Faculty Blog

A decade ago, the world rightly stood in solidarity with the United States in the face of the 9/11 terrorist attacks.  The story of how the Bush Administration squandered that solidarity through Guantanamo, torture and the invasion Iraq is well known. Less well known is how the United Nations also lost its opportunity to unite world in principled counter-terrorism.

The 9/11 attacks provided the U.N. with an unparalleled opportunity to forge international agreement on a definition of terrorism. Whatever previous disagreements there were about freedom fighting and state terrorism, it was clear that the 9/11 attacks constituted terrorism. The killing of innocent people not engaged in hostilities in an armed conflict was terrorism; it did not matter whether they were in the planes, the World Trade Centre or the Pentagon.

On September 28, 2001, the Security Council demanded that all states enact tough counter-terrorism measures under its mandatory powers to enforce international peace and security. The Security Council offered no guidance on the definition of terrorism. It failed to so, even though a 1999 Convention on the Suppression of Terrorism Financing previously included a restrained but principled definition:  the intentional killing or injuring of those not engaged in armed conflict in order to intimidate a population or compel governments to act.

This commentary was first published in The Lawyers Weekly on August 26, 2011.

What does a property owner do to build a high density condo/retail development on its parcel in Brampton, Ontario - the heartland of suburban sprawl - or to build a low density subdivision on its green field in Markham, Ontario - the capital of 'new urbanist' design? It does what few applicants for a state-issued license would ever think of doing: it makes a deal.

As those in the field well know, deal-making is authorized under section 37 of the Planning Act. What Canadians lightly dub "bonuses", and Americans more darkly label "exactions", have become an integral part of the development approval game. For owners and communities, the game is one of materially high stakes; and for constitutional theorists, the struggle between an individual's rights and the collectivity's needs are as high as the normative stakes can get.

As a starting point, the courts have ensured that no personal gain can be bargained for by officials in a conflict position. Moreover, the Ontario Municipal Board has expressed the view that section 37 bargains must be "commensurate with the additional density or development rights" achieved in the application, and that city officials keep in mind that "the public should receive some tangible benefit." Beyond that, however, just about any deal goes.

This commentary by Prof. Emeritus Jacob Ziegel was first published in the National Post on August 19, 2011.

Ian Binnie and Louise Charron announced their intention to retire from the Supreme Court of Canada at the end of August more than three months ago. Yet it was only on Aug. 5 that the Minister of Justice announced the appointment procedure the federal government intended to follow in appointing their successors on the Court.

A starved media fell on the announcement enthusiastically, but failed to ask some relevant questions. Will the proposed selection procedure result in the choice of the best-qualified candidates and, if the answer is no, what would be a better procedure? What role does the Supreme Court of Canada play in Canada’s constitution and what qualities should we look for in appointments to the Supreme Court?

There’s much reason to doubt that the federal government has chosen the procedure best calculated to lead to the appointment of the best qualified candidates. Stripped of all the rhetoric, it seems safe to anticipate that the successful candidates will be those whose assumed legal and constitutional philosophies appeals most to Prime Minister Harper and who meet his criteria of judges “who apply the law and don’t make it.”

This commentary by Prof. Jacob Ziegel was first published in the National Post on July 15, 2011.

On April 12 and 13, the Supreme Court of Canada held a two-day hearing on a Reference from the federal government asking the Court to determine the constitutional validity of the proposed Securities Act published by the federal government in May, 2010. The question all the parties to the hearing must now be asking themselves is how the Court is likely to respond to the Reference.

The need for federal securities legislation has been discussed for at least 30 years, yet successive Liberal and Conservative governments refused to bite the bullet. The Harper administration showed greater mettle and became convinced that a national securities regulator was essential for Canada in light of the financial crisis that gripped North America, and much of the rest of the world, in 2007 and 2008. It was also the solution recommended by three federal task forces that were established between 2003 and 2009.