with Disabilities v British Columbia (Attorney General), 2020 BCCA 241, at para 21 [Council of Canadians with Disabilities BCCA].

[15] MacLaren v British Columbia (Attorney General), 2018 BCSC 1753.

[16] Council of Canadians with Disabilities BCCA, supra note 14.

[17] Attorney General of British Columbia v. Council of Canadians with Disabilities, 2022 SCC 27, leave to appeal to SCC granted, 2021 CanLII 24821.

[18] Council of Canadians with Disabilities, supra note 1 at para 31.

[19] Ibid at para 56.

[20] Ibid at para 33.

[21] Ibid at para 34.

[22] The third public interest standing factor is whether the litigation is a reasonable and effective means to bring forward the challenge. See Downtown Eastside Sex Workers, supra note 2 at para 44. Also see Council of Canadians with Disabilities, supra note 1 at para 58.

[23] Council of Canadians with Disabilities, supra note 1 at para 69.

[24] Ibid at paras 63–67.

[25] Ibid at para 71.

[26] Ibid at paras 72, 74–75.

[27] Ibid at para 122.

[28] Ibid at para 78.

[29] Ibid at paras 119–123.

[30] Peter J Roberts, “The Thorny issue of Costs and Special Costs”, (3 November 2014), online: Lawson Lundell LLP <https://www.lawsonlundell.com/Commercial-Litigation-and-Dispute-Resolution-Blog/the-thorny-issue-of-costs-and-special-costs>.

[31] Peter Hogg, Constitutional Law of Canada, student ed (Scarborough: Carswell, 2006) at 850.

[32] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 52(1).

[33] Attorney General of British Columbia v. Council of Canadians with Disabilities, 2022 SCC 27 (Factum of Intervener David Asper Centre for Constitutional Rights, at para 6).

[34] Ibid at paras 13-15.

[35] Council of Canadians with Disabilities, supra note 1 at paras 113–116.

[36] Quote provided directly from Executive Director of the Asper Centre Cheryl Milne.

The Positives of Campaigning: City of Toronto and Freedom of Expression at the Supreme Court

Posted on by Student

by Bailey Fox

Introduction

On October 1, 2021, the Supreme Court of Canada (SCC) released its decision in Toronto (City) v Ontario (Attorney General), 2021 SCC 34 [City of Toronto]. In the 5-4 decision, the Supreme Court held that the legislation that reduced the size of Toronto City Council during an ongoing municipal election did not violate the Constitution’s guarantee of freedom of expression. The Court also held that unwritten constitutional principles cannot, on their own, invalidate legislation.

The Asper Centre intervened in the case, specifically on the issue of the scope of freedom of expression in the context of municipal elections. The decision, while resolving the immediate dispute, raises many new questions about the future of the Charter of Rights and Freedoms’ s.2(b) guarantee of freedom of expression. The divide between the majority and dissenting opinion on the role of unwritten constitutional principles also highlights the existing divide between the Supreme Court’s judges regarding Charter interpretation.

Background

On July 27, 2018, shortly after being elected, the Ontario government tabled the Better Local Government Act, SO 2018, c 11 [BLGA]. The BLGA reduced the number of wards in the City of Toronto from 47 to 25 during the City’s ongoing election. The BLGA upended the election, eliminating 22 wards and requiring candidates to pivot their campaigns to new or unfamiliar districts.

Shortly after being enacted on August 14, 2018, a number of parties, including affected candidates and the City of Toronto brought an application seeking to invalidate the BLGA. The parties advanced a few constitutional arguments, including that the BLGA violated ss.2(b) and s.15(1) (equality rights) of the Charter, as well as the unwritten constitutional principles of democracy and the rule of law. The application was heard on an expedited basis on September 9, 2018. In City of Toronto et al v Ontario (Attorney General), 2018 ONSC 5151, the application judge held that the BLGA violated both candidates’ and electors’ s.2(b) rights and could not be justified under s.1 of the Charter. Given the s.2(b) violation, the application judge held that it was not necessary to consider the role of unwritten constitutional principles. The application judge invalidated the legislation and restored the 47-ward format for the election.

The government sought an appeal, and an urgent stay, of the application judge’s decision at the Ontario Court of Appeal (OCA). In its stay decision, the OCA found that candidates were seeking a positive right to a particular platform, and held that the BLGA did not substantially interfere with expressive freedom. Based on the stay decision, the BLGA remained in force and Toronto’s election proceeded on a 25-ward basis.

A little over a year later, the appeal was heard and decided on its merits. The Asper Centre intervened in the appeal. In Toronto (City) v Ontario (Attorney General), 2019 ONCA 732, the OCA reversed the application judge’s decision and affirmed the constitutionality of the BLGA. Justice Miller, writing for the majority, characterized the claim as a positive one – that the claimants were seeking access to a statutory platform as opposed to freedom from government interference in electoral expression. Applying the case of Baier v Alberta, 2007 SCC 31 [Baier], the Court held that the claimants must demonstrate a substantial interference with freedom of expression but have failed to do so since the government is not required to ensure the effectiveness of expression.

In dissent, Justices Nordheimer and MacPherson would have denied the appeal on a finding that the BLGA violated all electoral participants’ s.2(b) rights. The dissenting justices largely adopted the submissions of the Asper Centre on this point.

The City of Toronto appealed the OCA’s decision.

The Supreme Court’s Decision

Majority

Chief Justice Wagner and Justice Brown wrote the 5-judge majority decision. Like the OCA, the SCC characterized the claim as a positive one, that is that the claimants were seeking access to a particular statutory platform (a 47-ward council). Noting that this appeal was an opportunity to ‘affirm and clarify’ the Baier framework, the Court held that when claimants are seeking to impose an obligation on the government to provide access to a statutory platform for expression, the s.2(b) claim is a positive one (para 24). In such cases, the claimant must demonstrate that lack of access to a statutory platform has substantially interfered with, or “radically frustrated”, expression to such an extent that expression is “effectively precluded” (para 26).

Applying the Baier framework, the Court held that the claim was a positive one, however the City had not demonstrated substantial interference with expression. The Court noted that the Act did not prevent candidates from engaging in political speech or impose conditions on the content or meaning of speech. The Court rejected submissions that the BLGA rendered prior campaigning meaningless, noting that government action that makes prior speech less effective is not a substantial interference with s.2(b). The Court concluded that candidates’ freedom of expression was not radically frustrated and therefore the BLGA did not violate s.2(b).

On the question of the role of unwritten constitutional principles in Charter interpretation, the Court held that these principles – like democracy and the rule of law – could be used for exactly that, and nothing more. Adopting a textual approach to constitutional interpretation, the Court held that unwritten constitutional principles represent general principles underlying the constitutional order, and while they may assist the Court as interpretative tools or to develop structural doctrine, these principles do not have independent legal force.

Dissent

Justice Abella penned the reasons on behalf of the four dissenting judges. They would have allowed the appeal based on a finding that the BLGA violated s.2(b) of the Charter.

The dissent rejected the Baier framework and would have applied the test for a s.2(b) violation from Irwin Toy Ltd v Quebec, [1989] 1 SCR 927 [Irwin Toy]. Justice Abella noted that Baier only applies to circumstances where an existing statutory platform is underinclusive, and characterized the claim in this case as government interference with expressive rights attached to an electoral process (para 151). Applying the Irwin Toy framework, Justice Abella held that the BLGA’s timing “interfered with the rights of all participants in the electoral process to engage in meaningful reciprocal political discourse” (para 157). Justice Abella held that since the government had not provided any justification for the legislation’s timing, it could not be saved under s.1.

Justice Abella also commented on the role of unwritten constitutional principles, holding that they are independent of, and form the backdrop to, the written text of the constitution. These principles represent society’s normative commitments and therefore have independent legal force. Per the dissent, in rare cases, unwritten constitutional principles may invalidate legislation that has otherwise escaped the reach of an express constitutional provision.

Where do we go from here?

The majority’s critique of Irwin Toy and affirmation of Baier is notable and perhaps concerning. The majority notes at para 14 that Irwin Toy “has been criticized for setting too low a bar for establishing a s. 2(b) limitation…”. The analysis then continues with a discussion of s.2(b)’s internal limits, the distinction between positive and negative claims, and an affirmation of Baier. While this is a legitimate and existing critique of Irwin Toy, the Court does not expand on why such a broad test is at odds with the text of s.2(b), is normatively problematic, or why or whether it should be changed. However, the Court’s decision has the effect of limiting the applicability of the Irwin Toy framework, and potentially narrowing the scope of s.2(b), and thus adding complexity to s.2(b) litigation. As noted in the dissent at para 155, claimants must now meet a preliminary burden of demonstrating that their s.2(b) claim is a negative entitlement. Adding this inquiry to the s.2(b) analysis is especially concerning given that the distinction between positive and negative entitlement is easily malleable (again, a critique noted by the dissent at para 152 and previous SCC jurisprudence).

Also of note is the very high bar the Court states is required to establish a s.2(b) violation under Baier/City of Toronto. To succeed under this framework a claimant must show that lack of access to a statutory platform has radically frustrated expression to the extent that it is effectively precluded. The substantial interference standard (which was imported from the freedom of association jurisprudence and has since been impugned in that context; see City of Toronto at para 21) thereby recognizes that some interference with expressive freedom is constitutionally permissible. City of Toronto ignites a latent question about s.2(b)’s internal limits and elevates the bar that claimants must meet if a Court considers the claim a positive one.

The decision’s discussion of unwritten constitutional principles also reflects an ongoing divide among SCC judges between a textual and liberal/purposive interpretation of the Charter. While both opinions resolved the dispute on s.2(b) grounds, they nevertheless included a sustained discussion in obiter on unwritten constitutional principles. The majority subscribes a limited role for purposive interpretation, and later notes that notes that unwritten constitutional principles may assist with constitutional interpretation, but only where the test is not sufficiently definitive (para 65). But what is notably absent is any engagement by the majority with the purpose of s.2(b), or the impact of the principle of democracy on the analysis of a case where the scope of s.2(b) is at issue. While Justice Abella recognizes that freedom of expression includes the right to engage in political discourse (paras 114 – 122), the relevance of political discourse or the election context takes a backseat in the majority’s decision. This, in addition to emphasizing the distinction between a positive and a negative claim, is a marked departure from earlier jurisprudence like Irwin Toy that emphasized the purpose of freedom of expression, and  its connection to political discourse, and a broad scope for s.2(b).

In conclusion, the case that came to the Supreme Court was concerned with mid-election reform to Toronto City Council’s structure. However, in destabilizing the s.2(b) framework and narrowing the applicability of unwritten constitutional principles, the SCC’s decision leaves constitutional litigators, scholars, and students with many questions about the future of s.2(b) and constitutional interpretation.

Bailey Fox is a Research Assistant with the Asper Centre and is currently an LLM student at the University of Toronto, Faculty of Law. 

Meet Jonathan Rudin, the Asper Centre’s New Constitutional Litigator-in-Residence

Posted on by Tal Schreier

 

By Leila Far Soares 

Jonathan Rudin, program director at Aboriginal Legal Services and experienced litigator, will be co-teaching the Asper Centre’s Clinic course as the new Constitutional Litigator-in-Residence for Fall 2021. Mr. Rudin has written widely and spoken passionately on the topic of aboriginal justice and has advocated countless cases before all-levels of Canadian court. We are very fortunate to have him join our faculty at the law school this coming term.  

Mr. Rudin’s interest in the law emanated from a desire to influence social change, a desire which served as the driving force behind his motivation to attend law school. Yet, for just over a decade after graduating and getting called to the bar, he did not work directly in law. Instead, Mr. Rudin opted to work with social justice organizations, where he could focus on fundraising and organizational development: “I wanted to get involved with things that I felt were working more broadly and systemically to address issues,” rather than “putting a Band-Aid on a gaping wound.”  

However, this social justice work ultimately led Mr. Rudin to a career in litigation. His involvement with several indigenous organizations coupled with the knowledge he gained while completing his Masters in Constitutional Law at Osgoode Hall, piqued his interest in indigenous justice and culminated in an opportunity to work for Aboriginal Legal Services. ALS marked the beginning of Mr. Rudin’s engagement with constitutional litigation, allowing him to intervene in a number of significant and noteworthy cases. Of these, Mr. Rudin described R v Gladue and R v Ipeelee as two cases which stand out as most memorable to him. “You don’t always know going in how significant a case will be, how the court is going to take it, or what they are going to focus on.” Mr. Rudin emphasized the real issues and consequences at play in bringing constitutional challenges: “when you do this sort of work, especially if it is constitutional, you don’t just lose for your client, there are bigger issues at play.” 

Mr. Rudin plans to bring the litigation experience he’s gained at ALS to the University of Toronto Faculty of Law this fall, offering students a practical perspective and sharing insights as to what constitutional litigation really entails. He hopes to convey “a sense of how the process works and what it takes.” His experiences speaking before the Court have taught him valuable lessons in what judges want: brevity, clarity, and structure. “Writing a factum or doing oral arguments before the court, you are presenting things to an audience: judges. This is a very different audience, and one we are not familiar with playing to.” He plans to share these lessons, alongside many more, through the clinic.  

In the meantime, I asked Mr. Rudin if there was any advice he could offer to current law students. He remarked how difficult being a law student during a global pandemic must be and the inevitable fatigue that must accompany zoom law. In fact, Mr. Rudin described the challenges he faces as a lawyer working in a COVID world. “A lot of the work I do, it’s not me, it’s a whole team of people working together,” and meeting over zoom can certainly change professional dynamics. Mr. Rudin expressed his hope that next fall he will be able to meet with students in person. To mitigate zoom fatigue and the exhaustion that can come from the demanding nature of law school generally, Mr. Rudin stressed the importance of maintaining interests and activities outside of the law. For Mr. Rudin, this takes the form of regular jam sessions with his band: Gordon’s Acoustic Living Room. 

Additionally, Mr. Rudin encourages current students to keep an open mind as they navigate through their years of law school. Often times, he remarked, students have a pre-conceived notion of what area of law they want to pursue without knowing much about what it really entails. “There are all sorts of areas of law that we know nothing about and the more opportunities you have to try things the better.” He lauded the Asper Centre’s clinic as giving students a real sense of what working in constitutional law encompasses. He encourages students to take the opportunities the clinic has to offer and looks forward to meeting students in a few short months. 

Leila Far Soares is an incoming 2L JD student at the Faculty of Law and is currently one of the Asper Centre’s summer research assistants.