Constitutional Law

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. 

David Rabban argues for a distinct theory of the right to academic freedom, as the U.S. and state governments tighten the screws on universities

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By Daniel Minden

As the Trump administration and state governments ramp up efforts to regulate American universities, David M. Rabban, an expert on the law of academic freedom and professor at the University of Texas School of Law, highlights that the U.S. Supreme Court has recognized a distinct right to academic freedom under the First Amendment of the U.S. Constitution – but argues that this distinct right must be properly elaborated by courts and theorized by scholars. 

On November 13, 2025, Rabban was hosted by the David Asper Centre for Constitutional Rights and the H.R. Jackman Faculty of Law Program on the Critical Analysis of Law for a lecture covering the interpretation of academic freedom as a First Amendment right.  

The foundational Sweezy and Keyishian decisions 

Rabban noted that although the text of the First Amendment does not explicitly refer to academic freedom, the Supreme Court of the United States identified academic freedom as a distinct right under the First Amendment in Sweezy v. New Hampshire, 354 U.S. 234 (1957), a McCarthy-era case arising from the state of New Hampshire’s investigation of a Marxist professor. In another landmark case, Keyishian v. Board of Regents 385 U.S. 589 (1967), the Court held that “Academic freedom is a special concern of the First Amendment” – an idea cited in hundreds of subsequent cases. 

Despite the Court’s holding in Keyishian, Rabban argues that the Court has never adequately explained why academic freedom is “special,” and that the large majority of academic freedom cases lack a substantive analysis. To fill in the gaps, Rabban has focused on interpreting the meaning of academic freedom through research presented in his new book, Academic Freedom: From Professional Norm to First Amendment Right. 

Interpreting the right to academic freedom 

What exactly is protected by the right to academic freedom as currently understood by American courts? Rabban finds that courts have principally protected the content of teaching and research. At times, they extended the freedom further, to protect, for instance, the confidentiality of classroom discussions, the confidentiality of medical records, and confidentiality guarantees extended by historians to interviewees previously involved in the Irish Republican Army. 

Other aspects of professors’ conduct have been treated inconsistently by courts. In some instances, courts have protected pedagogical decisions by professors when those decisions were justified on academic grounds as determined by peer academics. However, in Trustees of Indiana University v. Curry, No. 18-1146 (7th Cir. 2019), the United States Court of Appeals, Seventh Circuit, found that the plaintiffs’ argument that the use of fetal tissue in research was protected by the First Amendment was a “non-starter” since the statute forbidding the practice “regulates conduct, not speech.” 

Professors’ “intramural speech,” specifically, their comments about university policies or public issues outside of their domain of specialty, has also been treated inconsistently by courts. Some decisions have extended the right to academic freedom to include a professor’s comments about university policies, but in most cases, courts have decided cases pertaining to intramural speech under the broader First Amendment umbrella.  

In addition to professors, the U.S. Supreme Court has also protected the right of institutions to academic freedom. In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the Court affirmed a concurring decision from Sweezy which found that the “four essential freedoms” of a university are the rights “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” 

The insufficiency of general First Amendment rights when applied to professors 

Why is a specific right to academic freedom required, given the broader First Amendment? Rabban argues that general First Amendment rights as applied to professors are inadequate, necessitating the specific right. 

To be protected speech under the general First Amendment, speech by public employees must be about matters of “public concern.” In cases involving professors, courts have excluded from the “public concern” such categories as “abstract theorizing,” criticism of university administrators, and comments by professors protesting the denial of tenure to other professors. These categories of speech are fundamental to the work of any professor but are left unprotected by general First Amendment rights, argues Rabban. 

In addition, in Garcetti v. Ceballos, 547 U.S. 410 (2006), the U.S. Supreme Court held that the speech of public officials “pursuant to their official duties” is not protected under the First Amendment. Obviously, this rule restricting the scope of First Amendment rights would massively impede the protection enjoyed by professors, if applied to them. The Court even recognized the possible need to exclude professors from the Garcetti rule, but since the facts of the case did not involve academic freedom, the Court left aside the issue of the rule’s applicability to professors. 

The need to theorize the right to academic freedom as a distinct First Amendment right 

To compensate for the failure of the general First Amendment Rights to adequately protect professors, a specific right to academic freedom is needed, says Rabban. A proper theory of the right to academic freedom can both justify its existence and define its scope. Given the lack of U.S. Supreme Court jurisprudence adequately laying out the justification and scope of the right to academic freedom, Rabban has taken on this work himself.  

As a starting point, Rabban cites a publication by the American Association of University Professors (AAUP) which contains, in his view, the best justification of academic freedom. The AAUP highlights professors’ unique function in society, which is to apply their expertise to the pursuit and dissemination of knowledge which is a benefit to society, a role which would necessarily be impeded if professors could not reach academic conclusions that meet academic standards but offend legislators or members of the public. 

For Rabban, this unique role of the professor in society justifies the existence of a separate First Amendment right to academic freedom. The justification of the right can also help determine its scope. Rabban argues that the scope of the right must include pedagogical decisions and speech about educational issues at universities – but since the theory of the right relies on expertise to justify specific rights to academic freedom, the intramural expression of professors outside their expertise should not be protected by the right to academic freedom. 

Academic freedom in Canada 

During the question-and-answer period, one questioner noted that in Canada, the content of the right to academic freedom is generally seen as the right of professors not to be sanctioned by universities for exercising their general freedom of expression rights. The questioner noted that this Canadian conception of academic freedom is generally protected through collective agreements, rather than constitutional litigation. The efficacy of protecting academic freedom in Canada through collective bargaining is only possible because Canada has a much higher rate of faculty union membership as compared to the United States. 

Current challenges in the United States 

In concluding his talk, Rabban highlighted the current pressure being exerted by the U.S. federal government and state governments on academic freedom rights. Though Rabban accepts that legislatures do have a role in determining the general curriculum requirements for public universities, he contends that through their recent acts, legislatures are inappropriately supplanting the role of universities by determining the specific content of courses. These state acts are far more intrusive than previous state interventions such as the Cold War-era questioning of Professor Sweezy, argues Rabban.  

Even though current state regulations have created a chilling effect and rendered certain American professors hesitant to teach about topics such as race and sex, Rabban argues that the right to academic freedom matters and is worth exercising despite the risk of penalties such as forced early retirement. Rabban notes that in times of totalitarian rule, academics have given up a great deal, including their liberty, to preserve the right to academic freedom. Rabban’s advice to academic colleagues is not to be chilled, and to exercise their rights. 

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.

Careers in Constitutional Law

Posted on by Tal Schreier

by Kylie de Chastelain

Many students are fascinated by the constitutional issues they engage with in the classroom and the Asper Centre regularly receives questions about how to work towards a career in Constitutional law. To help address these questions, the Asper Centre hosted a panel discussion on February 12th, 2020, entitled: “Careers in Constitutional Law.”

Four brilliant lawyers were invited to share about their experiences in constitutional law practice. Emily Chan, a staff lawyer at Justice for Children and Youth, was joined by Sinéad Dearman, an Associate at Olthuis Kleer Townshend LLP; Geetha Philipupillai, an Associate at Goldblatt Partners; and Padraic Ryan, Counsel at the Constitutional Law Branch of the Ministry of the Attorney General of Ontario. Each panelist spoke about the realities of long-term litigation, working with rotating governments, and the complexities of constitutional law. The panelists’ career experiences are detailed below, followed by a round-up of their best advice for aspiring constitutional lawyers. As you’ll see, there’s more than one path towards working in constitutional law.

Emily Chan

Staff Lawyer, Litigation and Community Development, Justice for Children and Youth

Emily Chan’s day-to-day work is very diverse, ranging from privacy law to human rights matters and constitutional law issues. Her official title is “Community Development Lawyer” – a role which suits her passion for advocacy and community organizing. Initially, Emily never planned on having a litigation career; preferring research and writing to public speaking and debate. Despite this, litigation now comprises a significant portion of her practice.

Emily has represented Justice for Children and Youth before the Supreme Court of Canada on a number of interventions. Notable among these are Prime Minister of Canada v Khadr, 2010; an intervention about Omar Khadr and the rights of children who are found in armed combat overseas, and Kanthasamy v Canada, 2015; a case that considered the best interests of a minor who sought refugee protection in Canada on humanitarian grounds. Interventions such as these frequently involve Charter-based challenges – as was the case in Khadr, where Emily’s arguments on behalf of Justice for Children and Youth focused on Khadr’s section 7 Charter rights to life, liberty, and security of the person. Ultimately, Emily’s work – while not exclusively constitutional – does involve a significant amount of constitutional law; proof that a career in constitutional law doesn’t have to be “all or nothing.”

Sinéad Dearman

Associate, Olthuis Kleer Townshend LLP

Sinéad was called to the bar in 2018 and was a member of the Indigenous Law students Association while at the University of Toronto’s Faculty of Law. She works in child protection law and represents a variety of First Nations governments in matters relating to child welfare and custody. This work is demanding, and Sinéad spends approximately 75% of her time travelling to remote First Nations communities across Ontario, where she meets with band governments and stakeholders and represents them in child welfare cases. In addition to child protection work, Sinéad has appeared before the Canadian Human Rights Tribunal, suing the Canadian government for discriminatory underfunding in public services (see: First Nations Child and Family Caring Society of Canada v Canada, 2019). Sinéad also works in Indigenous law-making; helping First Nations to refine and uphold their legal traditions and advocating for their inclusion within the broader Canadian legal system.

Sinéad believes that in order to practice Indigenous law, and constitutional law more broadly, you have to be able to show up in “mind, body, and spirit.” The work requires more than intellect; it requires being present and involved beyond the law. For Sinéad, this has often meant being in ceremony with her clients and becoming involved in the community beyond what might be expected in a non-Indigenous lawyer-client relationship.

Geetha Philipupillai

Associate, Goldblatt Partners

Geetha was also called to the bar in 2018, and one month later found herself working on the high-profile case involving Premier Ford’s reduction of Toronto City Council seats (see: The City of Toronto v Ontario (Attorney General), 2018). Although Geetha does not generally practice in labour law, the case presented an opportunity to represent union clients with a vested interest in the structure of Toronto’s city council. It was valuable, she said, to have the opportunity to work on a constitutional case, even if it was not in a practice area she typically engages with. In general, Geetha’s day-to-day work at Goldblatt involves employment law, civil class action suits, and claims from LawPro; the company that provides Ontario lawyers with professional liability insurance. Geetha’s work with LawPro frequently involves defending lawyers against claims of negligence.

In addition to all of this, Geetha, who was an Asper Centre Clinic student, served as pro-bono junior counsel to the Asper Centre on the Morris intervention. This case is challenging criminal law sentencing with respect to systemic racism and specifically anti-black racism. The Asper Centre’s intervention focuses on the need for substantive equality in sentencing and the corresponding rights engaged by s. 15 of the Charter. For Geetha, working in constitutional law has meant making the most of the opportunities that come her way. Although her legal work is not exclusively constitutional, she has chosen to make this an area of focus in her career.

Padraic Ryan

Counsel, Constitutional Law Branch, Ministry of the Attorney General of Ontario

Padraic always knew that he was interested in constitutional law and litigation, and endeavoured to work in government jobs instead of full-service Bay Street firms as a result. As a member of the Constitutional Law Branch, Padraic’s work is exclusively constitutional. In essence, he supports branches of the ministry that have constitutional questions or claims before them. Typically, these claims relate to statutes or policies that are being challenged, and while Padraic’s work involves a significant amount of litigation, he also provides advice to government ministries facing this kind of claim.

The work is full of variety, and Padraic says that one of the best parts of his job is the constant learning. In this kind of work, you never feel as though you’ve “specialized” or “mastered” a particular area of law – instead, you’re constantly learning about statutes you never knew existed and consulting with government ministries across a broad range of practice areas. By way of example, Padraic says he has worked on fire code prosecutions, labour relations issues, and interventions relating to federal immigration law. The challenges of government work are ever-present, he says, and dealing with election cycles, changing governments, and funding constraints can make his job very interesting. For those interested in a diverse range of legal issues that all engage constitutional law, a government position like Padraic’s might be the perfect fit.

Career Tips for Aspiring Constitutional Lawyers

  • Take a variety of courses. Emily advises that you take a variety of courses while you’re in law school because constitutional questions can arise in “any area of law.” Having a bit of knowledge across practice areas is helpful, because you simply can’t anticipate all the areas of law you might end up working in. Emily pointed to her own experience, noting that although she doesn’t practice refugee and immigration law, much of her constitutional work has involved Charter-based advocacy for refugee children and youth. Having the legal context that comes from a bit of coursework experience is highly valuable.
  • Have a demonstrated interest. All the panelists agree that, when it comes to hiring, it’s nice to see an applicant with a clear interest or passion. Whether it’s through your extra-curriculars, course selection, non-law school activities, or the organizations you belong to, make sure to highlight what you are interested in. Padraic emphasized that this doesn’t mean you must do every single extra-curricular related to constitutional law; but it’s good to be able to show participation in at least one or two constitutionally-related activities if this is something you are hoping to practice later on. The Asper Centre offers some fantastic ways to get involved, including: The Constitutional Law Clinic, Student Working Groups, and Summer Fellowship Program.
  • Consider administrative law. Geetha and Padraic suggest that administrative law is a great area of focus for constitutional-law hopefuls. Administrative law contains many of the same legal themes as constitutional law, and has the advantage of being highly marketable in the legal world. Geetha emphasized that administrative law can also be useful in practice because often constitutional challenges are brought by people who are unable to finance protracted litigation. When you understand administrative law well, you are better able to advise clients as to their strategic options and help them to achieve their goals without engaging in costly litigation.
  • Remember that your law practice will likely be diverse. With the exception of Padraic, who works in a role exclusively devoted to constitutional law, none of the panelists focus solely on constitutional work. Instead, constitutional law is simply one of many practice areas they engage in. Remember that it is rare to find a full-time job in constitutional law. Instead, think about adjacent practice areas that you are passionate about, and jump at the chance to do constitutional work when you can.
  • Don’t worry if the path isn’t straight. Sinéad says that while law school can be challenging intellectually, mentally, and emotionally, do your best to stick with it. Remember that law school and legal practice look very different, and being a young lawyer is nothing like being a young law student. Rely on the routines and activities that make you feel good and give you a sense of meaning beyond law school, and try not to get caught up in comparison and competition. As Padraic says, it’s better to think about the kind of work you want to do, and where you think you’ll fit best career-wise than to spend time trying to “check boxes” for the sake of it.

Kylie de Chastelain is a 1L student of law at the University of Toronto and the current Asper Centre work-study student.

Courts Without Cases: The Law and Politics of Advisory Opinions

Posted on by Tal Schreier

By Kylie de Chastelain

The Asper Centre recently hosted Professor Carissima Mathen, author of Courts Without Cases: The Law and Politics of Advisory Opinions (2019), for a dynamic Constitutional Roundtable about her new book, with Professor Lorraine Weinrib as discussant.

Professor Mathen’s book, described by Professor Weinrib as a “milestone” in Canadian Constitutional writing, explores the under-studied but vitally important institution of Supreme Court references. References are opinions given in the absence of a live case. They are put forward to the Court by the executive branch and the opinions that result are called “advisory opinions.” Those who have studied constitutional law will be familiar with references, but what many don’t realize is that some of Canada’s most important judicial decisions did not emerge from cases, but from references. Same-sex marriage, assisted human reproduction, Senate Reform, Quebec secession and patriation are only some of the landmark opinions that have emerged from references. In Professor Mathen’s words, each constitutes an important “constitutional moment,” and yet, references have remained chronically unexplored by legal scholars. Mathen has sought to change that through her book, which is the first focused examination of references in Canadian legal scholarship.

References are not uniquely Canadian but the way they are handled by our judicial system sets Canada apart from other Anglo-American countries. In South Africa, Israel, India, and numerous European countries, specialist “constitutional courts” address a variety of issues through references. As Professor Mathen emphasized, what is notable about the Canadian context is that the Supreme Court performs “both an adjudicative and an advisory function.” This function was enumerated in the Supreme and Exchequer Court Act, which created the Supreme Court of Canada, in 1875.

Professor Weinrib suggested that the reference phenomenon was institutionalized “by accident,” but that it was much needed, in part because Canada’s formal written constitution was initially fragmented and incomplete. In particular, the lack of a domestic amending formula made it very difficult for the federal government to govern. The reference function allowed federal and provincial governments to raise questions and discern the legal elements of political issues before bringing them back to the legislature; effectively using the court to establish a guiding framework for the nation’s development. This dynamic also allowed the executive to pre-emptively explore important legal issues before a case emerged and a decision was handed down in a conventional trial.

However, in the present day, Professor Mathen has argued that references and advisory opinions pose two potential problems with regard to Canada’s federal system. The separation of powers is essential to how the Canadian state operates, but by vesting courts with the ability to do more than adjudicate cases, references might be viewed as extending the judicial function beyond its optimal boundaries. In addition, because references can only be put forward by the executive branch, they arguably align the judiciary and the executive and exclude the legislature, even though the issues addressed in references are often very salient to the legislative context. Further, this arrangement could give the impression that the court is subservient to the executive; threatening the idea that the judiciary is independent. Courts are expected to address the references put forward to them, but as Professor Mathen explained, the Supreme Court is not always so accommodating.

On several occasions, the Supreme Court has refused to engage with the references put to them by the executive. Sometimes, the Court has rejected the requests outright, and in other cases it has re-interpreted the questions asked. By way of illustration, Professor Mathen pointed to the Patriation Reference, where the executive asked whether there was a constitutional problem with amending the constitution without provincial consent. In its opinion, the Court divided on its interpretation of the question, exploring whether all provinces – or only some provinces – had to agree with a constitutional amendment in order for it to pass.

Most interesting in Professor Mathen’s view is the fact that the Supreme Court has never explained why it sometimes chooses to refuse reference requests. Section 53(4) of the Supreme Court Act stipulates that the court has a duty to hear and consider all references, but despite this, the Court reserves the right to ignore references outright or to ignore sub-questions in a given reference, as it did in the Same-sex Marriage Reference.  Here, the Court refused to answer Question 4 of the reference, which asked if the opposite-sex requirement for marriage for civil purposes was consistent with the Charter. ostensibly because it was concerned about any “confusion” that could emerge if it answered in the negative.  More specifically, the Court stated that it would “exercise its discretion” not to answer the question, in part because the federal government had “stated its intention to address the issue of same-sex marriage legislatively regardless of the Court’s opinion” and that answering Question 4 could potentially undermine the government’s “stated goal of achieving uniformity in respect of civil marriage across Canada” if it answered the question affirmatively. Mathen suggested that the Court’s refusal to answer demonstrates the intention of the Court to retain first and foremost a legal role, as the chief constitutional arbiter, and the primary interpreter of its norms.

Here lies a final and fascinating point about Supreme Court references: they are not legally binding. References are only advisory and technically co-exist with treatises, textbooks, and other scholarly legal works that have no authoritative control over judges and their decisions. But practically speaking, we do not treat references in this way. As Professor Weinrib pointed out, references serve an incredibly important function in establishing norms. Indeed, we treat references as legally binding decisions; they are taught in law schools alongside other case law, and are treated by legislatures and governments with the same gravity as a binding Supreme Court decision. This could be, as Professor Weinrib suggested, because references sometimes feel more methodologically sophisticated; more conceptual and holistic. References help to develop a rule of law that reflects fundamental constitutional principles from the outset. This is undeniably a strength of the dynamic that exists in Canada.

Ultimately, Professor Mathen has produced an accessible and engaging account of the reference power in Canada, which, for all its curiosities, is undoubtedly an integral aspect of Canadian judicial practice and legal development.

Kylie de Chastelain is a 1L student of law at the University of Toronto and the current Asper Centre work-study student.