This case is unusual because the accused absconded (presumably returning to Germany), and his trial proceeded without him. George Passon’s legacy highlights our criminal justice system’s various embarrassments: the bumbling rural police, the recalcitrant defense, the vindictive Crown and the snail’s pace of the proceedings all play a part in this comedy of errors overseen by the patient and cautious Justice Humphries.

First, I will overview how the investigative and judicial procedures are compromised by the nature of the crime being investigated, marijuana cultivation. This is particularly relevant given the recent Ontario Superior Court of Justice ruling in R. v. Mernegh. When busting grow-ops, cops are initially working on nothing more than a tip. Because there is no complainant, or witness, procedural requirements are sometimes applied “flexibly” out of investigative necessity.

This gives way to an onslaught of arguments from the defence, who essentially submits the entire Constitution into evidence. The trial judge is then painstakingly taken through all the arguments. She knows that she has to cut the cops some slack, as it’s damn near impossible to enforce cannabis cultivation laws in British Columbia, and convictions of drug offenders looks good in a press release. Still, she can’t grant them so much slack that the public gets wind of it and calls foul. Any misstep results in accusations of “bringing the administration of justice into disrepute.” This is such a thin line to be walking I think it’s debatable as to whether it even exists.

Here is how these stories start:

A tip, and a civil servant who discovers their department is being ripped off:

In March 2006, someone informed the RCMP to a possible grow-op near Winlaw, B.C., said to be owned by a young couple from Calgary. Two drive-by investigations yielded no evidence, and hydro records were normal. A month later, hydro inspectors alerted the police that there was a difference between actual and metered consumption of electricity at the address in question, indicating that power was in fact being diverted and stolen.

Cst. Stefani prepared The Information to Obtain (ITO) a Search Warrant by Telecommunication, later deemed necessary, as the nearest Judicial Justice of the Peace, whose authorization for search warrants is required, was (and continues to be) 500km away from their station.

Before sending it off, Sgt. Little reviewed the ITO and said they did not have enough information to obtain a warrant under the Controlled Drugs and Substances Act, so they wrote one for theft of electricity instead. The ITO requested entry to the property to quote un-quote ‘locate evidence of electrical diversion and subscriber records.’ No evidence of an electrical diverter was ever found, probably because soon after entering the abandoned main home, they found the commercial grow-op that satisfied the true nature of their inquest.

First, a judicial stay of proceedings was requested while the constitutionality of the telewarrant process in the remote area of West Kootenay was challenged. Humphries J responded by eliminating some of the Constitutional challenges and asking counsel for the accused to answer four questions about its case, and the AG of BC to answer two questions on theirs.  Read Humphries J’s judgment and questions here: 2008 BCSC 1067.  Later, she dismissed the application to have the search warrant quashed, but only at after an exhaustive review of the law and analysis of the system, found here: 2009 BCSC 192.

The investigative process:

Four RCMP secured the property, which they found abandoned. The house, garage and a large blue outbuilding (which smelled of growing marijuana) were locked. The officers forced entry into the main house and began to “tally up light bulbs” [Para 25] until they discovered a set of keys which unlocked the doors to the outbuilding.

Inside the outbuilding, some 50 yards from the main house, the officers discovered a commercial marijuana grow-operation worth between $560,000 and $1.2 million. Take note: “the expert report containing the opinion that the amount is too large for personal consumption is admitted (into evidence).” [Para 27].

A search of the two bedrooms in the residence produced a backpack containing documents belonging to Mr. Passon, including his German and Canadian passports.

Here’s a police policy that was new to me: Cst. Oster was about to be transferred, so was sent down to “guard the gate” in order to lessen the potential for him having to give evidence. I imagine he was already planning his commute to court when he saw a young man, walking alone up the muddy road from the highway, approaching the gate. The Constable asked, “Can I help you?”

“I live here,” replied the man, later identified as Mr. Passon. He was promptly arrested and given his Charter and police warnings. The admissibility of this statement was debated at length in the voir dire, but eventually dropped because it was assumed it was voluntary.

Cst. Oster did not make notes of the exact conversation, recording instead that “the owner” had arrived. Mr. Passon said that he did not want a lawyer, and because they were several hours away from Nelson, patiently remained in the back of the police car for five hours while the cops dismantled the grow-op (he was let out every half an hour to stretch his legs, during which time he was not handcuffed).

Eventually, at a loss of what to do with their suspect, the police allowed Mr. Passon to drive his own car to Nelson where he was photographed, fingerprinted and released on a Promise to Appear.

Two years later – the pre-trial procedures:

Mr. Passon’s trial began in July 2008, but for reasons (application for a stay of proceedings, ruling on the ITO, lengthy voir dire etc.), substantive evidence was not called until June 2010. After waiting a few hours, the Court asked:

The Court: The first question for me is, has he absconded?

Defence: I think we should say that he has…He’s German. Frankly, he’s always on time. If he’s not here by now, that’s an assumption we can make.

Instead of adjournment, defence requested to remain on the record and have the trial proceed in his client’s absence, as his arguments were all Charter-based, and identification was not an issue.

While s. 465 of the Criminal Code allows for this anomaly, in a recent BC Court of Appeal case (R. v. Taylor) the courts were reminded that simply losing contact with one’s lawyer does not prove that a person has deliberately absconded and that the court may proceed in his or her absence. A trial judges must make inquiries concerning whether the failure to appear was born of malicious intent, or was accidental or unavoidable.

The trial judge balked at these recent precedents and instead ordered an adjournment until the police had undertaken measures to locate Mr. Passon. She also reminded Passon’s defense of s. 475(2), which allows the court to draw an adverse inference against the accused for absconding. Defence said that he had not considered this [para 8], and agreed to the issuance of a general bench warrant. The RCMP knocked on the door of Passon’s last known address, where they predictably did not find him. The rest of the story proceeds with the general assumption that George Passon is in Germany, without his BC driver’s license but thanking his lucky stars that he got to keep his passport.

Three months later: the trial process:

Passon was charged with producing marijuana contrary to s. 7(1), and possession of marijuana for the purpose of trafficking, contrary to s. 5(2). In order to prove either, the Crown must show that the accused had knowledge and a measure of control over the blue building.

The Crown argued that Passon’s fingerprint on a coffee cup found in the outbuilding, the statement “I live here”, his backpack in the master bedroom coupled with the smell emanating from the outbuilding led to the irresistible inference that Passon had knowledge and control of the grow operation. Counsel submitted that when the adverse inference arising from his failure to attend the trial is added, the case is at least proved beyond a reasonable doubt.

The Defence referred to many cases where the evidence against the accused was stronger, and acquittals were entered. It was mentioned that:

-       The accused did not own the residence

-       There was no rental agreement implying he lived there with permission

-       None of the utilities were in the accused’s name

-       There was no odor of marijuana in the residence

-       The coffee cup could have been transported into the outbuilding after Passon arrived at the scene, as the warrant was being executed

-       The landlord (the true suspect) in pursuit of whom the warrant was originally issued was not called to give evidence, as she was still at large.

The Crown referred to some recent cases on the issue of proof of possession and control by circumstantial evidence, and the need to use common sense when analyzing the evidence, but Justice M.A. Humphries found the evidence simply suggested Mr. Passon lived or was staying at the residence temporarily.

The Court of Appeal in R. v. Dae 2010 BCCA 486 recently quoted with approval the principle form R. v. Jenkins (1908)

“…there comes a time when, circumstantial evidence having enveloped a man in a strong and cogent network of inculpatory facts, that man is bound to make some explanation or stand condemned.”

In absence of any other explanation, Justice Humphries found that there is certainly one inference that can be drawn that Passon had knowledge and control over the drugs, but there are many other possible scenarios – (perhaps he was acting as caretaker of the property for the owners, maybe he was a squatter!) but there was no evidence that he had access to or could grant access to the blue outbuilding.

While a negative inference could be drawn to buttress the Crown’s case, Justice Humphries decided she would not buttress the Crown’s case in this fashion, as there were reasonable explanations for his flight to Germany – after watching the police dismantle the grow op, sitting for five hours in a police car, and being the only person accused, it could support an inference of flight amounting from his simple knowledge of the crime.

Humphries J found Mr. Passon not guilty on both counts, but reminded the court that this does not affect his outstanding warrant, as he has an obligation to attend court. That failure will be dealt with “as the court sees fit.”

In conclusion, I would just like to note the role of the lawyer in all this mess. Had George Passon insisted on one, as was his right, I think there’s a good possibility he would be behind bars right now. The lawyer, not the criminal, is the policeperson’s natural adversary. The criminal is his work, but the lawyer is his undoing; when one is called, the carefulness of the policeperson’s work corresponding increases. While this is usually thought to benefit the accused’s treatment, it also makes his case harder to fight.

In simple terms, on the scale of liberal to conservative, left to right, Justice Stevens—despite being nominated by Republican President Gerald Ford—is considered reliably liberal. He has voted in favour of affirmative action and against the death penalty, and is both pro-choice and pro-gun-control. Moreover, he recently dissented in the decision of Citizens United 130 S.Ct. 876 (2010) in which the majority, in part, removed “all restraints on what corporations may spend on election advertising.” In the US political paradigm, Justice Steven’s positions on such core issues are routinely cited as imperfect but key characteristics of a liberal or Democrat.

The nominations of Chief Justice John Roberts and Justice Samuel Alito, by former President George W. Bush, decidedly moved the court further to the right. While it is next to an impossibility that President Obama would pick a conservative, a moderate nominee is certainly not out of the question. Indeed, the President may go with a “safe” pick in order to minimize the chances of an extended and complicated nomination process. This begs the question: which of the frontrunners is “safe”?

US Solicitor General Elena Kagan, Judge Sidney Thomas, Judge Merrick Garland and Judge Diane Wood have all been interviewed by the President within recent weeks. Kagan is a former Dean of Harvard Law School, a Harvard Law graduate, and the current Solicitor General of the United States—the first female to hold this position. As the government’s representative in front of the US Supreme Court, and the only non-judge of the leading candidates, she is uniquely positioned as a potential nominee. Some see her as the presumed favorite. According to Jeffrey Toobin she is an appealing choice:

She has a reputation as a consensus builder. She is someone who brought vigorously fighting factions at Harvard together. She worked in the Clinton administration and had good relationships with Republicans in Congress at the time. She has never been a judge, which I think is a point in her favor for Obama. There are all former judges on the court now, and I think Obama wants people of more different backgrounds. So I think she’s the likely choice. 

Despite her reputation as a consensus builder, Kagan received modest support from Republicans for her confirmation as Solicitor General. In part, conservatives pointed out that she had rejected a mandate that military recruiters have access to federally funded university campuses. Her stated opposition to the military’s “Don’t Ask Don’t Tell” policy played a role in that decision. Ultimately, because she did not serve on the bench, it is difficult to isolate her position on the key ideological issues. As a final point, the National Review wonders how many cases from which the former Solicitor General would have to recuse herself once appointed.

Judge Merrick Garland, of the Federal Appeals Court in Washington, is viewed as a moderate Democrat and the least likely to face resistance in the nomination and appointment process. A Harvard Law graduate and former clerk for Justice William J. Brennen Jr., Judge Garland has decided in favour of the rights of Guantánamo detainees and has expressed appreciation for the works of the late Justice Harry Blackmun, the author of Roe v. Wade, 410 U.S. 113 (1973).

The most liberal of the contenders is Judge Diane Wood—she clerked for Justice Harry Blackmun a few years prior to the decision in Roe v. Wade. Judge Wood is a graduate of the University of Texas Law School. She taught law at Georgetown University, and with President Obama at the University of Chicago. She was nominated to the bench by Bill Clinton and currently sits on the United States Court of Appeals for the Seventh Circuit. Her career has been marked by numerous pro-choice decisions, including Hope Clinic vs. Ryan, 195 F.3d 857 (7th Cir. 1999) in which she dissented from the majority ruling upholding state bans on partial-birth abortion. This alone is sufficient to garner significant opposition from Republicans and moderate Democrats alike.

Finally, there is federal Judge Sidney Thomas of Montana, who was recently interviewed by the President. He is unique for not being an Ivy League graduate having earned a law degree from the University of Montana. Judge Thomas currently sits on the US Court of Appeals for the Ninth Circuit, to which he was appointed by Bill Clinton. Based in San Francisco, the court has a liberal reputation. According to the Scotus Blog, in 2009 the US Supreme Court reversed eighty percent of Ninth Circuit decisions (pdf link).

If all the current conjecture is to be believed, signs point to Solicitor General Elena Kagan as the “safe” choice to replace Justice Stevens. It has been reported that the President would like to nominate a female candidate. Currently, there are only two females on the US Supreme Court, out of nine Justices, and Kagan may become the third.

Second Niqab-wearing Student Asked to Leave Class in Quebec
As 1L students tackle the constitutionality of Quebec’s proposed niqab ban on their final exams (a question our own James Gotowiec has taken a first stab at), the CBC reports that another niqab-wearing student has been told to leave a Quebec classroom. The 25-year-old, a recent immigrant in an intensive French language class, was approached by officials from the provincial Ministry of Immigration and Cultural Communities, who told her that she had to agree to stop wearing the niqab in class or stop attending altogether. “Everything was going smoothly in the school,” the student later told the CBC. “Everyone has been very good to me. It was a really heartbreaking experience for me because I really loved my school, and I think it’s my civil right to go there, to learn.” The language centre’s director appeared to question the way in which provincial officials handled the situation. “She [the student] was one of the best students, she wants to learn French, she participated in class and worked with men,” Joanie Lavoie, coordinator of the Centre d’intégration multiservices de l’Ouest de l’Île, told the Montreal Gazette. “She was heartbroken — she was crying in my office. She can’t just remove the niqab right away within 24 hours. It is a long process and we need to give her time to adopt Quebec values.”

Court Weighs Forcing Disclosure of Anonymous Posters’ Identities
The Ontario Divisional Court, an intermediate court of appeal, is considering whether websites named in libel actions must identify people who anonymously post defamatory comments online, the Ottawa Citizen reports. The trial judge in the case, Warman v. Wilkins-Fournier, concluded that the posters had “no reasonable expectation of privacy” and ” the paramount obligation in this matter is to follow the disclosure rules in the Rules of Civil Procedure.” Accordingly, the judge ordered the website’s operators to disclose the online posters’ names. They appealed and have received the support of civil liberties groups in that effort. “We think the judge here made a mistake because he did not apply the right test, did not look at the impact on freedom of expression,” Nathalie Des Rosiers, general counsel for the Canadian Civil Liberties Union, told the Citizen. But if the Divisional Court upholds the defendants’ appeal, it will be more difficult for people to protect themselves against online defamation, James Katz, the plaintiff’s lawyer, told the paper. “Instead of having an automatic disclosure, you’d have to meet some sort of initial burden that you wouldn’t have had to do before.”

Difficult Question of Diversity At SCOTUS
Diversity, U.S. Supreme Court pundits say, may play heavily into Barack Obama’s decision about whom to appoint to America’s highest court. And so Orin Kerr, writing over at The Volokh Conspiracy, has taken a very serious look at the top three candidates — Solicitor General Elena Kagan and federal appellate court judges Merrick Garland and Diane Wood — and their diversity quotients. “No matter who he picks, his selection is likely to break down some major barriers,” Kerr concludes. His analysis:

[T]he shortlisters differ dramatically in that they had different high-level positions in the Clinton Administration. Will Obama pick the former Deputy Assistant Attorney General for the Criminal Division (Garland), the former Deputy Assistant Attorney General for the Antitrust Division (Wood), or the former Associate White House Counsel (Kagan)?”

Kerr concludes that Kagan, in particular, would bring “notable educational diversity” to the Court: “Kagan would be the very first Justice ever to have attended Princeton and then Harvard Law. Obviously, that would be a major break after two consecutive nominees who had attended Princeton and then Yale Law (Justices Alito and Sotomayor).” It’s a tough choice between the candidates, Kerr reasons, but “[w]hoever Obama picks, I think it’s clear that Obama faces a major choice and that his selection will be a historic occasion.”

The Legal Eclipse of the American Pit Bull
At the Boston Review, Professor Colin Dayan cites Sergeant Stubby, the “most decorated dog in American military history”, to exemplify the legal degradation of what was once known as “America’s Breed,” or the pit bull. Sgt. Stubby (now interred at the National Museum of American History) was famed for his WWI morale-boosting, gas-detection, and solo capture of a German spy. He was decorated by General Pershing and feted by Presidents Wilson and Coolidge. And, apart from being gassed and grenaded, Sgt. Stubby would likely have fared much worse had he lived now, under the regimes established by breed-specific laws like Ontario’s Dog Owners’ Liability Act. Says Dayan, “the seizures, detentions, and exterminations of pit bulls” mandated by such legislation “expose the statutory logic for making preemptive justice constitutionally permissible: canine profiling supplies the terms for inclusion and ostracism, and even the suspension of due process rights.” The author further identifies the historical paradox behind the breed’s wretched status, which she traces back to early humanitarian movements and the establishment of the American Society for the Prevention of Cruelty to Animals (ASPCA). That is, while the 19th-century humanitarian movement succeeded in extending the legal status of animals, that extension inevitably multiplied animals’ legal vulnerabilities, not least to the humanitarian movement itself. The ASPCA, after all, was “legally authorized to enforce the law, to levy canine taxes, and to impound and destroy unlicensed dogs without notice to the owner and without any judicial proceeding.” True, Dayan’s mention of pit bull “profiling,” invocation of Nuremberg-like laws based on “classification alone,” not to mention the final “frightening analogue” she sees in “the euthanasia program of the Reich,” suggest an author who has overwarmed to a particularly overripe thesis. But perhaps Dayan’s hyperbole can be forgiven. U.S. courts, after all, continue to characterize the “ferocious dog” as hostis humani generis.

UK Chiropractors Drop Libel Suit
Proponents of UK libel law reform are rejoicing now that the British Chiropractic Association (BCA) has dropped its libel suit against UK science writer Simon Singh. The BCA is cutting substantial losses in doing so, likely having done far more reputational damage to itself in suing Singh than his article could have. During Chiropractic Awareness Week in 2008, Singh’s wrote an article for The Guardian that was bluntly critical of chiropractic’s wilder claims (e.g., curing infant colic) and which stated that the therapy’s possible dangers and lack of empirical foundation “should be a major concern for health officials.” The BCA sued Singh personally for libel, rather than (as is customary) his publisher. The organization saw its main chance in Singh’s statement that it “happily promotes bogus treatments,” which arguably implies the BCA’s intent to deceive. In May, 2009, a high court agreed with this argument at a preliminary hearing, ruling that Singh’s words were a statement of fact. Things never went the BCA’s way again. Not only was Singh granted leave to appeal, but his supporters began a staggeringly successful campaign to monkeywrench the chiropractic industry by exploiting a “regulatory quirk” prohibiting advertised claims for certain treatments. Singh’s supporters “collectively worked their way through the BCA’s membership list, Googling each member, and cross-referencing any claims on their website against previous rulings by the advertising watchdog.” Within weeks, more than one quarter of the UK’s chiropractors, including BCA officers, found themselves under investigation, and the BCA issued a panicked letter to its members advising that “if you have a website, take it down NOW.” The Court of Appeal put the BCA out of its misery last month. Lord Chief Justice Lord Judge ruled that Singh’s “bogus” statement was fair comment rather than an assertion of fact, adding that he was “just baffled” at the BCA’s having introduced no evidence in support of its claims. “If there is reliable evidence,” he asked, “why hasn’t someone published it?”

Nova Scotia pardons ‘Canada’s Rosa Parks’
On Nov. 8, 1946, Viola Desmond, a beautician and businesswoman who happened to be black, was jailed for refusing to move from the main floor of a Nova Scotia theatre to the balcony, the designated area at the time for blacks. For her act of defiance, she was charged and convicted by a white judge for attempting to evade the tax differential between a balcony and ground floor seat. This week, however, Nova Scotia Lt. Gov. Mayann Francis, the first person of African descent to hold that position, pardoned Desmond posthumously, the National Post reports. “The free pardon recognizes Ms. Desmond’s innocence at the Roseland Theatre that night, and it recognizes the error of the four white Supreme Court judges who turned down her appeal,” the paper said. Some members of Demsond’s family, however, noted that while the gesture is an important one, Desmond herself would not have wanted it. “She would have laughed and said, ‘Pardon me for what? I didn’t do anything wrong,’” Desmond’s niece, Sharon Oliver, told the Post.

The issue of accommodating this particular style of dress (there is some debate as to whether it is a religious practice) has been simmering for a few years, particularly as it relates to voting. Elections Canada’s policy has been to allow women wearing the veil to vote without showing their face. When this came to light during a series of by-elections in 2007, all parties except the NDP urged the elections body to change its stance. A similar issue arose in Quebec’s 2007 provincial election.

Law professors did not wait long before predicting a court challenge to Bill 94, if it becomes law, and weighing its chances for success. This issue could have come right from the pages of a law school exam or moot competition, as  the wide array of issues and strong arguments on either side make it difficult to say with any certainty whether the law runs afoul of Supreme Court doctrines on freedom of religion and equality rights.

A framework for debate

It is easy to interpret Bill 94 as the government targeting a religious group, in this case Muslims, for differential treatment on the basis of a belief that the government happens to disagree with. That, in my view, is too simplistic. There is a contingent of people who see the practice as a symbol of the oppression of women; on that view, the state could be justified in banning the wearing of the niqab as a form of protecting women’s rights. On the other end is a civil liberties argument that says that the government should have no place in dictating what people may and may not wear. Clearly, there is also a freedom of religion argument as well.

Debates over cultural and religious practices often risk painting disparate groups with incredibly broad brushes.  On the issue of Bill 94 singling out “the Muslim community” for differential treatment, however, it’s worth noting that in the fall of 2009 the Muslim Canadian Congress asked the federal government to ban the burqa and the niqab.  The MCC suggests the wearing of the veil is rooted more in Middle Eastern culture than in religious teaching, and argues there is nothing in the Quran that requires women to cover their faces. Sheikh Muhammad Sayyid Tantawi, dean of the Al-Azhar schools in Egypt and one of that country’s top scholars on Islam, has made a similar point.  He argues the niqab “is a tradition and has nothing to do with Islam”, and has vowed to ban it in the Al-Azhar schools.

A final relevant fact involves numbers. The Muslim Council of Montreal (quoted in the Globe story linked to above) suggests that there may be as few as 25 people who don the full facial veil in Quebec. Similar estimates appeared in the other stories covering the issue.

Might the case succeed?
Whether any challenge would proceed or be successful on a s. 2(a) (freedom of religion) or s. 15(1) (discrimination) basis is an open question.  Neither case appears to lean strongly one way or the other.

In rebutting a challenge on freedom of religion grounds, the government could lead evidence, such as testimony from scholars such as Egypt’s Tantawi and statements from bodies like the Muslim Canadian Congress, suggesting that banning the niquab is not even a religious issue.  While interesting, on a s. 2(a) challenge such evidence would be beside the point. A majority of the Supreme Court in Syndicat Northcrest v. Amselem, 2004 SCC 47, held that conforming to any sort of widely held religious doctrine was unnecessary to ground a freedom of religion claim:

[A]t the first stage of a religious freedom analysis, an individual advancing an issue premised upon a freedom of religion claim must show the court that (1) he or she has a practice or belief, having a nexus with religion, which calls for a particular line of conduct, either by being objectively or subjectively obligatory or customary, or by, in general, subjectively engendering a personal connection with the divine or with the subject or object of an individual’s spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials; and (2) he or she is sincere in his or her belief.

Wearing the niqab surely meets this test, meaning that the protection of s. 2(a) would potentially be engaged. Accordingly, the critical question would be whether the proposed law infringes that s. 2(a) right.

The Court has held the government can legislate in a way that interferes with the ability of a person to act in accordance with his or her religious beliefs, if the interference is trivial or insubstantial. In determining whether that threshold is met, the majority in Amselem held that freedom of religion “may be made subject to overriding societal concerns.”

The government would then need to identify which overriding societal concerns make s. 2(a) inapplicable. At least in the context of the delivery of health care or other government services that require identification for reasons of security or fraud prevention, this would likely be a fairly straightforward burden to meet. Once an identification has been made in such a transaction, however, it becomes harder to justify the ban in the actual provision of the service. Concerning education, it’s at least arguable that a secular state should be able to impose standards on receiving a primary and secondary school education that conformed with societal views on the proper place of religion. Of course, this argument would be more tenable if the government banned all religious symbols from public schools, including crosses and kippas. Alternatively, it could be argued that the primary school context requires face-to-face communication and eye contact between pupils and teachers. Whether either of those arguments would be viable in a university or college context is the more difficult question.

On the s. 15(1) issue, the Court recently stated in R. v. Kapp, 2008 SCC 41, that a distinction violates s. 15(1) when it creates a disadvantage by perpetuating prejudice or stereotyping. On the first element (disadvantage) a court is to consider any pre-exisiting disadvantage, the ameliorative purpose or effect of the impugned legislation, and the nature and scope of the interest affected by the legislation. On the second element, the correspondence between the alleged discrimination and the claimant’s actual characteristics or circumstances is considered.

Does preventing a group from accessing government services because of its manner of dress perpetuate prejudice or stereotyping? It may, but that jumps ahead of the question of whether s. 15(1) is even applicable. Again, the answer goes back to whether the practice is religious or cultural. It’s not clear that the Amselem approach applies here; thus, the government may be able to legitimately lead evidence showing the practice of wearing a niqab is a cultural and not a religious exercise. If such evidence is accepted by a court, then the argument effectively becomes “the government is preventing me from exercising my own cultural practices.” Culture is not an enumerated ground in s. 15(1), and to my knowledge no court decision has suggested that it is an analogous ground. The Charter doesn’t necessarily protect cultural practices in the same way that it does religious ones; however, if that potential barrier is set aside, then a court would likely focus on the nature and scope of the interest affected by the legislation. Here, access to a vast number of government services is at stake. That, in and of itself, may be enough to support a discrimination finding.

Section 1

If the government fails on one or both Charter grounds, it could still justify the law under section 1. That involves demonstrating a pressing and substantial objective, a rational connection between the means chosen and the objective, and that the rights infringement is proportional to the law’s benefits. Daniel Haboucha over at McGill’s Legal Frontiers blog has canvassed the s. 1 issues, and concluded that the government would have difficulty meeting the last stage of the test.

The government may argue that part of the reason for enacting this legislation is to promote the integration of immigrants into Quebec society. The counterpoint is that, if a woman believes that her face must be covered whenever in the presence of unrelated men and a consequence of not respecting this requirement will be ostracization from her community, she may choose to simply stay at home. Wishing her children to respect the same beliefs, she may choose to send them to a religious private school instead of a public one. None of this is serving the cause of integration. (Indeed, this argument is supported by a recent report about a second woman who was expelled from French classes in Quebec)  Similarly, on the proportionality argument: if the numbers given by the Muslim Council of Montreal are accurate, is it really necessary to enact such a law to deal with 25 people in a way that applies only to those 25 people?

In any event, based on the Supreme Court’s approach to ss. 2(a) and 15(1), it’s neither a foregone conclusion that Bill 94 violates the Charter nor is the legislation definitively Charter-compliant. Of course, this is why these sorts of issues end up in our courts, and possibly in the Supreme Court. It does seem odd, though, that for all the rhetoric, time, and money that various parties are prepared to expend on the issue, the end result might simply be nine people in Ottawa deciding whether 25 people can access government services dressed as they wish. I’m all for a secular government, but if the Quebec legislature is trying to promote and protect the values of Quebec society, it may want to pursue other avenues to achieve its goal.

But it seems at least one justice was prepared to suggest just that — sort of. Justice John C. Major, who retired from the Court in 2005 and spoke to the CBC as well, said that Godin’s law “misses the point” because the focus should be to “have the most competent people, regardless of language skills, … sit on the Supreme Court.” Major warned that mandating that all future justices be bilingual would mean that ”you would have to settle for less than fully competent people,” particularly from the Western provinces, where fewer superior and provincial court judges — the pool from which the Supremes are drawn — are fluently bilingual.

Major also denied Godin’s claim that eight of the current nine justices are fluent. “There are probably 2, maybe 3, who are completely fluent. The others have a knowledge of French, but they have to rely on translators to complete the judgements,” he said. In an unusually open criticism, Major also said that he was “astounded, regardless of Mr. Godin’s good intentions, that the bill got through a second reading when you have a former justice minister on the liberal side [Irwin Cotler], you have a former premier of Ontario [Bob Rae], both lawyers, not understand that the essence of good jurisprudence is competent judges.”

Phil Fontaine, a former national chief of the Assembly of First Nations, also chimed in on the show, calling the proposed law “elitist” because “[i]t doesn’t recognize the incredible diversity of our country.” Godin, in a rebuttal, took issue with Major’s principal criticism, saying “I just cannot believe that we cannot find qualified people. “ Godin predicted that the bill has a fair chance of passing the Senate and that, if that happened, the country — and lawyers, in particular — would adjust. ”It’s not going to be the end of the world,” he said. “We will learn how to work with it.”

Stevens retires
After months of anticipation, Justice John Paul Stevens, the leader of the U.S. Supreme Court’s liberal wing and the Court’s longest-serving member, announced that he will step down from the bench at the end of the Court’s term this year, the AP reports. The news comes just 11 days before the justice’s 90th birthday. Chief Justice John Roberts in a written statement praised Stevens. ”He has enriched the lives of everyone at the Court through his intellect, independence, and warm grace,” Roberts said. Stevens’s departure gives President Obama his second opportunity, after having appointed Sonya Sotomayor last year, to name a justice to the bench. The leading candidates to replace Stevens are Solicitor General Elena Kagan, 49, and federal appellate Judges Merrick Garland, 57, and Diane Wood, 59. Slate’s Dahlia Lithwick discussed the speculation over Stevens’s successor earlier this week.

Spanish judge indicted for Franco-era investigations
Here is a joyless irony, if ever there was one: The Spanish investigating magistrate best known for his bold applications of the principle of universal jurisdiction has himself been indicted for investigating crimes committed in Spain. According to The New York Times, the charges against Baltasar Garzon stem from his short-lived 2008 investigation into “tens of thousands of deaths and disappearances during Spain’s Civil War and the ensuing dictatorship of Francisco Franco,” and, if convicted, he could be barred from the bench for up to 20 years. A rightist union of civil servants, Manos Limpias, or “Clean Hands,” led the legal campaign against Garzon, accusing him of willful judicial overreach in flouting a 1977 amnesty covering crimes committed during the Civil War. Best known for his 1998 indictment of the late Chilean ex-dictator Augusto Pinochet, Garzon as well initiated an investigation into the “Bush Six” and allegations of their involvement in torture committed at the Guantanamo Bay detention camp. In its editorial arguing for that the charges against Garzon be dropped, The New York Times argues that the judge’s conviction “would please his political enemies, but … would be a travesty of justice,” and that “Spain needs needs an honest accounting of its troubled past, not prosecution of those who have the courage to demand it.”

Khodorkovsky’s “rhetorical” defences
A year into his trial, ex-YUKOS CEO Mikhail Khodorkovsky has finally begun his defence, reports The New Republic’s Julia Ioffe. By Ioffe’s account, Khodorkovsky, charged with tax evasion, fraud, money laundering, and “stealing 350 million tons of oil,” appears to be mounting a defence designed to humiliate the state prosecution by staging a show trial of his own. Khodorkovsky countered the charge of oil-theft, for instance, in a “rhetorical exercise” wherein his lawyer produced a bottle of crude oil and gave him a pink piece of paper — thereby “trading” the oil with Khodorovsky such that “Khodorkovsky now owned the oil, which remained physically with [his laywer].” The presiding judge angrily rejected his motion to experimentally reproduce the “theft” on a scale massive enough scale as to approximate the theft he was charged with. Thereafter, Khodorkovsky “consternated the prosecution” — while entertaining and exasperating the judge – with “abstruse technical detail” and “legal jargon and obscure citations.” Ioffe opines that Khodorkovsky’s tactical “point … was to explain in emotionally empty, hyper-rational terms … that the prosecution’s case was ‘politically motivated’ and ‘bogus’, and that its arguments amounted to ‘legal schizophrenia’.” His deeper strategy, says Ioffe, is likely to expedite proceedings before the European Court of Human Rights by “shining a spotlight on the incompetent, corrupt and politically motivated Russian judicial system.”

Sex-ed both mandatory and criminal in Wisconsin?
A Wisconsin district attorney, Scott Southworth, has written a remarkable letter to his county’s school board members and administrators, warning them that a recent state law that mandates instruction in contraception is “programming that promotes the sexualization —  and sexual assault — of our children.” In light of the various criminal laws prohibiting sexual intercourse with minors, says Southworth, teaching minors how to use contraceptives “is akin to teaching children about alcohol use, then instructing them on how to make mixed alcoholic drinks.” Southworth goes on to enumerates the law’s other risks, including the possibility that the law “undermines parental authority” by encouraging children to “shop around” for familial sex-sanction, but the most controversial part of his letter lies in its unmistakable, however veiled, threat to educators. That is, not only might school districts be civilly liable for any sexual assault linked to an act of sex education, but any teacher might be charged with intentionally contributing to their students’ criminal acts —  and that “he or she only need be aware that his or her instruction is ‘practically certain’ to cause the child to engage in the illegal act.” Southworth does add the ill-faith qualification that “our teachers should never be put in this position,” stating in interviews that “[he is] not looking to charge any teachers” and has “enough work to do.”

Eugene Volokh isn’t having any of it and he raises legal and practical counter-arguments. The criminal statute, he says, requires purpose to cause the prohibited result, “and I doubt that teachers are teaching children about contraceptives with the specific purpose of getting them to have sex.” Furthermore, according to Volokh, Southworth’s hypothesizes that “(1) the child is already having sex, but (2) the child was likely to stop having sex because of lack of contraceptive education, yet (3) the teacher’s teaching the child about contraceptives is now ‘practically certain to cause’ the child to continue having sex. Really? How likely is that?”

Dutch Court Dismisses UN Srebrenica Suit
Hours before the Serbian Parliament passed a resolution apologizing for the 1995 massacre of more than 7,000 Bosnian Muslims at Srebrenica, the Dutch Court of Appeal dismissed a lawsuit brought against the United Nations by the Mothers of Srebrenica for its peacekeepers’ role in the massacre. The appellant, representing the mothers and other relatives of more than 6,000 dead, alleges that, far from simply failing to prevent the bloodshed, the Dutch battalion expelled thousands of Bosnian Muslims from its base into “the hands of Bosnia Serb soldiers” and helped Bosnian Serbs to “separate unarmed men and boys from their families and bus them to execution sites.” The appeal court, however, upheld a district court ruling that relied on UN legal immunity for the actions of its peacekeepers, as grounded in the UN Charter and the UN Convention on Privileges and Immunities. The protections of the latter agreement (apparently limited in intent to UN officials, diplomats, and experts) were extended to the UN’s peacekeeping operations under its 1990 Model Status of Forces Agreement. According to the court’s press release, while “the Court of Appeal appreciates that the mothers and their relatives have suffered atrocities,” the court confirmed the “UN’s special position” as guarantor of “world peace and safety” in “hotspots around the world.” That is, stated the court’s release, the “interests of the UN must prevail” in order to ensure that “the UN is not thwarted in the execution of its duties” by court cases. Perhaps inappropriately in the circumstances, the court takes the trouble to add that its confirmation of UN immunity will work to inhibit frivolous litigation that may have been brought “for no other reason than to frustrate the UN’s work.” The Mothers of Srebrenica intend to appeal the decision.

In related news, The New York Times’ Robert Mackey reports that the Dutch ministry of defense released a copy of a letter of apology from U.S. General John Sheehan. As regular readers may recall, testifying earlier this month at U.S. Senate hearings reviewing the military’s “don’t ask, don’t tell” policy, General Sheehan said that “a Dutch counterpart had told him that the failure to defend Srebrenica was in part caused by the presence of gay troops in the Dutch military.”

BCCA Affirms Charter Right to Rudimentary Shelter
Sarah Hamill, in a post on the Centre for Constitutional Studies’ website, walks through the decision of the British Columbia Court of Appeal in Victoria (City of) v. Adams, which was decided late last year and affirms a trial court’s ruling that recognized a Charter right for the homeless to erect temporary shelters under certain circumstances (the trial judgement was discussed here in 2008). “The Court of Appeal’s ruling in Victoria may spur changes in other cities in British Columbia, but it is unlikely to make cities like Edmonton or Calgary reword their bylaws to make them constitutional,” Hamill argues. “However, if a ruling like Victoria is appealed to the Supreme Court of Canada, Canadian cities may be forced to redraft their bylaws so that they comply with section 7 of the Charter.” The litigation centred on whether homeless people could set up temporary shelter in public parks notwithstanding municipal bylaws prohibiting any form of “structural” shelter in them. Residents of the tent city launched a Charter challenge under s. 7 when the Victoria enforced its bylaws by removing a tent city in one of its parks. The BCCA agreed with the core trial court holding that s. 7 was violated, but disagreed with the trial judge’s finding that the bylaws were arbitrary, Hamill notes. Instead, the BCCA determined that the bylaws were overbroad and thus violated the Charter.

Can SCOTUS deign to cite foreign law?
U.S. Supreme Court Justice Antonin Scalia in his dissent in Lawrence v. Texas famously castigated his more liberal colleagues for citing foreign law in their majority opinion. Discussion of foreign views amounted to “dangerous dicta” since the court ”should not impose foreign moods, fads, or fashions on Americans,” Scalia urged. (By way of background, Justice Anthony Kennedy, speaking for the majority, had cited the European Court of Human Rights.) Speaking this week, however, Justice Stephen Breyer, who was in the majority in Lawrence, said the debate about the reference to foreign law is ultimately irrelevant because justices can read whatever they want when writing their opinions. ”I say that’s a wonderful political debate. It’s good, but it’s pretty irrelevant because when I do read things, I can read what I want,” Breyer said, in remarks reported by The Washington Post. “If I see something written by a man or a woman who has a job like mine in another country, and who is interpreting a document somewhat like mine and who in fact has a problem in front of the court somewhat like mine, why can’t I read it, see what they’ve done? I might learn something.”

The Dreyfus-Guantanamo Continuum
Does the Dreyfus Affair still matter, and how does it still matter? The Financial Times’ Donald Morrison reviews three recent books on the subject, concluding that the affair does still “matter”, at least by virtue of its modern analogues, most notably the post-9/11 actions and policies of the U.S. government. The 1894 scandal began began when a letter later alleged to contain French military secrets was found in the garbage at the Parisian German embassy; the shredded letter was too-quickly traced to Alfred Dreyfus, a Jewish captain in the French infantry; and the French political, literary, and cultural establishment has been convulsed by the question ever since. The Dreyfus Affair, says Morrison, “was the first big test of a modern justice system” in that it engaged and engages those issues “central” both to democracy and the difficulty in justifying democratic methods where exigency seems to demand contrary methods: that is, “should the rule of law be applied consistently, or are there cases in which it should be bent to fit a current crisis or pressing national concern?” Morrison notes that France’s enduring argument over, and fascination with, the Affair is natural enough, particularly in light of the perennial French debates over Algeria, Vietnam, cultural accommodation, and systemic anti-Semitism. He goes further, though, connecting the question of the consistent application of law to the present War On Terror. Morrison praises Louis Begley’s Why the Dreyfus Affair Matters, “a slim but powerful denunciation” of the Bush administration. Begley, says Morrison, “likens Dreyfus to the 800 or so ‘enemy combatants’ dispatched to [Guantanamo], nearly all without trial or basic charges.” To Morrison, Begley’s analogy, which may be somewhat strained — or “attenuated”, in Harper’s’ Scott Horton’s words — is perfected in the collective Zola claims to have found for the American context. To Begley, and perhaps Morrison, the Dreyfus/Guantanamo correspondence is confirmed in the actions of “the journalists, lawyers and judges who fought against ‘torture and kangaroo trials’” to free the detainees.

Father of Slain Marine Ordered to Pay Costs to Protestors
The father of a slain U.S. marine who sued highly controversial anti-gay protestors for picketing the funeral of his son has been ordered to pay costs after having lost his suit against them, CNN reports. Regular readers will remember the case, Snyder v. Phelps, which involves Fred Phelps, the Kansas preacher known for vehemently anti-gay views and is headed to the U.S. Supreme Court for another round of appeal. Phelp’s group, which runs the website godhatesfags.com, carried signs including “God Hates the USA,” “America is doomed,” “Semper fi fags,” and “Thank God for dead soldiers” at the funeral protest. The soldier’s family won an $11 million judgement, which was recently reversed by the Fourth Circuit Court of Appeals. ”By the court making this decision, they’re not only telling me that they’re taking their side, but I have to pay them money to do this to more soldiers and their families,” Albert Snyder, whose son was killed in Iraq in 2006, told CNN. Though fee-shifting is rare in U.S. courts, Maxwell Kennerly of the Law & Litigation Blog notes that Rule 39 of the Federal Rules of Appellate Procedure permit it. “Civil it may be, but justice it is not,” Kennerly argues. An even more outraged Bill O’Reilly of Fox News has promised to cover Snyder’s costs.

Who, then, in law is one’s electromagnetic neighbour?
There are likely few “electromagnetic hypersensitives” (EH) in good health among The Court‘s readers, perhaps fewer still sensitive to said hypersensitives’ sensitivities. Whatever the pathology’s origins and somatic validity, its secondary legal symptoms are real enough. According to Michael Haederle at the L.A. Times, Arthur Firstenberg, a Santa Fe resident and EH, has brought suit against a neighbour claiming that emissions generated by her iPhone, laptop, wireless router, and dimmer switches induced (inter alia) nausea, vertigo, and insomnia, forcing him out of his house, into his car, and onto friends’ couches. A member of a Santa Fe group opposing the city’s introduction of wi-fi zones, Firstenberg is also the founder of the Cellular Phone Task Force, who were the lead petitioners in Cellular Phone Taskforce v. FCC, a U.S. Second Circuit Court of Appeals case brought to challenge FCC safety standards for radio frequency radiation. Firstenberg, apparently unfamiliar with the EH-friendly Faraday Cage (a wire mesh enclosure, last filmed enclosing Gene Hackman in Enemy of the State), did take some precautionary measures. He chose a house located “at the end of a narrow lane,” next to a railway yard, that seemed to him the perfect electromagnetic refuge. He was unable to choose his neighbours.

Others, however, have been more tempered in their respons, though both liberals and conservatives seem united in their criticism that the University of Ottawa badly erred in its handling of the speech. Peter Worthington, writing over at FrumForum, argues that “[a]lmost any opinion can be voiced at U.S. colleges these days — but not in Canada.” He asks: “As reflected by Mr. Houle, why are we so fearful of free speech? So politically correct, so uneasy that Canadians are incapable of thinking for themselves and must be guided, protected, controlled? And punished if we deviate?” Blogging for The Globe and Mail, Tim Powers, who has taught at UofO, said he found the administration’s actions “atrocious and amateurish.” The whole episode has cast Coulter as “the victim of the left-wing establishment who tried to muzzle her often muddy musings,” Powers argues. “They should have let her speak. Now the university looks like it was repressing free speech and in fact they did. They created an unnecessary circus instead of simply letting the clown perform.” Margaret Wente agrees that the administration’s actions were “the wrong thing to do strategically, politically and morally” (though not legally), and suggested that the Canadian Association of University Teachers “ought to censure them.” And, indeed, CAUT did criticize the university. The groups’ leaders said in a statement that they are “deeply disturbed” by the situation, adding that the administration’s “admonishing [Coulter] about speech rights in Canada raises serious questions about the University of Ottawa’s respect for freedom of expression and academic freedom.”

The university’s administration, however, continues to defend its actions. “We have a long history of hosting contentious and controversial speakers on our campus,” administrators said in a statement. They added, seemingly unaware that Coulter’s speech did not, in fact, take place, that “[l]ast night was no exception.” Coulter did, however, manage to speak to an audience in Calgary last night, where she said she was relieved to be in the “English-speaking part of Canada,” and said she planned to campaign for the U.S. to annex “everything from Calgary west.” 

Bill 94: Quebec introduces veil ban
The provincial government of Quebec introduced “unprecedented legislation requiring Muslim women to show their faces in all government locations, including schools, hospitals and daycares,” the Globe and Mail reports. “The practice whereby … a person to whom services are being provided by the [government] show their face during the delivery of services is a general practice,” states the draft bill, which makes no explicit mention of head scarves or other coverings. “If an accommodation involves an adaptation of that practice and reasons of security, communication or identification warrant it, the accommodation must be denied.” Another provision states: “An accommodation must comply with the Charter of human rights and freedoms  …  in particular as concerns the right to gender equality and the principle of religious neutrality of the State whereby the State shows neither favour nor disfavour towards any particular religion or belief.” Reaction thus far has been varied: While media reports indicate that the prime minister and opposition leader both support the measure, others have been more critical. The Montreal Gazette reports that Muslim leaders are predicting that “[b]arring women who wear the niqab from receiving government services or an education will chase them out of universities and the workplace, and into the shadows.” Over at the National Post, Chris Sellers has tried to parse Bill 94′s language and concludes that “the whole thing’s a bit inscrutable.” Adds Sellers: “Whatever Bill 94 means, though, I’m thoroughly uncomfortable with the impetus for it — which is nothing but ludicrously outsized xenophobia.” The Ottawa Citizen editorial board charges that “[t]he proposed law is a clumsy, politically-charged hammer.” It appears that the rest of the blawgosphere hasn’t quite tackled the issue yet, but no doubt that will change in the coming days.

Gay dutch soldiers contemplate class against U.S. general
A Dutch political strategist has launched the “Pink Army” movement and is looking for gay soldiers to sue a retired American general, who last week blamed the Netherlands’ inclusion of gays in the military for the Srebrenica massacre, The Advocate reports. Marine Corps Gen. John Sheehan made the charge during a Congressional hearing as he argued against ending the Pentagon’s ban on openly-gay soldiers (see video). The general recounted that Dutch leaders, including the country’s former army chief of staff, had told him the presence of openly-gay soldiers among the country’s 400-strong contingent had been “part of the problem” that led to the fall of Srebrenica, and the subsequent massacre by Bosnian Serb forces of 8,000 Muslim men and boys, the National Post reported. ”The battalion was under-strength, poorly led, and the Serbs came into town, handcuffed the soldiers to the telephone polls, marched the Muslims off and executed them,” Sheehan testified. He made no criticism, however, of the Canadian Forces, where openly gay soldiers have served since the 1990s. Meanwhile, Eric Lipman of LegalBlogWatch reports that the Pentagon will slow its discharges of gay personnel while it studies a potential repeal of Don’t Ask, Don’t Tell. Steve Sanders of the Sexual Orientation and the Law Blog has more details.

U.S. Appellate Court Backs Extraterritorial Application of Child Sex Trafficking Laws
The U.S. Court of Appeal for the Eleventh Circuit recently ruled that an American statute outlawing the “purchase” of a minor “with intent to promote … the engaging in of sexually explicit conduct … affecting interstate or foreign commerce” has extraterritorial applicability, Roger Alford reports for Opinio Juris (HT: ConflictsofLaws.net). The case involves a U.S. citizen and resident who was detained in Cambodia by the Cambodian police on suspicion of violating Cambodian laws against child sex prostitution. During his detention by Cambodian authorities, the man admitted that he had paid minors to take sexually-explicit photographs of them and to have sex with them. An American immigration and customs agent watched, but did not participate in, the interrogation, which eventually led to the U.S. charges. As Alford explains the court’s ruling, “The language of [the statute] requiring travel in foreign commerce, the broad sweep warranted by child pornography offenses, and Congress’s repeated efforts to prevent exploiters of children from evading criminal punishment demonstrate that Congress intended [the statute] to apply extraterritorially. Moreover, such an intent is consistent with international law, which permits jurisdiction under the ‘nationality’ principle.”

Haiti’s pressing need for foreign investment dollars prompted Eric Lipman of LegalBlogWatch to observe that ”[i]t should not be necessary to suspend enforcement of an anti-corruption law to enable U.S. companies to participate, but, realistically speaking, is it justified in this case to look the other way for a time?” Ashby Jones of the WSJ Law Blog picks up that line of thinking and asks: “Let’s assume, for now, that suspension of the FCPA would, in fact, lead to more badly needed U.S. investment in Haiti — a country in desperate need of every last dollar. … [I]s that any way to get a country like Haiti back on its feet — by perpetuating a culture of corruption?” Those who are particularly curious may want to check out this paper by Andrew Brady Sterling of the University of Mumbai, who argues that “in countries where bribery is perceived to be relatively common, the present enforcement regime goes beyond deterring bribery and actually deters investment,” thereby functioning as “as de facto economic sanctions.”

The New Breed of ‘Corporate’ Candidates
The Washington Post recently introduced its readers to Murray Hill, who the paper suggested “might be the perfect candidate for this political moment: young, bold, media-savvy, a Washington outsider eager to reshape the way things are done in the nation’s capital.” So perfect, we might add, that Murray Hill might not be human. And indeed, he — err, it — is not. In fact, Murray Hill is Murray Hill Inc., a small, five-year-old public relations company that is seeking office to prove a point. As the Post tells it, after the U.S. Supreme Court, in its decision in Citizens United v. Federal Elections Commission (discussed in depth here), ruled that corporations essentially have the same rights as individuals when it comes to funding political campaigns, “the self-described progressive firm took what it considers the next logical step: declaring for office.” Perhaps the firm took its cue from Justice Stevens who, in his fiery dissent in Citizens, suggested — sarcastically, we hazard — that ”it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.” Murray Hill couldn’t agree more. “Until now, corporate interests had to rely on campaign contributions and influence-peddling to achieve their goals in Washington,” the candidate, who was unavailable for an interview, said in a statement to the Post. “But thanks to an enlightened Supreme Court, now we can eliminate the middle-man and run for office ourselves.” Murray Hill has nearly 10,000 fans on Facebook and boasts a YouTube clip that has northward of 200,000 hits. The campaign website, complete with t-shirts and mugs for sale, can be found here.

No Constitutional Right to ‘Sexting’ … Yet
Here’s an awkward question: Do teens, tweens or anyone else under 18 have a First Amendment right to send sexually explicit messages or photos — especially of themselves — through their cell phones? Alas, the U.S. Court of Appeals for the Third Circuit ducked from answering it this week, instead saying “we decline to consider it.” That said, in its opinion, the court nevertheless found for a 16-year-old claimant arguing for such a right, ruling that a prosecutor “could not charge her merely for appearing in a photograph without evidence she had engaged in distributing it,” as the WSJ Law Blog reports. The back story, the Philadelphia Inquirer explains, involves school officials coming across pictures of  nude and semi-nude girls on male students’ phones. The local prosecutor told parents that “any student who appeared in a photo and did not attend an ‘education program’ of his choosing would be charged with child pornography.” The parents refused to send their kids to the program and instead sued for an injunction. The prosecutor’s lawyer told the Inquirer that his client was “disappointed” by the decision, but added that he was pleased “the court did not hold that the transmission of photographs of naked children by other children is protected by the First Amendment.”  It’s not clear if the young men who actually received the photographs of their female classmates, some of whom were as young as 12, were charged.

The Experience of Justice Stevens
“Stevens. Is. The. Man.” wrote a fellow contributing editor at this blog in response to U.S. Supreme Court Justice John Paul Stevens’ remarkably astringent 90-page dissent in Citizens United v. Federal Election Commission (briefly mentioned above and, again, discussed at length by The Court here). “Is” shall soon be “was”, though, and the New Yorker’s Jeffrey Toobin speculates as to SCOTUS’ likely tilt once Stevens retires. In his interview and survey of Stevens’ career, Toobin manages to wring from the judge that he will retire within the next three years. Stevens, writes Tobin, “generally bides his time.” However, given that Barack Obama’s presidential term ends in December, 2012, and in light of Cheney-oid forecasts that Obama will be a “one-term president“, there are doubtless many that would like him to get on with it and allow his replacement by a similarly forceful liberal voice on the now-conservative court. Toobin writes that Stevens, appointed by Gerald Ford in 1975 and “the fourth-longest-serving Justice in the Court’s history,” has grown to serve a valuable role as counterweight on the court, one that complements the “complex balancing act” of experience and precedent in his constitutional approach. His has been an approach, says Toobin, directly opposed by Justice Antonin Scalia, whose “caustic certainties” annually lead the two justices into direct constitutional conflict, with Scalia writing separate concurrences specifically critical of Stevens’ invocation of experience as a jurisprudential tool. Not only was Scalia’s concurrence in Citizens United partly a response to Stevens’ dissent, but the 2008 capital punishment case of Baze v. Rees saw Scalia baldly stating his intent to correct Stevens’ experiental error: “purer expression cannot be found of the principle of rule by judicial fiat,” wrote Scalia, accusing him of an egotism wherein “it is Justice Stevens’ experience that reigns over all.” Even in 2008, three years after Chief Justice Roberts’ confirmation of the SCOTUS conservative ascendancy, the admonition seemed ill-put. In hindsight of Stevens’ Lear-like flare-up in Citizens United, though, it seems de trop. While it now “reigns” over little, Stevens’ 34 years of experience with the Supreme Court was surely deserving of greater respect, even by his chief antagonist.

Henry V: King of England, Duke of Aquitaine, War Criminal, Pedophile
Did Henry V’s massacre of French prisoners at Agincourt make him prospectively liable under the Alien Tort Statute? Washington Briefs reports on the appointment of SCOTUS justices Ruth Bader Ginsburg and Samuel Alito Jr. to a 7-member blue-ribbon panel charged with determining Henry’s criminal liability for having ordered his soldiers to kill French POW’s, who “were suddenly sticked with daggers…brained with pollaxes…[and] slaine with malls [while] others had their throats cut, and some had their bellies punched.” So went one grisly, bathetic account, anyway, although the primary documentary source relied on by the court was the skeletal treatment accorded the massacre-order by Shakespeare in Henry V, i.e., “Then every soldier kill his prisoners; give the word through.” That’s about it. Anyway, although Henry’s legal team archly argued the originalist doctrine of “Cardinal Scalia” as to the Roman founding fathers’ intention to feed all POW’s to lions, as well as “the experiences of American King Richard XXXVII, ‘who said that if the King does it, it’s not legal,” Henry was found criminally liable under the ATS. Justice Ginsburg (chief justice of these proceedings) also looked askance at Henry’s romance with 14 year-old French princess Katharine, telling the defence that “your client is a pedophile.”

U.S. Appeals Court Narrows Privacy Protections for Email
The U.S. Court of Appeals for the Eleventh Circuit was wrong on the law when it handed-down a decision that “largely eliminates” constitutional protections against searches of email, Orin Kerr argues over at The Volokh Conspiracy. The court, in Rehberg v. Paulk, ruled that constitutional protection in stored copies of e-mail held by third parties disappears as soon as any copy of the communication is delivered. As Kerr explains, “Under this new decision, if the government wants get your e-mails, the Fourth Amendment lets the government go to your ISP, wait the seconds it normally takes for the e-mail to be delivered, and then run off copies of your messages.” (Gmail users, take note: You may want to figure out where the Google servers storing your email are located!) The court’s reasoning seems to hinge on the conclusion that the claimant’s hitting the send button on his messages amounted to “voluntary delivery of emails to third parties,” thereby constituting “a voluntary relinquishment of the right to privacy in that information.” Kerr takes issue with that reasoning on the basis that it doesn’t properly address the relative privacy expectations for different copies of the same email. “[W]hen many copies of information are made, you have to treat different copies differently,” he argues, citing precedent concerning postal mail cases. For example, an individual’s privacy expectation in a letter left in a public place would be very different from that for a photocopy of the same letter kept at home. “For these reasons, the court should have analyzed access to the e-mails stored with the ISP based on whether there was a reasonable expectation of privacy in that remotely stored copy accessed, independently of delivery of another copy” [emphasis in original]. Such a fact-specific inquiry may lead one to conclude there is no reasonable expectation of privacy, but not necessarily.

Pelosi Part II: Not Weirdo, but Weasel
We Canadians may think ourselves parliamentarily sophisticated, particularly in light of the last two years’ explosion in the use, both dictional and political, of “prorogation“. If so, we are badly deluded. For sophistication, one could hardly better the controversial “deem and pass” procedural stratagem about to be employed by the Obama administration in its struggle to pass its health care bill, free of the threat of filibuster. In this scheme, to put it simply, the bill’s general provisions would be approved by the House of Representatives, while specific (and Democratically unpopular) Senate amendments would be deemed, under parliamentary self-executing rule, to have passed as well and – with Presidential signature – become law. The Atlantic’s Clive Crook, however, takes to task House Speaker Nancy Pelosi (whose odd, counter-temporal legislative ideas were recently noted here) for “nakedly” lying to the electorate about the proposed passage of the health care bill. “Deem and pass” is related to “reconciliation“, the process wherein a budget measure can avoid a filibustered fate and, once invoked, automatically enact changes in existing revenue and expenditure structure that accommodate the budget measure in question. In this case, writes the Washington Post’s Amy Goldstein, “the self-executing rule would say that the Senate’s version of health-care legislation would be deemed approved if House members adopt a set of changes to that bill,” and that “the original bill could go directly to President Obama to be signed into law.” The procedure itself is time-hallowed enough, says Crook, previous Republican governments having frequently used to it push through tax measures that swelled the U.S. budget deficit. Too, Tea Party-ish opposition is predictable and predictably amnesiac. But the particular betrayal, argues Crook, is to Democratic voters, as Pelosi’s “deem and pass” is a not simply a means to procedural streamlining: rather, it is a “cover” for “her members to be able to vote for the Senate bill while telling their voters back home they have not.”

The legal fees in dispute were incurred in the ’80′s and ’90′s, in land claims actions brought by Temagami First Nation [TFN] aginst the federal and provincial governments. According to Domenico Magisano, the Blaney McMurtry lawyer representing the band in the appeal, BLG’s fees were initially paid through a government fund; once the fund ran dry, BLG “asserted that it continued to to act on behalf of TFN and…amassed an outstanding account of over $1.1 million.” In 1996, BLG succeeded in an action to recover the fees from OFNGP, which is charged with distributing Casino Rama revenues among Ontario’s various aboriginal bands, including TFN. According to Magisano, BLG “advised TFN that this was merely a procedural step and that BLG had no intention of enforcing on any judgment it might obtain.” TFN thus did not defend the claim and was noted in default. Biding its time, and early assurances notwithstanding, BLG obtained a default judgment against TFN and, in 2008, issued TFN a notice of garnishment. In defending against BLG’s appeal, TFN’s success hinges on how the monies owed BLG are characterized in light of s. 89(1) of the Indian Act, and whether or not the disputed amount is “debt” or “personal property”. If the appeals court sees the old account as debt, then BLG wins. However, if the court decides (given that Casino Rama and the OFNGP are both located on reserves) that the money is personal property, it will dismiss the appeal, as the Act provides immunity to garnishment. Curiously, the “most recent news” section of Borden Ladner’s website makes no mention of the upcoming appeal.

American Chief Justice to be Expressionless No More?
President Barack Obama and U.S. Chief Justice John Roberts perhaps demonstrated how the different branches of government are supposed to check and balance one other when they “waded again into unfamiliar and strikingly personal territory,” the Washington Post reported this week. Speaking before an audience of students, Roberts said he found comments made by Obama at the recent State of the Union address “very troubling” (see video).  Obama was near the end of his speech when he made mention of Citizens United v. Federal Election Commission, a controversial 5-4 ruling where the Court struck down legislative restrictions on advertising by corporations (discussed here). “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 surrounded the six justices attending the event, stood and applauded. The justices, as was expected, sat motionless and expressionless (with one crucial exception, see below). Back before the students this week, when asked whether the State of the Union address was the “proper venue” in which to “chide” the Supreme Court, Roberts didn’t hesitate to share his thoughts. ”First of all, anybody can criticize the Supreme Court without any qualm,” he said, adding that “some people, I think, have an obligation to criticize what we do, given their office, if they think we’ve done something wrong.” But he then added: ”On the other hand, there is the issue of the setting, the circumstances and the decorum. The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court — according to the requirements of protocol — has to sit there expressionless, I think is very troubling.” It is true that all the judges were sitting expressionless when Obama made his remark, save for Justice Samuel Alito: ”Not true, not true,” he appeared to say, in a now infamous head-shake and brow-furrowing. (Video here.) The White House did not respond directly to Roberts’s remarks, but did continue to criticize the holding in Citizens.

Anti-Gay Military Funeral Protesters Headed to U.S. Supreme Court
Fred Phelps, the Kansas preacher known for vehemently anti-gay views, is headed to the U.S. Supreme Court to defend his right to freedom of speech, SCOTUSblog reports. The justices this week granted certiorari in Snyder v. Phelps, a case involving the father of a U.S. marine killed in Iraq whose funeral was protested by Phelps and his congregation. The group, which runs the website godhatesfags.com, carried signs including “God Hates the USA,” “America is doomed,” “Semper fi fags,” and “Thank God for dead soldiers” at the funeral protest. The soldier’s family won an $11 million judgement (later reduced to $5 million) against Phelps for intentional infliction of emotional distress and other torts, but the Court of Appeals for the Fourth Circuit reversed the trial judge’s holding, ruling that the picket was speech protected by the First Amendment. As John W. Whitehead notes over at HuffPo, the case “is stirring up debate over whether the privacy rights of grieving families trumps [sic] the free speech rights of demonstrators.” Whitehead observes, citing Phelps’s website, that his group since 1991 has carried out 42,840 demonstrations at gay pride parades and other events, including more than 200 military funerals of troops killed in Iraq and Afghanistan. They even picketed the funeral of the late Chief Justice William Rehnquist with signs reading “Judge in Hell,” criticizing him for not protecting America from homosexuality. Whitehead concludes, however, that the Court should affirm the Fourth Circuit’s holding: “Simply put, tolerance toward the speech of people like Phelps shows that freedom still survives in America.” Eugene Volokh would seem to generally agree, suggesting that “this tort, as applied to speech, is unconstitutionally vague and overbroad.” But Jordan Carr over at the Stanford Review blog thinks that “one could imagine that the Supreme Court would be able to reinstate the award to Snyder without setting too wide of a precedent.” That outcome would please Andrew Cohen who, writing for Vanity Fair, notes that “Phelps’s very purpose is to interject himself and his anger and ignorance into a family’s most vulnerable, tragic time. I call that the very definition of cruel and am willing to predict a majority of the Justices will say so, too, in reinstating the Snyders’ award.”

Arbitration and the Pan Am 73 settlement
Are the non-American victims of the 1986 hijacking of Pan Am flight 73 entitled to recovery of any portion of the funds coughed up by Libya in 2008? At Opinio Juris, Roger Alford writes about the “pitched battle” being fought between two American victims and the hijacking’s non-American victims (ten at last count) and law firm Crowell and Moring, who represented all victims in their 2006 lawsuit against the Libyan government. The non-American plaintiffs base their claim on agreements in the 2008 treaty, given effect in President Bush’s Executive Order, that dictated the distribution of US1.5 billion in settlement funds. Crowell and its clients are pressuring the U.S. government to compel arbitration of the matter, “based on provisions in the agreements stating that any recovery…would be shared on a sliding scale without regard to nationality.” The American victims, however, rely on what Alford calls one of the case’s “unusual twists”, in that “the implementing statute, the Libyan Claims Resolution Act, immunizes the assets from ‘attachment or any other judicial process’ before, during, and after the assets are held by the U.S. Department of Treasury to the American victims.” The result, according to Alford, is that the non-American victims are waylaid by a doctrine that supersedes any arbitration of contract claims and, worse, precludes “‘any judicial process’ whatsoever,” which even “includes court proceedings to compel arbitration.”

Nancy Pelosi: Health Care and Ignorance of the Law
Although she may simply have been channelling Dan Quayle (“the future will be better tomorrow”), a recent speech by U.S. House Speaker Nancy Pelosi includes this entertaining enigma: “we have to pass the bill so that you can find out what is in it.” Ms. Pelosi was likely speaking of a need to judge the complicated bill by its effects, free of the “fog of controversy”. However, her justification for the 2,074-page health care bill’s passage certainly bespeaks the Obama administration’s dubious insistence that its difficulties in reforming U.S. health care are simply the result of “communications failure”. In a more abstract vein, and were one to take Ms. Pelosi literally, her argument that a law should be passed so as to be judged after the fact arguably flouts the fundamental requirement that a just law be, inter alia, intelligible and discoverable.

UK judiciary to public: if we do such a bad job, why don’t YOU try it?
The Times’ legal editor, Frances Gibb, writes of the British government’s launch of its interactive website, imaginatively titled You Be The Judge, where the public can be the judge. The launch’s timing is propitious, says Gibb, in light of the reincarceration of Jon Venables, who, along with Robert Thompson, was convicted of the 1993 murder of James Bulger. Venables’ case has revived the UK’s perennial controversy over perceived leniency in criminal sentencing. As well, writes Gibb, recent government studies have “found that people systematically overestimated the leniency of the courts,” and this apparent public tendency to mistrust the judiciary lay behind the staging of an unusual mock sentencing exercise held in Hendon Magistrates’ Court, “where The Times joines Claire Ward, the justice minister, and a magistrate to make up the bench of three ‘magistrates’” presiding over an assault case involving a drunk university student. In short, the exercise was intended to demonstrate the real difficulty in arriving at a “just” sentence, one that satisifies the sense of justice of an imperfectly informed public. The exercise, that is, asked this: how does one demonstrate the integrity of judicial sentencing where a judge must synthesize a multitude of factors including (but not limited to) the accused’s past history and present actions; his/her post-arrest behaviour and expression of remorse; any mitigating circumstances; and established sentencing guidelines? While the UK government’s intent in establishing You Be The Judge doesn’t seem like an exercise in special pleading, perhaps that’s a law student’s bias at work (disclosure: we haven’t yet given it a go).

Supreme Fast-Food Preferences
Sandra Day O’Connor is happy to take a bite out of a Big Mac, and Ruth Bader Ginsburg’s secretary would like you to know that “she loves Chinese, Italian, and French cooking, but hasn’t been to McDonald’s since her son was 10. (He is now 29.)” Such are the tidbits revealed in a new book by Bill Geerhart, a prankster who posed as a 10-year-old boy to ask ridiculous questions of famous people, including the U.S. supremes, whom he quizzed about their fast-food preferences. “Dear Chief Justice Renquist [sic],” reads a Dec. 19, 1994 letter, quoted in a post on the new book over at the WSJ Law Blog. “This is a project for school. What is your favorite McDonalds food? I like the ¼ Pounder with cheese. I would also like a picture of you.” While the late Chief Justice William Rehnquist did not reply, O’Connor, Ginsburg and a couple others did. Justice Clarence Thomas, usually reticent, offered Billy his “best wishes for a successful school year,” and, in a handwritten postscript, confessed, “I like the Egg McMuffin. Actually, I like almost everything there.” Justice Harry Blackmun, a former general counsel of the Mayo Clinic, offered the young lad some cautionary words: “A hamburger and fries or potato chips are all right in their place, but you need some fruits and vegetables, too. I suspect your mom would tell you so.”

At $98 billion, the world’s largest human rights claim?
Former executives, shareholders and creditors of Yukos Oil, the erstwhile giant Russian oil company, have filed a complaint before the European Court of Human Rights, claiming that the company was unfairly “targeted” by the Russian government and illegally driven out of business, the BBC reported. The plaintiffs’ claim of $98 billion in damages represents an estimate of what Yukos would have been worth had its most valuable properties not been stripped away in 2007, when the company was struck from the register of Russian companies and effectively ceased to exist. (By way of comparison, the Russian government’s revenues in 2009 were $205 billion.) ”The rights court is an unusual, though not unprecedented, venue for civil disputes,” The New York Times reports. “The size of the damage claim, however, is unprecedented.” Yukos, beginning in 2002, was accused by Russian authorities of having illegally skirted its tax obligations. The highly politicized dispute ended with the company’s controlling shareholder, Mikhail Khodorkovsky, a billionaire investor and frequent critic of then-Russian president Vladimir Putin, in prison and the company in bankruptcy. The Times also noted that though the ECHR is very selective about the cases it accepts, once it does so, most cases are decided in favor of claimants. Of the 219 cases the court took up last year involving Russia, judges ruled against the government 210 times. That said, “the Yukos claims are bigger and more complicated than most, clouding comparisons with previous cases,” The Times observes. Dmitry Gololobov, a former Yukos lawyer writing for the Eurasia Review, agrees that skepticism about a victory for the plaintiffs is prudent: “[T]he Yukos case must overcome some quite serious legal hurdles. And the overcoming of each of them will either create a new precedent or fundamentally alter an existing one. And if the plaintiff hits just one of these hurdles, it could mean the complete collapse of the case ….”

After loss in court, Alberta Hutterites consider leaving province
Members of a remote religious community in Alberta, who in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, argued that the Alberta government was infringing their Charter rights, told the Edmonton Journal this week that they may leave the province after the Supreme Court ruled that they must have their photographs taken if they want driver’s licences. ”It’s a sad day for Canada, for Alberta,” said Sam Wurz, manager of the Three Hills Hutterite colony, one of the two communities that sued the province. “We are law-abiding people, we are honest.” The case (discussed on TheCourt.ca here, here and here) involved a claim by the Hutterites that the provincial requirement that all recipients of drivers licenses have their photo taken violated their freedom of religion. The Hutterites believe that the the Second Commandment’s ban on “graven images” prohibits having their photos taken willingly. The Supreme Court ruled 4-3 that though the Alberta requirement infringed the Hutterites s. 2(a) rights, it could be saved under s. 1. Wurz’s comments notwithstanding, Greg Senda, the Hutterites’ lawyer, left the door open to the possibility that the colony members may remain in Alberta. He told the Journal that the Hutterite elders will meet to discuss whether there is room to compromise on the photos, given that they are now mandatory. ”It’s the voluntary (nature) of taking the picture that is their concern,” Senda said. “They acknowledge that there are circumstances in today’s modern society where photographs are taken, and you can’t do anything about it.”

Karadzic: one terrific ICTY defence
Dr. Radovan Karadzic, the ex-President of Republika Srpska, should be rethinking his desire not to retain a lawyer at his trial before the International Criminal Tribunal for the former Yugoslavia (ICTY). Given his testimony this week, though, one suspects not. Dr. Karadzic, representing himself in his fight against 11 charges that include participation in genocide and crimes against humanity, mounted a defence that must go down in the annals of terrible self-advocacy. As David Charter reports in The Times, Karadzic testified that Bosnian Serbs “fought a ‘just and holy’ war to block the creation of an Islamic state” in his country. In a diatribe distantly reminiscent of a famous dead Austrian’s claim to be threatened by his country’s tiny, Kafka-producing neighbour, Karadzic presented a “four-hour, gabbled history” of a “modest” and “perservering” Serbian Bosnia, saying that the aim of his Bosnian Muslim victims “was 100 per cent power, as it was in the Ottoman Empire,” and that he had little choice but to “‘defend the greatness of a small nation’ against a Muslim plot” to revive the aforesaid Empire. Between harangues, however, the accused struck a weird and pseudo-conciliatory posture. Despite commanding Bosnian Serb armies fighting a desperate holy war against revanchist Ottoman hordes, Dr. Karadzic testified that “it was never an intention, never any idea let alone a plan, to expel Muslims and Croats.” There is a chance, though, that the ICTY charges point to Dr. Karadzic’s making plans more sweeping than “expulsion”.

German constitutional court reins in antiterror law over privacy concerns
Germany’s highest court ruled this week that a German law implementing a central plank of a European Union anti-terrorism directive, requiring the storage of at least six months’ worth of telephone and internet data, was contrary to the country’s fundamental law, the Financial Times reported. The decision, which “was greeted with shock and alarm by police and security experts, and with delight by civil liberties campaigners,” mandates the immediate destruction of all data  currently held on telephone calls, emails and text messages in Germany and voided the legal basis for police and intelligence agencies to request such information. The court in granting relief to the 35,000 plaintiffs relied on a constitutional guarantee of privacy, which ensures the “security and integrity” of communications by post and telephone, in reining in the anti-terrorism law. As Mathias Vermeulen, who blogs about legal issues related to terrorism, explains, the law was passed in response to a 2006 European Union directive requiring the retention of telephone and e-mail records for use in terrorism investigations. The court, however, stated that the German law exceeded the EU requirements. But Content And Carrier, a blog that tracks European electronic communications law, warns that some media reports are blowing what the court did out of proportion: “[T]he directive requiring storage of data was not the problem, rather the rules for access to and use of the data,” the blog notes. Curious readers should probably go straight to the source, provided they speak German: The court’s decision can be found here.

Habeas corpus and its arbitrary use by the state
Remember the U.S. Military Commissions Act, 2006 and former U.S. Attorney Alberto Gonzales’ idiosyncratic constitutional musings before the Senate? The right to habeas corpus has taken a real beating in the United States over the last decade so, according to The New Republic‘s Adrian Vermeule, the publication of Paul D. Halliday‘s Habeas Corpus: From England to Empire couldn’t be more timely. In his book, Halliday charts the habeas right’s curious evolution in England between 1615 and 1815. As opposed to, say, the Lincoln and Bush governments’ use of the writ’s suspension as a tool to empower federal government, 17th century England saw judges enforcing it as a “centralizing device” against “competing” local courts, councils, as well as a Privy Council that the monarchy preferred defanged. Halliday notes that the “libertarian mythology” that later accreted around the habeas right was not historically warranted, and that “the predominant justification for the writ was not so much the liberty of the subject as the prerogative of the King.” The justification for the writ’s use changed radically, though, upon imperial expansion, with its attendant multiplication of national enemies and perceived threats to state security. While Halliday, says Vermeule, is loathe to draw the obvious modern parallels, Vermeule does not share the author’s scholarly scruples. Halliday describes imperial Britain’s transportation of prisoners to various remote sites “in order to avoid judicial control through habeas.” Vermeule sees the obvious analogy with “the islands, literal and metaphorical, of America’s military empire” – including, obviously, Guantanamo Bay. Furthermore, Vermeule implies that habeas corpus, far from being a given, now-institutionalized legal protection against arbitrary imprisonment by the state, is still, post-Bush, still used to support arbitrary state actions. Where, say, the Bush administration used the right’s suspension as a sword in order to indefinitely detain designated enemies, the Obama administration has used the right’s reinstatement as a shield, or a fig leaf, and failed to allow follow through on its exercise. “As of today,” writes Vermeule, “no detainees have actually been released by final judicial order, from Guantanamo,” and that “the vast majority of detainees have received merely another round of legal process.”

Facebook now too nice
Leaving aside the question of whether anyone wants it to, will Facebook ever win? The company, after all, must be history’s greatest de trop corporation. In addition to its relentless legal/media disparagement for being, inter alia, too invasive, unresponsive, censorial, negligent, etc., the Wall Street Journal law blog’s Ashby Jones reports that the corporation must now endure attacks for being — in a legally controversial manner — “too charitable.” Lane v. Facebook, a 2008 class-action lawsuit against the company for having violated account-holders’ privacy in improperly sharing their online information, was recently settled, the resulting agreement requiring Facebook to shell out USD 9.5 million. The thing is, the money was not awarded to the victimized Facebook users themselves. The greatest part of that amount would go to a privacy-rights foundation — one that does not yet exist. The problem, writes Jones, is some scholars’ concern that “judges shouldn’t sign off on settlements that extinguish class members’ legal claims unless the plaintiffs get something in return.” That is, the cy pres doctrine is at play in the Facebook case, wherein a successful litigant’s award is dispensed to a third party (usually a charity) unconnected with the litigation; the award to such a third party produces a result in which litigation’s remedial purpose (notwithstanding laudable, but perhaps peripheral good intention) is effectively replaced by a punitive purpose.