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It's a Legal Maze for Canadian Authorities Abroad

Ed Morgan
Friday, May 29, 2009

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?

When Poverty Becomes Respectable

Judith McCormack
Thursday, May 28, 2009

Judith McCormack is the executive director of Downtown Legal Services, the community legal clinic of the University of Toronto Faculty of Law.

First published in the Toronto Star on May 17, 2009.

As painful as the current economic crisis may be, it does at least provide us with some valuable insights.

Now that the threat of poverty has suddenly landed on the doorsteps of so many ordinary, hard-working people, it forces us to see this particular problem in a new and clear-eyed way. In fact, many of the myths about poverty have gone up in smoke, much like Bernard Madoff's investments.

Try as we might to cling to the outdated idea that poor people are lazy or dependent, we're now face to face with the evidence that layoffs, economic restructuring and market forces can quickly push any of us into dire straits.

We've lost our ability to pretend that poor people are "them." Alas, it turns out they could be us, or our neighbours, friends and relatives.

This uncomfortable revelation has the effect of highlighting the ways in which we normally stigmatize the poor, and the punitive nature of our social policies toward them.

In Yellowknife, Language Rights Go Back on the Menu

Ed Morgan
Tuesday, April 21, 2009

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.

Le Wildcat Cafe, as it's now known, is currently run by a Quebec-born restaurateur. It serves up a northern repertoire of muskox sirloin, caribou burgers and, from personal experience, the best arctic char this side of anywhere. But the great northern food and ambience have been eclipsed by a language feud that brings the Constitution into play. It all turns on the French article "Le," which has been added to the historic name. The Yellowknife council wants it banished.

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

Monday, April 20, 2009

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.

 

Charter Decisions in the McLachlin Era

Benjamin Alarie
Thursday, April 16, 2009

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.

Prof. Ayelet Shachar's New Book: "The Birthright Lottery"

Wednesday, April 15, 2009

Shachar_birthright Prof. Ayelet Shachar's new book, The Birthright Lottery, has been published by Harvard University Press.

From the publisher:

The vast majority of the global population acquires citizenship purely by accidental circumstances of birth. There is little doubt that securing membership status in a given state bequeaths to some a world filled with opportunity and condemns others to a life with little hope. Gaining privileges by such arbitrary criteria as one’s birthplace is discredited in virtually all fields of public life, yet birthright entitlements still dominate our laws when it comes to allotting membership in a state.

Wind Power is a Complete Disaster

Michael Trebilcock
Tuesday, April 14, 2009

This commentary was first published in the Financial Post on April 9, 2009.

There is no evidence that industrial wind power is likely to have a significant impact on carbon emissions. The European experience is instructive. Denmark, the world's most wind-intensive nation, with more than 6,000 turbines generating 19% of its electricity, has yet to close a single fossil-fuel plant. It requires 50% more coal-generated electricity to cover wind power's unpredictability, and pollution and carbon dioxide emissions have risen (by 36% in 2006 alone).

Flemming Nissen, the head of development at West Danish generating company ELSAM (one of Denmark's largest energy utilities) tells us that "wind turbines do not reduce carbon dioxide emissions." The German experience is no different. Der Spiegel reports that "Germany's CO2 emissions haven't been reduced by even a single gram," and additional coal-and gas-fired plants have been constructed to ensure reliable delivery.

Indeed, recent academic research shows that wind power may actually increase greenhouse gas emissions in some cases, depending on the carbon-intensity of back-up generation required because of its intermittent character. On the negative side of the environmental ledger are adverse impacts of industrial wind turbines on birdlife and other forms of wildlife, farm animals, wetlands and viewsheds.

Who Cares About the Consumer?

Jacob Ziegel
Tuesday, April 14, 2009

Jacob Ziegel is a Professor of Law Emeritus, University of Toronto. Professor Ziegel has written widely about consumer law problems.

As Canadians brace themselves for the hardships of the country’s worst recession in more than twenty-five years, they are entitled to ask what protection they can expect against the many abuses that abound in the market place and the many more that are sure to emerge as unconscionable businesses and outright swindlers seeks to exploit consumer vulnerabilities during the recession.

The answer to the question is that consumers can expect very little help from federal or provincial governments. In some cases, in fact, governments are part of the problem and not likely to provide the solutions.

The picture was not always so bleak. In the 1970s, a wave of euphoria swept across Canada and federal and provincial governments vied with each other in introducing new consumer protection legislation and in establishing new ministries to administer and enforced the new programmes. Canada was the first country to establish a federal Department of Consumer and Corporate Affairs, and Ontario followed closely on its heels with the establishment of a Ministry of Consumer and Commercial Relations.

Canada's Banks: Conservative By Nature

Anita Anand
Wednesday, April 1, 2009

This commentary was first published in the Financial Post on March 31, 2009.

In a recent interview with a major U.S. news network, Prime Minister Stephen Harper touted the fine regulatory balance that underpins the strength of Canadian financial institutions. Without question, Canadian banks have been relatively insulated from the economic turmoil that has crippled their U.S. counterparts. But why is this case? What characteristics particular to the Canadian economy and corresponding legal regime have protected Canada’s financial institutions?

If we look deeply, we see that Prime Minister Harper is partially right: The regulatory regime is an important factor to consider. Yet other considerations, including a conservative mentality that pervades our financial system and its players, are also relevant in the analysis.

Canadian Bankruptcy Law Is Out Of Date

Jacob Ziegel
Friday, March 13, 2009

This commentary was first published in the Financial Post on March 10, 2009.

Every modern society needs a balanced, well-functioning insolvency law to take care of the inevitable casualties of a free-market economy. This is true even when the economy is buoyant. It becomes imperative when the economy is in recession with bankruptcies mounting.

Insolvency law has two major goals. The first is to provide an orderly procedure for the liquidation of insolvent estates and distribution of the proceeds among the debtor's creditors in a prescribed order. The second goal is to enable viable enterprises to restructure their affairs so as to save jobs and stay in business and, in the case of individuals, to enable them to compromise their debts and avoid the stigma of bankruptcy.

These goals seem simple but their implementation has become increasingly complex because of the size and variety of claims and because bankruptcy law is often called upon to solve problems that have their origins outside bankruptcy. In addition, a major transformation has occurred in the consumer insolvency area because of the phenomenal growth in consumer credit.

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