Disclaimer: As a student, the views in this article represent a combination of my own thoughts, references to the documents presented, and the decisions discussed. Since most of the cases are well known and easily accessible through a quick online search, I have chosen not to include a detailed summary of their facts. Many of the points shared reflect my personal interpretation of what was discussed during the conference. To avoid any misattribution, I’ve intentionally refrained from naming individuals, as these are my perceptions of the conversations that took place. That being said, I don’t claim these ideas as entirely my own. I encourage everyone to watch the full conference recording to fully appreciate the valuable insights and expertise of the speakers.
I recently had the opportunity to attend the OBA’s Annual Charter Conference (now in its 23rd year) for the first time, and there were several discussions that caught my attention. Here are four key highlights that emerged from the multi-session event that I felt would be of interest to students and new lawyers.
1. School Cases and the Charter
Three recent cases involving educational institutions were discussed, all touching on issues related to free speech, property rights, and privacy within the context of the Charter.
(a) The TMU Letter Case
Discussions centered around a case from Toronto Metropolitan University (TMU), and a pro-Palestine letter where an external report by The Honourable J. Michael MacDonald emphasized the importance of free speech in university settings. According to the report, "free speech must be highly protected and is fundamental in a university setting where students must be given a wide latitude to have critical discussions and express dissent,” and the report also pointed out “the lawyers involved in the case displayed the same kind of reaction that they had accused the students of: rushing to judgment, using insensitive language, and failing to acknowledge opposing viewpoints.”
(b) University of Toronto (Governing Council) v Doe et al, 2024 ONSC 3755
Another important case came from the University of Toronto, where protesters had occupied Front Campus. Justice Koehnen's decision on the case underscored the need for orderly use of public spaces, particularly when rights conflict. He explained that "in our society, we have decided that the owner of property generally gets to decide what happens on the property." This principle, according to the judgment, ensures that competing demands for space are managed without descending into chaos, noting, "if the protesters can take that power for themselves by seizing Front Campus, there is nothing to stop a stronger group from coming and taking the space over from the current protesters." In other words, allowing protesters to claim control over property could lead to what Justice Koehnen described as "a brutal free-for-all."
Justice Koehnen's remarks extended beyond just property law; they touched on broader concerns about order and fairness in society. "As passionate as we may be about alleviating human suffering around the world," he added, "depriving our fellow residents of green space accomplishes nothing."
(c) York Region District School Board v Elementary Teachers' Federation of Ontario, 2024 SCC 22
Privacy issues were front and center in this Supreme Court case. The ruling reaffirmed that employees of government or government-adjacent entities, such as school boards, enjoy Charter rights in the context of their employment relationships. Specifically, the right to be free from unreasonable search and seizure (under section 8 of the Charter) was a central issue. This case serves as a reminder that the Charter extends into the workplace, and public employees are entitled to privacy protections that cannot be disregarded by their employers.
2. Emergencies Act and Recent Decision
Another key point from the conference was the discussion of Canadian Frontline Nurses et al v Canada (Attorney General), 2024 FC 42. In this case, the Federal Court found that the government’s use of the Emergencies Act to stop the convoy protests in 2022 was unreasonable and violated Canadians’ Charter rights. While the protests were seen as a security threat, the Court ruled they didn’t meet the strict definition of a “national emergency,” which requires an urgent and serious danger that provinces can’t handle on their own.
The Court also said that some of the emergency measures went too far and infringed on Charter rights. By criminalizing the protests, the government violated freedom of expression, as even peaceful protestors were banned. The powers given to banks to freeze accounts and share private information were also ruled as unreasonable, violating the right to protection from unreasonable search and seizure. These measures weren’t narrowly enough tailored to be justified under section 1 of the Charter, which allows limits on rights if those limits are reasonable in a democratic society.
3. Engaging with the public and the court of public opinion
Several speakers also emphasized the importance of engaging with the public when legal issues are discussed. They pointed out that when a legal matter becomes public, it often creates a gap in understanding, and if legal professionals don’t step in to provide accurate information, there’s a risk that misinformation will take its place. This highlights a professional responsibility to educate the public about Charter rights and other legal issues as they arise. Sharing reliable, clear information on websites and social media is crucial so that people have trustworthy sources to turn to.
4. Recent Cases to Look At, Cases to Watch, and Those Denied Leave
Key Decisions:
- R v Zacharias, 2023 SCC 30
- R v Bertrand Marchand, 2023 SCC 26
- R v Edwards, 2024 SCC 15
Cases Denied Leave by the Supreme Court:
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Canada v Boloh 1(a), 2023 FCA 120
- Peterson v College of Psychologists of Ontario, 2023 ONSC 4685
Upcoming Cases to Watch:
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John Howard Society of Saskatchewan v Government of Saskatchewan (Attorney General for Saskatchewan), SCC Case Number 40608
- Mikhail Kloubakov, et al. v His Majesty the King, SCC Case Number 41017
A final call for action
In times of polarization, it’s crucial to remember that the law serves everyone equally. As advocates, you may find that you don't personally sympathize with a particular cause. However, your role as a lawyer is to uphold due process and ensure that legal principles, including judicial independence, are respected. Upholding the administration of justice is not just a professional duty; it is a commitment to the integrity of our legal system and to the individuals it serves.
About the author
Claudio Klaus is a Global Professional Master of Laws (GPLLM) student at the University of Toronto. He clerked for a justice at the Roraima, Brazil, Court of Appeal and externed at the Arizona Supreme Court. He has also been a research trainee at Osgoode Hall Law School. Claudio is an active member of the Brazil-Canada Bar Association, the J. Reuben Clark Law Society, and the Ontario Bar Association. He is the founder and host of the Studying Law Around the World podcast.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.