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.

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.

35@30: Reflecting on 30 years of s.35

35@30: Reflecting on 30 years of s.35

35@30

Reflecting on 30 years of s.35

 Faculty of Law, University of Toronto

October 25-27

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.

 

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).

Reform Needed in Selection System for Supreme Court Judges

Jacob Ziegel
Wednesday, September 17, 2008

This commentary was published in the National Post on September 11, 2008.

In the spring of this year, the government established an advisory committee to assess candidates to fill the vacancy left on the Supreme Court of Canada by the resignation of Justice Michel Bastarache. Unfortunately, the committee has fallen victim to infighting between government and opposition. The squabbling has been used as an excuse by the Prime Minister to bypass the committee altogether and to unilaterally nominate Justice Thomas Cromwell of the Nova Scotia Court of Appeal in a clear departure from the selection procedure announced by Justice Minister Rob Nicholls on May 28.

Even so, since the nomination must also run the scrutiny of yet another House of Commons committee -- which cannot be established till after the election-- it is clear that the vacancy on the Supreme Court will not be filled till late this year at the earliest, and probably not till early 2009. As Canada’s most senior court, with a heavy case load and awesome responsibilities, the court surely deserved better treatment. We are also entitled to ask: How could the selection procedure have become so distorted and what can be done to avoid the same thing happening in the future?

Is Bigger Always Better? On Optimal Panel Size with Evidence from the Supreme Court of Canada

Benjamin Alarie
Wednesday, August 20, 2008

I have recently posted a new paper on SSRN entitled, Is Bigger Always Better? On Optimal Panel Size, with Evidence from the Supreme Court of Canada. It is work coauthored with Andrew Green and Ed Iacobucci.  In the paper we model how panel size should be determined by High Courts that provide for this kind of flexibility (and most do).  Our model supports the following predictions: (a) all else the same, more important appeals should be heard by larger panels; (b) all else the same, very easy and very difficult appeals should be heard by smaller panels; and (c) all else the same, appeals of intermediate difficulty should be heard by the largest panels.  We find that the predictions of our model are borne out by an analysis of the panel assignments at the Supreme Court of Canada from 1984-2005.

 

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.

Lessons From Our Most Recent “Constitutional Crisis”

Wednesday, December 10, 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 Peter Russell.

Constitutional conventions
This has been a period of great uncertainty about some of the “unwritten” conventions of our constitution. Most of the principles and rules about operating our system of parliamentary democracy take this form. In the final analysis what these principles and rules are depends on all of us – on the people – so it is certainly good to see you who are here today and so many others concerned about these issues.

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