Great Expectations: The David Asper Centre for Constitutional Rights

On September 5, 2008 the David Asper Centre for Constitutional Rights was launched at the University of Toronto Faculty of Law.

The Centre is the result of a $7.5 million gift to U of T law school from their alumnus David Asper (LLM ’07). Mr. Asper is currently the Chair of the National Post newspaper, and also serves as vice-president of CanWest Global Communications. While working as a lawyer, Mr. Asper was successful as co-counsel in the David Milgaard wrongful conviction case Reference re Milgaard (Can.), [1992] 1 SCR 866.

The goal of the Centre is to articulate Canada’s constitutional vision to the broader world. To this end the Centre will focus on constitutional rights research and education. In the future, a legal clinic will be housed at the Centre to allow students, faculty and staff to work on significant constitutional cases.

Cheryl Milne was named the inaugural Executive Director of the Centre. Ms. Milne is the Chair of the Ontario Bar Association’s Constitutional, Civil Liberties and Human Rights section. Prior to her appointment to the Centre, Ms. Milne was counsel for Justice for Children and Youth’s constitutional challenge to section 43 of the Criminal Code, RSC 1985, c C-46, Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), [2004] 1 SCR 76, or the “spanking case” as it is more commonly known. More recently, she was involved in R v DB, [2008] 2 SCR 3 which involved a challenge to the constitutionality of the adult sentencing provisions under the Youth Criminal Justice Act, SC 2002, c 1.

Opening Colloquium – Strategies for a Successful Charter Claim

The topic of the September 5th opening celebration and colloquium was “Litigating the Charter: Strategies for a Successful Charter Claim in the 21st Century.” The first panel covered lessons learned from 25 years of Charter Litigation. Moderator Lorne Sossin, from the U of T Faculty of Law, had the unenviable task of guiding six panelists through a quarter century of Charter history in under an hour. Equality lawyer Mary Eberts identified poverty as a central barrier to vindicating Charter rights, pointing to the long, expensive and tortuous path to the Supreme Court of Canada (“SCC”).

The second panel, moderated by U of T law professor Carol Rogerson, considered new frontiers and strategies in Charter litigation. Steven Barrett, a labour and employment lawyer from Sack Goldblatt Mitchell LLP offered an account of his experience litigating Health Services and Support-Facilities Subsector Bargaining Assn v British Columbia, [2007] 2 SCR 391. In that case, the SCC ruled that Canadian workers and unions have a constitutional right to engage in collective bargaining. Mr. Barrett stated Health Services is an indication the SCC is willing to engage in labour and employment law under the Charter.

Several other frontiers of Charter litigation were explored during the second panel. Barbara Jackman warned of the ongoing deprivation of liberties for her clients, both Canadian citizens and immigrants, under the government’s security certificate process. Rabinder Singh Q.C., a distinguished lawyer from Matrix Chambers U.K, gave some examples of international reliance on SCC jurisprudence.

But what will the new Centre do?

In her closing remarks, Ms. Milne expressed enthusiasm about the breadth of opportunities afforded by the Centre, but also hinted that its precise mandate remains unclear. At present, she explained, in her capacity as Executive Director, she was primarily “directing herself.”

Many of the panelists lamented the cancellation of the Government Court Challenges Program, which funded individual’s Charter-based litigation against the government for equality and minority-language rights. Others felt Canada might require a specialized constitutional court, like some countries in Europe.

Mr. Asper, who had to depart before the event concluded, could not respond directly to these queries. However, he has stated since “We need another way to breathe meaning into the Charter by giving Canadians the ability to enforce it in the courts.” Furthermore, Asper recently provided some insight into his personal thoughts on the Court Challenges program. He criticized the Liberal party proposal to reinstate and then increase funding for Court Challenges. Instead, Asper advocated for a broadening of private funding for Charter litigation:

Without some alternative to the Court Challenges Program, most Canadians could simply not afford the cost of undertaking such cases. One option is to facilitate the private funding of agencies and interest groups for the purpose of monitoring and, where necessary, litigating against government. It may take a change in the tax laws that define the meaning of ‘charitable purposes,’ but why not create strong Canadian advocacy entities that are well-resourced through the donation of money and pro bono legal services?

Perhaps the David Asper Centre for Constitutional Rights, largely funded by a generous private donation, is the realization of Mr. Asper’s vision.