Here’s some good news for you incoming 1Ls.  Canada’s recent constitutional decisions by the Supreme Court are so complicated and contradictory, that even the experts cannot identify the overarching principles.

Prof. Ed Morgan of UofT addreses this in an article in The Globe.  He points out that:

• The Canadian military does not ow a duty to detainees that are arrested and turned over to another country
• But our intelligence service does owe a duty to prisoners taken in custody by another state and given to us for interrogation
• Diplomats have the responsibility of having to intervene in foreign legal systems that don’t have the same standards as we do for punishment
• But our police can comply with foreign legal systems that don’t have the same search ans seizure standards

Morgan concludes,

We are a country with distinct national interests, and a society that values universal rights. There is nothing wrong with attempting to craft a body of law that reflects both sides of that coin. But it behooves our judiciary to at least try to rationalize its approach to the constitutional powers of government.

Litigation at this level ought not read like it was driven by the usual legal spin doctors, or by decision-makers who just go with their gut. If we faced our contradictions squarely, and tried to explain each ruling in terms of the last, we wouldn’t just have a more comprehensible law; we would better understand ourselves.

So when it comes to that 1L Constitutional Law exam, the answer that always works?  “It depends.”  And whatever rationale you provide to explain the inconsistencies, you can take some reassurance that even the experts are not really sure where we stand on these issues.