International Human Rights Law

This morning’s news brings Maher Arar back to the front pages, this time with revelations that the Canadian Security Intelligence Service (CSIS), and not just the RCMP in collaboration with immigration and security authorities in the United States, had advance knowledge that he would be tortured. If true it is an important disclosure, and calls are rightly being made for an investigation of CSIS’ role in all of this. Indeed, this new angle on the Arar case harks back to accusations of CSIS involvement in the case of another Canadian, Muayyed Nurreddin, who claims that CSIS officials set him up to be abused abroad. Two other Canadians, Abdullah Almalki and Ahmad El Maati, have made similar accusations of collusion by Canadian government authorities in their arrests, interrogation, and torture. Each of these cases is slightly different and each points to different branches of security services on both sides of the Canada – U.S. border. Each one, of course, deserves independent investigation and a legal remedy for wrongs done to the individuals concerned.

This commentary was first published in The Lawyers Weekly on November 16, 2007, page 17

Ronald Smith of Red Deer, Alberta is slated to die the same way that Stanley Faulder of Jasper, Alberta did in 1999: by lethal injection. It can be a cruel death, leaving people gasping for air and writhing in pain while jailhouse “doctors” try to hit a vein with the poisoned needle. Observers at the 1994 execution of killer John Wayne Gacey in Illinois told reporters that the person who inserted the tube in his arm appeared to have “never taken I.V. 101”.

The two Canadians also share another trait: brutality. Faulder murdered a 75 year old Texas woman by crushing her skull with a blackjack and then stabbing her with a kitchen knife, while Smith killed two young Native Americans in Montana by shooting them with a sawed-off shotgun at point blank range in the back of the head. Two cold Canadians whose confessions left little doubt as to the identity of the killers and horror of the crimes.

And yet with all the similarities, Canada has responded in starkly different ways. In Faulder’s case, the government turned interventionist, petitioning the U.S. courts and requesting clemency from the governor of Texas. By contrast, in Smith’s case, the government has turned isolationist, refusing to intervene in a judicial system that shares the same rule of law approach as Canada.

This commentary was first published in The Lawyers Weekly on November 16, 2007, page 17

Ronald Smith of Red Deer, Alberta is slated to die the same way that Stanley Faulder of Jasper, Alberta did in 1999: by lethal injection. It can be a cruel death, leaving people gasping for air and writhing in pain while jailhouse “doctors” try to hit a vein with the poisoned needle. Observers at the 1994 execution of killer John Wayne Gacey in Illinois told reporters that the person who inserted the tube in his arm appeared to have “never taken I.V. 101”.

The two Canadians also share another trait: brutality. Faulder murdered a 75 year old Texas woman by crushing her skull with a blackjack and then stabbing her with a kitchen knife, while Smith killed two young Native Americans in Montana by shooting them with a sawed-off shotgun at point blank range in the back of the head. Two cold Canadians whose confessions left little doubt as to the identity of the killers and horror of the crimes.

And yet with all the similarities, Canada has responded in starkly different ways. In Faulder’s case, the government turned interventionist, petitioning the U.S. courts and requesting clemency from the governor of Texas. By contrast, in Smith’s case, the government has turned isolationist, refusing to intervene in a judicial system that shares the same rule of law approach as Canada.

This commentary was first published on the Jurist website on October 31, 2008.

George W. Bush’s term as president is coming to an end, and he has little to show by way of meting out justice for the terrorist attacks of 9/11. Perhaps this is why his administration seems so desperate to score a victory on the judicial battleground of the military commissions. That its target is Omar Khadr, a child soldier at the time of the alleged offenses, makes the spectacle all the more pathetic to the observer, and tragic for Khadr.

The charges against Khadr include “murder in violation of the laws of war,” and providing material support to the enemy. The most serious allegation against him is that on July 27, 2002 in Afghanistan, he threw a grenade that killed US soldier Sergeant Christopher Speer. Indeed, until a few months ago, the official story went unchallenged in the public domain. Thanks to an inadvertent government leak, we have since learned of evidence supporting at least two alternate scenarios, namely that another combatant might have thrown the grenade or that Sgt. Speer was killed by “friendly fire.”

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.

This commentary by Prof. Ed Morgan was first published in The Globe and Mail on May 27, 2009.

Canadians may be surprised to learn a few things about our constitutional law.

First, the military owes no duty toward detainees arrested by us and turned over to a foreign state for custody.

Second, our intelligence service does owe a duty toward prisoners taken into custody by a foreign state and turned over to us for interrogation.

Third, our diplomats are obliged to intervene with a foreign legal system that fails to live up to our domestic standards of punishment.

And fourth, our police are free to comply with a foreign legal system that fails to live up to our domestic standards of search and seizure.

When it comes to the powers of the Canadian government abroad, each new court ruling makes us wonder if the judges took the time to read the last one. How did this confused state of affairs come to be?