University of Toronto Law School Faculty Blog

Prof. Ed Morgan - "Foreign affairs: a delicate balancing act"

This article by Prof. Ed Morgan was originally published in The Lawyers Weekly, April 13, 2012.

When it comes to conducting foreign affairs, it is well established that the constitution puts the weight of responsibility on the federal government. But in recent years, the courts have deviated from that rule as often as they have invoked it.

In the Afghan prisoners case, the Federal Court of Canada explained that the government owes no constitutional duty when, after questioning, the military turns detainees over to a foreign government. The judgment presumed that Canadian forces require flexibility, and enjoy the discretion to deviate from domestic rules when they deal with an allied state and prisoners of war.

That ruling came within a year of the Supreme Court's first judgment on Omar Khadr's treatment in Guantanamo, where it held that the government owes a constitutional duty to a detainee held by a foreign state and turned over to CSIS for questioning. The court presumed that intelligence officers can adhere to the same domestic standards as the Charter requires of ordinary police when they deal with an allied state and national security prisoners.

Prof. Angela Fernandez: Aggression v. Atrocity in the History of International Law

Columbia University history professor Samuel Moyn (visiting at Yale Law School in the spring term of 2012) has recently posted his paper From Antiwar Politics to Antitorture Politics on SSRN, a paper I heard him present at a November session of the Critical Analysis of Law workshop at my law school, the Faculty of Law, University of Toronto.  I have written about it on JOTWELL because it is an excellent paper, which law professors might not otherwise hear about, offering an extremely thoughtful intervention on the recent history of international law.

Read the full post on JOTWELL.

Prof. Ed Morgan: "The surprise factor of Palestinian sovereignty"

This commentary was first published in the Globe and Mail on Sept. 21, 2011.

Palestinian Authority president Mahmoud Abbas is asking the United Nations to declare his country a state. If it comes, UN recognition will do little to improve lives on the ground. It won’t end the conflict with Israel any more than all the other UN pronouncements have done, and it won’t bring good governance to those who live under the Palestinian Authority. As events in Tunisia, Egypt, Libya and Syria have demonstrated, sovereign statehood is no guarantee of that.

If a statehood declaration is likely to have little impact beyond giving Mr. Abbas a rhetorical victory, why are the Palestinians and their supporters (the Arab League states, Turkey, Iran) making such a point of endorsing it, and why are the Israelis and their supporters (the U.S., Canada, Germany) opposing it so vigorously?

Well, there’s no telling which direction the political spin will take. The Palestinians calculate that Israel will feel increased heat if they’re successful, while the Israelis assume that Palestinian militancy will be harder to chill if their opposition to the move fails. But, in Middle East politics, predictions are dire and reversals the norm.

Prof. Ed Morgan: "An insidious cultural campaign"

This commentary by Prof. Ed Morgan was first published in the National Post on July 2, 2009.

The Dead Sea Scrolls, which are being exhibited this week at the Royal Ontario Museum (ROM), have survived time, weather, sand--and now the political storm caused by protests at their being toured by the Israel Museum, which houses the scrolls in Jerusalem.

Opponents of the exhibit include the Palestinian Minister of Tourism and Canadian solidarity groups supporting the Palestinian cause. They accuse the Israel Museum of having taken the scrolls from the Jordanian Department of Antiquities upon Israel's occupation of East Jerusalem and the West Bank in 1967. Israel's actions are alleged to be contrary to international conventions protecting cultural artifacts and prohibiting their removal.

The ROM is right to stare down the protests.

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?

Prof. Audrey Macklin: "The Omar Khadr Case: Redefining War Crimes"

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.”

Inviting trouble: The West may come to regret the International Criminal Court's indictment of Sudanese President Omar al-Bashir

Originally published in the National Post on Wednesday, July 16, 2008

The announcement that an indictment is pending against Sudanese President Omar al-Bashir has been greeted with enthusiasm in Western capitals. But international justice can be fickle. If the new international criminal court (ICC) doesn't show more responsibility than have similar institutions, the tables may soon turn on those applauding the loudest.

First the good news: The ruling clique in Sudan deserves all the condemnation the world can muster. The crimes perpetrated by the Khartoum government and the Janjaweed militia, which acts as its surrogate in the Darfur region, seem to beg for precisely this type of international prosecution. If, as ICC prosecutor Luis Moreno-Ocampo has said, "the decision to start the genocide was taken by Bashir personally," no rational observer should shed a tear over this particular defendant.

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.

The Significance of Khadr: Part I

Posted by: Sujit Choudhry, Scholl Chair, Faculty of Law

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.

Getting on like a house on fire – Bali style

There is something surreal about the current climate talks in Bali. Think about it this way…

Life is good in the penthouse suites.  The open and airy lofts boast the latest in sleek Italian furniture, the ultimate in German kitchen design, and screening rooms with state of the art plasma screens and surround sound systems.

Money is no object. The owners are, well, “financially comfortable” (some would say plain rich).  They enjoy the best wines from around the world, champagne from France, beef from Japan (sometimes Argentina), caviar from Russia and bottled mineral water from the finest springs.

Only one thing is puzzling about the penthouse suites. The blinds are drawn. And the air-conditioning is running in the winter.  Delivery staff rushes in and out, leaving sooty clothes and oxygen tanks at the door.  Because, you see, there is trouble in penthouse paradise. It sits atop a building that is now surrounded by fire and is beginning to smolder.