Faculty

Overcoming Challenges to Implementing UNDRIP in Canada

Posted on by Tal Schreier

By Julia Nowicki

Implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canadian law will not be without challenges, and will require both hard-work and great care, said Kerry Wilkins at the Asper Centre’s first Constitutional Roundtable for the 2020/2021 academic year. Held virtually on Wednesday, October 28th, 2020, Wilkins, who is an adjunct professor at the University of Toronto Faculty of Law, presented his upcoming journal article–“So You Want to Implement UNDRIP…”–set to be published in the University of British Columbia Law Review in the near future.

UNDRIP was adopted by the United Nations General Assembly in 2007. The resolution outlines within it “the rights of indigenous peoples” and “establishes a universal framework of minimum standards for the survival, dignity and well-being of the indigenous peoples of the world”, according to the UN website. Although initially voting against its adoption, the Canadian government eventually issued a Statement of Support endorsing the principles in UNDRIP and in 2015, announced its full, unqualified support. However, the international resolution is not legally binding in Canada, and requires domestic implementation for the rights and obligations of the State to be realized. In the prior two throne speeches, the Governor General of Canada promised full implementation of UNDRIP, stating in 2020 that “[t]he Government will move forward to introduce legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples before the end of this year.”

Implementation, as alluded to previously, does not come without its challenges, says Wilkins. “[F]irst, Canadian law isn’t especially well designed to welcome enforceable UNDRIP rights and obligations into it. And second, the colonial experience, mainstream law and governance, has done a great deal already to fragment and to disaggregate ancestral Indigenous communities, destabilize their relationships with traditional territories, and suppress and marginalize key features of their cultures.”

However, Wilkins says that the very “impediments to implementation are among the reasons why implementing the United Nations Declaration in Canadian law is so important”, and putting off implementation will in no way help the process. Sections 27, 38, and 40 of UNDRIP assign the process of implementation to the States, according to Wilkins’ paper. Article 38, for example, provides that “States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.”

In considering how meaningfully to implement UNDRIP, attention must be drawn to two overarching issues, including what Wilkins refers to as the “what” and the “how” of implementation. These questions refer, respectively, to the substantive and procedural issues that may underlie the process.

The instrument leaves undefined certain key features, including who qualifies as Indigenous peoples, how to distinguish traditional lands or territories, and which practices and features can be subject to cultural protection rights. Wilkins suggests that, if left to their own devices, courts and Parliament may revert to applying the metrics with which they are already familiar. Unfortunately, in doing so, or if left to define key concepts within UNDRIP unilaterally, governments and courts run the risk of trivializing the rights that would otherwise be protected. Non-Indigenous governments, for instance, do not have particular experience in thinking about indigeneity. Bands or First Nations as defined by the Indian Act outline criteria that would be “neither necessary nor sufficient to qualify as an Indigenous peoples for the purposes of UNDRIP”, Wilkins says. In reference to rights related to traditional lands or territories, Courts may be tempted to apply the law of Aboriginal Title, reverting to a process that is not only time consuming but likewise reduces the rights contained in UNDRIP to those already protected under the Canadian Constitution. Similar considerations run true for Aboriginal rights.

Various procedural issues must likewise be taken into consideration, namely, by which vehicle implementation should occur. Wilkins provides in his paper two such avenues, including by way of treaty and by legislation. Both have certain benefits and disadvantages, however the Canadian government as mentioned previously, has promised legislation as a means of implementation. Although legislation may provide for uniformity across the country, it can likewise be tailored to apply to specific groups. However, rights contained within legislation implementing UNDRIP, unlike treaties, would not receive constitutional protection. Further, legislation is subject to being overridden, not only by subsequent or more specific legislation, but likewise is subject to potential repeal by subsequent governments which may differ in their constituency and platform. Such potential conflict must be taken into careful consideration when drafting UNDRIP legislation, to ensure that subsequent laws are subject to UNDRIP unless explicitly stated within said legislation, UNDRIP legislation cannot be replaced by subsequent governments unless by certain manner and form requirements such as a supermajority vote, or by including explicit provisions that bind both federal and provincial Crowns.

“It’s important as we embark on the project of implementation to acknowledge at the outset the difficulties that it’s going to involve,” Wilkins said. “But it’s equally important not to let the existence of those difficulties count as a reason not to make the effort at implementation.”

Julia Nowicki is a 2L JD student at the Faculty of Law and is currently an Asper Centre work-study student.

Access recording of the Constitutional Roundtablewith Kerry Wilkins HERE.

 

Meeting Susan Ursel, the Asper Centre’s next Constitutional Litigator-in-Residence

Posted on by Student

By Sara Tatelman

When you walk into the waiting room at labour law firm Ursel Phillips Fellows Hopkinson LLP, you’re greeted by large black-and-white photographs of Canadians at work and, in silver sans-serif type mounted on the back wall, an unattributed quote: “The philosophers have only interpreted the world. The point is to change it.”

As we sit down, senior partner Susan Ursel readily tells me the photographs were taken by Toronto documentarian Vincenzo Pietropaolo, and the quote is from Karl Marx.  “[Partner] Gary Hopkinson is our resident philosopher … and he came up with that one,” she says. “It seems so apt because we don’t want to just study the world — we are actually here to contribute to it.”

Ursel, who will serve as the Asper Centre’s Constitutional Litigator-in-Residence for the 2018-19 year, has tried to change the world since she was in high school. “I used to picket my local Dominion store and ask people not to buy grapes and to support Cesar Chavez and the United Farm Workers in their struggle for recognition,” she says. “… I could see how difficult it was for some people to make their own way, to be successful, and we see it even more today. And I just thought, that’s a kind of work that I can see applying myself to … and feeling that I’m adding something to the world. And that became my pole star and what I followed all the way through undergrad and then law school.”

Throughout her career, Ursel has represented a wide variety of unions and individuals on labour, employment and human rights issues. Recently, she intervened for the Canadian Bar Association in Trinity Western University v. The Law Society of Upper Canada. “I think it’s problematic to view any rights in an absolutist way, and I think we have to be very careful about the concept of religious freedom,” she says. “… We’ve prided ourselves on being welcoming to everyone, and when an institution asks to be recognized in the public square, which is what Trinity Western is asking, … [it must] engage with everybody.”

Ursel’s long history of advocating for LGBTQ+ rights — including in Egan, which confirmed sexual orientation as a prohibited ground of discrimination under the Charter, and in XY, which established it’s discriminatory to require trans folks to have sex reassignment surgery before they can change their sex designation on their birth certificates — stems from her own experience as a lesbian lawyer who came out in the 1980s.

“There weren’t a lot of us,” she says. “And the ones who were out in the legal profession belonged to something called the Other Lawyers Association. We didn’t have email. We had telephone trees and letters in brown paper wrappers with no identifying marks on the outside to invite each other to parties.”

One year, Ursel hosted a Christmas party for other LGBTQ+ lawyers. “I couldn’t get the guys to leave!” she remembers, laughing. “They were so happy. … There was no place to go and be themselves and talk amongst their peers and they were having just a really wonderful time. I remember thinking, ‘They’re not going home. I’m going to find some of them on the living room floor tomorrow morning.’”

At the Asper Centre this fall, Ursel will co-teach the constitutional litigation clinic. This typically involves intervening on a Charter case at the Supreme Court, and preparing an advocacy brief on another constitutional issue.

Ursel is especially keen to meet and mentor students. When she was in law school at Osgoode Hall, she took a constitutional litigation course that was “absolutely formative” for her career. While the professor was more conservative than Ursel, she gave very specific feedback on students’ ideas and arguments, and wasn’t stingy with praise.

“That kind of affirmation from somebody with a different viewpoint than you has so much power,” Ursel says. “So I know I’m going to meet people from all walks of life in this program, with all different viewpoints, but I’m hoping I can give them something of what [my professor] gave to me. Even if I don’t see it exactly the same way as you, I will tell you when you’re doing a good job. I will tell you what I think you can do better. I will engage with you on tough issues and talk about them because I care passionately about them and I want the next generation to care passionately too, and to engage in the kind of civil debate we have in this country.”

Sara Tatelman is the Asper Centre’s 2018 summer research assistant.

Susan Ursel chosen as Constitutional Litigator-in-Residence for fall 2018

Posted on by Student

The Faculty of Law’s David Asper Centre for Constitutional Rights is pleased to announce that lawyer Susan Ursel will be the Asper Centre’s Constitutional Litigator-in-Residence for the fall 2018.

Ursel, a Toronto-based employment and human rights lawyer, will be teaching constitutional advocacy in the Asper Centre clinic during the fall term. Drawing upon her extensive experience from her constitutional, human rights and administrative law practice, she will mentor students on the case files that they will be working on in the clinic.

“Susan Ursel’s wealth of litigation experience and work in the human rights field, especially in seeking equality rights, will add an exciting dimension to the clinic this coming term,” says executive director Cheryl Milne.

Susan Ursel says, “I am very much anticipating the exciting and fascinating work with the Asper Centre this year. Constitutional issues and litigation have been a passion of mine for many years and I am honoured to be doing this work with the Asper Centre which is renowned for its constitutional expertise and for its exceptional educational programs. My thanks to the Centre for inviting me to work with them.”

Breese Davies, selected Constitutional-Litigator-in-Residence for Fall 2017

Posted on by Tal Schreier

The Faculty of Law’s David Asper Centre for Constitutional Rights is pleased to announce that lawyer Breese Davies will be the Asper Centre’s Constitutional-Litigator-in-Residence for the fall 2017.

Davies, a Toronto-based criminal defence lawyer, will be teaching constitutional advocacy in the Asper Centre clinic during the fall term. Drawing upon her extensive experience from her criminal, constitutional and administrative law practice, and her academic experience as an adjunct professor of criminology and the University of Toronto, she will mentor students on the case files that they will be working on in the clinic.

“Breese Davies brings a wealth of litigation and teaching experience to the role that will benefit the students and the Centre” says Executive Director, Cheryl Milne.

Breese Davies says, “I am honoured to be joining the Asper Centre as the Constitutional Litigator in Residence. It is a unique opportunity for me to combine my love of teaching with my passion for advocacy and constitutional law. I look forward to working with and learning from the faculty and students associated with the Centre. Despite 35 years of Charter litigation, there are still many important and emerging human rights issues to be addressed. The David Asper Centre is at the leading edge of constitutional education, research and advocacy in Canada and I am delighted to be joining their amazing team.”

Asper Centre Director Cheryl Milne appointed by Council of Canadian Academies to Medical Assistance in Dying Panel

Posted on by Tal Schreier

The Council of Canadian Academies (CCA) is an independent, not-for-profit organization that supports independent, authoritative, and evidence-based expert assessments that inform public policy development in Canada. In December 2016, the federal government requested the CCA to undertake independent reviews related to three particularly complex types of requests for medical assistance in dying.  These three types were identified for further review and study in the legislation passed by Parliament in 2016 and include: requests by mature minors, advance requests, and requests where mental illness is the sole underlying medical condition.

On April 27, 2017 the CCA announced the appointment of 43 individuals, from Canada and abroad, who have expertise, knowledge, and leadership experience in a range of disciplines including law, medicine, ethics, social sciences, and health sciences to an expert panel on medical assistance in dying.  The panel will be organized into three Working Groups, each with a Chair.  Asper Centre director Cheryl Milne was appointed to the medical assistance in dying panel for requests by mature minors.

Cheryl Milne was called to the Ontario Bar in 1987 and completed an MSW at the University of Toronto in 1991. Prior to the Asper Centre, Ms. Milne was a legal advocate for children with the legal clinic Justice for Children and Youth. There she led the clinic’s Charter litigations including the challenge to the corporal punishment defence in the Criminal Code [Canadian Foundation for Children, Youth and the Law v. Canada (2004)] and an intervention involving the right of a capable adolescent to consent to her own medical treatment (A.C. v. Manitoba Child and Family Services (2009)].  Ms. Milne currently teaches a clinical course in constitutional advocacy at the University of Toronto, Faculty of Law and has represented the Asper Centre in numerous interventions at the Supreme Court of Canada and Federal Court of Appeal. She is a past Chair of the Ontario Bar Association’s Constitutional, Civil Liberties and Human Rights section and of the Canadian Coalition for the Rights of Children and is currently the chair of Justice for Children and Youth.

Ms. Milne is honoured to be appointed for this important role, adding that the “…the CCA has assembled an impressive interdisciplinary group under the stewardship of the Honourable Marie Deschamps, C.C., Ad. E., former Justice of the Supreme Court of Canada and Adjunct Professor at McGill University and Université de Sherbrooke. Our first meeting of the full panel revealed the depth and independence of the review process. I am proud to be working with such distinguished and knowledgeable colleagues.”