Amici Curiae: The Khadr Countdown, Pie in the Face and Pants on the Ground Edition

SCC Decision in Khadr Today
Will the SCC defy, or defer to, the Harper government? Today, the SCC delivers its judgment in Prime Minister of Canada et al. v. Omar Ahmed Khadr (discussed on TheCourt.ca here, here and here). In doing so, it will also deliver its verdict on lingering issues about the government’s “duty to protect” Canadians on foreign soil and the extraterratorial reach of the Charter in light of Canada’s international legal obligations. Last November, the Court reserved judgment after hearing arguments on appeal of a Federal Court of Appeal decision upholding an order that it request the repatriation of Guantanamo detainee Khadr from the United States. Khadr first raised questions of the Charter’s extraterritorial application to the actions of the CSIS agents who interviewed Khadr at Guantanamo, and who shared their intelligence with the U.S. government, which still intends to try him before military commission. The consequent, court-ordered disclosures about Khadr’s interrogation regime, in particular his induction into the “frequent flyer” program of sleep deprivation and constant cell-rotation, compelled the FCA’s August 14, 2009 order to repatriate. Given the Court’s proven boldness as regards the government’s disclosure obligations, together with its apparent reluctance to repatriate on remedial grounds of Khadr’s past mistreatment, it’s an open question as to how the Court will decide. At Ablawg, Linda McKay-Panos adds to the discussion on the Court’s “confusing” and “il-considered” treatment of the exception provided in R. v. Hape.

Alito v. Obama: That’s Not True, Mr. President
USSC Justice Samuel Alito’s response to President Obama’s recent criticism of the Court’s recent decision in Citizens United v. FEC wasn’t quite a “You Lie!” moment, but it was close. “[L]egal experts said they had never seen anything quite like it, a rare and unvarnished showdown between two political branches during what is usually the careful choreography of the State of the Union address,” The Washington Post reports. As for what happened: Obama was near the end of his speech when he made mention of Citizens United: “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections,” Obama said. Democratic lawmakers and Presidential Cabinet members, who sat around the six of nine justices attending the event, stood and applauded. The justices, as is expected, sat motionless and expressionless. Except for Alito. “Not true, not true,” he appeared to say, shaking his head and furrowing his brow, the Post reports. (Video here.) “It is not unusual for presidents to disagree publicly with Supreme Court decisions,” says The New York Times’ Adam Liptak. “But they tend to do so at news conferences and in written statements, not to the justices’ faces.” Alito was appointed to the Court in 2005. Obama, then a U.S. senator, voted against his confirmation.

Fish dubbed “The Great Dissenter”
Justice Morris Fish is the SCC’s “Great Dissenter” of 2009, according The Lawyers Weekly. The newspaper reports that at nine dissents, Fish authored  “more than twice as many as any of his colleagues.” In addition, the paper says that Chief Justice Beverley McLachlin wrote “more majority opinions than anyone else last year — six — but she also did much of the court’s intellectual heavy lifting,” having penned Grant v. Torstar, 2009 SCC 61, and R. v. Grant, 2009 SCC 32. The paper also reports that it found several other interesting patterns, including that “Chief Justice McLachlin and Justice Charron were the most solid majoritarians in the sense that they did the least concurring and dissenting, both wrote a total of nine majority or unanimous opinions, and Justice Charron wrote more unanimous judgments than anyone else — five.” While interesting, the data’s analytical value remains unclear.

Everyday Terrorism
Liberal MP Gerry Bryne suggested the federal government should investigate animal rights group PETA under the Anti-Terrorism Act after a pie attack on a government minister, The Globe and Mail reports. Earlier this week, Fisheries Minister Gail Shea was just beginning a speech when she was suddenly hit in the face with a tofu cream pie (video here). PETA has said the act was part of a campaign “to stop the government’s ill-advised sanction of the slaughter of seals.” In an interview with radio station, Byrne said he thinks what happened should be reviewed under the legal definition of terrorism. “When someone actually coaches or conducts criminal behaviour to impose a political agenda on each and every other citizen of Canada, that does seem to me to meet the test of a terrorist organization.” The National Post editorial board has concluded this wouldn’t be a good idea: “Terrorism, by definition, directly strikes fear into the hearts of those witnessing the assault, and we doubt witnesses to the pie-ing experienced anything more damaging than shock and outrage on the Minister’s behalf.” But, they add, “[A]lthough pie-throwing is not an act of terror in itself, it is an intimation of how easily such an act could escalate to terror. A pie to the face says, “Look how vulnerable you are. Look how easy it would be to throw something worse in your face.’ ” Indeed.

Finally, Maîtres Suprêmes Chez Nous
According to Simon Chester, “the Charter changed everything” with respect to the Supreme Court of Canada and its citation of American and English cases. At Slaw.ca, Chester examines the court’s citation patterns from 1944-2009, as tabled in Professor Peter McCormick’s Supreme At Last, noting a) the “explosion in the quantity of citations and the length of decisions,” and b) the general decline in the court’s resort to both American and British case law (particularly since Chief Justice Bora Laskin’s tenure). Chester concludes that “Canadian law has become itself, and is free-standing as a body of law.”

D&D Lockdown in U.S. Prison
And high time, too. Ilya Somin at the Volokh Conspiracy disparages a recent U.S. Court of Appeals for the 7th Circuit’s decision upholding a Wisconsin prison’s ban on inmates’ playing Dungeons & Dragons, as well as possession of the role-playing game’s associated paraphernalia. The court evidently accepted the defendant testimony of Waupon Correctional Institution’s resident “gang expert”, Captain Bruce Muraski, that the game stimulates “gang activity”. Although little evidence was adduced by the defendants as to the game’s malign effects—other than old instances of the game’s tendency to channel its players’ obsessive behaviours – the court opted for a literalist approach. In his decision, Judge J.P. Stadtmueller wrote that “the Dungeon Master is tasked with giving directions to other players, which Muraski testified mimics the organization of a gang.” The judge worried that the game “could foster an inmate’s obsession with escaping from the real life, correctional environment”, and that inmates might “[look] to Dungeon Masters, rather than to the prison’s own carefully constructed hierarchy of authority, for guidance and dispute resolution.” Naturally, Volokh’s Somin is unconvinced, saying that the prison hierarchy’s logic could lead to a ban on football and The Count of Monte Cristo. For that matter, it could also lead to a ban on the Bible, the Koran, and the U.S. Code, but that’s of little moment in light of latitude shown prisoners by the court: the prison’s inmates, after all, may still lawfully play “strategy games like Risk, Stratego, chess, and checkers.”

Former AG Charges: “Pants on the Ground”
T.J. Burke, New Brunswick MLA and the province’s former attorney general, recently accused Conservative opposition leader David Alward of being caught with his “pants on the ground/pants on the ground/looking like a fool with his pants on the ground.” The result? “[M]any requests from television and radio stations in Canada and the United States to repeat his performance, but [Burke] has no plans to do so or to seek a career in singing or dancing,” reports the CBC. Confused readers should watch a video of the speech given in the legislative assembly (HT: LawIsCool) and check-out this episode of American Idol.

Lawyers and the UK Iraq Inquiry
According to the UK government, the Iraq Inquiry (aka the Chilcot Inquiry) is being “conducted to identify lessons that can be learned from the Iraq conflict”. One lesson seems to be this: always listen to your lawyers. In the Guardian, Richard Norton-Taylor discusses the Iraq Inquiry’s continuing revelations as to the fractious legal imbroglio within the Blair government in the weeks leading up to the 2003 invasion of Iraq. Elizabeth Wilmshurst, the deputy to Blair’s chief legal adviser, resigned in protest over the coming invasion’s illegality, absent a supporting UN resolution. Furthermore, then-foreign secretary Jack Straw, replying to a legal memo asserting such illegality, said, “I note your advice but I do not accept it.” Most damningly, the Prime Minister did not seek formal legal advice as to an invasion’s legality from its own attorney general, Lord Goldsmith, until the last minute. Once Goldsmith delivered his tepid judgment that “the government might get away with it,” he was pressured to deliver a less equivocal opinion about whether or not Iraq was in breach of its disarmament obligations. As, in the words of Goldsmith’s former legal secretary, “the evidence had to be confirmed by someone,” the desired legal opinion was finally forthcoming: it “‘came from the prime minister in the name of the British government.'”