I have been asked to speak to you about judging in the age of the Canadian Charter of Rights and Freedoms, with particular reference to remedies under the Charter. You will understand, I am sure, that my treatment of the subject will necessarily be in the nature of an overview.

Stated broadly, I will be suggesting to you that the introduction of the Charter in Canada has required a fundamental reappraisal of how judges approach their tasks, of the processes that are employed and of the relationship between the judicial and legislative branches of government.

Before developing these two propositions, however, I should first give you some basic information about our Charter; to those for whom this is very familiar ground, I apologize and promise brevity.

The Canadian Charter of Rights and Freedoms, which was adopted by Canada in 1982, has one main animating principle from which flows one corollary. The animating principle is that certain human rights and freedoms should be part of the fundamental law of the land. The corollary is that when there is a dispute about the application or the meaning of these fundamental rights and freedoms, it is the responsibility of the courts in Canada to define and apply them through the legal process.

The legal problems relating to the Holy Places in Jerusalem are of a very complex and delicate nature. The issue has a long history, and its complexity is the result of turbulent religious, ethnic, national and international conflicts over the Holy Places. The problems were not created by the State of Israel, but the establishment of the Jewish State added new dimensions to the age-old contest. I shall first describe briefly the ideological background of the problem, then analyze its legal aspects and finally illustrate its complexity by a number of Israel court decisions.

In 1961 the government of Israel brought criminal charges in Jerusalem against Adolf Eichmann, a former Obersturmbannfuher (Lt. Col.) in the S.S. Eichmann's name had frequently come up at the Nuremberg trials, as he had overseen the substantial task of transporting European Jews to Nazi concentration and death camps during the war. However, he was never tried at Nuremberg because he had evaded capture by allied armies and begun a new life in Argentina. In 1961 the Mossad, the Israeli intelligence agency, kidnapped Eichmann and brought him to Israel to stand trial. Given Eichmann's notoriety, and the rather unusual way in which Israel obtained in personam jurisdiction over him, it was not surprising that the trial received world-wide attention.

In Jerusalem Eichmann was charged with violations of the Nazi and Nazi Collaborators (Punishment) Law of 1950.

Special Considerations in Striking the Balance Between the Right to Leave and the Interest of State Security

Section 6(a) of Basic Law: Human Dignity and Freedom lays down explicitly that “every person is free to depart from Israel”. By enacting this provision the Knesset followed a long line of cases decided by the Supreme Court of Israel which held that the right to leave Israel is a recognized important right and a basic principle of the Israeli legal system.

Article 6(a) confers the right to leave upon every person both Israeli citizens and foreigners alike. This principle conforms to the norms of various important international human rights instruments that confer the individual's universal right to leave upon a country.

The constitutional protection of this right means that the right cannot be restricted except as provided by law which was intended for a fitting purpose and only to the extent necessary.

I. The Fundamental Agreement between the Holy See and the State of Israel

On December 30, 1993, the Fundamental Agreement between the Holy See and the State of Israel was signed in Jerusalem by representatives of both parties. The agreement, which precedes the first diplomatic relations entered into between the Holy See and the State of Israel, covers areas of international relations which include both general issues such as human rights and freedom of religion and particular issues regarding Vatican-Israel relations, such as the status of the Catholic Church in Israel and the role of the Holy See in territorial disputes in the region. The goals and meanings of many of the provisions of the Agreement have as yet to be further defined however, and several of them will be discussed following a brief survey of the historical events leading to the conclusion of this agreement.