Osgoode Hall Law School, York U. Academic Director, Anti-Discrimination Intensive Program. Director, Clinical Legal Education. Constitutional law, human rights.
Breaking: Justice Belobaba finds
#bill5
breaches s.2(b) of the Charter, and has not been justified under s.1. Declared of no force and effect effective immediately. October 22nd election will proceed as scheduled but with 47 wards, not 25.
Petition e-4649 asking that Canada demand an immediate ceasefire has surpassed 250,000 signatures. If you are a Canadian resident and citizen, please consider signing before the petition closes on November 23rd.
It does all this for no good reason; it is perfectly possible to achieve a reasonable balance between parental rights and children’s rights on this issue. The government hasn't bothered even trying. A sad and shameful day in Saskatchewan.
Today the Osgoode Hall Faculty Association issued a statement calling on the law school and university administrations to defend academic freedom, university autonomy and freedom of expression
The Saskatchewan government today introduced Bill 137, the Parents' Bill of Rights. If passed, the bill will enact the government's policy requiring parental consent to students under 16 using their preferred names and gender identities at school.
The bill forces a cruel choice on students under the age of 16 who are not comfortable coming out to their parents about their gender identities: hide your gender identity at school or be forced to come out to your parents.
Bill 5, the so-called "Better Local Government Act, 2018" , introduced in the Ontario legislature today, is an outrageous attack on democracy at the municipal level.
It also overrides all of the rights protected by the Saskatchewan Human Rights Code and contains provisions seeking to protect the government from lawsuits seeking indemnification for the harms it knows this legislation will cause.
The government is also ignoring the recommendations made by Lisa Broda, the province’s Advocate for Children and Youth, in her report finding that the policy violated the Charter, the Human Rights Code, and the Convention on the Rights of the Child.
Since we’ve heard a lot of misinformed or misleading commentary about the Trans Mountain Expansion Project (TMEP) this week, it seems it might be helpful to clarify the situation regarding the constitutional division of legislative powers in relation to interprovincial pipelines.
Statement in defence of academic freedom
@YorkUniversity
decrying the drastic action initiated by the university administration against the elected leaders of student unions aimed at suppressing their freedom of expression
A strong argument thus exists that Bill 5 by proposing to fundamentally transform Toronto’s City Council with no consultation, in the middle of an electoral process, shows a serious disregard for the constitutional principle of democracy, one that the courts will not countenance.
Very pleased to hear about this application for judicial review, led by
@ONPlace4All
and the brilliant team at
@PaliareRoland
. Is the West Island redevelopment a govt proposal that needs to be subject to the Environmental Assessment Act? The application makes a strong case it is.
You know there are serious rule of law problems in Ontario when constitutional law nerds are spending the day trying to find the orders that changed the law in the province first thing this morning.
How disgusting to see a Minister of the Crown claim to be respecting the people while rushing
#bill31
through debate in the middle of the night to override the fundamental freedoms in the Charter. A government that refuses to hear from the people is not respecting the people.
"The enactment of provincial legislation radically changing the number and size of a city’s electoral districts in the middle of the city’s election is without parallel in Canadian history.... changing the rules in the middle of the game is profoundly unfair." (paras 6-7).
The parental consent requirement is set out in s.197.4(1). It contains a notwithstanding clause overriding the rights protected by s.2 (fundamental freedoms), 7 (life, liberty and security of the person) and 15 (equality rights) of the Canadian Charter of Rights and Freedoms.
Judges should generally show restraint and deference to legislatures. Judicial "umpire" should intervene only when government "has clearly crossed the line." (para 8). "The Province has clearly crossed the line." (para 9)
Rising antisemitism is a huge and terrifying threat at the moment. So is rising Islamophobia. So is the existence of a murderous and hateful group like Hamas. So is the extreme ethnonationalism of the current Israeli government.
The court found () in clear and compelling reasons that the SK policy was hastily adopted w/o evidence & risks causing serious harm. If the govt really thinks the policy is justifiable, it could make the case in court. They won't because they can't.
The CBA is deeply concerned by the announcement made yesterday by Saskatchewan premier Scott Moe regarding the invocation of the notwithstanding clause to override a judge’s decision to pause the implementation of the Parental Inclusion and Consent Policy:
Kudos to Belobaba J for calling out the government so clearly on the frailties of the arguments they offered in support of this legislation. Populist bluster unsupported by evidence won't serve in court to justify infringements of Charter rights and freedoms.
Bill 5 substantially interfered with candidates' and voters' freedom of political expression protected by s.2(b) of Charter. Evidence presented to court by the government did not amount to a justification under s.1. The city has 47 wards until a valid law says otherwise.
The gutting of tribunals by the
@fordnation
government in the past 2 years seriously undermines the rule of law & access to justice. Among the hardest hit: Human Rights Tribunal (from 57 to 22 members); Environmental Review Tribunal (12 to 4); Social Benefits Tribunal (38 to 21).
Tribunal Watch Ontario released a Statement of Concern recently about Tribunals Ontario and a growing & serious problem - this includes the Human Rights Tribunal of Ontario. Click the link (not the picture) to read.
#humanrights
#SocialJustice
#Lawyer
Anyone know which "people"
@fordnation
is "for"? Apparently not investors, workers, refugees, social assistance recipients, Torontonians, Tesla buyers, those who want up-to-date inclusive sex ed, those who care about the Charter of Rights or the future of the planet. Who then?
Here's a sneak peak at my column in this Saturday's Toronto Star about how the Ontario government has undermined securities regulators and investors. via
@torontostar
Working out such fraught and high-stakes issues in a complex federation in a manner that respects the rule of law and democracy at all levels can be time-consuming, costly and frustrating. But it does not qualify as a “constitutional crisis”, imho.
... (ii) because Bill 5 almost doubled the population size of City wards from an average of 61,000 to an average of 111,000, it breached the municipal voter’s right to cast a vote that can result in effective representation.
AG
@C_Mulroney
says the government is invoking the notwithstanding clause because "time is of the essence". Nonsense. The government created a democratic crisis by introducing Bill 5 in mid-campaign and has compounded it by introducing
#bill31
. Easy solution: withdraw the bill.
Minister
@SteveClarkPC
opens the midnight session of the Ontario legislature repeating the rationales for forcing an unfair election on Toronto in mid-campaign (efficiency, voter parity, dysfunction) that didn't stand up in court because there was no evidence to support them.
Terrible. Do we or do we not stand for a rules-based international order? What credibility does the Canadian government have condemning violations of international law if it does so selectively?
@BobRae48
As the UN General Assembly declares that Israel's settlements "are illegal and an obstacle to peace" and demands that Israel accept applicability of the Fourth Geneva Convention on occupation, the only no votes are the US, Canada, Hungary, Israel, and three small island states.
Breaking: 5-2 ruling of
@SCC_eng
declares unconstitutional the provisions of the Canada Elections Act that limited the voting rights of non-resident citizens. Chief Justice Wagner wrote principal majority opinion. Rowe J concurred in separate opinion. Côté and Brown JJ dissenting
Bill 5 breaches s.2(b) in two ways: (i) because it was enacted in the middle of an ongoing election campaign, it breached the municipal candidate’s freedom of expression and....
In 1947, the Saskatchewan government led by Premier Tommy Douglas introduced the Saskatchewan Bill of Rights Act, the first law of its kind in Canada protecting civil liberties and prohibiting discrimination.
After giving Belobaba J's compelling
#bill5
opinion and government's options careful consideration for mere hours, the Premier makes the worst possible decision. The Ontario legislature will set a horrible precedent if it invokes s.33 to force a deeply flawed election on Toronto.
Issue: does changing ward boundaries in mid-campaign substantially interfere with candidates' freedom of expression? "Perhaps the better question is 'How could it not?'". (para 28)
By disrupting democratic institutions and electoral boundaries with no consultation in the middle of the 2018 election process for Toronto City Council, Bill 5 shows contempt for democracy as a fundamental principle of the Canadian constitution.
Does the entire Conservative caucus really not understand that democracy entails a fair electoral process? Has it really escaped their attention that a City Council elected through a deeply flawed process will have a serious lack of legitimacy?
Difficult to argue that a denial of government funding interferes with freedoms of religion or expression in s.2 of the Charter, since the courts have defined them in purely negative terms – they prohibit state interference but don’t require state assistance.
We should all share the concern of UN experts that criticism of the Israeli government is being "misleadingly equated with support for terrorism or antisemitism. This stifles free expression and creates an atmosphere of fear to participate in public life."
The government sought no mandate for this bill, engaged in no consultation, is shutting down public debate, and is holding a midnight session aimed at passing the bill as quickly as possible. This is a far cry from seeking a balance between the people's wishes and the Charter.
While the province has broad jurisdiction to enact laws in relation to municipalities, two constitutional deficiencies of Bill 5 stand out: "The first relates to the timing of the law and its impact on candidates; the second to its content and its impact on voters." (para 19)
Not only that,
#bill5
also "undermined an otherwise fair and equitable election process." (para 34) Electoral fairness is a fundamental value of democracy, connected to political equality of citizens. Requires that candidates have fair opportunity to present their positions. (35)
The decline of the Human Rights Tribunal of Ontario: "the only action the Ford government has taken with respect to the human rights enforcement process is to weaken its leadership and deprive it of expertise", write Raj Anand, Ron Ellis and Kathy Laird
@LegalTakes
Plenty of evidence that the govt didn't try to devise reasonable and justifiable limits on rights. Hastily adopted with no consultation. Offered no useful evidence in court. Didn't bother studying Justice Megaw's careful opinion. Ignored the recommendations of the Child Advocate.
In a unanimous opinion released today, co-authored by Sharpe and Juriansz JJA, the ONCA found that awards of Charter damages were "appropriate and just" in Brazeau and Reddock, two class actions on behalf of federal prisoners placed in solitary confinement
@OsgoodeNews
I'm heartbroken to learn of Peter's passing. A brilliant scholar, a warm and wonderful person, a kind and generous mentor. I will always be grateful for and inspired by Peter's kindness and extraordinary contributions to Canadian constitutional law scholarship.
But I believe it would require respect for municipal electoral processes already under way and might also require consultative processes commensurate with the magnitude of the changes proposed.
How impoverished public debates have been on issues of racism and discrimination during this campaign! Seems like
@ShachiKurl
made the mistake of highlighting a discriminatory law. She should have followed the Canadian tradition of pretending it away. Exclusion, what exclusion?
Excited for our amazing colleague
@LorneSossin
as he moves on to this next chapter. Terrific news for the quality of justice and the development of the law. We'll sorely miss Prof. Sossin's contributions to
@OsgoodeNews
&
@YorkUnews
. Hoping Justice Sossin will return frequently.
The Osgoode community is immensely proud of Lorne Sossin, Professor & former Dean (2010-18), who has been appointed a judge of the Ontario Superior Court of Justice in Toronto. Congratulations, Justice Sossin!
Justice Martin is a terrific addition to the Court. But this is a stunning missed opportunity. Incomprehensible failure to apprehend most urgent priorities. The Ktunaxa ruling this fall was yet another stark reminder of how desperate the need is for an Indigenous voice on the SCC
The Indigenous Bar Association is disappointed by Prime Minister Justin Trudeau's failure to nominate an Indigenous candidate to the Supreme Court of Canada
#SCC
. See our press release.
Kent Roach of
@UTLaw
makes a strong case against peremptory challenges to prospective jurors. A jury without Indigenous representation in the trial of Gerald Stanley is a disgrace. So is the fact that final appeals lie to an all white Supreme Court of Canada.
That was in 1997. A year later, in 1998, the Supreme Court of Canada in the Secession Reference stated that democracy is a fundamental unwritten principle of the Canadian constitution, that binds all governments and legislatures.
Agreed that there should be an investigation into whether
@fordnation
,
@steveclark
or other public officials have committed the offence of breach of public trust (using a public office for a corrupt purpose), contrary to s.122 of the Criminal Code.
The Ford Government should be under police investigation. It is not possible to believe that these land speculators paid tens of millions for land that could not be developed without knowing the greenbelt protections would be removed. Criminal.
Arundhati Roy: "If we allow this brazen slaughter to continue, even as it is livestreamed into the most private recesses of our personal lives, we are complicit in it. Something in our moral selves will be altered forever." via
@lithub
AG
@C_Mulroney
claims that using the notwithstanding clause is necessary to allow the provincial legislature to determine the size of City Council. She hasn't explained why she needs to do it in the middle of an election campaign to force an unfair election on Toronto.
Because
#bill5
took effect in mid-election, candidates deprived of a reasonable opportunity to present their positions. By radically redrawing electoral districts in the middle of the electoral process, Bill 5 "undermined the very notion of a 'fair and equitable' election." (36)
This speech by
@JillDunlop1
, Ontario's Minister of Colleges and Universities, spreading misinformation, targeting and naming students and professors, and insisting they be punished, is pure McCarthyism.
Our government has been abundantly clear on our position regarding celebratory statements on the killings of Israeli civilians by Hamas terrorist groups, they have no place in Ontario and certainly not in our postsecondary institutions.
The answer is no, because governments and legislatures are bound to comply not just with limits on their powers written in the text of the constitution, but also with unwritten constitutional principles, like the principle of democracy.
Bottom lines: 25 ward election in Toronto on Oct 22.
#bill31
will be withdrawn. The notwithstanding clause is back in the closet, for now. The appeal to the ONCA looms. This might end up at the SCC, where I expect Belobaba J's opinion will receive more respect than it did today.
@YorkUniversity
This proceeding initiated by the administration of my university against the student leadership of
@YFSlocal68
,
@YUGSA84
and the Glendon College Student Union is troubling for a host of reasons.
Another comprehensive victory for labour rights from the ONSC today: in ATU Local 113 v Ontario, Justice Chalmers found that the TTC Act, by removing the right to strike and substituting binding arbitration, unjustifiably infringed s.2(d) of the Charter:
"There can be no doubt on the evidence before the court that Bill 5 substantially interfered with the candidate’s ability to effectively communicate his or her political message to the relevant voters." (para 32)
No guarantee of the existence of municipal government. No guarantee of a right to vote in municipal elections. But once municipal vote has been extended, it must be provided in a manner that is consistent with and not in breach of the Constitution. (paras 48-51)
Congratulations to
@sroshhassan
, Emily Kim, Frank Nasca, Jashandeep Kaur Mavi and Michael Smith of
@OsgoodeNews
and coaches
@esicodjoe
, Sharon Stewart Guthrie and Shannon Sproule for winning the best team award
@blsaisaacmoot
Such a pleasure to work under the extraordinary leadership of
@DeanSossin
over the past 8 years. As he steps down today as Dean of
@OsgoodeNews
, we all owe him an enormous debt of gratitude. The law school has never been stronger or the future brighter. Thank you Lorne!
Unfortunately the Canadian constitution does not yet protect municipal governments. They are creatures of provincial legislation passed pursuant to s.92(8) of the Constitution Act, 1867. Provincial laws create municipal institutions; they can also transform them.
I'm happy to offer free Constitutional Law 101 course if any Ford government Cabinet members are interested. Thinking it might help save some taxpayers' dollars.
Congratulations pouring in for Professor Mary Condon who was appointed Dean of Osgoode today for a four-year term starting July 1, 2019. Professor Condon has served as Interim Dean of Osgoode since May 1, 2018.
The disturbing breakdown of access to justice at the Human Rights Tribunal of Ontario highlighted by
@AmiraElghawaby
in this excellent piece, drawing on a paper written by Frank Nasca in the
@OsgoodeNews
Anti-Discrimination Intensive Program
But do these gaps in the 1867 and 1982 constitutions mean that provincial legislatures are free to transform municipal institutions as they see fit, without any constitutional constraints? Does local democracy exist in a complete constitutional vacuum?
Packing up for move into new office down the hall. Unearthing memories, feelings and artefacts from long ago. Can’t bear to lose this collection of floppy disks from circa 1994.
Justice Belobaba had no difficulty concluding that candidates' freedom of expression infringed by
#bill5
. (para 38) He then moved on to consider infringement of municipal voters' freedom of expression.
Tomorrow the government of Premier Moe will introduce Bill 137, the Parents Bill of Rights Act. Far from being inspired by the legacy of Tommy Douglas, its title and contents are taken straight from a wave of similar laws passed by Republicans in Congress and state legislatures.
Thanks to
@queensulaw
Professors
@coleenlisa
and Lisa Kelly for this timely reminder of why questions of power and justice are properly central to legal pedagogy and scholarship.
"Calls for a return to legal formalism – a legal education free of politics – are themselves deeply political. Stripping law of context allows supporters of the status quo to portray legal rules as neutral or apolitical."
Good questions from
@acoyne
: "Do we want to live in a country in which people can be fired from their jobs because of their religious beliefs? In which important positions in the public service are off limits to members of religious minorities? How can we possibly?"
Congratulations to
@OsgoodeNews
team and coach Professor Jamie Cameron for winning Americas Round of Price Media Law Moot today
@CardozoLaw
. L-R: Matthew McLean, Alana Robert, James Shields and John Justin (absent: Bailey Fox). Next stop: Oxford for International Round in April.
Disgusted by this US veto of a resolution calling for a ceasefire and return of all hostages. If Canada were a member of the Security Council, our government’s voting record in the General Assembly suggests we would have voted with the US. Appalling.
#BREAKING
United States vetoes Security Council draft resolution that would have demanded an immediate humanitarian ceasefire in Gaza, and immediate and unconditional release of all hostages
VOTE
In Favour: 13
Against: 1 (US)
Abstain: 1 (UK)
Potential legal challenges to Ford government’s plan to drastically alter Toronto City Council in mid-election explored by
@jpags
, with comments from
@CraigScottCA
and
@bbryder
of
@osgoodenews
Excellent piece by the incomparable
@blberger
of
@OsgoodeNews
on Quebec's egregious
#bill21
: "the attempt to remove religion from the public sphere inexorably puts the state up to its elbows in matters of religion."
What a disheartening display at the legislature last night by
@fordnation
,
@C_Mulroney
,
@SteveClarkPC
and their caucus colleagues. Government by bullying, bullshit, contempt for the Charter, and contempt for democratic process. Can it get any uglier? I fear it can with this crew.
Justice Belobaba says yes, the importance of effective representation transcends s.3 of the Charter (which does not apply to municipal elections). It should also inform the interpretation of s.2(b), in light of the close affinity between political expression and the right to vote
Belobaba J emphasized the importance of the right to vote in our democracy. Voting is an expressive activity. The essence of the right to vote is "effective representation". Can this idea, developed in case law under s.3 of the Charter, apply to municipalities through s.2(b)?
Celebrations ahead of the many contributions of
@ParkdaleLegal
to the communities it serves and to experiential education
@OsgoodeNews
over the last half century. The early history of the clinic is documented in this special issue of the
@OHLJ
:
Exactly 50 years ago today, on September 1, 1971,
@ParkdaleLegal
opened its doors to the community and thus becoming the first community legal clinic in Canada.
Another unfortunate gap in our constitution is that citizens’ right to vote and run for elected office, set out in s.3 of the Charter of Rights and Freedoms, applies only to elections for the House of Commons and provincial legislatures. Municipal elections are not mentioned.
Attorney General
@C_Mulroney
defended the move by saying "s.92 of the Constitution Act, 1867 makes it clear that the Province has exclusive jurisdiction over bike lanes. It's why we're eliminating bike lanes in Toronto to deliver on our commitment to higher carbon emissions."
Of course, the legal issue is whether the Law Society's policy reflects a reasonable balance between two constitutional rights. The shameful part of this saga, imho, is the failure of many opponents of the policy to give any serious weight or consideration to the equality issues.
The democratic principle includes respect for democratic processes and for democratic institutions that enhance the participation and representation of the people. See paras 61-69 of the Secession Reference:
Very pleased that
@yorkuniversity
has joined other Ontario universities in adopting a vaccine requirement for participation in on-campus activities this fall. The right thing to do as evidence mounts that vaccination reduces the risk of infection, illness and transmission.
#YorkU
will require all community members and visitors on our campuses this fall to be vaccinated against COVID-19. More information will be shared in coming days. |
#YUBetterTogether
Read the full statement from
@YorkUPresident
:
Our classrooms at Anishinaabe Law Camp. Thanks to all
@OsgoodeNews
and Neyaashiinigmiing who made this memorable weekend full of love and learning possible.