'Extraordinary people bring the Charter to life'
By David Baldridge (JD 2023)
As we mark the 40th anniversary of the Canadian Charter of Rights and Freedoms, many commentators will surely recount familiar anecdotes about the negotiations and controversies that surrounded its enactment, express concern about recent political controversies concerning the Charter, or simply reflect on the practical force the Charter has had in protecting and expanding the rights of the LGBTQ community, criminal defendants, and others over the last four decades. By working at the David Asper Centre for Constitutional Rights, I have come to firmly believe that beyond the history, politics, litigation that are predominant in discussion of the Charter, what makes the Charter live is the people who, in a variety of roles, work to defend and develop the Charter and the rights springing from it.
In my time at law school, I have participated in two of the Asper Centre’s programs — as a co-leader of a working group focusing on prisoner’s rights and as a student in the Asper Centre Clinic. In each of these programs, I got to know and interact with extraordinary people who fulfill a variety of roles in the Charter litigation process: clients, student colleagues, our instructors who maintain active careers as litigators, lawyers working for the government, the private sector, and in public interest practices, and even judges. I believe what makes these people so extraordinary are three things: the passion and innovative approaches they bring to their work, the standards and values they hold themselves to and which they have sought to impart to us, and the faith and support they provide to students to help prepare the next generation to take on the mantle of shaping the scope of the Charter’s development.
One of the defining features of the Asper Centre is its commitment to developing and supporting innovative approaches to Charter litigation. Consequently, through both the clinic and the working group I have had contact with lawyers who seek to use their practices to engage with the full intellectual potential of the Charter. I have also met lawyers who are working to expand the range of communities to whom the Charter affords protection, such as children, incarcerated individuals, and Indigenous people.
These interactions challenged my pre-conceived notions of how the Charter could be used as a tool for social justice and forced me to think harder and use a little more creativity when framing and developing Charter arguments. For example, in the clinic, we had the opportunity to hear alumnus Nader Hasan (JD 2006), Partner at Stockwood LLP and the Asper Centre’s Constitutional Litigator-in-Residence for 2020. He described his process for challenging a mandatory minimum sentencing provision in the Criminal Code in his successful litigation of R v Sharma before the Ontario Court of Appeal, on the basis of s.15 equality rights, rather than the more conventional criminal law rights.
In the clinic, our instructors Cheryl Milne, the Asper Centre’s executive director and Jonathan Rudin, program director and senior lawyer at Aboriginal Legal Services and an Asper Centre’s Constitutional Litigator-in-Residence for 2021, conveyed to us the importance of upholding professional standards and values both through explicit direction but also by means of example. From them, I learned the importance of treating everybody in the litigation process with respect — fellow (aspiring) lawyers and clients, of course, but also ourselves. With their help, I have begun to learn how to provide effective and constructive feedback to our colleagues, how to respectfully interact with public interest clients, especially those who come from vulnerable communities, and how to recognize when we were demanding too much of ourselves. Cheryl and Jonathan’s guidance helped us all develop key interpersonal skills for the effective practice of law but also served as an important reminder to look after ourselves – something very welcome and needed amid the constant stresses of law school. Moreover, their guidance also informed our conduct toward each other during the clinic; I was able to develop effective working relationships with several of my clinic colleagues with whom I was able to handle a high volume of rigorous legal research, writing and other practical tasks in support of the Charter challenge to Canada’s minimum voting age on behalf of a group of youth from across the country.
Clinical legal education could not function without the nexus of trust, faith, and support from numerous members of the legal community in which clinics presently operate. The very premise of a clinic staffed by law students embodies the trust and faith shown by supervising lawyers and clients that the students will be able to produce genuine legal work of a satisfactory quality. In turn, the students trust that they will be given the space they need to develop vital legal skills and gain an understanding of the practical realities of litigation. What underlies this trust is support – from the instructors to the students, and from the broader legal community to the clinic in general.
This extraordinary generosity clearly emerges from the realization of the other two factors, representing a culmination of the passion, commitment to fostering innovation, and a desire to uphold and promote high standards of professionalism and robust and dynamic Charter values, fully revealing how a legal clinic can only exist as one node in a vast network.
The legal profession is often described as a close-knit community; if this this is the case, then surely the public interest law community is even more closely knit. The benefits of this community are exemplified by my experiences at the Asper Centre and the supportive environment it provided to me in starting to develop a career in public interest law. Without tireless advocacy, constant innovation, and a commitment to effective mentorship of budding constitutional litigators, Charter rights would simply be words on a page and not a meaningful path to develop and fulfill the obligations of justice in our evolving society.
As we mark the 40th anniversary of the Charter, I question what this reliance on the determined work of a select group of extraordinary people says about Canada’s legal institutions and the state of public interest work in the legal community. However, this anniversary is also a time to celebrate these forceful defenders of our rights and liberties. The Asper Centre brings people together to facilitate this advocacy, innovation, and mentorship and thus stands as an example of how extraordinary people bring the Charter to life.
David Baldridge is a third-year law student at U of T.