Moral and Legal Responsibility with Respect to Alleged Mistreatment of Transferred Detainees in Afghanistan: Presentation to the House of Commons Special Committee on the Canadian Mission in Afghanistan

The present paper takes the form of presentation made on February 10, 2010, to the prorogued Canadian House of Commons Special Committee on the Canadian Mission in Afghanistan, with Members of Parliament from the Bloc Québécois, Liberal Party, and New Democratic Party in attendance. The subject of the presentation is a report and commentary on an all-day event organized by the Nathanson Centre on Transnational Human Rights, Crime and Security at York University’s Osgoode Hall Law School. The event, held in Toronto on February 8, 2010, was called the Special Forum on the Canadian Mission in Afghanistan. The thematic title of the Special Forum was “Moral and Legal Responsibility with Respect to Alleged Mistreatment of Transferred Detainees in Afghanistan.” In the wake of prorogation of Parliament at the end of December 2009 by Canada’s Prime Minister, the Special Forum sought to highlight the special importance of democratic scrutiny of, and debate over, conduct with respect to persons detained in Afghanistan by the Canadian Armed Forces – persons who, it has been alleged, were either mistreated or risked being mistreated after their transfer to Afghan authorities. Because prorogation prevented the Special Committee from continuing in February 2010 the official examination of witnesses and evidence that it had begun in 2009, the Nathanson Centre and Osgoode decided to invite experts on various aspects of the issue of detainee transfer to give presentations – and to respond to questions by a panel – so that ongoing reflection by Canadians on the morality and legality of conduct related to Afghan detainees might be facilitated, and also so as to assist the future work of this Special Committee when it reconvenes after prorogation. Nine experts presented and answered questions over a six-hour period: Alex Neve, William Schabas, Paul Champ, Willem de Lint, David Schneiderman, Michael Mandel, Christopher Waters, Kent Roach, and Michael Byers. A panel of questioners consisted of Craig Scott as Chair (the author), the Honourable Bob Rae (MP for Toronto Centre and a member of this Special Committee), and Retired Colonel Michel Drapeau. The agenda of the Special Forum is attached to the 11-page presentation as Appendix 1. A submission was requested and received by the Special Forum from Retired Commander William Fenrick; entitled “Observations Concerning the Canadian Mission in Afghanistan and the Treatment of Detainees”, it is attached as Appendix 2

Letter of April 21, 2021, from Craig Scott to Canadian Judicial Council Review Panel in Justice David Spiro Proceeding (CJC File 20-0260) Concerning the Reliability of the University of Toronto Cromwell Report & “For the Record”, Cover Note on Letter of April 21, 2021, and on May 20, 2021, Canadian Judicial Council Disposition in Justice David Spiro Proceeding (CJC File 20-0260) (April 21, 2021 & June 2, 2021)

On September 20, 2020, I joined myself to a complaint filed with the Canadian Judicial Council by Professor Les Green.The complaint concerned revelations of the interference by a yet-to-be-publicly-named judge of the Tax Court of Canada into a University of Toronto Faculty of Law hiring process for a new director of its International Human Rights Program

Consultation, Cooperation and Consent in the Commons’ Court: “Manner and Form” after Mikisew Cree II

In Mikisew Cree II, a large majority of the Supreme Court of Canada took the view that the Constitution Act, 1982, section 35 duty to consult and accommodate cannot constrain the legislative process, and that the legislative process includes bill preparation activities carried out by Ministers and by officials in the executive. My limited purpose in this article is to show how the question of participatory constraints on legislative processes that affect Indigenous legal interests has more been deflected than resolved by this ruling — at the same time as this deflection has productive potential by virtue of how it has served the ball into Parliament’s court. This is due to the Court recognizing in very general terms the availability to Parliament of a little-discussed doctrine of Westminster constitutionalism — self-imposed “manner and form” legislative constraints on parliamentary sovereignty — notwithstanding the Court declining to interpret section 35 as externally imposing the duty to consult on the legislative process as a constitutional manner and form requirement

Respecting Democratic Constitutional Change

On Monday, January 28, 2013, I was privileged to table, on behalf of the NDP and in my capacity as Official Opposition Critic for Democratic and Parliamentary Reform, Bill C-470, An Act Respecting Democratic Constitutional Change. On the same day, my colleague Romeo Saganash, NDP Critic for Aboriginal Intergovernmental Affairs, tabled Bill C-469 that would require Canadian law and practice to respect the United Nations Declaration on the Rights of Indigenous Peoples. In this way, on that day, the New Democratic Party was making sure that Canadians know that our party sees the building and nurturing of sustainable and cooperative relationships as the essence of a democratic federalism. We also see the rights of peoples to self-determination as inextricably a relational concept in which unilateralism and absolutism have no place; instead, the concrete consequences of one collectivity’s claims to self-determination alongside other collectivities’ contrasting and overlapping claims to self-determination can only emerge from good faith dialogue based on mutual respect and recognition