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Our Expertise

Constitutional Litigation

Our lawyers have an unmatched track record arguing constitutional cases, which frequently hinge on fundamental rights that are being litigated for the first time. Quite literally, our lawyers have written the leading textbook in the area, Constitutional Litigation in Canada.

We have argued a wide range of influential constitutional cases, shaping the interpretation and application of the framework for government powers and human rights, as enshrined in the Constitution and Canadian Charter of Rights and Freedoms. With longstanding associations with public interest groups like the Canadian Civil Liberties Association, we have acted for diverse clients—individuals, companies, Indigenous groups, and governments, as well as trade unions and professional regulatory bodies—advancing key rights issues pertaining to equality, freedom of association and expression, and Aboriginal rights.

Representative Work

  • On September 25, 2019 Richard Stephenson argued the appeal of R. v. Nugent in the Ontario Court of Appeal. The case is a Crown appeal of a stay issued by the Ontario Court of Justice (upheld on appeal in the Ontario Superior Court) because of a violation of s. 11(b) of the Charter of Rights and Freedoms of a prosecution of three employees under the Occupational Health and Safety Act.  The case is a leading authority of the decision of the Supreme Court of Canada in R. v. Jordan in the context of Occupational Health and Safety prosecutions in Ontario.

  • Tina Lie and Lauren Pearce represented the Scadding Court Community Centre in an intervention before the Supreme Court of Canada in R. v. Le (https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17804/index.do),
    a ground-breaking case in which the court addressed, among other things, the role of race in the test for psychological detention under section 9 of the Charter.

  • Andrew Lokan and Lorne Waldman of Waldman and Associates successfully represented Kazakh businessman Rustem Tursunbayev in securing the Federal Court’s largest-ever costs award in an immigration matter, after the Federal Court found that the Attorney General had unreasonably opposed Mr. Tursunbayev’s request for a stay of deportation proceedings against him, based on his claim that Canadian officials had committed an abuse of process in seeking his deportation to a country that uses torture.

    More details can be found here: https://bit.ly/2ZW6dAy

  • Don Eady, Nini Jones, Jodi Martin, Emily Home and Glynnis Hawe represented a group of intervenors who challenged the right of the Provincial Government to change the City of Toronto election ward boundaries in the midst of an election campaign.  They were successful at the first instance.  See http://canlii.ca/t/httrh. That decision was stayed by the Court of Appeal.  See  http://canlii.ca/t/hv54t.  The appeal before the Court of Appeal is ongoing and will be heard by a 5 member panel of the Court of Appeal on June 10 and 11, 2019.  Paliare Roland represented the intervenors on a pro bono basis.

  • Andrew Lokan and Michael Fenrick are representing three migrant farm workers who are trying to increase the constitutional protections afforded to workers employed in Ontario through the Seasonal Agricultural Workers Program.

  • Andrew Lokan and Lindsay Scott represented the Congress of Aboriginal Peoples and individual litigants in Daniels v. HMQ at the Federal Court, Federal Court of Canada, and the Supreme Court of Canada. The SCC upheld the trial decision in favour of the Congress of Aboriginal Peoples, affirming that the Federal Government is constitutionally responsible for approximately 600,000 Métis and Non-Status Indians, under s. 91(24) of the Constitution Act, 1867.

  • Linda Rothstein, Andrew Lokan and Michael Fenrick represented the Canadian Civil Liberties Association in R. v. Bedford2012 ONCA 186 in which the Ontario Court of Appeal struck down substantially all of the Criminal Code provisions regulating prostitution in Canada.

  • Andrew Lokan, Massimo Starnino and Michael Fenrick represented the Foundation for the Advancement of Investor Rights in the Reference re Securities Act2011 SCC 66 respecting the constitutionality of proposed federal securities legislation.

  • Ian Roland and Michael Fenrick appeared at the Supreme Court of Canada in the appeal of Fraser v. Ontario (Attorney-General)2011 SCC 20 on behalf of the interveners, the Canadian Police Association (CPA). The CPA supported the Appellant’s position that s. 2(d) of the Charter protects a process of collective bargaining that includes a dispute resolution mechanism.

  • Michael Fenrick was co-counsel to Professor Kent Roach of the University of Toronto, Faculty of Law on behalf of the British Columbia Civil Liberties Association in the first three appeals to be heard by the Supreme Court of Canada respecting the constitutionality of the anti-terrorism offences in the Criminal Code.

  • R v. Nasogaluak2010 SCC 6 where Andrew Lokan and Danny Kastner represented the Canadian Civil Liberties Association at the Supreme Court of Canada and successfully argued that sentence reductions, even below mandatory minimum sentences, ought to be available as a remedy for unconstitutional state conduct in the criminal justice process.

  • Ian Roland, Jean-Claude Killey and Michael Fenrick acted on behalf of the intervener, the Canadian Police Association, in the Mounted Police Association of Ontario’s successful Charter challenge of the statutory exclusion of RCMP officers from collective bargaining legislation in Mounted Police Association of Ontario v. Canada (Attorney General)2009 CanLII 15149 (Ont. S.C.). The Attorney-General of Canada’s appeal was heard by the Ontario Court of Appeal.

  • Ian Roland, Emily Lawrence and Danny Kastner intervened on behalf of the Ontario Police Association in R. v. McNeil2009 SCC 3, the Supreme Court’s most recent consideration of third-party disclosure obligations.

  • In R v. Ferguson2008 SCC 6, Andrew Lokan and Nini Jones represented the Canadian Civil Liberties Association at the Supreme Court of Canada and argued that mandatory minimum sentences for unlawful act manslaughter violate s.12 of the Charter, and that constitutional exemptions may be an appropriate remedy where the mandatory minimum would result in a grossly disproportionate sentence.

  • In 2011, Andrew Lokan and Jodi Martin acted for the Canadian Civil Liberties Association as interveners before the Federal Court in a constitutional challenge to the hate speech provision (section 13) of the Canadian Human Rights Act. The decision in Lemire v. Canadian Human Rights Commission is pending.

    In 2011, Andrew Lokan and Jodi Martin appeared at the Supreme Court of Canada, on behalf of the Canadian Civil Liberties Association, in Saskatchewan Human Rights Commission v. William Whatcott. The CCLA supported the respondent’s position that section 14 of the Saskatchewan Human Rights Act violates section 2(b) of the Charter. Andrew Lokan also appeared twice at the Saskatchewan Court of Appeal in Whatcott v. Saskatchewan Association of Licensed Practical Nurses2008 SKCA 6 and Whatcott v. Saskatchewan (Human Rights Tribunal)2010 SKCA 26.

  • Rob Centa was involved in the successful challenge to the constitutionality of the federal security certificate regime, on behalf of our clients the International Human Rights Clinic at the Faculty of Law, University of Toronto and Human Rights Watch, who intervened before the Supreme Court of Canada in the CharkaouiHarkat, and Almrei2007 SCC 9 cases.

  • In Broomer et al. v. Ontario, Rob Centa represented the CCLA in a constitutional challenge to the life-time ban on receipt of welfare benefits for individuals convicted of welfare fraud.

  • In Jehovah’s Witnesses v. Village of Lafontaine2004 SCC 48, Andrew Lokan and Megan Shortreed represented the Canadian Civil Liberties Association as an intervener at the Supreme Court of Canada in respect of a challenge to the decision of a municipality to deny permission to a religious group to build a church.

  • In Mussani v. College of Physicians and Surgeons of Ontario2003 CanLII 45308 (Ont. Div. Ct.), Linda Rothstein and Rob Centa acted for the College of Nurses of Ontario in successfully defending the constitutionality of legislation mandating the revocation of a health practitioner’s licence where the practitioner sexually abused a patient. The Ontario Court of Appeal upheld the legislation’s constitutionality in 2004 CanLII 48653 (O.C.A.).

  • In R. v. Malmo-Levine2003 SCC 74, Andrew Lokan and Andrew Lewis represented the Canadian Civil Liberties Association as an intervener at the Supreme Court of Canada in respect of a challenge to the criminal prohibition of the possession of cannabis.

  • In Dunmore v. Ontario2001 SCC 94, Chris Paliare successfully argued at the Supreme Court of Canada that the total exclusion of agricultural workers from Ontario’s collective bargaining regime contravened the Charter.

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Our Expertise

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Constitutional Litigation Lawsuits