This year our panels are:  

1. A Tale of Two Tests: Assessing Discrimination Under the Charter and the Ontario Human Rights Code

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Is there a merge ahead? Although the Supreme Court of Canada maintained that the protections offered by the Charter and the Code are substantially different, recent Supreme Court decisions have blurred this distinction. This panel examines the extent to which a harmonization of the two tests is likely,
and what the implications may be for equity-seeking groups, legal practitioners, community activists and students.

Panelists may cover the following topics:

  •     Has either discrimination test adequately addressed issues of Indigenous sovereignty?
  •     What are the notable differences between the Charter and Code discrimination tests?
  •     If this trend does occur, what strategies may be necessary for the protection of individual and group rights?
  •     Are certain groups more vulnerable to this trend than others?
  •     How can law students advance this trend through their academic research?
  •     Might this harmonization have ‘hidden opportunities’ for equity-seeking groups that have been underserved by both tests?

Panel Moderator: Horace Josephs, First Year Student, Osgoode Hall Law School 

 

2. Gender Expression and Trans Rights in Ontario  

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In June 2012, Ontario became the first major jurisdiction in Canada to pass a law integrating gender expression into its human rights code. The new law amends the Ontario Human Rights Code to extend protection from discrimination based on gender identity and gender expression. The passage of this law marked a major victory for human rights activists, and it is expected that other provinces will follow suit. This panel will discuss the efforts behind the passage of the bill and the role that different stakeholders played in this process.
Panelists may cover the following topics:

  • How was this major victory achieved?
  • What are the next steps for advocacy to advance trans rights in Canada?
  • What are the limits of rights-focused advocacy for social change?

Panel Moderator: Bruce Ryder, Professor, Osgoode Hall Law School      

 

3. Litigating Race in Ontario: Can the Living Tree Bear Fruit? 

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For decades, legal scholars have raised concerns about the ability of Canadian equality laws to adequately address racial discrimination in Canada. Very few racial discrimination cases are argued under s.15 of the Charter limiting the Supreme Court of Canada’s ability to provide direction to lower courts and tribunals. At the provincial level, a disturbing trend seems to be occurring in which racial discrimination cases are increasingly subject to judicial review exposing litigants to the possibility of adverse cost awards and decisions made by makers who do are unlikely to have legal backgrounds in anti-discrimination, equality or human rights law. This poses challenging questions for litigators, academics and community activists.

Panelists may cover the following topics:

  •     Why are racial discrimination cases still so difficult to win?
  •     What are the consequences of the few racial discrimination precedents?
  •     In the absence of racial discrimination precedents, what strategies can litigators, policy advisors, community activists and students deploy in order to advance equity?
  •     Can a white bench appropriately deal with racial discrimination?
  •     How can students contribute to research in this area?
  •     Compared to the US, ‘Canadian Racism’ is described as ‘subtle’. If this is an accurate characterisation, how should race discrimination tests be modified to appropriately identify Charter and Code violations?

Panel Moderator: Terry Wong, Second Year Student, Osgoode Hall Law School and President, Asian Law Students of Osgoode   

 

4. Thinking Positive: Does the Charter Promise Socioeconomic Rights? 

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In Gosselin v Québec (Attorney General), Arbour J wrote “this Court has consistently chosen to leave open the possibility of finding certain positive rights to the basic means of subsistence within s. 7. In my view, far from resisting this conclusion, the language and structure of the Charter – and of s. 7 in particular – actually compel it.”

In Gosselin
, Justice Arbour articulated an approach that has grown more forceful in the past decade through cases that have opened the door for recognizing positive socioeconomic rights, such as health care and housing. If we take seriously the rights to equality and to life, liberty, and security of person, the Charter may impose more than a negative obligation of non-interference with individuals’ rights and freedoms. Rather, the government may be constitutionally obliged to ensure its citizens have a basic means of subsistence.

Panelists will focus their discussion on the right to housing, which is currently being argued in the Ontario Superior Court in Tanudjaja et al. v Canada et al.

Panel Moderators: Laura Spaner and Lisa Wilder, Second Year Students, University of Toronto Faculty of Law

  

5. Reconciling with the Charter: Section 25 and Aboriginal Peoples' Constitutional Rights 

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What has the Charter done for Aboriginal peoples in Canada? Has it had the same impact for Aboriginal groups as it has for non-Aboriginal Canadians in terms of advancing individual rights, freedoms, and equality? The panelists will provide an overview of Charter cases that have affected Aboriginal peoples (such as the recent McIvor case that lead to changes in the Indian Act of who is entitled to status) and also engage in a discussion about the interaction between individual rights (as embodied in the Charter) and collective rights protected by section 35 of the Constitution Act, 1982, and the operation of section 25 of the Charter in that context.

Panel Moderator: Glenn Wheeler, Lawyer of Mi’kmaq heritage, Osgoode Alum, LLM Candidate at University of Toronto Faculty of Law 

  

6. Recent Changes to Legal Aid & Immigration and Refugee Law: Charter Implications 

 

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Within the last four months, significant and far-reaching changes have been made to both the legal aid certificate system in Ontario, as well as immigration and refugee law. Legal Aid Ontario will no longer provide certificates for claimants appealing negative Refugee Protection Division decisions. Furthermore, decreased Legal Aid funding comes at a time when eligibility tests already rule out many poor people due to outdated income eligibility limits and preclude those from qualifying for certificates unless they face almost certain incarceration. This shift in access to legal representation may result in increased incarceration rates, diminished ability to appeal and increased wait times for those awaiting hearings in detention centres.

Panelists may cover the following topics:

  •     What are the Charter implications for the changes to the Legal Aid system and Immigration and refugee law?
  •     What legal alternatives exist to offset the impact of these changes on the vulnerable individuals who are most affected? 

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