Charter of Rights

Il Sait Porter l’étoile de David? Religious Schooling and the Constitution

Ed Morgan
Saturday, August 25, 2007

Robert Fulford writes a complex piece in this morning’s newspaper ["Modernism isn't written in stone", National Post, Saturday, August 25, 2007, p. A23], with which I both agree and disagree. Fulford, in his usual concise way, does three things at once. First, he posits the separation of religion and government as essential to the development of modern democracies, citing the contest between Islamists and secular nationalists as central to determining the political course of Middle Eastern societies. Next, he states that although state-imposed religion is always pre-modern, contemporary democracies can and do differ on their particular approach to the subject and that not all adhere to the model of strict separation. Finally, he states that Ontario’s public support for a Roman Catholic separate school system is in the tradition of democracies giving a small nod to religious heritage without undermining their essential liberal structure.

Canada's New Terrorism Bills: Slow Down and Debate

Kent Roach
Monday, October 29, 2007

Canadian Public Safety Minister Stockwell Day tabled new legislation in the House of Commons last Monday to allow British-style special advocates to play a role in security certificate cases that are used to detain and deport non-citizens suspected of involvement in terrorism. The bill responds to the Supreme Court of Canada's decision earlier this year that the existing legislation was unconstitutional.

On Tuesday the government tabled another bill in the Senate to revive investigative hearings and preventive arrests. These Criminal Code powers were introduced after 9/11 but expired in March, 2007 after the government failed to convince Parliament to renew them for three years. The government now proposes to include the powers in the Criminal Code, subject to a some changes and a 5 year renewable sunset.

The official opposition - the Liberal Party - has indicated some preliminary support for both bills and they appear likely to pass. There is a need to slow down and carefully consider both bills, as well as important work already done by Parliamentary committees on anti-terrorism law.

Migrating Same Sex Marriages

Brenda Cossman
Wednesday, March 12, 2008

I have just posted a new article on SSRN entitled "Betwixt and Between Recognition: Migrating Same Sex Marriages and the Turn to the Private".   

The paper looks at some parallels  between conflict of laws cases and New York Times wedding annoucements in recognizing same sex marriage. Here is the abstract:

"The paper explores migrating same sex marriages - that is, same-sex marriages or civil unions entered in one jurisdiction that migrate to another and seek recognition, calling upon the private law of conflicts.

Bill C-10 - When Funding Becomes Censorship

Brenda Cossman
Thursday, March 6, 2008

There is a new censorship kafuffle in town. It’s Bill C-10, which will restrict tax credits to film and television productions deemed offensive and "contrary to public policy" by the Ministry of Heritage. The arts community is rightly up in arms, condemning the Bill as government censorship. But, the government, along with more than a few supporters, insists that this isn’t censorship. Artists are free to make art, they say, just not on the government’s tab.

So, just what is censorship, exactly?

(A shorter version of this article was first published on Xtra.ca) 

The Miriam Webster dictionary defines censoring as the act of examining material "in order to suppress or delete anything considered objectionable" It is often, but not always, done by governments.

Okay, so let’s focus on government censorship. When does a government act become the suppression or deletion of objectionable information?

Some kinds of censorship are pretty easy to identify. Like when you write something and end up in jail because of it. Laws that make certain kinds of speech a crime are obviously censorship. And we have had our fair share of those laws. Like obscenity laws used to censor works of literature, like Lady Chatterley’s Lover.

The Significance of Khadr: Part I

Sujit Choudhry
Saturday, May 24, 2008

Khadr is a highly significant judgment, for a number of different reasons.  For Omar Khadr himself, the Court held that he has a constitutional right to the disclosure of the interrogations conducted by Canadian officials in Guantanamo Bay, some or all of which were shared with American authorities.  For the international campaign to close Guantanamo Bay, the Supreme Court has added its voice to the chorus of informed legal opinion in stating that the regime in Guantanamo Bay – at least at the time of the interrogations – violated the Geneva Conventions, which guarantee fundamental human rights to armed combatants.

But the judgment is potentially of much wider significance. Khadr is the latest in a line of cases in which the Court has been asked to set out the precise application of the Charter in situations where Canada cooperates with foreign governments in the national security context.  Canada works with foreign governments in different ways.  For example, it may share intelligence, which foreign governments may then act upon to arrest, detain, interrogate and even torture an individual – as tragically occurred in the case of Maher Arar.  In other situations, Canadian officials may themselves be abroad – such as the CSIS officers who interrogated Omar Khadr in Guantanamo Bay, or Canadian armed forces in Afghanistan.  Canada may also cooperate with foreign governments through extradition and deportation.

The Significance of Khadr - Part II

Sujit Choudhry
Monday, May 26, 2008

In my previous post, I talked about the new ground broken by Khadr.  In this post, I want to identify and offer preliminary reflections on some important questions raised by the judgment.  First, though, full disclosure: I was counsel for the British Columbia Civil Liberties Association in the appeal.  Second, a disclaimer: these views are strictly my own.

To recall, in my last post, I wrote

Suresh established what we termed the “doctrine of constitutional complicity”, which holds that Canada is constitutionally liable for human rights abuses committed by foreign states which occur outside of Canada when (a) such abuses would violate the Charter had they occurred in Canada at the hands of the Canadian government; and (b) Canada has been complicit in the human rights abuses of the foreign state.

Fight Bad Speech With Good Speech

Ed Morgan
Wednesday, November 12, 2008

This commentary was published in the National Post on November 4, 2008. It was originally published in Canadian Jewish News.

In recent months, I have been invited to participate in two conferences, one put on by the Ontario Bar Association (OBA) and the other by Osgoode Hall Law School. Both are squarely in my fields -- the former dealing with freedom of speech and human rights law, and the latter dealing with law, democracy and the Middle East conflict. I was pleased to be invited -- what more does a professor want than to pontificate to audiences in his field? My problem is that each of these conferences has demonstrated that, contrary to my preferred self-image, I can occasionally be wrong.

The OBA's conference, which explored the recent human rights case against writer Mark Steyn and Maclean's magazine, showed that my views on the regulation of hateful speech may have been misguided. The Osgoode Hall conference, which posed the question "Israel/Palestine:One State or Two?" showed that my faith in rational dialogue and academic debate may also have been misguided.

Let me examine each of them in turn.

Shooting Down Polygamy Law Not Necessarily A Slam Dunk

Lorraine Weinrib
Tuesday, January 13, 2009

The following commentary by Professor Lorraine Weinrib was published in the Toronto Star, January 13, 2009.

The attorney general of British Columbia has announced criminal prosecutions against two leaders of the Fundamentalist Church of Jesus Christ of Latter Day Saints for breach of the Criminal Code prohibition against polygamy. The decision to prosecute follows years of deliberation on the appropriate response to harms attributed to polygamy as practised within the community in Bountiful, B.C.

Examination of some of the concerns raised in the media over the past week may provide some clarity as the prosecution proceeds.

Charter Decisions in the McLachlin Era

Benjamin Alarie
Thursday, April 16, 2009

Andrew Green and I have just posted a new paper on SSRN in which we analyze 105 Charter decisions of the Supreme Court of Canada.  Here's the abstract:

This paper examines how justices on the Supreme Court of Canada voted in Charter appeals between 2000 and 2009. Charter appeals, at least in popular belief (and possibly also in theory), have the greatest potential to reveal voting that is influenced by extra-legal policy preferences. Confining the analysis to the time during which Chief Justice McLachlin has led the Court aids in controlling for the effects of a particular Chief Justice in assessing the roles of ideology and consensus.

In Yellowknife, Language Rights Go Back on the Menu

Ed Morgan
Tuesday, April 21, 2009

First published in the Globe and Mail, April 21, 2009.

In taking on the chef who runs the famed Wildcat Cafe, Yellowknife's city council appears to have concocted a recipe for bringing Quebec-style language politics to the Northwest Territories. In the process, it has given us the basis for a constitutional crise du jour.

The iconic eatery in Yellowknife's Old Town sports a log cabin veneer, rough wooden benches and floors, and a pedigree that harks back to the 1930s prospectors who founded it and the miners and bush pilots who made it a frontier landmark. The building was designated a heritage site in the early 1990s and it has been leased out by a municipal committee to licensed operators since reopening as a popular tourist destination in the late 1970s.

Le Wildcat Cafe, as it's now known, is currently run by a Quebec-born restaurateur. It serves up a northern repertoire of muskox sirloin, caribou burgers and, from personal experience, the best arctic char this side of anywhere. But the great northern food and ambience have been eclipsed by a language feud that brings the Constitution into play. It all turns on the French article "Le," which has been added to the historic name. The Yellowknife council wants it banished.

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