Subscribe by RSS

Constitutional Crisis or Democracy in Action

Tuesday, December 9, 2008

On Friday, Dec. 5, 2008 the University of Toronto Faculty of Law hosted a panel discussion about the Governor-General's decision to prorogue parliament. The following is a summary of the remarks made by panelist David Cameron.

I’ll be brief. I see no reason to take more time than Stephen Harper did in his weirdly pointless address to the nation on Wednesday night.

I will make four points, none of them on topic. When I initially agreed to speak I was told the subject would be something like “constitutional crisis or democracy in action?”, to which I probably would have answered both.

But as the planning for the session evolved, and events proceeded, the topic morphed into “Was the Governor General’s Decision to Prorogue Parliament Constitutional?” or something like that. To which I would probably answer yes and no.

However, since I expect my eminent legal colleagues to cover that topic like a blanket, I thought I would turn to something else, to some observations on the politics and implications of what the country is going through.

Four points.

Why has Canada Changed its Tune on Citizens Facing the Death Penalty?

Ed Morgan
Monday, November 24, 2008

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.

Disappointing Catch in the Supreme Court

Friday, November 21, 2008

This commentary was first published in the Financial Post on November 21, 2008.

One of the important roles of the Supreme Court of Canada is to resolve conflicts among lower courts on difficult issues of law and, in the commercial sphere and other areas of consensual law, to develop rules and doctrines that promote predictability of outcomes and enhance the free-flow of goods and services among contracting parties.

Judged by these standards, the Supreme Court's decision last month in Saulnier vs. Royal Bank of Canada will disappoint many, not because of what the court said but because of what it failed to say.

The immediate issues before the court were whether a bank can acquire a valid security interest in a commercial fishing license issued by the federal Department of Fisheries and Oceans and held by a Nova Scotia fisher, and whether a trustee in bankruptcy acquires the fisher's interest in the license if the fisher becomes bankrupt.

However, fishing licenses are only a small subset of a much larger realm of licenses issued by a multitude of government agencies --federal, provincial and municipal. Typical examples are milk quotas for dairy farms, tobacco quotas for tobacco farmers, nursing home licenses to care for the elderly, taxicab licenses, landing licenses for aircraft at commercial airports and broadcasting and cable licenses.

Unsecured Creditors Have the Most to Lose

Wednesday, November 12, 2008

This commentary was first published in the Financial Post on November 4, 2008.

Last August, 4,500 Zoom Airlines passengers found themselves stranded across North America, the West Indies and various European countries when the airline ran out of money and grounded its planes. Passengers were left to pay for their return journey home and figure out how to recover the payments they had made to the airline. Their prospects were dim.

Since Zoom Airlines had declared bankruptcy, the best the passengers could expect was to be treated as unsecured creditors of the airline-- ranking at the bottom of the ladder in the distribution of Zoom's assets. Passengers must yield to the prior claims of Crown trust claims (for unremitted employment insurance premiums and tax deductions), secured creditors and preferential creditors. Typically, unsecured creditors recover no more than five cents on the dollar of their claims and often nothing at all.

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.

YES: PR is More Democratic

David Beatty
Friday, November 7, 2008

This commentary was first published in the Toronto Star on November 1, 2008.

The days and weeks following a national election are invariably a time of reflection and recrimination.

The Liberals in particular are in for a period of intense soul-searching as they begin yet another leadership campaign.

But it is not only Liberals who should reflect on the recent election.

All Canadians should be disturbed by the results because once again we have gone to the polls and ended up with a government that almost two-thirds of the country opposes.

The flaws in this election go way beyond party politics and political egos. The way we count votes and award seats in the House of Commons, it turns out, deserves much more of the blame.

The fact is that Liberals suffered more from the Canada Election Act than anything Stéphane Dion said or did. Even though the Liberals trailed the Conservatives by only 12 percentage points in the popular vote (38-26), they got barely half as many seats (143-76).

If seats had been awarded to the parties in the same proportion as the votes they received, the Conservatives would have won 116 compared to 80 for the Liberals.

Promotion of Federally Appointed Judges and Appointment of Chief Justices: The Unfinished Agenda

Thursday, November 6, 2008

The following paper is a chapter in a book on JUDICIAL INDEPENDENCE, edited by Lorne Sossin and Adam Dodek, and expected to be published by the University of Toronto Press in 2009. The paper will also be discussed at a Faculty Seminar to be held on November 24, 2008. Comments and suggestions will be very welcome.

 

Lawyers, Rats and the Future of the Profession

Lorne Sossin
Wednesday, November 5, 2008

This commentary was first published in the University of Toronto Bulletin on October 28, 2008.

A year ago, a new book entitled Lawyers Are Rats made the cover of Maclean's (the book is about "how lawyers became greedy, unprincipled enablers of the rich"). Around this same time, Hollinger's lawyer was convicted, along with Conrad Black, of fraud, and the treasurer of the Law Society of Upper Canada was suspended for sleeping with a client. This was not a high point for the legal profession. It was at this moment, however, that the University of Toronto's Faculty of Law took the bold step of establishing a new Centre for the Legal Profession (CLP).

The goal of this new centre is to broaden and deepen our understanding of professionalism, ethics and public service and the relationship between them.We seek to provide a forum and to serve as a catalyst for dialogue about the capacities, judgment and actions necessary for effective lawyering. To achieve these goals, we are bringing together leading voices from the academic, practice, judicial and public interest communities. The centre also capitalizes on the expertise within the Faculty of Law, the broader University of Toronto and the legal community in Ontario and beyond and seeks to deploy these resources in order to forge a stronger link between the study of law, the practice of law and the implications of law.

The Omar Khadr Case: Redefining War Crimes

Audrey Macklin
Tuesday, November 4, 2008

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.”

Does the Credit Crisis Implicate the Need for a National Securities Regulator?

Anita Anand
Monday, November 3, 2008

There are strong arguments in favour of a national securities regulator  which have been voiced numerous times over the past few decades: greater efficiency in transactions, consistent and coherent presence  internationally, single enforcement body, uniform securities legislation, lower costs for issuers and registrants,  etc.  Flowing from a series of federal, provincial and industry reports, these arguments make a coherent case for a national regulator notwithstanding the usefulness of the passport system of regulation over the  past few years.

Recently, Finance Minister Flaherty provided another reason for a national securities regulator: current market turmoil (see Toronto Star, Nov. 2).  However, while a number of financial market issues are on centre stage in this context, only some of these issues fall within the jurisdiction of securities
regulation per se.  Thus, while the time seems ripe to bring this issue to forefront of the political agenda, the need for a national securities regulator is not obvious from current financial market conditions alone.

Faculty Blog
Subscribe by RSS