Our Public Law Group

The Public Law Group consists of experienced lawyers across Canada practicing constitutional, aboriginal and administrative law.  Being a national group, we are uniquely positioned to better serve our clients by drawing on the broad experience, knowledge and expertise of numerous individuals with diverse areas of focus.

Our Services

The Public Law Group advises public and private bodies faced with constitutional and administrative law issues, including: division of powers issues; issues associated with the Canadian Charter of Rights and Freedoms; aboriginal law issues; provincial and federal administrative issues; and applications for judicial review.  We also provide advice and litigation services regarding government contracts, trade law and government relations. 

Our Public Law Group is also committed to providing pro bono services for clients who wish to bring matters of public importance before the courts. 

Our Experience

Members of our Public Law Group have appeared before all levels of Court, including the Supreme Court of Canada, and have argued some of Canada’s leading constitutional, administrative and aboriginal cases.  Our members have written extensively on a vast array of public law issues and are frequently asked to speak on the latest developments in their respective areas of expertise.  In addition, members of the Public Law Group have taught and continue to teach courses in the areas of public and administrative law at Canada’s leading law schools. 

Our Areas of Expertise

Charter of Rights and Freedoms:

Charter litigation considers whether legislation and/or government action infringes a fundamental right or freedom guaranteed by the Charter.  This type of litigation often raises issues of the utmost importance to individuals or groups, particularly minority groups. 

Members of our team have been involved in several of the Supreme Court of Canada’s landmark Charter decisions, including:

• M. v. H., a section 15 case involving the equality rights of same-sex couples and the definition of “spouse” under Ontario’s Family Law Act;
• Chaoulli v. A.G. (Quebec), a challenge to restrictions on private health insurance based on both the Canadian Charter and Quebec Charter;
• Lavigne v. OPSEU, a freedom of expression case challenging the use by unions of compelled dues for political and ideological purposes;
• U.F.C.W. v. Kmart Canada Ltd., a case addressing freedom of expression and the constitutionality of restrictions on secondary picketing.

Members of the Public Law Group have also written extensively on Charter law.  For a list of these publications, click here.

Division of Powers:

Division of powers cases consider which level of government (federal or provincial) has jurisdiction to legislate in a given area.  Such issues can be crucial for businesses and individuals determining how to govern their affairs, and for the proper functioning of each level of government.

Leading Supreme Court of Canada cases that we have been involved in include:

• Reference re: Canada Assistance Plan, a case addressing the federal government’s obligations to help fund certain provincial programs and its ability to change funding agreements;
• The Firearms Act Reference, dealing with the federal government’s power to require gun licensing and registration;
• Burrardview Neighbourhood Association v. Vancouver Port Authority, a case addressing jurisdiction over “Navigation and Shipping” and “Public Property”.

Recent publications on this topic can be accessed by clicking here.

General Constitutional:

In some constitutional cases, neither the Charter of Rights nor federal/provincial issues are raised.  These “other” cases may address the proper role of government officials or consider the broad unwritten principles underlying the Constitution. 

We have acted in a number of different capacities on general constitutional issues including:

• Conrad Black v. Canada (Prime Minister), a case in which we acted for the Prime Minister and successfully protected his prerogative power to make decisions in respect of honours and foreign affairs without review by the courts;
• Edwards v. Canada (Attorney General), in which we acted for the Chief Justice of Canada in a successful motion to quash a subpoena served on him on the grounds of judicial immunity;
• we have advised the Prime Minister, various Ministers of the Crown, and senior government officials in respect of various issues relating to governmental power;
• we have provided advice on various issues relating to the Canada Elections Act.

Recent publications on this topic are available here.

Public Inquiries:

Commissions of Inquiry are called to address a particular incident or issue and provide an opportunity for key stakeholders to make submissions and have their voices heard.  A Commission’s work culminates in the issuing of a report and recommendations for the future. 

Members of the Public Law Group have participated in a number of Public Inquiries including:

• Arar Inquiry: This Commission of Inquiry considered the actions of Canadian officials in the treatment of Maher Arar, a Canadian citizen who was deported to Syria and detained there.  We acted as counsel to Commissioner O’Connor on the Policy Review aspect of the Inquiry’s mandate;
• Gomery Inquiry: This Commission of Inquiry considered issues arising out of the federal sponsorship program and advertising activities.  We acted for the Right Honourable Jean Chrétien and Jean Pelletier, his Chief of Staff;
• Walkerton Inquiry: This Inquiry looked into the contamination of the drinking water in the town of Walkerton, Ontario and into water safety more generally.  We acted as counsel to Commissioner O’Connor;
• Krever Inquiry into the Blood System: This Inquiry, under the direction of Commissioner Horace Krever, investigated issues arising from the contamination of the blood supply in the 1980’s as a result of infected donors of blood and plasma.  We acted for senior officials of the Canadian Red Cross;
• Commission of Inquiry into the Avalanche at Kangiqsualujuuaq: This inquiry looked into the circumstances surrounding the death of nine people in the avalanche that occurred in the Inuit community of Kangiqsualuguuaq in Nunavik, Quebec. 

For recent publications authored by members of our group in this area, please click here. 

Aboriginal Law:

The government’s relationship with Aboriginal persons is a matter that is increasingly the subject of litigation before the Courts or negotiation between parties.  Matters addressed include resource management, land claims and self-government for Aboriginal groups. 

Significant negotiations and Supreme Court of Canada cases that we have been involved in include:

• Wewaykum Indian Band v. Canada, a case addressing the fiduciary duty of the Crown and the creation of reserves;
• we have acted as counsel for an intervenor in a number of cases in respect of the Fisheries Act and its impact on aboriginal rights under the Constitution;
• counsel to the Assembly of First Nations as intervenors in R. v. Badger and Native Women’s Assn. of Canada v. Canada;
• we have acted as counsel to the federal government in land claim negotiations in the Yukon Territory.

Recent publications on this topic are available here.

General Administrative:

Administrative law cases address the state’s power in administering legislation and carrying out government policy.  Administrative litigation may involve representing a party’s interest before an administrative tribunal or statutory decision-maker, and may also include bringing matters to the courts for judicial review. 

Key cases that we have been involved in include:

• Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), a case before the Ontario Court of Appeal on the standing of administrative tribunals on appeals and judicial reviews, where we acted as counsel to the Information and Privacy Commissioner;
• Canada (Attorney General) v. Canada (Information Commission), a case before the Federal Court, where we were successful in quashing as a breach of freedom of expression rights as guaranteed by s. 2(b) of the Charter, a “gag order” issued by the Information Commission which had forbade witnesses before him from disclosing any information in respect of their testimony;
• we represented a Senior Advisor to the Privy Council office in challenging a portion of the Access to Information Act;
• we acted as counsel to the Ontario Flue-Cured Tobacco Board at the Ontario Court of Appeal and Divisional Court in a case involving administrative law principles of bias, judicial deference, standard of review and evidence;
• we have acted for various pension plan sponsors and administrators before the Financial Services Tribunal.

Recent publications in this area are available here.

Trade Law:

Trade law regulates the flow of goods in and out of the country as well as the interaction between government and private industry.  This area has become increasingly complex with the globalization of the economy. 

Trade litigation requires excellent negotiation and advocacy skills as well as a firm understanding of the treaties and regulatory schemes that govern trade in Canada. 

Our experience in this area includes: 

• appearing before the Canadian International Trade Tribunal on procurement complaints;
• appearing before the Federal Court of Appeal on procurement complaints;
• representing parties before the Canadian International Trade Tribunal on public interest reviews and dumping matters.

For recent publications on this topic authored by members of our team, please click here.

International Law:

Our team includes lawyers with expertise in public international law in its own sphere or in the interplay between Canadian law and public international law.  With the increasing relevance of international law in the life of nations, corporations and ordinary citizens, we are well-equipped to serve clients whose legal problems require solutions in the area of international law. 

Recent experience includes:

• Advice to a foreign embassy regarding the violation of its diplomatic shipment by the Canadian Border Services Agency;
• Advice to a Canadian company regarding the privileges and immunities of the United Nations;
• Advice to a Canadian national regarding the expropriation of his real property by a foreign government.

Recent publications on this topic are available by clicking here.

Other practice groups within the firm have significant involvement in different aspects of public law including: Appeal and Review Group, Environmental Law; Government Relations; Labour and Employment; Municipal Law; Municipal, Government and Police Liability; and Privacy and Access to Information.

Articles and Presentations

Charter of Rights and Freedoms:

• C. Bredt and L. Pottie, Liberty, Equality and Deference: A Comment on Colin Feasby's "Freedom of Expression and the Law of Democratic Process" Osgoode Hall Law School, 2004 Constitutional Case Symposium, April, 2005, now published in (2005), 29 S.C.L.R. (2d) 291;
• D. Crerar, “The Eyes and Ears of the Public: Media Access to Court Exhibits”, Masthead (22 December 2005);
• D. Crerar, “SCC Upholds open court principle on media reporting on proceedings”, Lawyers Weekly, No. 2524 (28 October 2005);
• F. Kristjanson, “Ontario Public Hospitals and the Chaoulli Decision”, paper and speech presented at the Ontario Hospital Association Board Leadership Conference, Toronto, October 1, 2005.
• C. Bredt, Recent Development and Emerging Issues in the Interpretation of Section 15 of the Charter, Federal Court and Federal Court of Appeal Education Seminar, September, 2004.
• C. Bredt and A. Dodek, “Breaking the Law's Grip on Equality:  A New Paradigm for Section 15,” Osgoode Hall Law School, "2002 Supreme Court Constitutional Cases Symposium", April 2003; (2003), 20 S.C.L.R. (2d) 33;
• C. Bredt, Equality Rights:  Beyond the Law v. Canada Test, OBA Second Annual Charter Conference, October, 2003;
• C. Bredt and M. Higham, Pursuing and Defending Section 15 Claims:  Understanding the Law Test, Canadian Institute's National Forum on Constitutional Litigation in Civil Matters, June, 2003;
• C. Bredt and M. Dwyer, Charter Litigation:  Forum and Process, OBA Charter Conference: Law and Practice 2002, October, 2002; also published in "Charter of Rights and Freedoms - Law and Practice 2002" (McAlister and Dodek eds.);
• C. Bredt and A. Dodek, “The Increasing Irrelevance of Section 1 of the Charter” CBA – Department of Justice National Conference on the Charter, April 2001 (2001), 14 S.C.L.R. 175;
• C. Bredt and T. Barclay, Charter Remedies:  The Schachter Test and the Problem of Retroactivity, Law Society of Upper Canada "Special Lectures 2000: Constitutional and Administrative Law", June, 2000;
• D. Crerar, “Section 2(b) Obscenity Jurisprudence after Butler”, 28(2) University of Ottawa L. R. (1997);
• C. Bredt and J. Cameron, Freedom of Expression and the Media:  Cases and Materials (2 vol.), Osgoode Hall Law School (2004).

Division of Powers:

• K. J. Tyler, “The Myth of the Regulatory Gap?: The Doctrine of Interjurisdictional Immunity and Section 91(24) of the Constitution Act, 1867” prepared for the conference Canadian Aboriginal Law 2005: The Shifting Paradigm, Ottawa, Sept. 2005. 

General Constitutional:

• C. Zwibel (Co-author with P.W. Hogg), “The Rule of Law in the Supreme Court of Canada” (2005) 55 U.T.L.J. 715.
• C. Bredt and M. Kremer, “Section 3 of the Charter: Democratic Rights at the Supreme Court of Canada,” OBA 3rd Annual Charter Conference, October, 2004; now published in (2004), 17 N.J.C.L. 19;
• C. Bredt and C. Litt, The Democratic Rights in Section 3 of the Charter:  Recent Developments, The Canadian Institute, 2nd National Forum on Constitutional Litigation, June, 2004.

Public Inquiries:

• F. Kristjanson, “The Walkerton Inquiry: Source Protection Plans and Safe Drinking Water”, Keynote address to the Credit River Watershed Partner’s Forum, Credit River Conservation Authority, Mississauga, June 5, 2003;
• F. Kristjanson, “The Walkerton Inquiry: The Role of Environmental Analytical Laboratories”, Keynote address to the Drinking Water Symposium, Canadian Council of Independent Laboratories, Toronto, September 24, 2002.

Aboriginal Law:

• P. Foy, “Enforcing Rights on Crown Land: Did Delgamuukw Change the Law on Interlocutory Injunctions?” in Doing Business on Crown Land in British Columbia, Pacific Business & Law Institute, October 1998; (revised for Aboriginal Title: Impact on B.C. Business, C.L.E. of B.C., November 1998; further revised as “Remedies for Infringement of Aboriginal Title: Use of Interlocutory Injunctions in Litigating Aboriginal Cases after Delgamuukw,” Pacific Business & Law Institute, May 1999);
• P. Foy, Order in Council 1036, in Aboriginal Law in Canada 2001, Native Investment & Trade Association, January 2001.

General Administrative:

• C. Bredt and C. Zwibel, “The Standing of Administrative Tribunals on Judicial Review” Administrative Law: Hot Topics, OBA Annual Institute, January 2006;
• F. Kristjanson and L. Pottie, “The Right to Be Heard:  The Duty of Fairness at an Administrative Proceeding”, paper and speech presented at Fundamentals of Administrative Law and Practice, Canadian Institute Conference, Toronto, May 2, 2005 and April 22, 2004; forthcoming, April 2006.
• C. Bredt and A. Westland, “Recent Developments in the Law of Judicial Review”, The Canadian Institute, Fundamentals of Administrative Law and Practice, May 2005. 
• C. Bredt and L. Pottie, Room to Grow: Application of the Charter's Procedural Rights in an Administrative Setting, The Canadian Institute, 4th Annual Advanced Administrative Law & Practice Conference, October, 2004, now published in (2005), 30 Advocates Quarterly 137;
• F. Kristjanson, “Evidentiary Issues in Administrative Law”, paper and speech presented at Advocates’ Society seminar, Advocates’ Society, Toronto, October 27, 2005.
• C. Bredt and L. Pottie, The Charter and Administrative Law:  The Procedural Protections of Sections 7-14, OBA Continuing Education Conference, The Charter in Your Administrative Law Practice, March, 2004;
• C. Bredt, Written Advocacy:  How to Prepare a Factum for Judicial Review, OBA Annual Institute, January, 2004;
• F. Kristjanson, “Tribunal Hearings and Decision Making: Best Practices for the Advanced Practitioner”, co-author of paper presented at 4th Annual Advanced Administrative Law and Practice Conference, Canadian Institute, Ottawa, October 22, 2004;
• F. Kristjanson, “Supreme Court Update:  Administrative Law Decisions While You Were At the Cottage”, paper and speech presented at Ontario Bar Association, Administrative Law Section, September 28, 2004.
• L. Pottie and L. Sossin, “Demystifying the Boundaries of Public Law: Policy, Discretion and Social Welfare” University of British Columbia Law Review, Vol. 38, No. 1 (2005) 147.
• C. Bredt, How to Prepare Your Brief for Court:  The Fine Art of the Factum, CBA National Administrative Law Conference, November, 2002;
• C. Bredt, The Expert Witness:  Strategic Considerations and Practical Tips, Administrative Law and Practice: Beyond the Basics, LSUC Conference, March, 2002 (Speaker);

Trade Law:

• P. Foy (Co-author with R.J.C. Deane), “Foreign Investment Protection under Investment Treaties: Recent Developments under Chapter 11 of the North American Free Trade Agreement” (2001) 16 ICSID Rev. FILJ 299;
• P. Foy, “Effectiveness of NAFTA’s Chapter 11 Investor-State Arbitration Procedures” (2003) 18 ICSID Rev. FILJ 44.

International Law: 

• C. Eboe-Osuji, ‘Rape and superior responsibility in international law’ (pending publication in the Journal of International Criminal Justice);
• C. Eboe-Osuji, ‘Defining and Analysing Rape in International Criminal Law: an Unsettled Tug-of-War?’ (pending publication);
• C. Eboe-Osuji, ‘The Mens Rea for Murder as a Crime against Humanity’ [pending publication in the Canadian Yearbook of International Law];
• C. Eboe-Osuji (Co-author with Adama Dieng), ‘International Law, Mercenary Activities and Conflict Prevention In Africa’ [pending publication];
• C. Eboe-Osuji, ‘Genocide, Justice and the Red Cross’ [Chinese Journal of International Law (2006; advance online access: http://dx.doi.org/doi:10.1093/chinesejil/jmk011];
• C. Eboe-Osuji, ‘Interlocutory Appeals at The International Criminal Tribunal for Rwanda’ [pending publication].
• C. Eboe-Osuji, ‘Crimes Against Humanity: from Finta to Mugesera‘ or ‘In Sync at Last: Canadian Law and International Law of Crimes Against Humanity’, Canadian Council on International Law website (November 2005) http://www.ccil-ccdi.ca/index.php?option=com_content&task=view&id=124&Ite
  mid =76;
• C. Eboe-Osuji, “The World Our Stage: Practice at the Bar of International Law” The Advocates’ Society Journal (summer 2005) 14;
• C. Eboe-Osuji, “’Complicity in Genocide’ vs ‘Aiding and Abetting Genocide’: Construing the Difference in ICTR and ICTY Statutes,” Journal of International Criminal Justice 3 (2005) 56;
• C. Eboe-Osuji, ‘Kleptocracy: a desired subject of international criminal law that is in dire need of prosecution by universal jurisdiction’, African Perspectives on International Criminal Justice (2005) p 121.
• C. Eboe-Osuji (Co-author with Suzanne Schairer), ‘The Jurisdiction to Prosecute Foreigners for Crimes Against Humanity Committed Abroad’ AFLA Quarterly (April—June 2000) p 12;
• C. Eboe-Osuji, ‘Crimes against Humanity: the End of Im[m/p]unity in a New Order of International Criminal Law’ AFLA Quarterly (October—December 1999) p 15;
• C. Eboe-Osuji, ‘World War against Aviation Terrorism … the Role of Canada’ in MATTE (ed) Arms Control and Disarmament in Outer Space: Towards a New Order of Survival, vol iv, 59;