Charter of Rights

This commentary was published in the National Post on November 4, 2008. It was originally published in Canadian Jewish News.

In recent months, I have been invited to participate in two conferences, one put on by the Ontario Bar Association (OBA) and the other by Osgoode Hall Law School. Both are squarely in my fields -- the former dealing with freedom of speech and human rights law, and the latter dealing with law, democracy and the Middle East conflict. I was pleased to be invited -- what more does a professor want than to pontificate to audiences in his field? My problem is that each of these conferences has demonstrated that, contrary to my preferred self-image, I can occasionally be wrong.

The OBA's conference, which explored the recent human rights case against writer Mark Steyn and Maclean's magazine, showed that my views on the regulation of hateful speech may have been misguided. The Osgoode Hall conference, which posed the question "Israel/Palestine:One State or Two?" showed that my faith in rational dialogue and academic debate may also have been misguided.

Let me examine each of them in turn.

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.

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.

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.

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?

This commentary was first published in the National Post on March 22, 2010.

Educate yourself about Canada’s hate laws, the Provost of the University of Ottawa told conservative pundit Ann Coulter in advance of her visit. Campus authorities apparently fear Coulter’s reputation for provocative views. They would remind her that unlike in the United States, hate speech is outlawed here and our defamation laws are strictly enforced.

Well, there’s nothing wrong with education, but as long as we’re encouraging it for our guests we might also think about educating ourselves.

As all of our university officials know, the willful promotion of hatred against an identifiable group is a crime. The problem is that the offence – or, rather, the specter of the offence – is used more as a threat to silence speakers than as a basis for actual prosecutions. The threat is easy to invoke and is often effective in chilling the very debate that campus life is supposed to foster. Our universities encourage diversity in their student and faculty bodies, but as the Coulter case demonstrates, they often bridle at too much diversity of opinion.

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

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.