Report back from “The Future of Freedom”

This past weekend, from October 12-14, 2007, over 100 lawyers, law students, and legal academics met at the Inaugural Conference of the Canadian Constitution Foundation. Titled “The Future of Freedom: Law and Liberty in Canadian Jurisprudence,” the conference attracted delegates from over a dozen universities and was headlined by Supreme Court Justice Marshall Rothstein and Harvard Professor Charles Fried.

The aim of the conference was simple: to showcase debates about important issues facing lawyers today and while doing so to present a wider spectrum of ideas than available at most law faculties in the country. For example, during a panel exploring the tension between Section 2(a) and Section 15 of the Charter, the delegates heard from Angela Costigan, Counsel for the socially conservative REAL Women of Canada and Tom Warner of the Coalition for Lesbian & Gay Rights in Ontario. A panel on terrorism included both Moin Yahya, an assistant professor of law at the University of Alberta who called for complete abolition of nearly all post 9/11 security laws and Michael Krauss, a professor at the George Mason School and a fellow at the hawkish Heritage Foundation.

It may be surprising to the readers that there are Canadian legal academics and students who do not feel they are given the opportunity to hear the full spectrum of debate at their own faculties. For years, many have assumed that varying political views may matter in the political arena but not in legal study and not in the courts. Recent studies have contended that the data shows that with few exceptions political inclinations of the judges, or at least those who appoint them, are of little significance. So the fact, for example, that almost all federal judges appointed to bench in Saskatchewan between 1993 and 2006 were Liberal Party donors should be of little concern.

Perhaps not. At the conference, the delegates were presented with briefs of a study by the Canadian Constitution Foundation titled “Judging the Judges” which showed large ideological differences between various members of the bench. Also, delegates heard from Avril Allen, Associate at Boghosian & Associates, who provided a brief presentation showing that there is a wide difference of outcome depending on the litigants or the interveners of any given case.

Of course, the many of the ideas presented by the speakers at the conference could be debated. Whether ridding the country of its hate crimes would lead to a more tolerant or free society is a debatable topic. In fact, that it is a debatable topic was the source of the conference’s success. Each panel gave the delegates an opportunity to observe a vigorous debate that is often missing from Canadian law schools.

Outside the panels, the conference heard from two keynote speakers. At lunch, Justice Rothstein spoke about the judicial nomination process. Specifically, he commented about his experience in front of the parliamentary committee. He posited that given the most recent experience, it is unlikely that any future Justice of the Supreme Court would be appointed to the Court through a process that is less public than the recent experience. However, this is not a cause for concern. The American partisan nomination process can be easily avoided in Canada for numerous reasons according the Justice Rothstein. These include the active dialogue between the legislature and the judiciary in Canada, the different political environment in this country, and the existence of the notwithstanding clause.

The conference closed with a dinner keynote by Professor Charles Fried of Harvard Law School. Fried, a prominent conservative American jurist and a former United States Solicitor General, presented the ideas in his most recent book Modern Liberty: And The Limits of Government (Issues of Our Time). He did so by discussing R v Keegstra, [1990] 3 SCR 697. Fried noted that the former decision was a decision that could not stand in the interest of liberty and given this it would surely be overturned in due course.

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