Kent Roach

The security of freedom : essays on Canada's Anti-terrorism Bill

The Government of Canadas proposed anti-terrorism legislation, Bill C-36, contemplates dramatic changes to our law, in areas as diverse as criminal procedure, international relations, immigration, individual privacy, law enforcement, and charitable giving. In this collection, Canadas leading scholars in the areas of law and public policy address the potential impact of these changes on the rights and freedoms that Canadians enjoy. Based on papers presented at a conference organized by the Faculty of Law at the University of Toronto in November 2001, the essays in this book provide a permanent record of the vital legal debate surrounding Bill C-36.

Access to Care, Access to Justice: The Legal Debate Over Private Health Insurance in Canada

Historically, the Supreme Court of Canada has avoided direct intervention in health care policy-making. This posture changed dramatically with the release of the Chaoulli decision in June 2005. In a narrow four-to-three decision, the Supreme Court struck down Quebec laws prohibiting the sale of private health insurance on the basis that they violate Quebecs Charter of Human Rights and Freedoms. Three of the four judges in the majority also found the provisions violate section seven of the Canadian Charter of Rights and Freedoms. In a blistering dissent however, the three judges in the minority found that the insurance restriction violated neither the Quebec nor the Canadian charters. The result makes further Charter challenges to similar laws in other provinces inevitable, but the question of whether they will or should succeed remains contested. In September 2005, a conference was convened at the University of Toronto to discuss the legal implications of the Chaoulli decision. Some of the top Canadian scholars in the fields of health law and health policy were brought together to exchange ideas and to chart the potential legal course for Canada in the decisions wake. Access to Care, Access to Justice contains all the papers given at this conference. Edited by Colleen Flood, Lorne Sossin, and Kent Roach, the collection explores the role that courts may begin to play in health care and how this new role is of crucial importance to the Canadian public and their governments. As litigators for those who favour more freedom to provide private health care and aggrieved patients marshal their legal resources, provinces across the country are considering their options. Some are seeking guidance on how to better insulate themselves from review; others may welcome such challenges as a way to revisit the provisions of the Canada Health Act. The contributors to Access to Care, Access to Justice examine how the future of Canadian health care is likely to be determined both in the courts and in the legislatures and scrutinize how these changes will affect Canadians.

The Eroding Distinction between Intelligence and Evidence in Terrorism Investigations

The first part of this article constructs ideal types or models of intelligence and evidence. It then examines how an intelligence paradigm based on risk, associations and status has permeated post 9/11 anti-terrorism laws in Australia, Canada and elsewhere. With reference to the ul-Haque and Haneef affairs in Australia and the Arar affair in Canada, it demonstrates how police forces have struggled with intelligence and intelligence agencies have struggled with evidence after 9/11 as well as attempts to keep intelligence secret in terrorism prosecutions. It concludes with an evaluation of the eroding distinction between intelligence and evidence in terrorism investigations and prosecutions.

Comparative counter-terrorism law

1. Introduction: comparative counter-terrorism law comes of age Kent Roach Part I. North America: 2. The United States Sudha N. Setty 3. Canada Robert Diab Part II. South America: 4. Colombia Luz Nagle 5. Brazil Rodrigo de Souza Costa Part III. Europe: 6. The United Kingdom Keith Syrett 7. Switzerland Bertrand Perrin and Julien Gafner 8. Belgium Celine Cocq and Anne Weyembergh 9. Italy Sabrina Praduroux 10. Spain Miguel Angel Boldova Pasamar and Angeles Rueda Martin 11. Portugal Jose Francisco de Faria Costa 12. Greece Georgios Triantafyllou 13. Croatia Marissabel Skoric 14. Slovenia Vasilka Sancin and Masa Kovic Dine 15. Poland Piotr Daranowski 16. The Czech Republic Veronika Bilkova 17. Romania Raluca-Ioana Mocanu and George Antoniu Part IV. Middle East and Africa: 18. Israel Shiri Krebs 19. South Africa Jamil Ddamulira Mujuzi Part V. Asia and Australia: 20. Japan Takeyoshi Imai 21. China Li Zhe 22. Singapore Eugene Tam 23. Australia Fergal Davis, Nicola McGarrity and George Williams 24. Thematic conclusions and future challenges Kent Roach.

A Dialogue About Principle and a Principled Dialogue: Justice Iacobucci's Substantive Approach to Dialogue

Frank Iacobucci played the lead role in introducing the metaphor of judicial review as a form of dialogue between courts and legislatures into Canadian constitutional law. He discussed dialogue in reference to interpreting both rights and limitations under the Canadian Charter of Rights and Freedoms, but also in relation to devising remedies under the Charter and using the s. 33 override. Justice Iacobucci’s interest in dialogue was not, however, limited to these many different aspects of Charter adjudication. He recognized the importance of dialogue between courts and legislatures with respect to the development of the common law and in the interpretation of statutes. One of the strengths of the dialogue metaphor is that it can facilitate thinking about the respective roles of courts and legislatures throughout much of the law. It also travels well and is increasingly the focus of attention in many parts of the world that seek to build on the traditions of common law, or what some call Commonwealth constitutionalism. The dialogue metaphor illuminates

The Air India Report and The Regulation of Charities and Terrorism Financing

In 1985, a luggage bomb planted in Vancouver blew up Air India Flight 182 over the Atlantic Ocean near Ireland. The bomb killed all 329 people aboard, 280 of them Canadians. The same day, a bomb destined for a second Air India flight killed two baggage handlers at Tokyos Narita airport. These simultaneous bombings by a Vancouver-based conspiracy were a precursor to the terrorist attacks of 11 September 2001. Grievances a world away, in this case against the government of India for its attacks on the Golden Temple, the holiest site in the Sikh religion, inspired terrorism in a western democracy. Modern technology was used to produce mass causalities. Until 11 September 2001, the Air India bombings were the worlds most deadly act of aviation terrorism. Canadians were slow to learn lessons from the horrors of the Air India

The Primacy of Liberty and Proportionality, Not Human Dignity, When Subjecting Criminal Law to Constitutional Control

This comment argues that courts should focus on the negative liberty interests of the accused and the proportionality of state-imposed limits on those interests, as opposed to the human dignity of either the accused or the victim, when determining the constitutionality of criminal laws. The first part of the comment examines the Canadian experience with regard to the constitutional control of the criminal law. Canadian courts have focused on the liberty of the accused but have been unwilling to consider how the liberty interests of the accused can be subject to proportionate limitations. The next part suggests that human dignity has a dual character that can both support and oppose many controversial parts of the criminal law and as such is not particularly helpful for courts in assessing the constitutionality of criminal laws. The third part critically examines the presumptions of constitutionality proposed by Gur-Arye and Weigend and suggests that human dignity has little work to do in these presumptions. The last part suggests that a focus on the negative liberty of the accused and the proportionality of the state’s limits on those rights provides the best foundation for constitutional control of the criminal law.

Access to Justice and Beyond

This essay examines Michael Trebilcocks access to justice scholarship from his work on consumer protection in the 1970s to his 2008 Legal Aid Review. Trebilcocks approach over the years has consistently been informed by a consumer welfare perspective, including a concern that the middle class be included in access to justice initiatives, and by a broad concern with access to markets and regulatory regimes as well as to adjudication. Trebilcocks use of public choice analysis, however, has made him more sceptical about the use of regulatory regimes to lessen or simplify disputes. The authors argue that the increased resources that would be required to add the middle class to legal aid might be better directed at the replacement of a costly court-based system in areas such as family law with a more efficient and holistic tribunal structure and by a return to the political process to produce regulation to limit and simplify disputes.

Common Law Bills of Rights as Dialogue between Courts and Legislatures

1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. 2 Willis addressed the issue of an entrenched bill of rights on at least one occasion, and, as will be discussed more fully below, he opposed a bill of rights on the basis that it departed from British traditions, was unnecessary, and would increase the powers of judges. John Willis, ‘Foreign Borrowings’ (1970) 20 U.T.L.J. 274 at 279ff.

MIND THE GAP: CANADA'S DIFFERENT CRIMINAL AND CONSTITUTIONAL STANDARDS OF FAULT†

This paper critically assesses the gap between Canadas criminal law standards of fault articulated in the 1950s and 1970s and its constitutional standards of criminal fault articulated in the 1980s and 1990s. This gap is explained in terms of the Courts ambivalence about subjective fault principles as manifested by its acceptance of criminal negligence. It is also explained by the Courts unique treatment of section 7 of the Canadian Charter of Rights and Freedoms as a right that, unlike any other right in the Charter, is only subject to reasonable limitation under section 1 of the Charter in extraordinary emergency situations. The paper then suggests that the gap between criminal and constitutional fault standards is not sustainable and can only be closed if the Court rethinks its approach to the limitation of section 7 rights. Maintenance of the gap may erode respect for common-law presumptions of subjective fault. If this occurs, Canadas apparently robust approach to the constitutionalization of fault will have actually diminished respect for and protection of subjective fault principles.