behind the curtain of Canada's legal system

This past weekend the Federal Court of Appeal ordered the Harper government to ask the Americans to release Omar Khadr from Guantanamo Bay because Khadr's Charter rights had been violated. Is there a reason why no one is asking about the political leanings of the judges on the FCA?

The previous weekend Sonia Sotomayor was sworn in as a justice of the United States Supreme Court. Even in Canada, one would have had to have been living under a rock to not have heard of her and that there there was a political debate associated with her nomination.

Whatever Sotomayor's judicial activism may have been, it was dwarfed by that of Supreme Court of Canada Justice Claire L'Heureux-Dubé, who was appointed by Brian Mulroney in 1987 and who retired in 2002. Robert Ivan Martin, a former Canadian artillery officer, NDP candidate, and professor of law at the University of Western Ontario, has described L'Heureux-Dubé's tenure on the SCC as a "national disgrace". Yet how many Canadians have ever heard of her? During my time at the University of Alberta Law School, I was astounded at the lack of debate over this feminist ideologue's preference for judging on the basis of social science studies that she (or, more precisely, her clerks) had dug up and had not been introduced or developed in the lower court trial proceeding. Who needs to study the law or the facts of a case when sociologists are there to tell you who is the oppressed and who is the oppressor?

The sad fact is that, in marked contrast with the transparency that exists is the US, the legal community here is actively engaged in suppressing inquiry that might make a Canadian judge an object of controversy. In June, an American researcher was blocked from making the same inquiry about the inner workings of the Supreme Court of Canada that he had successfully made about the US Supreme Court. In March, two professors attempted to contact several hundred lawyers to ask their perspectives on the competency and biases of various judges in Canada but “[a]pprehension [was] running high that the results could be used to discipline or discredit judges whose leanings on controversial criminal law issues or the Charter of Rights run counter to the conservative philosophy of the Harper government." The McGuinty government accordingly told its prosecutors to not participate in the survey and a number of provincial law societies (lawyer guilds) also opposed the academic investigation.

What is remarkable about this excuse for opposing transparency is that Harper's government, like Mulroney's, has not been appointing conservative judges. It is accordingly the "conservative philosophy" of the ordinary public that is seen as the real threat. The Harper government appointed Russel Zinn, whose left lean was strong enough for him to confuse the very much alive and well Abu Sufian Abd Al-Razziq with the dead by describing him as "as much a victim of international terrorism as the innocent persons whose lives have been taken by recent barbaric acts of terrorists." Zinn had been advocating for "human rights" for many years in the less-than-obviously-related field of labour law prior to his elevation.

Justice Zinn declared in the same decision that "[t]here is no reason to challenge the applicant’s assertion in his affidavit that he was tortured while in detention." This is simply false, and while the reasons are legion, one could start with Abd Al-Razziq's October 2008 cross-examination on an affidavit that he swore to in June of that year. Unfortunately, the only place on the internet where I'd found an archive of primary sources related to Abd Al-Razziq (I'm not a practicing lawyer and don't have Quicklaw/LEXIS access, etc) was on Osgoode Hall's web server. Which would be fine, except that after I sent the following e-mail to Hazel Pollack on July 30

Reportedly French antiterrorism agents interrogated Abdelrazik in Sudan and French judicial documents state that Abdelrazik is an important Islamic Jihad activist who is close to [Abou] Zoubeida [aka Abu Zubaydah].
I have not been able to locate any French sources to this effect. Are you aware of any? Thank you,
Brian Dell

my e-mail was ignored and, more importantly, the archive was removed from the website [UPDATE: since I posted this it has reappeared]. Hazel Pollack was cited as the contact person for the web archive and is an "assistant" to Craig Scott, whose political leanings should be pretty obvious from his biography [UPDATE: listed contact is now Professor Sean Rehaag].

Although the material is no longer available (because Professor Scott realized it would not square with the story the MSM has been spinning about Abd Al-Razziq?), I had made a few notes after taking a look at the 2008 cross, which is just one of the documents submitted by the Minister of Foreign Affairs. For starters, Abd Al-Razziq is on record stating that he lied to both Canadian interrogators and the FBI about intending to go to Chechyna. He was originally admitted to Canada as a refugee from Sudan but his associated claims about what would happen to him should he return while the same regime was in power ought to be, shall we say, rather suspect given that not only did he voluntarily return to Sudan in March 2003, he abandoned his wife, his children, and a pregnant mistress (Lisa Lebrun) in Montreal to do so. When, during the cross-examination, he was asked if "Myriam [St-Hiliare, your wife in Montreal] was fine that you had had a child with another woman?" he declared, contrary to all probabilities of human nature, that she was. Abd Al-Razziq then married yet another woman in Sudan in 2004 and had a child with her in 2005. I don't know who he thought he was kidding when he then proceeded to falsely swear in 2008 that "all my children and stepchildren remain in Canada".

Abd Al-Razziq never bothered to get a regular job while free in Sudan (or in Canada, for that matter) despite having spent the first 28 years of his life there, saying this was because of Sudanese intelligence. However, an equally plausible reason might be the fact that Canada provided him with $500 worth of support each month while he was seeking refuge in the Canadian embassy in a country where the median annual income is $800. More telling re Abd Al-Razziq's credibility was his inability to keep his story straight during his cross-examination. To take one example of many,

Q. Now, Mr Abdelrazik, if we can return to April of [2008], I understand you met with a journalist from the Globe and Mail?
A. A journalist? No, I did not meet with a journalist.

Abd Al-Razziq's problem was that he had been insisting until that point that he had lied "in order to escape the pressure of torture" and had failed to allege his torture previously because public disclosure of his torture while in Sudan would put him in jeopardy. Hence admitting to voluntarily telling a journalist while still in Sudan that he had been tortured would undermine his claim of jeopardy. Upon being presented with incontrovertible evidence that he HAD, in fact, met with a journalist, he then decided that it served his credibility better to switch his story.

Even more to the point, Abd Al-Razziq claimed that he told consular officers David Hutchings, Allan Bones, and Michael Pawsey in 2004 that the Sudanese tortured him. But all of these officials independently and directly contradicted Abd Al-Razziq's claim. On top of this additional doubts were raised about the particularities of Abd Al-Razziq's torture claims, which shouldn't need review since I believe the point has been made: to state, as Zinn, J. did, that there is not just "little reason" but "no reason" to even "challenge" Abd Al-Razziq's "assertion" that he was tortured is astounding.

Although the Canadian government had asked the UN in 2007 to remove Abd Al-Razziq from its terror list, Justice Zinn still found the government liable such that issuing Abd Al-Razziq an emergency passport (something the government had good reason to be circumspect about given Abd Al-Razziq's history of reporting a "lost" passport in the 90s) was insufficient: with no acknowledgement of the distinction between negative rights (the right to live without government interference) and positive entitlements, the Charter right of a citizen to enter Canada was read as a right to promptly provided taxpayer-financed transportation to the country.

One would never guess that Abd Al-Razziq's credibility has ever been questioned from the mainstream media's coverage of his travails. We are supposed to believe that Abu Zubaydah's info about him is not worth anything, yet Zubaydah's evidence that he saw Odil Charkaoui training in Afghanistan in 1998 was independently confirmed by Ahmed "Millennium Bomber" Ressam. This same Charkaoui happens to be linked to both Abd Al-Razziq (Charkaoui "saw him everywhere in Montréal") and the Tunisian recruiter Hannachi, whom Abd Al-Razziq went to Afghanistan with in 1996. The MSM also continues to exclusively propogate Abd Al-Razziq's preferred rationale for his return to Sudan, namely, that he was there to visit his sick mother, yet his associate Samir Ezzine has sworn otherwise.

As near as I can tell, I am the only one to dig a little deeper, and then only because as a graduate of a Canadian law school I have life experience based suspicions about the level of bias that exists in legal academia and the enthusiasm of the legal community for Orwellian rhetoric about how openness would "politicize" the judiciary.

There is a good reason why the largest anti-corruption body acting globally is called Transparency International. Transparency allows the public to come to a conclusion about what was formerly in the dark. It's time for Canada's legal community to let the light shine.

9-0 vs Sotomayor

Last week I said that in the news of Monday, June 29 there "were two notable developments which suggest Obama may be more left than he was generally perceived last year."

One of those was the President's statements about Honduras. The US could presumptively not play the role of an "honest broker" after Obama declared Zelaya to be the only legitimate president simply because henceforth the US could officially only deal with one side (Zelaya). State department officials would refuse to meet with representatives of the new government in Honduras (and indeed that has been the case). Furthermore, "the interim government that replaced Zelaya estimates it already has been denied about $200 million in suspended credits. The United States has cut $16.5 million in military assistance and warned a further $180 million in other aid is at risk". In recent days, however, the US has been acting more even-handedly and realistically, facilitating negotiations in Costa Rica even though the US itself is "not present in the talks."

But the other news item from June 29 remains, namely, the US Supreme Court decision in the Ricci case, the same case Obama's USSC nominee Sonia Sotomayor had ruled on earlier. Senate hearings begin this Monday.

The decision in most of the media was described as a 5-4 decision to overturn Sotomayor. But in fact what put Sotomayor outside the mainstream was not her decision to not rule for Ricci and the other white firemen. The real problem was that Sotomayor apparently thought a summary decision, without detailed reasons and without further empirical inquiry into the bone fides of the city of New Haven's claims, was sufficient. Judge Jose Cabranes, a Clinton appointee and member of the arguably radical LatinoJustice PRLDEF, criticized the opinion Sotomayor joined saying it "contains no reference whatsoever to the constitutional claims at the core of this case. … This perfunctory disposition rests uneasily with the weighty issues presented by this appeal." Sotomayor was criticized by a fellow left leaning Latino judge, in other words. And what really puts her offside is the fact that

If you read Ruth Bader Ginsburg [writing for the 4 dissenting USSC judges], you'll find out it's a nine-zip decision because even those in the minority found that the 2nd Circuit botched this totally by not even having a trial. They just found for New Haven in summary judgment.

Those are Rush Limbaugh's words. However much Rush may overstate the case, the bottom line is Sotomayor should have at least ordered further proceedings. See Stuart Taylor Jr in the National Journal. Jonathan Adler, writing on the Volokh law professors blog, notes that "the fact that it took the Court nearly 100 pages to resolve this question does cast a shadow over the Second Circuit panel's handling of the case, and may raise questions about her judgment." Stuart Taylor notes that "The jury's job would have been to consider evidence that the city's main motive had been to placate black political leaders who were part of Mayor John DeStefano's political base." This is a key issue: the city of New Haven had every political reason to discriminate against the white firemen because they lived outside the city limits in the suburbs, whereas the inner city is predominately black.

The bottom line is that either Sotomayor was unable to appreciate the significance of the Ricci case, or, even worse, she did appreciate it and chose to bury it with a summary order such that Frank Ricci and his compatriots were unlikely to ever receive a Supreme Court review. As Stuart Taylor's latest column observes,

...any 2nd Circuit judge who had chanced to find and read the panel's summary order in Ricci would have found only the vaguest indication what the case was about.
But the case came to the attention of one judge, Jose Cabranes, anyway, through a report in the New Haven Register. It quoted a complaint by Karen Lee Torre, the firefighters' lawyer, that she had expected "'a reasoned legal opinion,' instead of an unpublished summary order, 'on what I saw as the most significant race case to come before the Circuit Court in 20 years.'"
According to 2nd Circuit sources, Cabranes, who lives in New Haven, saw the article and looked up the briefs and the earlier ruling against the firefighters by federal district judge Janet Arterton. He decided that this was a very important case indeed, and made a rare request for the full 2nd Circuit to hold an en banc rehearing.

The difference between Jose Cabranes and Sonia Sotomayor is the difference between a Clinton appointed Puerto Rican judge and an Obama appointed Puerto Rican judge.

Obama nominates Sonia Sotomayor for US Supreme Court

We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges.

Given how Barack Obama's remarks, above, contrast with the picture of blindfolded Justice, one might think the White House would have some concern that the "empathy criterion" might be wielded as a talking point against his judicial nominees. After all, what does Obama expect his judge to do with information about a litigant's particulars if not to put a thumb on the scale in favour of the litigant who is one of Obama's enumerated groups? Yet apparently the White House is running with the idea as a talking point FOR Obama's first Supreme Court nominee.

Combining this with Sotomayor's remarks in 2001 about how she "would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male", should one start preparing for judicial bias against white males that is sanctioned at the highest level? While there is cause for concern here, I believe the concern applies elsewhere. First of all, a full reading of Sotomayor's Berkeley speech indicates that she does not believe the idea of departicularized adjudication should be rejected but rather that it is impossible to implement:

our gender and national origins may and will make a difference in our judging. Justice [Sandra Day] O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases.... I am... not so sure that I agree with the statement.

This is of note because it is consistent with the views of communitarians, e.g.

[impartialist morality] assume[s] an abstract and artificial - perhaps even an impossible - stance, that of a rational being as such, responding to the requirements of morality not qua peasant or farmer or quarterback, but qua rational agent who has abstracted him or herself from all social particularity.

- Alasdair MacIntyre, Is Patriotism a Virtue?

This is important because the idea that our moral selves are "embedded" is critical for cultural conservatives. I don't have the time to explain why in detail, but without it one has a libertarian worldview, not a conservative one. The bottom line is that I do not think conservative critics should be raising the alarm about potential bias on Sotomayor's part against business or white males too loudly lest they create future consistency problems for themselves when defending something like patriotism. Accept that she's a Latina and therefore will have a Latina's perspective to at least some degree.

The best and most damning criticism, I believe, advances not from the idea that justice flows only from the departicularized perspective but from the idea that a judicial temperament and judicial ability flows form the process of departicularizing oneself. This is a subtle but key distinction. It is the difference between making a metaphysical claim and making a claim about process. The problem is not that Sotomayor won't employ abstraction, but that she can't. Where is the rigorous reasoning in her Ricci decision? Why is Obama playing up her life story and downplaying the importance of legal abstraction? It is not just the far right that sees a problem here.

Obama is not going to appoint a conservative. That is to be expected. But it serves the interests of both the left and right better to appoint the person with the greatest abstract ability. Cass Sunstein is a legal lefty. But appointing an ideologue like him would serve the interests of an ideologically divided country better given his intellectual abilities. Consider the talking points in the White House memo:

- as the President has made clear, upholding those constitutional values requires more than just the intellectual ability to apply a legal rule to a set of facts. It requires a common sense understanding of how laws affect the daily realities of people’s lives.
- Judge Sotomayor ... understands that upholding the rule of law means going beyond legal theory to ensure consistent, fair, common-sense application of the law to real-world facts.

A further downgrading of the value of "theory" is, in fact, the last thing America and the world should be considering a personal asset apart from the personal, private field. It is all too easy to sell policies to the public when the consequences are right there before one's eyes. It is far too hard to sell policies when the consequences are distance in time and space. Appreciating those consequences requires the ability to think abstractly. The idea that people who are skeptical of things like restricting EI eligibility simply lack "empathy" is a lefty trope; the skeptics are typically just as sympathetic but appreciate the abstract arguments that reveal how many well-intentioned policies typically backfire.

Chief Justice Beverley McLachlin's legal philosophy

In a speech in New Zealand, Chief Justice Beverley McLachlin, Alberta's current representative on the Court, asked

what gives the judges the right to set forth constitutional principles capable of invalidating laws and executive acts, when Parliament has not seen fit to set these principles out in writing in the nation’s constitution?

Indeed, inquiring minds would like to know. Justice McLachin suggests an answer:

... it is certainly clear that the post-Second World War period can properly be called the "age of rights." Clearly something is going on here; ... What is going on is the idea that there exist fundamental norms of justice so basic that they form part of the legal structure of governance and must be upheld by the courts, whether or not they find expression in constitutional texts.

Fundamental norms? An interesting choice of term. Why not fundamental truths? Apparently because "contemporary" people understand that to believe in an absolute right and wrong like Kant did is to believe in an obsolete and discredited "theology":

The contemporary concept of unwritten constitutional principles can be seen as a modern reincarnation of the ancient doctrines of natural law. Like those conceptions of justice, the identification of these principles seems to presuppose the existence of some kind of natural order. Unlike them, however, it does not fasten on theology as the source of the unwritten principles that transcend the exercise of state power. It is derived from the history, values and culture of the nation, viewed in its constitutional context.

You see? The sovereignty of Parliament and the written law can and even should be trumped by something more "fundamental", something "deeper":

Lord Cooke ... urged courts not to be afraid to assume their role in protecting certain fundamental principles as essential to the rule of law and the expression of democratic will, even if these "deep rights" were not in written form. ... I am with Lord Cooke ...

but it can't be really, metaphysically, fundamental, because that would imply that there is something transcendent to the judges, like Truth, Justice, or Reason, such that judges would be accountable to that instead of to their own spin on "the history" [of white oppression?], "values" [of the 'progressive' agenda?], "and culture" [of entitlement?].

Having knocked down the authority of Parliament, Truth, and the written law, what's left? To make a twist on a line from the Nightingales:"There ain't nobody here but us [judges]!"

In fairness, Justice McLachlin did acknowledge a role for "reason" and did not reduce everything to sociology. She called attention to Benjamin Berger's question, "Is a just society the fruit of reason or will?" and posited the Courts as the agent of the former and Parliament as the agent of the latter.

But perhaps because this might leave some doubt about her commitment to slaying the dragon of transcendent Truth, she claims that even the crimes of the Nazis are relative, citing one of Spencer Tracy's lines in Judgment at Nuremberg (a fictionalized Hollywood rendering of the trials) to suggest that the Nazis in the docket were offside with just "higher principles as affirmed by Germany’s history, culture and constitution".

What, exactly, did the "Triumph of the Will" and the "Will to Power" affirm? Hitler reportedly told Max Planck that, "If science cannot do without Jews, then we will have to do without science for a few years." I'd suggest that a judge in a culture like that can hardly be faulted for concluding that whether "a just society [is] the fruit of reason or will" is pretty much a settled question for his or her particular nation, a conclusion that would leave no mandate for resisting the government according to Justice McLachlin's account.

I actually see some merit in the Chief Justice's argument. But Posner makes the case far more comprehensively and has spent a career calling for the application of objective principles like maximizing efficiency (see "law and economics") to the adjudication of legal disputes as opposed to leaving it to subjective sociological assessments. Posner has also stepped up to the plate with respect to vigorously addressing and responding to the opposing position as articulated by Ronald Dworkin. The work of scholars like Fred Schauer, who argues for a middle position between situational morality and absolute morality, should also be addressed when the Chief Justice is making the case for a non-deferential, situational approach as strongly as she is.

Bastarache resigns

Anyone thinking news of Bastarache's resignation is the signal to man the battlements for the coming ideological war should curb his enthusiasm. There are a number of reasons why there is less of a public debate in Canada over Supreme Court appointments than in the US:

1) the public gets less of a say in Canada. There is little point in lobbying your MP, Senator, or provincial representative when she won't be voting on the matter anyway.

2) we don't have pundits on the level of, say, Eugene Volokh to identify the stakes and make the case one way or the other. James C. Morton is a blogging Canadian law professor, but he seems to be interested in blogging about Paris Hilton, something might have more merit were he actually blogging about our favorite celebutante instead of posting a wire story about her. Morton's first reaction to the Bastarache news? Post a Globe and Mail article, not once, but three times.

3) In Canada we don't have potential nominees to the Supreme Court with the legal mind of, say, a Cardozo or Posner. Were Richard Posner appointed to the USSC, it would excite legal academics across the political spectrum simply because the battle over his nomination would draw the US into one of the most abstract national debates the country has ever had.

In sum, point (1) notes that Supreme Court showdowns are of less consequence in Canada, and points (2) and (3) go to why they make for grander spectacle south of the border.

But perhaps Alberta's own Ted Morton can generate some heat and light here, or at least heat. Morton contends that:

Shortly after Justice LaForest retired in 1997, it came to light that ÉGALE, Canada's leading gay rights advocacy group, had been given the Chretien government's short list of replacements and was actively lobbying for a new judge who would be more supportive of their litigation campaign. A month later, a francophone lawyer from New Brunswick, Michèle Bastarache, was appointed to the Court. Less than a year later (April, 1998), he joined a majority of the Court in the Vriend decision, a major constitutional victory for gay rights and ÉGALE.

Morton may have found a gun here with respect to special interest lobbying, but in my view it is not exactly smoking.

First of all, Bastarache's joining the majority in Vriend is of no particular surprise given that the only judges that didn't were the judge from Alberta and Claire L'Heureux-Dubé, who, as usual, wanted to protest that the majority didn't go far enough and should be joining her out on the far left fringe.

Secondly, the watershed event in the history of gay rights in Canada was the 1995 Egan decision. It was in that case that the Court held that sexual orientation "falls within the ambit of s. 15 protection as being analogous to the enumerated grounds." The "framers" of the Charter had considered the inclusion of sexual orientation and rejected it. For the Court to then read it back in, one can only presume that the only restraint on our Solomons henceforth was their own redoubtable sagacity. Indeed, jurisprudence on same sex issues post-Egan was essentially anticlimatic.

ÉGALE really didn't need to lobby because A) the turning point battle had already been won and B) the legal culture is very "liberal" as it is. When I was at law school, not one of my professors was identifiably conservative, and this was at the University of Alberta. Even in the US, someone like Laurence Tribe (who's called Obama "the best student I ever had", something that goes a long way to explaining Obama's appeal to the educated) has few foils within his own faculty because people like Greg Mankiw ended up giving up on legal academics to become professors in the Economics or Business faculties instead.

The point here is that at least Bastarache had some judicial experience, something that can't be said for Chretien's appointment of Binnie.

What concerns me most about the SCC is that our Chief Justice argues that Parliament's sovereignty should be rejected, not in favour of higher moral principles (that would be "theology"), but higher "norms". And who determines the "norms"? Judges playing sociologists, apparently. I'll deal with this in more detail in a following post.