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Khadr and Prerogative Power

David Schneiderman
Thursday, April 1, 2010

(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.

Canadian Educators Need Education on Hate Speech

Ed Morgan
Tuesday, March 23, 2010

This commentary was first published in the National Post on March 22, 2010.

Educate yourself about Canada’s hate laws, the Provost of the University of Ottawa told conservative pundit Ann Coulter in advance of her visit. Campus authorities apparently fear Coulter’s reputation for provocative views. They would remind her that unlike in the United States, hate speech is outlawed here and our defamation laws are strictly enforced.

Well, there’s nothing wrong with education, but as long as we’re encouraging it for our guests we might also think about educating ourselves.

As all of our university officials know, the willful promotion of hatred against an identifiable group is a crime. The problem is that the offence – or, rather, the specter of the offence – is used more as a threat to silence speakers than as a basis for actual prosecutions. The threat is easy to invoke and is often effective in chilling the very debate that campus life is supposed to foster. Our universities encourage diversity in their student and faculty bodies, but as the Coulter case demonstrates, they often bridle at too much diversity of opinion.

How to Tame a Prerogative

David Schneiderman
Monday, March 15, 2010

From The Globe and Mail (March 10, 2010)

Opposition efforts to get at the facts about Afghan detainee abuse appear not to have entirely abated, despite former Supreme Court of Canada justice Frank Iacobucci's appointment to advise the government about releasing documents. Prime Minister Stephen Harper's constitutional footwork certainly did not do the trick. Prorogation simply will not erase the stain of Canadians handing over Afghan detainees to face torture, if accusations are true. The break also should not allow him to escape the House's motion calling for uncensored documents relating to the abuse allegations.

Up until the day before the motion in December, the government side claimed that a variety of statutes legally barred it from releasing documents that threatened national security. It was only then that Carolyn Kobernick, assistant deputy minister in the Department of Justice, acknowledged that there was no statutory basis for refusing to deliver unredacted documents.

Instead, Ms. Kobernick claimed that the government, when making decisions regarding disclosure, would be guided by “the values underlying Parliament's intention in these provisions” – namely, “to protect the national security of Canada from harm by the unauthorized disclosure of sensitive information.” So there was no legal bar to the production of unredacted documents, only a discretion guided by values underlying the law.

It's a Legal Maze for Canadian Authorities Abroad

Ed Morgan
Friday, May 29, 2009

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?

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.

Book Launch and Panel Discussion: Parliamentary Democracy in Crisis - Live Webcast

Monday, April 20, 2009

The David Asper Centre for Constitutional Rights will be hosting a book launch for the new book Parliamentary Democracy in Crisis: The Dilemmas, Choices and Future of Parliamentary Government in Canada on Tuesday April 21 at 4:30 pm.

The book launch will include a panel discussion on the future of Canada's democracy: lessons learned and where to we go from here.  This is the third in the series on the topic and celebrates the book that came out of our December 5th event on the Governor General's decision to prorogue Parliament. Panelists include Peter Hogg, Michael Valpy, David Cameron and Barbara Cameron.

The event will be webcast live starting shortly after 4:30 pm.

Click here April 21 at 4:30 to watch the webcast.

Click here to find out more about the event.

Click here to find out more about and purchase the book.

 

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.

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.

Sunshine Cases of a Little Constitution

Ed Morgan
Tuesday, December 16, 2008

Prof. Ed Morgan has posted a new paper to SSRN entitled "Sunshine Cases of a Little Constitution." The paper can be downloaded here.

Canada's Constitutional 'Black Box'

Lorraine Weinrib
Friday, December 12, 2008

In a commentary in the National Post, Professors Lorraine Weinrib and Lorne Sossin argue that the Governor-General's decision-making should be public and transparent in situations such as the recent request by the Prime Minister to prorogue Parliament ("Canada's constitutional 'black box'," December 11, 2008).

Last Thursday, Governor-General Michaelle Jean granted a request from Prime Minister Stephen Harper to prorogue Parliament until late-January. She thus protected the Conservative government from a confidence vote that would have likely toppled the minority government, and perhaps prompted her to invite a Liberal-NDP coalition, supported by the Bloc Quebecois, to form a government. We would like to be in a position to share with you the arguments that the Prime Minister submitted to the Governor-General and her reasons for accepting them.

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