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

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

 

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. 

Introducing our Summer 2021 Research Assistants!

 

The Asper Centre is excited to welcome eight new research assistants for Summer 2021, three of whom who are working directly through the Factor-Inwentash Faculty of Social Work. This year’s research assistants will be taking on many new and existing projects, including an upcoming podcast series and a ground-level Charter challenge to Canada’s voting age.

2021 Asper Centre Summer Research Assistants

Leila Far Soares

Leila will be entering her 2L year at the University of Toronto Faculty of Law. She received her undergraduate degree from the University of Toronto, where she double-majored in criminology and ethics, society & law. During her 1L year, Leila was an associate editor at the University’s Law Review as well as a member of the Asper Centre’s Prisoners’ Rights Working Group. She continues to work with the Centre this summer and her research focus is on the judicial treatment of the open court principle in the context of administrative tribunals as well as the Centre’s Law Foundation of Ontario-funded police accountability project. Additionally, she is assisting on the constitutional challenge to Canada’s voting age. In her free time, Leila enjoys reading, travelling, and watching movies.

 

Wei Yang

Wei will be entering his 2L year at the University of Toronto Faculty of Law. He completed his undergraduate studies at the University of Toronto, majoring in Political Science and Ethics Society & Law. In addition to his research role on many upcoming Asper Centre projects, he will also be working with the Centre on the ground-level constitutional challenge to Canada’s voting age. The Charter declares that all Canadians have the right to vote (s. 3) and to equality and non-discrimination (including on the basis of age) (s. 15). The current voting age of 18 years old thus infringes the Charter rights of young Canadians and weakens our democracy. In 1L, Wei was a member of the Asper Centre’s Refugee and Immigration Law Working Group. He is also the Co-President of UofT Law’s Asia Law Society for the 2021 – 2022 academic year.
 

Alison Schwenk

Alison just completed her 1L year at the University of Toronto Faculty of Law. She graduated from McGill University, majoring in Political Science. Alison will be focused on long-term projects with the Asper Centre, and is currently working with Executive Director Cheryl Milne on Clinic training responsibilities and the “Children, Youth and the Law” course at the Faculty of Law. During 1L, Alison was a member of the Asper Centre’s Indigenous Rights Working Group, where she conducted research on civil oversight of law enforcement and its impact on Indigenous peoples. She loves completing jigsaw puzzles, crosswords and sudoku (Alison also still plays the 2048 puzzle game!)
 

Eunwoo Lee

Eunwoo is an incoming 3L student at the University of Toronto Faculty of Law. He studied political science at York University, Glendon Campus. Eunwoo will be researching recent case law citing the United Nations Convention on the Rights of the Child (UNCRC). Given that judicial citations of the UNCRC is a relatively new phenomenon, Eunwoo hopes to discover trends and themes across the case law and how the Convention is being applied across Canada. This research will be used to develop presentable content at the National Judicial Institute Conference in 2022. Eunwoo loves to spend his free time playing jazz and funk guitar.

 

Szymon Rodomar

Szymon will be entering his 3L year at the University of Toronto Faculty of Law. He studied international development, politics and sociology at Trent University. Szymon is laying the groundwork for the Asper Centre’s Podcast Project. He is currently conducting research on constitutional law cases that the Asper Centre and Faculty of Law alumni have been involved in, brainstorming possible topics and case law to discuss in each new episode. Szymon also volunteers with Law in Action Within Schools (LAWS), a education program hosted by the University of Toronto Faculty of Law and Osgoode Hall Law School that provides students from four Toronto-area high schools with a variety of extracurricular opportunities related to law and justice. Szymon is an avid runner and enjoys cooking (although he also enjoys running to visit new restaurants as well!).

Toolkit for Evidence-Based Child Protection Research Assistants (at the Factor-Inwentash Faculty of Social Work)

Alina Valachi

Alina is currently completing her dual JD/MSW degrees at the University of Toronto. She received her B Eng from McGill University and BSW from Dalhousie University. Alina is working at the Factor-Inwentash Faculty of Social Work as the Project Manager of the Toolkit for Evidence-Based Child Protection Practice project. This project is a Law Foundation of Ontario-funded collaboration between Dr Barbara Fallon at the Factor-Inwentash Faculty of Social Work and the David Asper Centre. This project aims to synthesize legislation, case law and social science literature in key areas of child protection practice to ensure that decisions made in the justice system reflect the best interests of children and families involved in the child welfare system. She is also the Project Lead of the Pro Bono Students Canada (PBSC) Trans ID Clinic at Friends of Ruby. In her free time, Alina enjoys mountain biking with her children and reading philosophy.

David Baldridge

David is an incoming 2L student at the University of Toronto Faculty of Law. He completed his undergraduate studies at the University of Toronto, majoring in Economics and Political Science. David is also working at on the Toolkit for Evidence-Based Child Protection Practice project this summer at the Factor-Inwentash Faculty of Social Work, where he is primarily focusing on researching relevant case law. During his 1L year, David was a member of the Prisoners’ Rights Working Group at the Asper Centre. He was also involved in the Faculty of Law’s Privacy and Cybersecurity Law Group. Outside of law school, you will see David playing trumpet in orchestras, jazz ensembles and chamber groups.
 

Alison Gillanders

Alison is a graduate of McGill University, majoring in International Development Studies and minoring in Philosophy. She is a research assistant for the Toolkit for Evidence-Based Child Protection Practice project at the Factor-Inwentash Faculty of Social Work. Alison will be expanding upon the project by creating new templates on matters such as openness in adoption, legislation and the case law. As part of the project, Alison will be focusing on research in the social science literature. At McGill, she was a Director of Sponsorship for McGill Women in Leadership. She eagerly awaits Toronto’s gradual reopening so she can continue biking and exploring new parks and other destinations around the city.

Asper Centre Intervention Influences SCC on Suspended Declarations

by Jeffrey Wang

The Supreme Court of Canada (SCC) recently released the decision of ON (Attorney General) v G. This case challenged the constitutionality of Christopher’s Law, an Ontario law that allowed some offenders who were convicted of sexual offences to be removed from the federal and provincial sex offender registries after 10 years. Christopher’s Law did not extend to any offenders who had been found not criminally responsible due to mental disorder even if they had been absolutely discharged of the crime. The respondent fell within this latter group and challenged this law under s. 15 of the Charter for discrimination on the basis of mental disability.

At the Ontario Court of Appeal, Justice Doherty found that Christopher’s Law violated s. 15 and thus struck down the law. However, he suspended the declaration of invalidity for twelve months in order to allow the legislature to amend the impugned law. Justice Doherty also exempted the applicant G from this suspension, which meant that Christopher’s Law immediately stopped applying to him personally. This exemption was very controversial since it went against the SCC’s jurisprudence in R v Demers that individual remedies under s. 24(1) should not be combined with general remedies under s. 52.

The Asper Centre intervened in ON v G on the issue of remedies. Assisted by Professor Kent Roach, the Centre argued that courts have increasingly used suspended declarations of invalidity without proper justification. The Centre urged the SCC to adopt a more principled approach to applying this constitutional remedy. Additionally, the Centre argued that individual exemptions can be applied in conjunction with suspended declarations of invalidity in order to allow applicants to benefit from their successful Charter challenge.

The SCC’s ON v G decision “accept[ed] the Asper Centre’s invitation to articulate a principled approach to remedies for legislation that violates the Charter.”[1] The majority decision asserted that constitutional remedies should guided by four remedial principles: Charter rights should be safeguarded; the public has an interest in the constitutional compliance of legislation; the public is entitled to the benefit of legislation; and the courts and legislatures play different institutional roles.[2] Constitutional remedies must balance the fact that the public does not want to be governed by unconstitutional legislation but also cannot function under an absence of legislation. To reach this balance, the Court once again urged the judiciary to carefully identify the unconstitutional aspects of legislation and use reading down, reading in, and severance to preserve its constitutional aspects.

In its discussion of suspended declarations, the Court recognizes that there may be times where “giving immediate and retroactive effect to the fundamental rights and freedoms guaranteed by the Charter must…yield to other imperatives.”[3] However, agreeing with the Asper Centre, the Court is clear that suspended declarations should only be granted where the government can demonstrate “that the importance of another compelling interest grounded in the Constitution outweighs the continued breach of constitutional rights.”[4] For example, the government can rely on the distinct roles of the courts and legislatures, but must show that “an immediately effective declaration would significantly impair the ability to legislate.”[5] Courts must also balance the benefits of a suspended declaration against the significance of the Charter right in question. For example, it will be difficult to balance a suspended declaration against potential criminal jeopardy.[6] Moving forward, the Court is clear that suspended declarations will be rare, and the government will also have to justify its length if it were to be granted.

This principled balancing approach expands the previous categorical Schachter framework where suspended declarations were only granted in three specific scenarios. As noted by the Asper Centre and other commentators, many cases after Schachter continued to grant suspensions beyond these categories often without explanation. This more flexible approach in ON v G addresses this concern and allows justified uses of this remedy in more unique circumstances.

The ON v G Court also departed from precedent and allowed the simultaneous application of s. 24(1) and s. 52 remedies. This means that individual claimants can be exempt from suspended declarations. While some have argued that only allowing the claimant to be exempt is unfair to all others in their position, the Court reasoned that the claimant is the one who brought a successful Charter challenge and should reap its rewards.[7] Additionally, since Charter challenges can be difficult to bring forward, individual exemptions to suspended declarations may temper the disincentives of litigation.[8] The Court also noted that the government may show that there is a compelling reason to deny an exemption, such as if the exemption would undermine the purposes of the suspension, or if judicial economy would not be served by exempting a large class of claimants.[9]

Applying these principles to the case at hand, the Court noted that a suspended declaration of invalidity for Christopher’s Law is justified for public safety reasons[10]. Immediately declaring the law to be invalid could potentially irreversibly exempt many dangerous individuals from being listed on the sex offender registry, greatly restricting the effectiveness of new legislation.[11] However, an individual exemption is warranted for the claimant, since they have long had a spotless criminal record and do not pose a threat.

The Asper Center reached out to Professor Kent Roach to get his thoughts on the ON v G ruling. He comments that:

“The case will be a landmark one for the use of suspended declarations of invalidity and the Asper Centre appears to have made a real impact. The majority embraces the Centre’s arguments for a principled approach that does not depend on the three categories outlined in Schachter. They also accept the need for allowing exemptions in appropriate cases when the government has justified the use of a suspension. Even the dissenting judges also acknowledged that the Asper Centre had been helpful in arguing for the need for exemptions from suspensions to prevent irreparable harm. The judgment cites both my own scholarship but also remedial scholarship from Grant Hoole my former LLM student and Carolyn Moulard my current doctorate student.”

Indeed, the ON v G case will undoubtedly be solidified as a significant development in constitutional law. The dissenting justices criticized the majority’s broad and vague remedial principles, but it will be up to the lower courts to further build on the majority’s foundations. There is no denying that ON v G has pushed the law on constitutional remedies to be more fair and rational, ushering in a new era of remedies from the courts.

Jeffrey Wang is a 3L JD Candidate at the Faculty of Law, and a former Asper Centre Clinic student. 

[1] Para 81.

[2] Para 94.

[3] Para 121.

[4] Para 133.

[5] Para 129.

[6] Para 131

[7] Para 148.

[8] Ibid.

[9] Paras 150-151.

[10] Para 175.

[11] Para 176.

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

By Amy Chen

Nader Hasan, a partner at Stockwoods LLP and one of Canada’s leading appellate lawyers, will be co-teaching the Asper Centre’s clinic course this fall as the constitutional litigator-in-residence. He graciously sat down with me to discuss his legal education, career history, and hopes for the upcoming term.

Mr. Hasan has a long and varied career in criminal, constitutional, and regulatory law. Surprisingly, law school was not always the plan. “Like many children of immigrants, there was the expectation and hope that I would eventually become a doctor,” Mr. Hasan said. However, “along the way, I became really passionate about various social justice and human rights issues, both in the US, Canada, and around the world. That sparked my intellectual interest in the law.” His interest in the law was cemented after completing his undergraduate degree at Harvard in international human rights, as well as his Masters of Philosophy in international studies at Cambridge. Ultimately, he decided to begin his law career at the University of Toronto.

Mr. Hasan’s interest in constitutional law began in Professor Lorraine Weinrib’s constitutional law small group: “I learned about the power of the Charter, and how, if done properly and effectively, a constitutionally entrenched bill of rights could truly be a weapon on the side of good and justice… I knew early on in law school that I was very passionate about constitutional law, public law, and criminal law.” However, when considering heavy debt load and his need to care for his aging parents, Mr. Hasan began his career in a corporate firm in New York. Although Mr. Hasan was doing a lot of pro bono work on behalf of asylum seekers and the wrongfully convicted, he was only able to work on it in “from 10 pm to 3 am” after billing his normal hours. Still, he considered this a crucial step in his career: “in many ways it was a typical “Big Law” experience, but through this process I was able to learn a lot about what it meant to be a good lawyer, as well as the types of careers open to lawyers.”

Eventually, he returned to Canada to pursue a criminal/constitutional law career. Since then, Mr. Hasan has appeared as counsel in a number of high-profile constitutional law cases, including acting as lead counsel to the landmark Indigenous rights case Clyde River v. Petroleum Geo‑Services Inc. Most of the major cases he was involved in had humble beginnings: “these cases that end up at the Supreme Court of Canada, you don’t get there without a very carefully constructed record from the ground up, by interviewing people and doing your legal research. It is not glamorous, but all meaningful, with an important end goal in sight.” Right now, Mr. Hasan is working as lead counsel in Mathur et al v. HMQ, a constitutional challenge against Ontario’s greenhouse gas emissions targets. His rationale for working on this case was simple: “as a human being living in this day and age, we all have an obligation to move hearts and minds when it comes to climate change. I happen to be trained as a constitutional lawyer, and the way I know how to make a difference is constitutional litigation.”

At the Asper Centre this fall, Mr. Hasan will bring with him not just his significant constitutional litigation experiences, but also his extensive teaching and mentorship experiences. He has served as an adjunct professor at the University of Toronto law faculty since 2010, teaching the popular Crime and Punishment course and the criminal appellate externship. He hopes to nurture the passions that Asper Centre clinic students have for constitutional law: “I’m sure students have been told that you can’t make money in constitutional law, but if this is something you want to do, there are certainly avenues to pursue a constitutional law career.” He will illustrate these avenues by sharing his own experiences alongside the experiences of Asper Centre director Cheryl Milne and other guest speakers. Although this year’s clinic course will be unique, given that some students will be attending remotely, Mr. Hasan is optimistic that the course will proceed smoothly.

To end the interview, I asked Mr. Hasan what he believes to be the qualities that make a good constitutional lawyer. He did not hesitate in giving his answer – “it’s all about hard work and passion.” A strong case is comprised of dedicated people who are “willing to work whatever hours it takes with an unyielding attitude, knowing that they are fighting on the side of justice.”

The interview has been edited for clarity.

Amy (Jun) Chen is a 1L JD Candidate at the Faculty of Law and is the Asper Centre’s current summer Research Assistant.