Subscribe by RSS

In France, A Quiet Revolution On Rights

Ian Lee
Monday, July 28, 2008

Droit3 France amended its constitution last week with the goal of "modernizing its institutions." Much of the media coverage has focused on the changes that affect the balance of power between the president and the Parliament, but an even more important change has received little notice: a new provision will allow individuals, for the first time, to assert their constitutional rights before French courts, and authorize courts to invalidate unconstitutional laws (New Art. 61-1  and amended Art. 62).

Harper Should Seek Release of Khadr

Tuesday, July 15, 2008

Prof. Audrey Macklin has written a commentary in The Calgary Herald arguing that the Canadian government should seek to repatriate Canadian citizen Omar Khadr, currently detained at Guantanamo Bay, to Canada ("Harper should seek release of Khadr," July 12, 2008).

Read the full commentary.

 

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.

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.

Collegiality and Ideological Commitment

Benjamin Alarie
Tuesday, February 19, 2008

I've just posted a new paper on SSRN entitled, "Should They All Just Get Along? Judicial Ideology, Collegiality, and Appointments to the Supreme Court of Canada".  My coauthor, Andrew Green, and I argue that the singular focus on the policy preferences of Supreme Court justices is apt to miss an important dimension of Court dynamics--the degree to which the justices engage in cooperative decision-making.

Here's the abstract:

Why Judicial Independence Matters

Lorne Sossin
Monday, November 26, 2007

co-authored by Adam Dodek and Lorne Sossin

This commentary was first published on the Globe and Mail website on November 23, 2007.

Why should Canadians care about judicial independence? For one, history shows that a strong independent judiciary can be a bulwark against tyranny. Often, the first thing that an aspiring dictator does is attempt to neutralize the independence and effectiveness of the judiciary through harassment or corruption. Robert Mugabe's success to this effect in Zimbabwe is an unfortunate recent case study in the demise of judicial independence and its impact on society. Similarly, in Pakistan, where a stacked Supreme Court ruled yesterday to clear General Pervez Musharraf's path to re-election, Chief Justice Iftikhar Chaudhry and other members of the court had been confined to house arrest.

In Canada, we have been fortunate to have escaped such upheavals. However, we often look to the independence of the judiciary to resolve some of the most divisive and highest-profile issues of the day — through commissions of inquiry, invariably headed by a judge. We need only think of Gomery, Goudge, Arar, Walkerton, Air-India and now, of course, the Mulroney inquiry. In Canada, judicial independence is the collective constitutional capital that we frequently draw against to help bail us out of messy problems; we should not take it for granted.

Is Gender Really More Important than Appointing Prime Minister?

Benjamin Alarie
Wednesday, November 21, 2007

Professors Jame Stribopoulos and Moin Yahya recently published an article in the Osgoode Hall Law Journal entitled, Does a Judge's Party of Appointment or Gender Matter to Case Outcomes? An Empirical Study of the Court of Appeal for Ontario.  The abstract explains:

This study reveals that at least in certain categories of cases, both party of appointment and gender are statistically significant in explaining case outcomes.  Between these two variables, gender actually appears to be the stronger determinant of outcome in certain types of cases.  While these findings are cause for concern, this study also points toward a simple solution.  Diversity in the composition of appeal panels both from the standpoint of gender and party of appointment dampened the statistical influence of either variable.  In other words, in the case of gender, a single judge on a panel who is of the opposite sex from the others, or in the case of political party, a single judge appointed by a different political party, is sufficient to eliminate the potential distorting influence of either variable.  This finding suggests a need to reform how appeal panels are currently assembled in order to ensure political and gender diversity and minimize concerns about the potential for bias.

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.

Ontario 2007 Election

Thursday, October 11, 2007

By visiting scholar Adam Dodek.

One way to analyze the Ontario election results is in terms of a decisive rejection of constitutional change by Ontarians.

Ontarians generally want their premiers and their governments to focus on the business of governing rather than on constitutional change.  Premier David Peterson was punished at the polls in 1990 in part for focussing on Meech Lake and Canadian unity and Premier Bob Rae often seemed more interested in constitutional issues like Charlottetown than the more mundane issues that capture the Tim Horton's crowd.  Somehow John Tory fell into a similar trap by daring even to raise the issue of funding for faith-based schools.  After the Supreme Court of Canada's 1996 Adler decision, the issue of funding for non-Catholic faith-based schools was transferred from the judicial to the political realm.  Most politicians knew well enough that religion and politics make for an incediary mix (see Bill Davis' extension of funding for Catholic schools in 1984 and Premier McGuinty's experience with Sharia law from 2004 and 2005) and were content to let the issue lie dormant.  Ultimately, Tory was unable to foresee let alone control the firestorm that he had sparked and he was punished at the polls as a result.

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.

Faculty Blog
Subscribe by RSS