University of Toronto Law School Faculty Blog

Il sait porter l’étoile de David? Religious schooling and the Constitution

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.

Unreasonable Adoptive Mothers: Adding Insult to Injury

The Federal Court of Appeal has created a new creature.  She’s called the “reasonable adoptive mother”.  Apparently, this creature shouldn’t be demeaned in any way by the fact that biological mothers get almost four months more employment leave from work than adoptive mothers. 

According to the Court, the ‘reasonable adoptive mother’ would recognize that the “physiological and psychological experience resulting from pregnancy and childbirth make biological mothers more deserving of time with their new babies than adoptive mothers.  She would know that the Canadian government has considered her needs, and given her some time off work and given her some time off, so that she has “in no way been excluded from Canadian society”.  In its words, “the reasonable adoptive mother would not feel demeaned by the granting of the maternity benefits to biological mothers”.

Tea and oranges that come all the way from China

Had Suzanne heard the news in recent months she'd probably think twice before serving Leonard Cohen tea and oranges that came all the way from China.  With reports about recalled toys, pet food poisoning and the FDA ban on certain imports of seafood from China, there is no exotic romance in such tea and oranges anymore.  No wonder American politicians and government officials step in to protect consumers against such safety dangers.  As Hillary Clinton said "I don't want to eat bad food from China or have my children having toys that are going to get them sick."  Nor do I. 

Michael Ignatieff, the Charter and the Quebec nation debate

On the occasion of the 25th anniversary of the  Charter, I offer some skeptical thoughts on the success of the Charter as an instrument of nation-building, in Bills of Rights as Instruments of Nation-Building in Multinational States: The Canadian Charter and Quebec Nationalism, posted on SSRN.  Here is the abstract (after the break):

Torture and the Case of Syria

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.

Does the World Need More Canada?

I've posted a new paper on SSRN, "Does the World Need More Canada?  The Politics of the Canadian Model in Constitutional Politics and Political Theory".  The paper is forthcoming in the International Journal of Constitutional Law in October.  Here is the abstract:

Adam Sandler and the Politics of Same Sex Marriage

Adam Sandler’s new film I Now Pronounce You Chuck and Larry is causing quite a stir.   In the film, Chuck (Adam Sandler) and Larry (Kevin James) are New York fire fighters (it doesn’t get any more heroic) who enter into a sham gay marriage.  Although the film might not to be everyone's taste (typical Sandler slapstick comedy with lots of homophobic jokes thrown in for good measure), it may tell us alot about the politics of same sex marriage in America.

Remedies and Alternative Contracts

I've posted a new paper on SSRN entitled, Remedies and Alternative Contracts (it's co-authored with Jim Dinning, a recently graduated JD student).  The paper is forthcoming in the American Business Law Journal.  The abstract appears after the break:

Access Copyright and Misleading Copyright Notices

Earlier this week, the CCIA, an association of computer and communication companies, including Google, Microsoft and Yahoo, filed a complaint with the US Federal Trade Commission accusing several professional sports leagues, book publishers and other media companies of misleading and threatening consumers with overstated copyright warnings (such as the FBI warnings available on many DVDs).
This practice of overstated and misleading warnings is not, of course, a US invention.  Canadian copyright owners are not shy of the practice.  An especially annoying example is one that I just came across in the university context.

Euro Excellence v. Kraft

In 1994, when the member states of what would later become the World Trade Organization sat to draft the TRIPs Agreement they could not agree on the question of parallel importation and the extent to which IP law should regulate it and eventually decided not to decide and let each country decide its own policy. It seemed that in Euro-Excellence v. Kraft the same thing happened to the justices of the Supreme Court of Canada. They too could not agree on what Canada’s copyright law says on the issue.

If I have to summarize in one word yesterday’s Supreme Court’s decision in Euro Excellence v. Kraft it will be “mess”. The decision might have solved the current dispute between Euro Excellence and Kraft but provides very little guidance for future disputes.  Moreover, a majority of the Court based their respective decisions on technical grounds, presenting the question merely as one of statutory interpretation. (You can read reports on the decisions in the blog posts of Michael Geist, Howard Knopf and Norman Siebrasse).