Canadian Constitutional Law

(from Spring 2010 Rights Review 3:1)

What one might call “older” constitutional law has been very much in the news lately with the two controversial prorogations by Prime Minister Harper; the Government’s failure to disclose documents relating to Afghan detainees being released by Canadians to face torture; and the Supreme Court of Canada failing to provide a meaningful remedy for the ongoing breach of Omar Khadr’s Charter rights. Khadr, a Canadian citizen, has been held at Guantanamo Bay since 2002 on terrorism and related charges after being captured on Afghan soil. The Court found a serious breach of Mr. Khadr’s Charter rights yet chose not to tread into the realm of foreign affairs by directing the Government of Canada to seek his release from US custody. Though I focus solely here on the Khadr case, the thread common to all of these events is that they all concern exercises of the royal prerogative.

What is the royal prerogative? It is the unfettered discretion that once ran the machinery of government – Charles I described it as absolute and beyond reproach and was later beheaded – of which little remains. Despite the whittling away by statute and practice, what remains of the Crown prerogative is, nevertheless, significant.

Prof. Ran Hirschl has published a new book, Constitutional Theocracy (Harvard University Press, 2010).

• Publisher's web page

From the publisher:

At the intersection of two sweeping global trends - the rise of popular support for principles of theocratic governance, and the spread of constitutionalism and judicial review - a new legal order has emerged: constitutional theocracy. It enshrines religion and its interlocutors as "a" or "the" source of legislation, and at the same time adheres to core ideals and practices of modern constitutionalism. A unique hybrid of apparently conflicting worldviews, values, and interests, constitutional theocracies thus offer an ideal setting-a "living laboratory" as it were-for studying constitutional law as a form of politics by other means. In this book, Ran Hirschl combines insights from legal theory, economics, theology, and political sociology with a rigorous comparative analysis of religion-and-state jurisprudence from dozens of countries worldwide to explore the evolving role of constitutional law and courts in a non-secularist world.

This article by Prof. Ed Morgan was originally published in The Lawyers Weekly, April 13, 2012.

In the Afghan prisoners case, the Federal Court of Canada explained that the government owes no constitutional duty when, after questioning, the military turns detainees over to a foreign government. The judgment presumed that Canadian forces require flexibility, and enjoy the discretion to deviate from domestic rules when they deal with an allied state and prisoners of war.