Thursday, November 14, 2013

By Vito Cupoli

“Constitutional rights seem like an obscure subject for most Canadians, until their own rights are adversely affected,” said alumnus David Asper, LLM 2007. Five years later, a clear picture emerged on Nov. 8, 2013 of the influence of the David Asper Centre for Constitutional Rights on the definition of rights in Canada. 

This influence, the key point of discussion at the Centre’s fifth anniversary symposium, has been felt in court and beyond, in a range of cases which reflect the issues of our times.

The Centre’s commitment to the pursuit of rights contained in the Charter of Rights and Freedoms has led it through an eclectic mix of cases involving polygamy, strip searches and the repatriation of Omar Khadr, among other topics. 

"We have established a unique legal clinic that brings together students, faculty and members of the bar to work on significant constitutional cases and advocacy projects,” said Cheryl Milne, executive director of the Asper Centre.

It must engage forcefully in reframing debate at times, ensuring that legal categories are not narrow but framed in a way that empowers democracy to work at its best. And I think that’s the way the Asper Centre should see itself; how can it be an agent for good democratic government for Canada.

Milne said it is a priority to select cases which will enrich the education of constitutional law students and the Charter rights of Canadians. “Advocacy, education and research complement each other,” stressed Milne, in a Centre "combining theory and practice.”

“It’s hands-on work,” said first-year law student Ada Keon, as she described her involvement with the privacy law working group at the Centre’s legal clinic. 

The symposium, held in the chapel at Victoria College, was divided into two panel discussions. The first dealt with how the Centre’s past legal interventions will influence future litigation, as the Charter enters its fourth decade at the centre of Canadian law. 

For instance, juries are a central feature of our legal system. After a set of cases argued by the Asper Centre, jurors are now guaranteed their privacy. In addition, background investigations of jurors have also been reined in. 

Panellist Joseph Arvay QC, the Centre’s first Constitutional Litigator in Residence, discussed two interventions at the Supreme Court dealing with legal precedents and standing when litigating Charter cases. 

The issue of precedent was found in Canada v. Bedford, a challenge to prostitution laws. Arvay and Cheryl Milne argued this issue of stare decisis, the impact of previously decided cases on lower court rulings when there is a material change in the social or legislative facts supporting the challenge. 

While the Court’s decision is still pending, Arvay said this issue is fundamental to the Charter’s status as a living document, able to protect rights in a changing social and legal environment.

In another case, AG Canada v. Downtown Eastside Sex Workers United Against Violence, the Centre strengthened its own hand and those of other third party litigants by successfully arguing that one need not have been personally injured by a decision in order to receive standing in court. The court responded by crafting a flexible standard for standing, the first change in this area of law in 20 years. This development effectively broadens the scope of Canada’s ongoing constitutional discussions. 

The symposium’s second panel dealt with cases from one of the Centre’s particular interests, remedies for violated Charter rights. 

In Ward v. Vancouver, a case arising from an illegal strip-search of a man suspected of preparing to throw a pie at then-Prime Minister Jean Chretien, the Asper Centre’s intervention produced a Supreme Court decision that monetary damages could be ordered for Charter violations. The $5,000 award has since been applied in other cases for damages.

This pursuit of remedies for Charter violations led to the Centre intervening for Omar Khadr, whose case is still winding through the courts as he sits in maximum security at a prison near Edmonton. 

When Khadr was held at Guantanamo Bay, US authorities permitted Canadian investigators to interrogate him owing to his birth in Canada. In spite of his citizenship, the Government of Canada violated his Charter rights in the process of questioning, then refused to request Khadr’s repatriation to Canada even though the Americans were urging Ottawa to file an application. 

In its 2010 decision, the Court found  Khadr’s rights had indeed been violated but it declined to order the government to bring him home, citing its exclusive responsibilities in foreign affairs. But it indicated a willingness to act if the government did not move on its own. 

While that was a disappointment, John Norris, who worked on Khadr’s legal issues for several years, said that the Court used this case to articulate a vital principle for protecting Charter rights. “The Court affirmed that it has a role to play in defining the constitutional limits to the exercise of executive government discretion.”

Keynote speaker Nathalie Des Rosiers, dean of the University of Ottawa Faculty of Law and former general counsel to the Canadian Civil Liberties Association, highlighted how the Asper Centre might position itself in the next five years. 

“It must engage forcefully in reframing debate at times, ensuring that legal categories are not narrow but framed in a way that empowers democracy to work at its best. And I think that’s the way the Centre should see itself; how can it be an agent for good democratic government for Canada.”