Posts tagged ‘Supreme Court of Canada’
We Hold These Truths to Be Self-Evident
Today is a historic day. Beginning today, the notion of someone starting their own country will no longer be restricted to isolated kooks or wacky cartoon characters. Instead, I will be lending the idea my own considerable prestige and legitimacy by declaring my apartment to be the sovereign realm of New Worcestershire. In my realm, I’ll lift cumbersome exotic pet restrictions; download free movies and music with de jure, rather than merely de facto immunity; and in the words of another, “kill anyone who looks at me cock-eyed”. And if you don’t like it, then I’ll see you in court!
The International Court of Justice (ICJ) that is. In July, the ICJ gave an advisory opinion to the UN General Assembly, reaching the sweeping conclusion that “international law contains no applicable prohibition of declarations of independence.” The subject of this opinion wasn’t a prominent nation like New Worcestershire, but an obscure place called Kosovo. Kosovo declared independence from Serbia on February 17, 2008, and the validity of this declaration has been hotly disputed ever since.
At Serbia’s prompting, the UN General Assembly, in October 2008, passed a resolution referring to the ICJ the straightforward question: “is the [Kosovan declaration] in accordance with international law?” The ICJ considered the question in two parts; whether the declaration was in violation of general international law, and whether it was in…
What’s wrong with banning the niqab?
Let’s start with the obvious: it violates the religious freedom of Muslim women who choose to wear the niqab for reasons of faith. Even those who would defend a ban, such as noted constitutional lawyer Julius Grey, acknowledge that this would violate religious freedoms – however, freedom of religion in Canada is never absolute, and the question is whether or not the government would be able to adequately justify such an infringement.
It is widely speculated that Bill 94 – proposed legislation that would bar the niqab from being worn in government offices, hospitals, and schools in Quebec – will face fierce legal challenges despite the overwhelming public support it receives in Quebec and the rest of Canada. There are three principle avenues by which one might pursue a legal challenge to this legislation.
The first is to sue the government in Quebec Superior Court, invoking the Canadian Charter of Rights and Freedoms. The Canadian Charter stipulates that everyone is fundamentally entitled to freedom of conscience and religion, subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society (as determined using the two steps outlined in the Oakes Test).
The second avenue is to bring a complaint to the Quebec Human Rights Commission alleging discrimination on the basis of the Quebec Charter of Human Rights and Freedoms. The Quebec…
SCC Unconvincing in Khadr Decision
The much anticipated arrival of the Supreme Court of Canada’s (“SCC”) decision on the repatriation of Toronto-born Omar Khadr came on Friday. Familiar to most Canadians by now, Khadr was arrested when he was 15 years old and was charged with murder, conspiracy and support of terrorism. Now 23 years old, he has been imprisoned at Gunatanamo Bay, Cuba ever since. He applied to the Federal Court for an order that he must be repatriated which was successful and subsequently upheld on appeal.
Overturning the Federal Court of Appeal’s decision, the SCC refused to order the Canadian government to bring Khadr back, submitting that it was not the correct remedy under s. 24(1) of the Canadian Charter as it would infringe on the government’s common law Royal Prerogative over foreign relations. This decision came despite the SCC recognizing that the Canadian officials who interrogated Mr. Khadr in 2003-2004:
participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter, contrary to the principles of fundamental justice[i]
The remedy granted was that of “declaratory relief” – declaring that Khadr had had his rights violated and leaving it to the government to decide what to do with this “new”…
