Kent Roach

• Professor (Full) at University of Toronto

Without effective and manageable remedies, economic and social rights will not be truly justiciable. This chapter examines a range of challenges to providing remedies for economic and social rights. They include remedial deterrence where courts fail to recognize rights because of fears about the appropriateness of their role in ordering remedies. T...

Gerald Stanley’s use of five peremptory challenges to exclude all visibly Indigenous people from the jury that acquitted him of murder and manslaughter in the killing of a 22-year-old Cree man, Colten Boushie, was not the only flaw in jury selection that requires reform. This article suggests that the R v Stanley case is part of a long line of misc...

This chapter examines the trial of Fahim Ahmad, Steven Chand, and Asad Ansari, which was the only jury trial in the Toronto 18 prosecutions and the first held under post 9/11 terrorism offences. Part II examines the role of juries in past national security trials. These include those that occurred after the 1837 rebellions; after the assassination...

This chapter examines the many failed Charter challenges brought by the Toronto 18. Although the Charter of Rights and Freedoms was added to Canada's Constitution in 1982 as a response to national security excess, it failed to benefit the Toronto 18 and make the prosecution longer. Charter challenges to mandatory publication bans that some of the T...

The first part of this article outlines remedies granted in climate change litigation directed towards governments in domestic and supra-national courts. It concludes that courts including the German Constitutional Court have tended to grant focused and modest remedies. Attempts to secure more ambitious remedies have generally not been successful....

There is a need for balance between respecting the independence of the police to make law enforcement decisions in individual cases while allowing and indeed encouraging many other forms of legitimate political direction of the police. This article will argue that legislative reform should codify a minimal definition of police independence that wou...

An innovative book that provides fresh insights into the neglected field of remedies in both international and domestic human rights law. Providing an overarching two-track theory, it combines remedies to compensate and prevent irreparable harm to litigants with a more dialogic approach to systemic remedies. It breaks new ground by demonstrating ho...

This article examines how post-9/11 counterterrorism has often not been applied to far-right terrorism. Discriminatory double standards in counterterrorism should not be tolerated. Nevertheless, the answer is not simply to ratchet up counterterrorism to apply to the far-right. The legitimate desire for symbolic equality should not blind us to the u...

After initial optimism, damages have become a disappointing remedy for human rights violations in Canada, New Zealand, South Africa, the United Kingdom, and the United States. Part I of this article relates this disappointment to the modest nature of most awards and the continued impact of qualified and absolute immunities. Part II argues that the...

It is argued that neither the approach taken to terrorist speech in Bill C-51 nor Bill C-59 is satisfactory. A case study of the Othman Hamdan case, including his calls on the Internet for “lone wolves” “swiftly to activate,” is featured, along with the use of immigration law after his acquittal for counselling murder and other crimes. Hamdan’s acq...

Remedies have in the past and should in the future occupy a central place in constitutional theory. It is a sign of its maturity that dialogic theories of judicial review have produced new remedies such as suspended declarations of invalidity and declarations of incompatibility. Dialogic remedies, like dialogic theories in general, are vulnerable t...

Cambridge Core - Constitutional and Administrative Law - Constitutional Dialogue - edited by Geoffrey Sigalet

Canada’s flexible approach to the separation of powers recognises both core competences and interconnections between the judiciary, the executive and the legislature. This proposition is examined through case studies of remedies under the Canadian Charter of Rights and Freedoms. The first part of this article examines the ability of legislatures to...

The United Kingdom's approach to Prevent duties to counter extremism is emerging as a negative example. Its focus on extremism is different from the focus on countering violent extremism outlined in United Nations Security Council Resolution 2178. The focus on extremism has been influential in China but not in Canada or other democracies. Going for...

Legal systems should not always assume the legitimacy of state demands for secrecy and accommodate them with procedural innovations. This is especially so in Canada, which has made problematic policy choices to stress secrecy even in counterterrorism investigations where secret intelligence often has evidential value. A fairer and more efficient tr...

This paper will discuss the American response to Daesh in relation to those of a number of other countries including France and Canada as well as supranational institutions including the UN Security Council and the Council of Europe. It will be suggested that American First Amendment Culture and legislative gridlock have helped prevent the enactmen...

Canada’s approach to proscription differs from that of other Westminster democracies. After the negative example of listing in the October Crisis, 1970 and with the subsequent advent of a constitutional bill of rights, Canada does not ban organizations; instead it penalizes certain forms of conduct, above mere membership, with terrorist groups. “Te...

This article responds to the Canadian government’s 2016 consultation on national security law and policy. It outlines a series of concerns, both with laws enacted in 2015 (and especially bill C-51) and some interpretations of C-51 and other laws in the consultation documents. It urges the need for a systematic and contextual understanding of the ma...

This short paper prepared as a brief to the House of Commons Standing Committee on Access to Information and Privacy and Ethics outlines the weaknesses of the Security of Canada Information Sharing Act (SoCISA), enacted as part of Bill C-51 in 2015. It proposes a wholesale renovation of national security information-sharing laws. Short of this, the...

In this paper, we urge that Canada’s reformed national security accountability review structure be built on the model of a three-legged stool: first, a properly resourced and empowered committee of parliamentarians with robust access to secret information, charged primarily with strategic issues, including an emphasis on “efficacy” review; second,...

This article examines complex public law remedies in light of Lon Fuller's famous critique that courts are ill-equipped to deal with polycentric or multifaceted issues and the related critique that remedies for health care and other socio-economic rights result in queue jumping. Most contemporary commentators interpret Fuller as hostile to courts'...

Before the introduction of Bill C-51, the Canadian government expressed interest in a terrorism “glorification” offence, responding to Internet materials regarded by officials as terrorist propaganda and as promoting “radicalization.” Bill C-51 introduces a slightly less broad terrorism offence that applies to those who knowingly promote or advocat...

Terrorism law is as international as it is regionally distinct and as difficult to define as it is essential to address. Given recent pressures to harmonize terrorism laws from international organizations like the United Nations Security Council, the Financial Action Task Force, and the Council of Europe, this book presents readers with an up-to-da...

Terrorism law is as international as it is regionally distinct and as difficult to define as it is essential to address. Given recent pressures to harmonize terrorism laws from international organizations like the United Nations Security Council, the Financial Action Task Force, and the Council of Europe, this book presents readers with an up-to-da...

Terrorism law is as international as it is regionally distinct and as difficult to define as it is essential to address. Given recent pressures to harmonize terrorism laws from international organizations like the United Nations Security Council, the Financial Action Task Force, and the Council of Europe, this book presents readers with an up-to-da...

This document contains our proposed amendment to Bill C-51, Antiterrorism Act 2015. In it, we report government statements supporting each element of the bill. We then summarize our concerns with that element. Finally, we suggest amendments designed to mute our chief concerns that would, at the same time, satisfy government objectives. In other wor...

Canada’s system of national security “oversight” is imperfect. Its system of national security “review” is frayed, perhaps to the breaking point. The government’s antiterrorism law, bill C-51, will accelerate this pattern. Without a serious course correction, we risk the prospect of avertible security service scandals.There is often a misunderstand...

If bill C-51 passes, CSIS will be expressly authorized to “take measures, within or outside Canada, to reduce” very broadly defined “threats to the security of Canada.” Where authorized by Federal Court warrant, these “measures” may “contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms” or may be “contrary to othe...

This is the third of a series of independent “backgrounder” documents that we shall author on Bill C-51, the Anti-terrorism Act 2015. The proposed Security of Canada Information Sharing Act in Bill C-51 declares a legitimate government interests in sharing information about security threats. Yet after close textual review, we conclude that the pro...

Proposed s.83.222 of the Criminal Code creates a new concept of “terrorist propaganda”. It also allows judges to order deletion of “terrorist propaganda” from the internet. We support the concept of deletion orders for “terrorist propaganda” in principle. We believe they can have a role as part of a balanced and evidence-based counter-radicalizatio...

This article critically examines requirements that Aboriginal people demonstrate a causal relation between attendance at residential schools and present harms in tort claims and at sentencing. It suggests that causation requirements have a deep hold on Canadian law but that they can blame victims and discount the broader legacy of the schools. The...

RegWhitaker, Gregory S.Kealey, and AndrewParnaby, Secret Service Political Policing in Canada from the Fenians to Fortress America, Toronto: University of Toronto Press, 2012. Pp. 720. $90.00 cloth (ISBN 9780802007520); $36.95 paper (ISBN 9780802078018) - Volume 32 Issue 2 - Kent Roach

There is a danger that evaluations of the role of courts and legislatures in reviewing counter-terrorism will replicate well-trodden and often fractious debates about the role of unelected courts in a democracy. There is a particular danger that a focus on courts and legislatures will obscure the critical role played by the executive in counter-ter...

Canada has not been immune from the use of exceptional courts or the legal and political controversies that often accompany their use. Canada did not use its newly enacted antiterrorism law to prosecute suspected terrorists in the ordinary criminal courts for three years after 9/11. Instead, it relied on administrative detention under immigration l...

In this extended work the authors treat comprehensively and comparatively the multiple issues surrounding MDPs. They offer proposals for the extension of the range of services of these entities and present cogent arguments with respect to their regulation. In sum, they believe that consumers will benefit from a liberal regime of governance of MDPs.

This article defines judicial activism in both jurisprudential and institutional terms and identifies a number of myths about judicial activism. It then examines Chief Justice Lamer's judgments in a number of areas both before and after the Charter. The topics examined include the exclusion of improperly obtained evidence, constructive murder, regu...

The 9/11 Effect: Comparative Anti-Terrorism Law (Cambridge University Press, 201l)† - Volume 41 Issue 1 - Kent Roach

This paper examines how American courts have in their decisions denying remedies to those adversely created by American counter-terrorism have created a demand for substitute justice in which those adversely affected by such activities seek remedies in the courts of other democracies. The first part examines those conditions of American exceptional...

This article provides an overview of wrongful convictions in Canada. The first part examines the number of wrongful convictions concluding that the 40-70 known wrongful convictions are likely the tip of the iceberg given that they mostly arise in homicide and/or sexual assault cases and that a number of recently revealed cases suggests that wrongfu...

This article compares American and Canadian post-9/11 counter-terrorism policies in light of their pre-9/11 responses to terrorism. In the US, there has been a history of seeing terrorism as a military matter and concerns that Canada is a security threat that has often been unable to prosecute suspected terrorists. In Canada, there are concerns abo...

This chapter will take a broader approach to the secret evidence debate in at least two respects. First, it will suggest that political controversies surrounding the use of secret evidence need to be taken seriously. The use of secret evidence can turn terrorist suspects into fairness martyrs. It can also hide the real level of the terrorist threat...

Remedies often seem to receive less attention than they deserve. The title of this collection of essays, as well as the annual conference of the Canadian Institute for the Administration of Justice that led to this book, is borrowed from Professor Ronald Dworkin’s justly famous book Taking Rights Seriously. We hope that this collection of essays wi...

Preventing acts of terrorism remains one of the major tasks of domestic governments and regional and international organisations. Terrorism transcends borders, so anti-terrorism law must cross the boundaries of domestic, regional and international law. It also crosses traditional disciplinary boundaries between administrative, constitutional, crimi...

Preventing acts of terrorism remains one of the major tasks of domestic governments and regional and international organisations. Terrorism transcends borders, so anti-terrorism law must cross the boundaries of domestic, regional and international law. It also crosses traditional disciplinary boundaries between administrative, constitutional, crimi...

This article discusses the origins of the criminal process approach, models of the criminal process, the evolution of criminal process scholarship, contemporary criminal process scholarship, and the future of criminal process scholarship. Criminal process scholarship will survive as an inevitable by-product of the need to understand criminal justic...

This contribution for an edited volume on comparative constitutional law analyzes the claim that common and civil law jurisdictions are converging in criminal procedure because many civil law jurisdictions have moved toward an adversarial system by adopting more rights. By concentrating on the defendant’s constitutional right to disclosure, this ch...

SURPRISING AND DISTURBING? THE SASKATCHEWAN BOUNDARIES DECISION

This paper critically assesses the gap between Canada's 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 Court's ambivalence about subjective fault principles as manifested by its acceptance of criminal negl...

INTRODUCTION The comparison between the negative and positive roles of constitutional courts provides an interesting perspective on the nature of judicial review and judicial activism in a particular country. Decisions in which courts explicitly require governments to take positive steps either to comply with the Constitution or to provide remedies...

Canada provides an interesting case study of the interaction of free speech and the judiciary in large part because of the impact of the Canadian Charter of Rights and Freedoms (henceforth ‘the Charter’) on the topic. The Charter was enacted as a constitutional bill of rights in 1982. Subject to demonstrably justified reasonable limits that are pre...

UN listing of al Qaeda and Taliban affiliates under the Security Council resolution 1267 system has been controversial, in large measure because of the absence of due process and the secrecy surrounding the decisions made by the sanctioning committee. There have been a number of successful domestic challenges to the implementation of this system at...

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 Canad...

This article examines the admissibility of forensic science and medicine in criminal proceedings. In Part II, we explain how reliability-based admissibility standards in the United States have been unevenly applied to expert evidence in civil and criminal cases and have not prevented wrongful convictions. In Part III, we review a recent Consultatio...

This article examines the Supreme Court’s decision in R. v. Ahmad to reverse a decision made by the trial judge in the Toronto terrorism prosecution and to uphold the constitutionality of Canada’s unique two court system to deciding public interest immunity questions involving state claim’s of national security confidentiality. Parliament’s decisio...

This paper examines police independence in the context of the military police. The author concludes that the independence of the military police to investigate both Criminal Code and Code of Service Discipline offences should be recognized as part of the unwritten constitutional principle associated with the rule of law and as a principle of fundam...

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...

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 Tokyo’s Narita airport. These simultaneous bombings by a Vancouver-based conspiracy w...

This book critically and comparatively examines the responses of the United Nations and a range of countries to the terror attacks on September 11, 2001. It assesses the convergence between the responses of western democracies including the United States, the United Kingdom, Australia, and Canada with countries with more experience with terrorism i...

The entrapment defense is no longer peculiarly American and has been recognized in Britain, Canada and by the European Court of Human Rights. This article provides a comparative analysis of North American and European approaches with a focus on the application of entrapment defenses to proactive terrorism investigations. The first part briefly revi...

This article examines the role of innocence commissions as emerging criminal justice institutions. It draws a distinction between commissions devoted to the correction of errors in individual cases and commissions which make systemic reform recommendations in an effort to prevent wrongful convictions in future cases. The British and Scottish Crimin...