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In June 2008, I was asked by the Canadian Human Rights Commission (CHRC) to write a report about the regulation of hate speech on the internet, focusing specifically on s. 13 of the Canadian Human Rights Act (CHRA). Section 13 prohibits the repeated communication on the phone system or the internet of any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination such as race, gender, or religion.

During the last few years there has been a disinformation campaign against human rights commissions. While it is not surprising that Internet blogs post things about HRCs that are false and malicious, these claims have seeped into mainstream discourse. This paper sets out some of the claims made about the CHRC and describes how they are misleading or just plain false and it considers how these deceptive and invented claims have entered mainstream discourse. This will involve some general observations about the state of public discourse in Canada.

This paper summarizes the recommendations made in the report I prepared for the Canadian Human Rights Commission concerning s.13 of the CHRA. In the report I recommended the repeal of the section so that the CHRC and the Canadian Human Rights Tribunal would no longer deal with hate speech, and in particular hate speech on the Internet. I took the position that state censorship of hate speech should be confined to narrow category of extreme expression – that which explicitly or implicitly threatens, advocates or justifies violence against the members of an identifiable group, even if the violence advocated in not imminent – and that the restriction of this narrow category of expression should be dealt with under the Criminal Code rather than the CHRA.

Research paper prepared for the Law Commission of Ontario.

The approach of both domestic Georgian authorities and international organisations to solving the displacement crisis created by the 2008 Russia–Georgia conflict charted a new path.1 It was radically different than approaches taken in the early 1990s when Georgia was faced with mass displacements following the secessionist conflicts in South Ossetia and Abkhazia. In particular, the expectation that a prompt return to homes of origin would be the preferred durable solution to the displacement was quickly abandoned for a sizeable number of internally displaced persons (IDPs) forced to leave their homes during the 2008 conflict. In its place, the two other theoretically accepted – but much less widely used – durable solutions to displacement (local integration and resettlement) have been embraced with unprecedented speed and vigour, with both funding and logistical support in place to implement such plans.

At the turn of this century, the editors of a special issue of the journal International Organization suggested that a greater ‘move to law’ was occurring and that a trend towards the ‘legalization of world politics’ was taking place.1 While this view was contemporaneously criticised as presenting a simplistic conception of law, one which failed to adequately account for the dynamic interaction between norms and policies and between legal and political actors,2 the basic insight that international law and politics intersected seemed undeniable. The 2003 Iraq invasion shook this view. Realists (and ‘neo-cons’ who thought of themselves as realists) were quick to point out that hard power was back – if indeed it had ever gone – and that any ‘liberal moment’ that had emerged in the 1990s (evidenced by robust collective action through the Security Council and the creation of the International Criminal Court, among other things) had ended.3 Many legal scholars perceived a ‘crisis in confidence’ for international law. Some responded to this ‘crisis’ by suggesting that international law reorient itself to new threats and new realities, chipping away for example at the 1945 United Nations (UN) Charter framework that restricted the use of force to narrow exceptions.4

This article examines two key administrative law decisions of the 2008-2009 Supreme Court of Canada term. Canada (Citizenship and Immigration) v. Khosa 2009 SCC 12 [Khosa] and Canada (Privacy Commissioner) v. Blood Tribe Department of Health 2008 SCC 44 [Blood Tribe]. Following on the footsteps of Dunsmuir, the landmark decision of 2008 that eliminated the patent unreasonableness standard, members of the Supreme Court of Canada in Khosa debated the proper interpretation of judicial review legislation. Specifically, the central issue in Khosa was whether subsection 18.1 (4)(d) of the Federal Courts Act provides a legislated standard of review that is equivalent to patent unreasonableness. While on one level, the debate of the Court focused on how to recognize and interpret legislated standards of review, its underlying theoretical premise engaged fundamental questions about deference, expertise, rule of law and how judicial review of administrative action may be appropriately placed within the broader spectrum of curial oversight.

There are two possible forms of evidence in a custody or access (visitation) case which is determined through adjudication. First, the judge may hear from the adult parties and the witnesses whom they choose to call. Second, the judge may hear "children's evidence," which comes either directly from the child, or from a neutral professional with child-related expertise. To determine the prevalence of children's evidence in Canadian custody and access litigation, the author conducted a quantitative survey of 181 reported decisions from 2009. The central finding was that only 45% mentioned any form of children's evidence. Among the various varieties of children's evidence, assessments (also known as child custody evaluations) were much more common than legal representation of children or direct evidence from children. The paper concludes by contrasting the primacy of the child in custody and access doctrine with the reality that the children involved appear to be effectively silent in the majority of the adjudicated cases.

In this paper, the aim is to assess the procedure of the recent Sri Lankan Presidential Commission of Inquiry and to provide a substantive legal critique of the conflict of interest that troubled the Commission. Divided in four sections, the article provides a general introduction on the recent Commission of Inquiry and its observing body, the act in which it is grounded, the Presidential Warrant that created it, the visible conflict of interests regarding the Attorney General’s Office in serious violations of human rights and the alleged bias in the proceedings of the Commission, especially in the case about the killing of 17 aid workers of an international non-governmental organization and the killing of five students. In conclusion, a case for the existence of the apparent bias will be made, not because of the ‘actual and legal’ role of the Sri Lankan Attorney General, but because of the practical realities of Sri Lanka.

Among the casualties in the ‘war on terror’ is the presumption of innocence. It is now known that four Canadians who were the subject of investigation by the RCMP and CSIS were detained and tortured in Syria on the basis of information that originated in and was shared by Canada. None has ever been charged with a crime. On their return home, all four men called for a process that would expose the truth about the role of Canadian agencies in what happened to them, and ultimately help them clear their names and rebuild their lives. To date, in varying degrees, all four men continue to wait for that 'process'. In this paper, I examine the access to justice mechanisms available to persons who are wrongfully accused of being involved in terrorist activities. Utilizing the case study of one of the four men, Abdullah Almalki, I explore the various processes available to him: (i) a complaint to the relevant domestic complaints bodies, the Security Intelligence Review Committee and the Commission for Public Complaints Against the RCMP; (ii) a commission of inquiry; and (iii) a civil tort claim. Due in large part to the role national security confidentiality plays in these mechanisms, all three models are found to be ineffective for those seeking accountability in the national security context.

Law and Religious Pluralism in Canada seeks to elucidate the complex and often uneasy relationship between law and religion in democracies committed both to equal citizenship and religious pluralism. Leading socio-legal scholars consider the role of religious values in public decision making, government support for religious practices, and the restriction and accommodation by government of minority religious practices. They examine such current issues as the legal recognition of sharia arbitration, the re-definition of civil marriage, and the accommodation of religious practice in the public sphere.

This paper is based on my LL.M thesis, which I successfully defended on June 10, 2009.

This chapter is an excerpt from a study in which an ethnographic methodology was used to explore the concept of "tribunal independence" within access to information and privacy commissions in Canada. This chapter sets out the theory behind the ethnographic method and discusses how it was applied. As not much qualitative empirical research has been done in Canadian administrative law, the paper offers a contribution to the literature and methodologies in the field.

This paper emphasizes the importance of cultural competence for tort law by analyzing the Federal Court’s decision in Haj Khalil v. Canada. Given that this symposium in honour of Rose Voyvodic’s life and work is entitled “Re-Imagining Access to Justice,” this paper asks “how do the principles of cultural competence allow us to think about the facts of the Haj Khalil differently. In particular, what would a cause in fact analysis look like if it were informed by the principles of cultural competence?” My analysis proceeds by “reading the silences” or focusing on the unstated assumptions and unexplored elements of Haj Khalil’s story to bring into focus factors relevant to factual causation which remain largely unexplored or undervalued by the Federal Court. An examination of the facts that framed Haj Khalil`s claim against immigration officials through a culturally competent lens would open the possibility of a different understanding of causation as it arises on the facts of the case. While Canadian courts have emphasized the importance of social context for fair judgment, they have not fully come to grips with the implications of social context for judicial decision-making. This is particularly the case within negligence law which remains vexed by the need to maintain an objective standard while simultaneously recognizing the importance of context and circumstance to particular claims.Cet article souligne l’importance de la compétence culturelle pour le droit de la responsabilité civile délictuelle en analysant le jugement Haj Khalil c. Canada de la Cour Fédérale. Vu que ce symposium en honneur de la vie et de l’oeuvre de Rose Voyvodic est intitulé « Re-Imagining Access to Justice», cet article pose la question «comment les principes de compétence culturelle nous permettent-ils de concevoir différemment les faits de Haj Khalil. En particulier, comment se présenterait la causalité si l’analyse des faits était éclairée par les principes de compétence culturelle?» Mon analyse s’effectue en «interprétant les silences» ou en portant l’attention sur les suppositions inexprimées et les éléments inexplorés du récit de Haj Khalil afin de mettre au point des facteurs pertinents à la causalité factuelle qui restent en grande partie inexplorés ou sous-évalués par la Cour Fédérale. Un examen des faits sur la base desquels était formulée la réclamation de Haj Khalil contre les officiers de l’immigration dans une optique faisant preuve de compétence culturelle ouvrirait la possibilité d’une compréhension différente de la causalité telle qu’elle se présente basée sur les faits en l’espèce. Quoique les cours canadiennes aient souligné l’importance du contexte social pour des jugements équitables, elles ne sont pas complètement venues aux prises avec les implications du contexte social pour la prise de décision juridique. C’est particulièrement le cas pour le droit de la négligence qui demeure embêté par le besoin de maintenir une norme objective tout en reconnaissant l’importance du contexte et des circonstances d’une réclamation particulière.