Charter a path
In just over a decade, the David Asper Centre for Constitutional Rights has become 'a credible and important intervener and contributor to charter of rights thinking and advocacy' in Canada
By Paul Fraumeni
Elise Burgert likes to learn by doing.
While working toward a combined BBA in business and environment at Simon Fraser University, she began to wonder about the legal tools that could be used to promote more sustainable business practices. “I realized I needed to learn how the law worked and what lawyers can actually do."
When she became a student at the University of Toronto’s Faculty of Law in 2020, she volunteered to get involved with student working groups at the David Asper Centre for Constitutional Rights. Founded in 2008, the Asper Centre is one of the country’s preeminent hubs of expertise in promoting constitutional rights in Canada through a mix of advocacy, research and education.
The volunteer experience immersed Burgert in topics such as police oversight and Indigenous law. That gave her a good taste of how the law intersects with societal issues.
And then, in second year, she went deeper when she enrolled in Asper’s for-credit clinical course, a program that enables students to do essential research and background work when Asper’s scholar-lawyers are presenting information and opinions to the Supreme Court — intervening — on cases.
On her first day in the course, Asper Executive Director Cheryl Milne asked if any students were interested in helping out on a Supreme Court intervention that required a factum, a written argument for judges in appeal courts before a case begins.
“It was a fun and exciting way to start my legal career,” says Burgert, who’s now in third year. “That case was on legal standing, which I didn’t know anything about. So it was a great opportunity for someone like me, who like enjoys learning by doing and is comfortable with figuring things out as I go along. It was exactly the kind of experience I wanted from law school.”
Physically, the David Asper Centre for Constitutional Rights is a couple of offices in the Faculty of Law’s Flavelle House on U of T’s downtown campus.
But the influence of the Asper Centre goes far beyond this relatively small space.
Take the Bedford v Canada challenge to the Constitution of Canada as an example.
It was a story – and a court ruling – that grabbed the world’s attention.
In 2010, three sex workers, Terri Jean Bedford, Amy Lebovitch and Valerie Scott, argued to the Ontario Superior Court that Canada’s prostitution laws made it difficult for sex workers to engage in their trade safely.
Changing times were altering views on prostitution. So Justice Susan Himel wanted to take a fresh look at the issue, including an examination of what was happening in other countries, as many jurisdictions were easing prostitution laws.
After a year of study, Justice Himel issued her ruling.
As a Globe and Mail article stated, she "found current laws offer little protection. Her judgment pointed at evidence that established violence against sex workers is endemic – from a string of gruesome serial killings by Vancouver pig farmer Robert Pickton, to a rash of missing prostitutes in Alberta and frequent violence against sex trade workers in the Atlantic region.”
It was a ruling that rocked the country and sent the case to the Supreme Court of Canada.
The prostitution laws were, of course, the part of the case that got the most attention. But equally important was whether Justice Himel even had a legal right to take a refreshed look at the laws of the land.
At the core of the issue was stare decisis – what previous courts have decided cannot be changed.
At the Asper Centre, Milne and Joseph Arvay, at the time, the centre’s Constitutional Litigator-in-Residence, had been focusing a lot of their work on how constitutional litigation should be conducted. In examining the Canadian Charter of Rights and Freedoms, Milne and Arvay felt Himel did indeed have the right to do what she did.
They applied to the court to be intervenors in the hearing.
“The justices agreed with our assessment and quoted us. That’s rare and what you want as an intervenor. And I believe this case solidified that the Supreme Court sees the Asper Centre as being helpful and an important authority on constitutional matters."
In fact, this kind of advocacy was what inspired alumnus David Asper (LLM 2007) to make a gift of $7.5 million to launch the centre.
"At the time, funding for the Court Challenges Program of Canada program had been dropped by the Stephen Harper government. The program had existed since 1978 to provide financial assistance for cases relating to language and equality rights guaranteed under Canada’s Constitution.
“When that funding was cut, I was upset that marginalized and vulnerable people might not have the capacity to challenge state action that was arguably unconstitutional,” says Asper.
Asper understands how hard it can be to navigate the courts. His first major case was in representing David Milgaard, who had been sentenced to prison for the murder and rape of Gail Miller. Milgaard insisted he was innocent. Asper was a member of the legal team that got Milgaard exonerated from the crime, after he spent 23 years in prison.
Around this same time, Asper noted that then U of T Law professor Lorraine Weinrib (LLB 1973), now professor emerita, was running a seminar on constitutional rights and constitutional courts.
“It was a phenomenal course. And it really got me thinking. The court challenges program had been eliminated. And I thought, you take that down to the street level, to a real problem, what recourse does somebody have when things go wrong? Or what recourse does someone have where even where a wrong hasn't even been yet identified as being a wrong?”
Asper met with Mayo Moran (SJD 1999), then-dean of the Faculty of Law, and a few professors, exploring what they could do to address the issue.
“Eventually, we came to the idea of creating a centre focused specifically on constitutional rights, with advocacy very much part of the focus. Advocacy, combined with some of the top legal minds in both universities and the country seemed like a small, but good and meaningful thing to do. And then it started to take shape and Cheryl Milne really brought it to life.”
Today, the Asper Centre is comprised of a community of more than 20 legal scholars who explore the Constitution and the Charter of Rights and Freedoms from a dizzying array of angles – privacy, self-defence, the right to health, international law, human rights, to name only a few.
“There are other university of law faculties who do some clinical work and test case work,” says Milne, a lawyer (she originally worked in real estate law) who has been executive director since the centre was founded. “But there isn’t another in Canada with the same breadth as the Asper Centre. And that makes our centre unique. In addition to our clinical program and interventions, we run symposia, workshops, podcasts and a huge number of events, all exploring our rights as they relate to the Constitution. It takes a very generous donation to keep a centre this multifaceted running. And David Asper did that. He made this happen.”
Asper’s gift was good news to Nader Hasan (JD 2006), who practices criminal, regulatory and constitutional law at Stockwoods LLP in Toronto.
“I graduated from U of T Law in 2006, just before the Asper Centre got started. Our Faculty has always had a superb reputation for academic learning at a very high level, but when I was a student, there was a need for more clinical education. There wasn’t anything you could do in cutting edge constitutional law at that time. And that’s what the Asper Centre was meant to do and they certainly have become known innovative and important work. The centre has only been in operation for 12 years, but it has established an excellent reputation with Supreme Court, the Ontario Court of Appeal and other appellate courts.”
Nader was formerly Asper’s Constitutional Litigator-in-Residence and remains an adjunct professor, teaching a seminar on criminal law and punishment.
In working with the students, he’s seen how the Asper experience is “extremely valuable” to them.
“Many of them have a passion for constitutional law and for protecting the rights of the vulnerable and marginalized. They learn about these rights in constitutional law classes where they read cases and learn about how litigation works. This is valuable but it’s also quite academic. They’re itching to try to put their newfound knowledge to work. So if they’re lucky enough to be able to get into the Asper Centre, that experience is really their first opportunity to see those high-minded legal principles put into action and how it all interacts with on-the-ground strategy. And that’s essential learning for someone wanting to become a practising lawyer.”
It certainly was for Geetha Philipupillai (BA 2011, MA 2013, JD 2017).
“Being involved in the Asper clinical program allows you to see the law in action,” says Philipupillai, who practices employment law, civil litigation and class actions at Goldblatt Partners, a union side labour law firm.
As a clinic student, she was involved in a case where the Asper Centre was an intervenor. The counsel for the case was U of T alumnus Louis Century (JD/MGA 2013).
“It was really valuable to see Louis argue that case to the Supreme Court and to see some him deliver some of the strategies we had discussed while preparing the case. Having those experiences and seeing the lawyers at work and how they think about the problem and decide what position to advance to the court was really important to what I do now as a lawyer.”
And having that experience with Century, also a lawyer at Goldblatt Partners, paid off for Philipupillai in another big way.
“I work with Louis now and I think that’s because of the work I did on that case. When Goldblatt was hiring, he remembered me from that case. So that was a very important connection in my career.”
How does David Asper feel, 12 years after he announced his desire to fund the centre?
“I keep saying to Cheryl and all the team at the centre, it's just the most wonderful thing as a donor to be able to have the idea, talk it through, frame it, make the gift, and then hand it over to the faculty and staff and watch it grow. They've done an amazing job.”
Is he proud of anything in particular?
“There are lots of individual cases that they've participated in, but I think the bigger picture is that the centre has become probably the most credible and important intervener and contributor to charter of rights thinking and advocacy in the country. My hope is that students and scholars come through there and get a taste of what's going on and then take that with them as they progress through life, as advocates with a deep understanding of constitutional rights.”
Paul Fraumeni is an award-winning Toronto freelance writer and editor. To learn more visit his website: paulfraumeni.com