University of Toronto Law School Faculty Blog

Prof. Ed Morgan - "It's a legal maze for Canadian authorities abroad"

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?

Ed Morgan - "In Yellowknife, language rights go back on the menu"

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.

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

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.

Alarie: Charter Decisions in the McLachlin Era

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.

Several of the Court's members have exhibited sharply different voting proclivities in s.15 (equality rights) appeals as compared with Charter claims made in the context of criminal law appeals (and, indeed, other Charter appeals). This finding suggests that at least some of the justices on the Court have been influenced by policy preferences on at least some occasions in discrete areas of Charter rights adjudication. On the other hand, it also suggests that judicial policy preferences are richer and significantly more nuanced than can adequately be captured by a simple "right"-"left" or "conservative"-"liberal" characterization of these policy preferences. The paper discusses a number of implications of the analysis and findings.

Here is one of the graphics from the paper, showing estimated ideal points of the justices overall, in equality cases, and in criminal appeals featuring a Charter rights violation.  (The ideal point distributions were calculated using the Martin-Quinn method popularized in the study of the policy preferences of the justices of the US Supreme Court):

It is particularly interesting to note that although Justice Major and Chief Justice McLachlin are both in the centre of the distributions when all Charter appeals are considered together, Justice Major is an accidental centrist in that he is quite amenable to finding Charter rights violations in criminal appeals and disinclined to find in favour of claimants in equality rights appeals.  Chief Justice McLachlin, on the other hand, is firmly planted in the centre with respect to each of the areas we examined.

Follow the download link at this page to access the full-text in pdf (and to have a look at some more revealing graphics).

Lorraine E. Weinrib: Shooting down polygamy law not necessarily a slam dunk

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.

Ed Morgan - "Sunshine Cases of a Little Constitution"

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

This paper revisits some of Canada's early constitutional history, taking as a starting point the view that constitutional evolution is the country's great national project. It also revisits some of Canada's literary history, taking as its starting point the view that the development of Canadian literature has been an ongoing process of national self-contemplation. At its most foundational level, this paper explores the disjointed nature of both projects, comparing the Privy Council's leading constitutional cases from the turn-of-the-twentieth-century with the writings of the same era's leading Canadian literary figure, Stephen Leacock. It observes that constitutional jurisprudence has historically been characterized more by its fractured quality than its rational synthesis, and that literary output has been characterized more by its incompleteness and diversity than by any stylistic or thematic unity. In short, it asks whether we can ever really know Mariposa - i.e. whether Canadians are capable of a coherent national discourse, or whether they are, as Robertson Davies put it, "just too divided in attitudes and feelings and climates and everything else to have a single outlook that would work in a [constitution/novel] of the whole country."

Lorne Sossin and Lorraine Weinrib - "Canada's constitutional 'black box'"

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.

But here is the problem: We do not know the full range of arguments that the Prime Minister put forward. Nor do we know the basis of the G-G's decision. We cannot confirm whether the Ms. Jean placed any conditions or qualifications on Mr. Harper's powers during the period in which Parliament will not meet. We do not know if she indicated how she would proceed if the government falls in late-January when Parliament meets. We have only this terse statement, offered by Prime Minister Harper: "Following my advice, the Governor-General has agreed to prorogue Parliament."

David Schneiderman - "Prorogation, Dissolution, and the Vicissitudes of Minority Government"

There is a disturbing trend in much of the commentary precipitated by the events of the last two weeks culminating in Governor General Michaël Jean’s decision to prorogue Parliament. Much of the commentary rightly notes that the decision to prorogue, and even to dissolve Parliament, is a prerogative and, therefore, a matter of discretion that rests solely with the Governor General. Most commentators appear to agree that this discretion enables the Governor General to actively intervene in Canadian political life, the only question remaining is in what direction. At that point, political preferences usually enter into the discussion and determine the way in which that discretion should be exercised.

Yet it should be apparent that the Governor General is expected to steer clear of political controversies and so should exercise her discretion in ways that minimize her meddling in Canadian Parliamentary affairs. The Governor General should be guided less by the dictates of political partisanship, then, and more by the principles of democracy and responsible government. The Governor General’s actions should be guided principally by considerations that do the utmost to respect the will of Parliament and, ultimately, the people. It is Parliament which, conveniently for the Governor General, is the barometer of the people’s will as expressed periodically through the electoral process.

Peter Russell - Lessons From Our Most Recent “Constitutional Crisis”

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.

Recent events have established that the GG can say “NO”
There should now be no doubt that the Governor General had the legal power under our constitution to refuse the request Mr. Harper made yesterday to prorogue parliament. Our parliament is made up of three components: The House of Commons, the Senate and the Crown. Normally the Crown’s role is entirely formal and ceremonial, and the Crown’s powers are exercised on the advice of the Prime Minister and the government he leads. However, the Crown in a parliamentary democracy reserves the power to act independently, if need be, to protect the most fundamental principles and the integrity of parliamentary government. In that sense the Crown can act as a check and balance on Prime Ministers and the governments they lead. There is similar role for appointed or indirectly elected presidents in republican parliamentary systems.

Lorne Sossin - "Was the Governor General's Decision to Prorogue Parliament Constitutional?"

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 Lorne Sossin.

In light of the presentations, questions and comments on the panel, there are three broad constitutional principles imperiled by the recent decision by the Governor General to prorogue Parliament and its fallout:

First, the principle of transparency and accountability is under siege. The Gov. Gen. heard a request to prorogue Parliament in camera. We have no idea what was said, what factors she considered (Bob Rae wondered, for example, whether she attached any weight to the signed letter from the opposition parties indicating they had lost confidence in the Conservative Government), or the reasons underlying her decision to grant the Prime Minister's request. In the absence of any explanation of the decision, commentators have read much meaning into the tea leaves available - for example, Peter Russell took the length of the meeting (over two hours) as evidence that the Gov. Gen. recognized she had the discretion to refuse the Prime Minister's request. While experts may be able to connect the dots of what we know, It seems completely out of step with Canada's constitutional development to have crucial public decisions which go to the integrity of democratic legitimacy in Canada, rendered behind closed doors with no reasons whatsoever.