University of Toronto Law School Faculty Blog

The Significance of Khadr - Part II

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.

In fact, Suresh built upon and extended two previous decisions, Burns and Singh which held that Canada would be constitutionally liable for extradition to face the death penalty (Burns), and the denial of entry to Canada which would potentially expose someone to a deprivation of  their security of the person (Singh).  As these three cases make clear, the textual home for this doctrine has been s. 7 of the Charter (although it need not be).  Thus, in every case, the question has been whether the human rights abuse would violate s. 7 if committed by Canada within Canada.  And as I mentioned earlier, the Court has looked to international human rights law as a source of the principles of fundamental justice, to determine when such violations have occurred.

Why judicial independence matters

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.

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.

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):

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:

Minority Vote Dilution in Canada

Although all adult citizens have the right to vote under section 3 of the Canadian Charter of Rights and Freedoms, the worth of one’s vote depends upon where one lives. Representation from Canada’s three fastest growing provinces — Alberta, British Columbia and Ontario — is increasingly out of step with demographic realities. The average ballot cast in these provinces is worth less than one cast in any other province. Moreover, within provinces, rural ridings are overrepresented in relation to urban constituencies.

In a study that I recently published with Michael Pal through the Institute on Research in Public Policy, we revisit this familiar debate in the wake of dramatic demographic change. Canada’s visible minority population is increasing in absolute terms and as a proportion of the national population, and this increase is fuelled by immigration. Moreover, Canada’s visible minority population is growing where Canada’s population growth is increasingly concentrated — in Ontario, Alberta, and British Columbia and in its urban areas. The new question we pose is whether the underrepresentation of these provinces and urban areas in the House of Commons translates into the dilution of the votes of citizens from visible minority communities. Does promoting the interests of rural minorities and the minority of Canadians who live in smaller provinces necessarily come at the cost of the interests of a visible minority?

Federal Electoral Reform - Ontario Wants In!

“The West wants in” was often repeated by Prime Minister Stephen Harper during his years in opposition.  A principal Western Canadian grievance has been the under- representation of Western Canada in the federal House of Commons.  Alberta and British Columbia continue to attract immigrants and migrants from the rest of Canada and to grow in size relative to the rest of the country.  But, the argument goes, the number of Members of Parliament they send to Ottawa has not kept pace with new demographic realities.

However, the situation is far more complex that that.  The Conservative Party platform promises to address the under- representation of not only Alberta and British Columbia, but also Ontario, with good reason.   Actually, it is Ontario that is vastly under-represented in the House of Commons.