Amici Curiae: The 16-Month Gestation, Legal Eclipse and I-Know-Who-You-Are Edition

A Very Long Deliberation
The Supremes continue to deliberate their decision in a case that could “blow the veil of secrecy off the Afghan detainee affair, ex-MP Rahim Jaffer’s curious plea bargain and any number of like controversies,” The Globe and Mail’s Kirk Makin reported this week. The case, Ministry of Public Safety and Security et al. v. Criminal Lawyers’ Association, discussed on The Court here and here, involves the question of whether the Charter‘s freedom of expression guarantee gives citizens the right to obtain government-held information so they can develop opinions on issues of public concern. At 16 months since oral argument, the case “has already gone through the longest gestation period for a judgment since a landmark aboriginal rights case in 1990,” Makin notes, referring to Delgamuukw v. BC. “The length of time it is taking the Supreme Court to decide the case shows that the judges are well aware that it raises issues of paramount importance and critical timeliness,” Osgoode Professor Jamie Cameron told the Globe. University of Alberta law professor Sanjeev Anand, however, said that if he had to hazard a guess, “we may be looking at a very split court.” If so, that may be a setback for the Chief Justice, who is perceived as putting a premium on building consensus among the justices.

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.