Asper Centre Working Groups

Accessible Sex Education

In partnership with Egale Canada, this working group’s project examines Alberta’s Education Amendment Act, 2024, which introduces a parental opt-in requirement for any school instruction on human sexuality, sexual orientation, or gender identity. The project will focus on developing potential Charter section 15 arguments to challenge the legislation’s disproportionate impact on girls and 2SLGBTQI youth, who risk losing access to vital education on identity, equality, and protection from harm. Over the academic year, students will produce two key deliverables: (1) a report analyzing potential section 15 arguments in light of leading precedents, and (2) a literature review of existing research that could serve as expert evidence in future constitutional litigation, including identifying gaps where new scholarship is needed.

Charter Issues in AI and Predictive Policing

In collaboration with the Future of Law Lab, this working group will explore the Charter implications of law enforcement’s growing use of artificial intelligence, focusing on three key contexts: border security, suspect identification, and police deployment strategies. The group will analyze potential impacts under sections 2(b), 8, and 15 of the Charter, drawing on Canadian jurisprudence and comparative perspectives from other jurisdictions. Over the year, students will produce a public-facing report outlining the constitutional issues raised by AI-powered policing and recommendations for ensuring compliance with the Charter and will also host a town hall to engage faculty, students, and community members in dialogue on these pressing issues.

Indigenous Rights, Environmental Protection, and the Duty to Consult

This working group will examine the constitutional implications of recently enacted federal and provincial economic legislation — Bill C-5 (federal), Ontario’s Bill 5, and British Columbia’s Bill 15 — with a focus on their impact on Indigenous rights, environmental protection, and the duty to consult. These laws, which fast-track infrastructure projects by bypassing environmental and consultation requirements, raise pressing issues under section 35, sections 7 and 15 of the Charter, and federalism principles. In its first year, the group will track legislative and litigation developments, producing accessible public education materials including legislative briefs, blog posts or infographics, a podcast episode, and a panel event. In its second year, the group plans to produce a substantive research deliverable (such as a policy paper) and contribute to teaching in the Indigenous law curriculum.

Encampments and the Charter

This working group is focused on conducting research and analysis on 2 different types of encampments that have recently come into the public eye in Canada and the important constitutional and Charter issues involved in both housing encampments and protest encampments. The group will support the work of the Asper Centre, who is convening a workshop in collaboration with the Centre for Constitutional Studies (University of Alberta) on Protest Encampments and the Charter, and will also collaborate with CCLA (the Canadian Civil Liberties Association) to develop a national database of relevant caselaw on housing encampments.

Interveners

Interveners play an important role in constitutional litigation in Canada as they offer valuable insight into what impact decisions will have beyond the parties involved and provide considerable expertise in areas like civil liberties, youth rights, and Indigenous experiences. This Working Group will investigate recent trends in how courts, especially the Supreme Court of Canada, approach interveners. The Working Group will consider the granting of leave to intervene, time and space allotted for oral and written arguments, and the influence of interveners on decisions. The Court’s restrictive attitude towards interveners in several recent cases raises pressing concerns about whether the Charter rights of affected communities are being meaningfully accounted for. The aim of this Working Group will be to produce a “What We Heard” report on the current role of interveners in constitutional litigation and potential ways that the Court’s approach to interveners could be improved.

Encampments and the Charter

This working group is focused on conducting research and analysis on 2 different types of encampments that have recently come into the public eye in Canada and the important constitutional and Charter issues involved in both housing encampments and protest encampments. The group will research and evaluate up to date jurisprudence on the Charter protections afforded to residents of encampments across provinces and the Charter implications of protest encampments. The group will draft a submission to the Office of the Federal Housing Advocate making recommendations for legislative amendments to align statute with case law. The group will also convene a workshop for the law school community on protest encampments and the Charter in early 2025.

The Notwithstanding Clause

Section 33 of the Charter, otherwise known as the Notwithstanding Clause has long been a controversial issue and has only become more relevant in the last decade with the increase in provinces relying on the clause to enact Charter-infringing legislation. Namely, the clause has been used to target many marginalized and disenfranchised communities such as Muslim women and other religious minorities through Bill 21 in Quebec and gender diverse youth as seen in the UR Pride v Saskatchewan (Minister of Education) case. On the federal level, a leader of one of Canada’s major parties has raised the possibility of invoking the notwithstanding clause for the first time by a federal government. This working group will analyze the use of Notwithstanding Clause to date and make recommendations for how it should be invoked in the future.

Bail Reform

This working group will be drafting a submission to Parliament about the constitutionality of Bill C-48 An Act to Amend the Criminal Code (Bail Reform). The Bill has added and strengthened reverse onus provisions in the Criminal Code whereby some classes of accused would be required to show why they should be granted bail rather than the prosecution showing why the accused must be held in detention. Amongst these amendments to the Criminal Code is a change to s.515(6)(b.1). This change is designed to “broaden the existing reverse onus regime for victims of intimate partner violence (IPV)”. The working group’s submissions will focus on whether the Bill properly addresses the enhanced risks posed by IPV in relation to section 11(e) of the Canadian Charter of Rights and Freedoms.

Environmental Rights  

This working group is a continuation of the previous year’s working group that identified a need for accessible information to help ensure that governments are doing all they should to prevent the worst impacts of climate change and to give communities the practical legal and advocacy tools to help hold governments to account. The group is drafting a Know Your Environmental Rights guidebook that will cover the various sources of environmental rights in Ontario, the relevant Canadian caselaw, and the legal mechanisms available for people who want to advocate for action on climate change. The guidebook will also comprehensively map out the tools available to those concerned about climate change for exercising their environmental common law, statutory, and constitutional rights and pursuing legal remedies.

Indigenous Child Welfare & Self-Government

Over the past few years, both Canadian and American courts have decided cases that effect how Indigenous Nations are able to care for Indigenous children. Both countries have histories and present realities of removing Indigenous children from Indigenous homes, thereby jeopardizing the safety of Indigenous children and undermining Indigenous Nations’ sovereignty and governance. With this context in mind, the recent Supreme Court of the United States Haaland v Brackeen decision, and the upcoming Supreme Court of Canada (“SCC”) Attorney General of Québec, et al. v. Attorney General of Canada, et al decision are of paramount importance to Indigenous futurity and safety. Both cases address federal legislation introduced to address the historical and present harms caused by the apprehension of Indigenous children by settler governments. In both countries, these decisions also demonstrate how child welfare is closely connected to Indigenous assertions of and rights to self-government. The working group will study the cases and convene a workshop and podcast episode for the law school community about the issues arising from these cases, in particular the Quebec Reference case and its meaning for Indigenous rights and the interpretation of Section 35 of the Constitution of Canada.

Responding to 2SLGBTQI+ Hate

This working group focuses on the intersection of hate, freedom of speech, and freedom of assembly issues of 2SLGBTQI individuals, who are increasingly targeted by hate. While legal protections exist, they are often inaccessible to those without a strong understanding of the legal system.  A significant trend over several years has been to use defamation lawsuits to silence those speaking out against homophobic or transphobic rhetoric. Many Canadian jurisdictions have passed anti-SLAPP legislation, which provides a preliminary basis for dismissing a lawsuit deemed to be a “strategic lawsuit against public participation” (SLAPP).  This working group is partnering with EGALE (Canada’s leading 2SLGBTQI charity, which has taken active involvement in a variety of public interest litigation in service of the queer community in Canada) to make recent court decisions based on this anti-SLAPP legislation more accessible to local 2SLGBTQI+ organizations and activists by developing a toolkit and delivering a training workshop that explains the anti-SLAPP legal protections.

Climate Justice  

In recent constitutional decisions on climate change in Canada, courts have signaled an openness to understanding climate change as a serious threat to people’s rights. These developments in the law are coupled with a severe lack of publicly accessible resources on environment rights and avenues to address environmental concerns in Ontario, exacerbated by the provincial government removing key funding on access to justice and oversight in this area. As a result, exciting developments in the law can become detached from the efforts of community climate change advocates. In collaboration with community climate change groups, this working group will develop a handbook on climate rights in Ontario based on the latest developments in the field, covering the legal mechanisms available to individuals who want to advocate for action on climate change. 

Consent & the Constitution 

In 2022, there were a series of Supreme Court of Canada (SCC) decisions fundamentally altering the criminal law of sexual assault and its intersection with constitutional rights. Following these decisions, most notably R v Sullivan, there was significant misinformation shared online across social media platforms. The goal of this working group is to combat misinformation and develop educational resources for students on Canadian post-secondary campuses on the law of sexual assault. Specifically, this working group will develop resources for campuses on the recent SCC decisions in R v Sullivan, 2022 SCC 19; R v Chan, 2022 SCC 19; R v Brown, 2022 SCC 18 (the defence of extreme intoxication), R v J.J., 2022 SCC 28 (participation of complainants at evidentiary hearings), and R v Kirkpatrick, 2022 SCC 33 (stealthing as sexual assault), in conjunction with external partners Students for Consent Culture Canada and NAWL.  

Reproductive Rights 

The group will be working on analyzing the current state of reproductive rights in Canada, specifically with respect to access to abortion, and analyzing potential future avenues to further enhance and protect the current regime. Currently, Canada has no legal framework governing abortion. However, abortion has been decriminalized in Canada since 1988, when the Supreme Court held in R v Morgentaler that laws criminalizing abortion were unconstitutional, violating s.7 of the Charter. With 2023 being the 35th anniversary of the Morgentaler decision, and in light of the recent overturning of Roe v Wade in the U.S., along with Canada’s subsequent promises to re-examine the legal framework surrounding abortion, this working group will conduct research into the current state and potential future avenues protecting reproductive rights in Canada with a view to creating valuable resources for future discussions on this issue. 

Police Oversight RCMP Reform 

This working group is assisting the Asper Centre to complete a special project, funded by the Law Foundation of Ontario, in which we are developing accessible public legal information guides about the complex police oversight processes in Ontario. Canada’s constitutional democracy is based on the rule of law and responsible government. In this context, police independence must be balanced with accountability. This project promotes police accountability and access to justice and is very timely given the current context of allegations of police misconduct, the ongoing police oversight legislative reforms in Ontario, recent media exposure of issues behind unfounded sexual assault allegations, and the serious concerns raised in respect of the treatment of women and girls from First Nations, Metis and Inuit communities as well as the police mishandling of complaints by Indigenous peoples. This working group will also be drafting a submission on Bill C-20 pertaining to RCMP reform, under the supervision of faculty advisor Prof Kent Roach and in conjunction with the Canadian Civil Liberties Association. 

Prisoners’ Rights  

This working group is continuing the work from last year to develop an updated and accessible handbook on the Charter and procedural rights of inmates in Canada. Existing inmates’ rights handbooks are often out of date, do not center on an inmate’s experiences and needs, or do not explore how Charter rights have been judicially interpreted in the context of incarceration. Specifically, there is a lack of accessible literature which explains in practical terms how the Charter rights of inmates manifest in everyday life within correctional institutions in practical terms, and the associated responsibilities that they place on correctional institutions. The working group is seeking to address this gap through the creation of this handbook, and by providing it free of charge to correctional institutional institutions across the country. The group will consult with stakeholders, faculty advisors and working group members to decide on the scope of such a handbook, to evaluate the scale of its potential circulation and to potentially seek funding for this project. 

Privacy Law Reform

This working group is drafting a policy brief to the House of Commons’ Standing Committee on Access to Information, Privacy, and Ethics and the Privacy Commissioner with recommendations for Charter-compliant reforms to the current Privacy Act, particularly regarding RCMP and CBSA interactions. The Privacy Act governs the collection, disclosure, and usage of Canadians’ personal information by the federal government and federal public-sector institutions including federal agencies, departments, offices, and more. In late 2020, the federal government announced their intention to reform the Privacy Act, which would be the first major reform to the Act in nearly 20 years. The group will make recommendations about how the Act should be amended to sufficiently protect Canadians’ privacy rights as they relate to s. 8 (and possibly s. 7) of the Charter.

Police Oversight

This working group is assisting the Asper Centre to complete a project, funded by the Law Foundation of Ontario, in which we are developing accessible public legal information guides about the complex police oversight processes in Ontario. Canada’s constitutional democracy is based on the rule of law and responsible government. In this context, police independence must be balanced with accountability. This project promotes police accountability and access to justice and is very timely given the current context of allegations of police misconduct, the ongoing police oversight legislative reforms in Ontario, recent media exposure of issues behind unfounded sexual assault allegations, and the serious concerns raised in respect of the treatment of women and girls from First Nations, Metis and Inuit communities as well as the police mishandling of complaints by Indigenous peoples.

Prisoners’ Rights Handbook

This working group is continuing the work from last year to develop an updated and accessible handbook on the Charter and procedural rights of inmates in Canada. Existing inmates’ rights handbooks are often out of date, do not center on an inmate’s experiences and needs, or do not explore how Charter rights have been judicially interpreted in the context of incarceration. Specifically, there is a lack of accessible literature which explains in practical terms how the Charter rights of inmates manifest in everyday life within correctional institutions in practical terms, and the associated responsibilities that they place on correctional institutions. The working group is seeking to address this gap through the creation of this handbook, and by providing it free of charge to correctional institutional institutions across the country. The group will consult with stakeholders, faculty advisors and working group members to decide on the scope of such a handbook, to evaluate the scale of its potential circulation and to potentially seek funding for this project.

Sex Workers’ Rights

This working group was focused on the constitutionality of the Protection of Communities and Exploited Persons Act, SC 2014, c 25 [PCEPA]. In 2020, the group finalized a comprehensive legal research memo that outlined which legal arguments related to sex work have been successful or unsuccessful, and what evidence is available to demonstrate that the new sex work provisions perpetuate the same harms identified in the SCC case Bedford. This year, the group provided targeted legal research support to a community organization that was part of a group of civil society network that brought a constitutional challenge to PCEPA in the Ontario Court of Justice. The students also provided legal research directly to the Asper Centre’s Executive Director, about what issues the Asper Centre could intervene about in this ongoing constitutional challenge.

Freedom of Expression

The objective of this working group’s project was to provide legal research for an organization that is contemplating a Charter challenge to a Provincial Order in Council that potentially impacts advocacy surrounding Palestine. The students’ research focused on unpacking what the effect of an Order in Council is; what is the procedure for challenging it; the review and application of the Supreme Court of Canada jurisprudence on freedom of expression; among other questions related to possible Charter litigation.

Climate Justice

November 18th, 2019 was the ‘Student Law Clinic Global Day of Action for Climate Justice.’ The event organizers (GAJE, the Global Alliance for Justice Education) asked participating student legal clinics to choose a project related to air pollution and complete it by or on November 18th to mark the date. The Asper Centre Climate Justice student working group prepared an opinion piece on the Ontario government’s potential constitutional obligations with respect to regulating air pollution in Chemical Valley. The OpEd urged the provincial government to honour its commitment to evaluating the impact of the new regulations in the winter of 2019-2020, and to recognize the role it can and should play in protecting environmental rights.  In the second term, the group began convening a panel discussion for the law school community about the constitutional challenges to the federal carbon tax in Saskatchewan and Ontario, with experts in constitutional law, economics and government. Unfortunately, this panel was cancelled due to COVID-19.

Right to Equality in Accommodation

Access to adequate, appropriate, and affordable housing is a growing problem for many people in Ontario, especially those from marginalized groups. Low vacancy rates make affordable housing more difficult to find, and also increase the potential for housing discrimination, because landlords can be highly selective. Section 21.1 of the Ontario Human Rights Code states that the right to equal treatment with respect to accommodation does not apply where an accommodation is in a dwelling where the occupants share a kitchen or bathroom with the landlord or their family. This provision takes away protection from discrimination that Ontarians would have otherwise had.  This working group will be assisting CERA (the Centre for Equality Rights in Accommodation) by preparing a research memo on the exemption of shared residential accommodation, which will support CERA’s future goal of challenging the constitutionality of S. 21.1.

Sex Workers Rights

The Protection of Communities and Exploited Persons Act, SC 2014, c 25 (PCEPA) was introduced in response to the Supreme Court of Canada’s 2013 decision in Bedford v Canada, where the Court found that three Criminal Code provisions which criminalized components of sex work unjustifiably violated section 7 of the Charter. The PCEPA includes new provisions that criminalize the purchase of sexual services in Canada and other related activities such as advertising the sale of sexual services. Sex worker organizations and constitutional experts believe that these new provisions remain unconstitutional because many of the harms identified in Bedford continue to be perpetuated. The continuation of these harms under a new legal context means that a new constitutional analysis is necessary. This working group conducted caselaw and academic literature research into the various arguments and Charter sections that could be employed in a constitutional challenge to the PCEPA. This summer, the group’s research is being synthesized and combined in a comprehensive memo that will provide accessible information to sex-worker organizations in Canada that could assist in developing a constitutional challenge of the post-Bedford sex work laws.

Refugee and Immigration Law

Recently, there have been reported incidents in which CBSA (Canadian Border Services Agency) officers have randomly conducted street checks in minority-populated Toronto neighbourhoods. In light also of the United States ICE (Immigration and Customs Enforcement) raids and immigration camps, these events are extremely concerning. Thus, HALCO (the HIV & AIDS Legal Aid Clinic of Ontario) collaborated with our longstanding Refugee and Immigration working group to create a plain-language public legal information brochure detailing the powers of a CBSA agent and an individual’s rights when interacting with them in the context of a street check. The working group researched and developed the brochure under the supervision of staff immigration lawyer at HALCO.

Indigenous Rights Working Group 

This working group focuses on the constitutional dimension of Indigenous rights. This year, the group will analyze the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) and  Bill C-262 with the intent of drafting general recommendations and observations about actions that ought to be taken in order to implement UNDRIP in Canada. This project will examine how UNDRIP affects different legal and policy areas. The group’s other projects include drafting proposed legislation to exonerate Indigenous peoples who were convicted for practicing their ceremonies under past legal regimes; and examining Beaver v Hill for the §35(1) governance issues in relation to Haudenosaunee law and family law in Ontario.

Immigration and Refugee Law Working Group 

This working group, in the first half of the year, will continue to provide research support for the legal team representing the public interest litigants (Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches) who are challenging the constitutionality of the U.S./Canada Safe Third County Agreement in the Federal Court.

Police Oversight Working Group 

This working group continues (from the previous year) to work on the comprehensive public legal information guides to navigating each province’s police oversight system. The guides will include information on the structure, important timelines, helpful strategies, and realistic expectations of success for victims of police misconduct or other persons who have legitimate police complaints.  This year, the group will also be drafting an advocacy brief about the Ontario Safer Act (Bill 175) that received Royal Assent on March 8, 2018 and is expected to come into force in 2019, although the current status of the legislation remains unclear.

Evaluating Police Oversight Working Group 

This working group intends to produce a comprehensive public guide to navigating each province’s police oversight system. It will include information on the structure, important timelines, helpful strategies, and realistic expectations of success.  The purpose of this project is to critically evaluate the oversight systems that hold police officers accountable in Canada. In particular, this project seeks to examine the effectiveness of those systems in addressing the concerns of Indigenous peoples. In recent years, there have been many high-profile clashes between Indigenous peoples and the police. There have been allegations of systemic racism and improper conduct, such as against the RCMP of northern British Columbia and the Thunder Bay police force and there have also been countless allegations of police apathy and shoddy police work when dealing with Indigenous persons, something that may very well have contributed to Canada’s missing and murdered Indigenous women.

Indigenous Rights Working Group

This working group will prepare comprehensive research and advocacy documents regarding Indigenous peoples’ rights to substantive equality and self-determination/jurisdiction in child welfare service provision for the Chiefs of Ontario. The working group will organize and centralize relevant case law, statistics, statutory provisions, and other resources from the perspective of constitutional law and in congruence with all other relevant fields of law including international law, human rights law, and Aboriginal law. It will provide specifically focused and targeted arguments for policy change in the short-term while maintaining a broad long-term goal and vision of self-determination, substantive equality, resurgence, and healing for Indigenous communities.

Immigration and Refugee Law Working Group 

This working group will monitor, comment and provide research support for some of the current cases and ongoing broader legal advocacy issues in this field, for example, on indefinite immigration detention, on remedies for breaches of Charter rights of persons held in immigration detention, on Canada’s response to the influx of refugee claimants entering irregularly into the country and will provide research support for the lawyers representing the group of public interest litigants in challenging the constitutionality of the U.S./Canada Safe Third County Agreement.

Privacy Working Group 

This group prepared a policy submission in response to the government’s “Our Security, Our Rights: National Security Green Paper, 2016” as part of an ongoing consultation process on Canada’s national security framework by Public Safety Canada. The submission focused on warrantless access to basic subscriber information by the government. The group worked closely with Faculty members Kent Roach and Lisa Austin.

Environmental Law Working Group 

Following up on the work of the Environmental law working group from 2015-2016, this group assisted UTEA (the University of Toronto Environmental Action Group) to prepare and draft the legal arguments pertaining to intergenerational youth justice and climate change that formed part of UTEA’s advocacy document, entitled Give our Children A Future: the Moral and Legal obligation of the Government of Canada to act on Climate Change.