Monday, February 26, 2007

Everyone's an intuitive lawyer

Or so argues John Mikhail.

Not everyone would take that as a compliment.

But what Mikhail means is that humans have a native jurisprudence module in their minds, strictly analogous to Noam Chomsky's universal grammar module.

The interesting thing from a lawyer's point-of-view is that -- if Mikhail is right -- legal codes could turn out to be a source of understanding of the human mind. We're not just quibbling over our client's liability -- we're on the forefront of neuroscience!

Sunday, February 25, 2007

Charkaoui -- Thumbs Up

Since I started the Supreme Court of Canada case comment feature, the Court has done distressingly little in the way of far-reaching controversial "judicial activism." Between May and December 2006, there didn't seem to be any headline shakers, no Morgentalers or Delgamuukws or Chaoullis. True, there were some fundamental shifts in mining hedging tax transaction treatment, pension windup and airline insolvency. But somehow the Pithlord's brilliant thoughts on these exciting developments failed to register an increased hit count. I suggest you speak to the Sitemeter technical staff about it. Anyhoo, it makes a nice change to be blogging about a case that really is firing up the blood pressure on talk radio.

On Friday, the Supreme Court of Canada allowed the appeals of three men -- Adil Charakaoui, Hassan Almrei, and Mohamed Harkat -- all of whom are believed by the federal government to be connected to jihadist terrorism, and none of whom is a Canadian citizen -- challenging sections of the Federal Immigration and Refugee Protection Act relating to the issuance of "certificates of inadmissibility" by the Ministers of Citizenship/Immigration and of Public Safety. A certificate of inadmissibility results in immediate detention and (ultimately) in deportation.

The decision was a good one on a number of grounds. It struck down the right parts of the law: the ability of the judge to rely on information never disclosed to the subject of the certificate to uphold the detention/deportation without further safeguards and the lengthy period of unreviewed detention for foreign nationals without permanent residence status. It also rejected a number of bad arguments -- that difference in treatment of deportation of citizens and non-citizens is contrary to equlaity guarantees, or that the possibility of long detention while fighting deportation is "cruel and unusual punishment." And the remedy of suspended declaration of invalidity (the law dies a year from now if Parliament doesn't fix it), while overused in general, was the right one here.

To prove a case under section 7, our alleged terrorists have to show two things: first, that their liberty or security of the person is at stake and, second, that they have been treated contrary to "the principles of fundamental justice." If they do this, then the government can still get the law upheld by proving it is a reasonable limit on rights in a free and democratic society. This third move is analyzed via the Oakes test, target of some gentle mockery here, but, in essence, about whether there is a Paretian alternative that meets the government's needs just as well, but does not damage the right so much.

The first part -- whether Messrs. Charakaoui, Almrei and Harkat's liberty and security of the person was on the table -- is a pretty easy. A controversial line of cases -- Singh, Burns & Rafay and Suresh -- tells us that Canada violates the security of a person by not acting to keep them from being tortured or executed (say by deportation of a non-Canadian). I find this line troubling, but even if we reject it, in this case Canada is itself detaining and labelling a person a terrorist. I wouldn't consider pure executive discretion to decide a foreign national should leave the country without cause unconstitutional, but matters are different when we jail somebody first and send them home with "al Qaeda" stamped on their forehead.

"Principles of fundamental justice" means, at least, due process. In fact, it ought to just be about due process, but that's an argument for another day. No one doubts that one part of due process is knowing the case against you. Ideally, everyone would have a right to all the information in the possession of the state in relation to the case. Even in ordinary criminal trials, this ideal has to be compromised somewhat. If I give the police some information about the Hell's Angels, the Crown isn't obliged to pass my identity or information on, unless they want to use my testimony to convict. In ordinary criminal law, the Crown can't keep the evidence it is going to convict with a secret from the accused. But the inadmissibility certificate system does let the government both keep sensitive stuff from the subject of the certificate AND use that stuff to justify the certificate. It's hard to see how you can have a fair trial in those circumstances.

Of course, the problem is that much of what governments know about really bad guys they are presumably not at liberty to discuss openly.

The Court made two moves here, both of which I approve of. The first is to kick the discussion of the security rationale down to the section 1 analysis. Convicting on evidence the accused doesn't even get to hear is a sufficiently big departure from English-speaking traditions that it should be up to the government to show the necessity. The second move is to suggest other options that meet the government's stated concern -- in this case, the use of special counsel who can be expected to keep the stuff secret. (Note that this is the solution the court rejected in the solicitor-client privilege case last year.)

The Pithlord bitches about judicial review from time-to-time, but this is it at its best. The Court encouraged a more moderate response to a serious problem, one that has the potential to reduce miscarriages of justice.

Case Comment of Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9

Israel Needs Mearsheimers and Walts

Condolezza Rice tells Israel it can't further its security by talking to Syria.

I fully expect the "friends of Israel" to defend Israel's sovereignty, and tell Ms. Rice to buzz off. Otherwise, we might think they put their ideology above their loyalty to any place in particular.

Thursday, February 22, 2007

Stranger Brews: An Idiosyncratic List of Great Canadian Movies

The Pith-household has yet to see Bon Cop, Bad Cop, but I hope to remedy this in light of Jacob Levy's enthusiastic recommendation:

To my American friends who still think Strange Brew (or "Blame Canada," or worst of all Canadian Bacon) is the ultimate cinematic expression of Canadianness, I highy recommend that you put this onto your Netflix queues. It's the funniest movie about federalism you're likely to see; the best (and most violent) action movie about language and translation problems; and the most politically and socially engaged movie about hockey. It's a real gem that as far as I can tell no one in the U.S. has heard of at all.


I have to agree with the Professor here. "Blame Canada" is a great musical number, but what hath Trey Parker to do with the land of Macdonald and Laurier? I haven't seen Canadian Bacon, thank God. I will hear nothing said against the Mackenzie brothers, SCTV's answer to Trudeau-era Canadian content rules, but Strange Brew was not their best work. Buy the albums - Geddy Lee's vocal on "Take Off (to the Great White North)" makes it all worth it.

But even those who take a more favourable view of SB than I do (e.g. the good people of Prince George) will admit that it doesn't exhaust the heavily-suibsidised Canadian film oeuvre.

I love On the Road. The DVD has a wonderful interview of the director by an improbably-dressed Pierre Berton, a reminder of a time when patriots -- while not required to lay down their lives -- were at least expected to pretend that Harold Innis was a genius.

My favourite Quebec film is Robert Lepage's Confessional. Arcand has redeemed himself after Jesus of Montreal with Les Invasions Barbares.

From Egoyan, I would endorse The Sweet Hereafter, Exotica and The Adjuster. I I like Bruce MacDonald's Highway 61 best, although Hard Core Logo is a better movie.

But the genius of Canadian cinema, in my humble opinion, hails from Winnipeg. Guy Maddin's Saddest Music in the World is the definitive statement on cold-weather multiculturalism. (His Tales from the Gimli Hospital is not a fair representation of our medical system. There is actually surprisingly little necrophilia and cannabilism. )

Wednesday, February 21, 2007

Canadian Constitutional Revolutions

Brad DeLong lists 10 constitutional revolutions in American history. I'd quibble with some of his inclusions (only an economist would think the Bork-Posner inspired change in interpretation of competition law equals the Warren Court or the "Switch in time that saved nine"), at least one exclusion (the post-civil war cases that gutted the newly enacted Fourteenth Amendment other than the due process clause) and a bunch of the normative valuations (DeLong tries to persuade us that reading the "interstate commerce clause" as if it is a grant of full sovereign power over everything is being faithful to the text).

But, more importantly, I read it is as a challenge. What are the "revolutions" in Canadian constitutional law -- in addition to the formal ones on July 1, 1867 and April 2, 1982? Can I come up with a list? (I am going to avoid normativity here. Some of these revolutions are approved of by the Pithlord; others not so much.)

1881 Parsons gave the provinces something to do. Reasoning that the grant of power over "Property and Civil Rights" was intended to give Quebec a different system of private law, and that regulating an industry like insurance is really about modifying the common law or civil law of contract, the JCPC cut back on the federal government's "Trade and Commerce" power. Good move, if you ask me.

Late nineteenth century -- culminating in The Liquidators of the Maritime Bank of Canada v. The Receiver-General of New Brunswick, [1892] A.C. 437 -- the Privy Council confirms Oliver Mowat's vision of a genuine federation with co-equal levels of government at the expense of John A. Macdonald's imperial vision.

1945-50. The spending power revolution, and deposition of the Privy Council in the Immediate post-WWII period. Basically, the Anglo governments just ignored the New Deal cases saying that the federal government cannot spend unless it legislates, and therefore cannot spend in areas of provincial jurisdiction. Tax-and-spend with conditionality basically permits the feds to enter any area of policy, although sometimes with an inefficient policy instrument.

1985 Court imports "substantive due process" into Canada under section 7 against the explicit wishes of all the politicians involved in negotiating the Charter three or four years earlier. Logically, no limit to judicial power. The consummation of the revolution doesn't occur until 2005's Chaoulli decision, when the Court decides it would like to dictate health policy.

1989 Court decides that "every individual has the right to equal protection and equal benefit of the law" means only an individual in a list of protected groups we make up has equality rights, and these rights can mysteriously be invoked even where there is equal treatment under the law. In Law, the Court made equality rights even more subjective by saying they could only be invoked when judges think "human dignity" is involved. This means nothing other than "when we say so."

1990 Court invokes dubious regulation/extinction distinction to overturn compromise in aboriginal rights provision of 1982 Constitution. In 1981, Lougheed (and a stunned Bennett) agreed to section 35 as a standstill clause -- governments would not be permitted to take away aboriginal rights they had already recognized. That was the purpose of adding the word "existing". Sparrow and Delgamuukw took away any meaning to that word. There was a poision pill for aboriginals too, though, since new restrictions on aboriginal rights became acceptable provided the courts thought they were for a good cause.

1997 On its own motion, Court decides -- contrary to 400 years of precedent -- that it can strike down duly-enacted laws without reference to written constitutional provisions.

Also in 1997, the Court gave the federal government virtually unlimited ability to regulate under the criminal law power. Now, the feds aren't even limited in their policy instrument.

That makes seven. I am not counting a number of failed revolutions -- the attempt by part of the Court between the thirties and fifties to create an implied bill of rights, or Laskin's attempt to formally overturn the Privy Council's subsidiarity-based federalism jurisprudence.

Thursday, February 15, 2007

Harper Needs New Constitutional Lawyers

So the House passes a bill requiring Canada to meet the unmeetable Kyoto targets. The Environment Minister initially says the government will just ignore the law (which would be totally unconstitutional, needless to say). Harper now has some gobbledygook about how he will -- on the one hand -- respect it, but -- on the other hand -- it doesn't mean anything.

The Government has an alternative. It can instruct the Governor General not to give royal assent to the bill in the event it passes the Senate. It's been done.

Of course, it would make a perfectly legitimate confidence issue if the opposition parties want to go that way.

Update: Matthew Shugart has a good post on the constitutional position.

Tuesday, February 13, 2007

Why Homphobia?

You hear much talk about the causes of homosexuality and the extent to which they are rooted in biology, but there is far less on the causes of hostility to gays and lesbians. This is a bit odd in a society which has decided that the latter, and not the former, is a problem.

The "Man Who is Thursday" gives it a shot here. It's an important question, but I think there are some flaws in the reasoning.

Thursday notes that the derogatory use of "fag" continues among male heterosexual high school students even in a place as self-consciously egalitarian as Toronto. He speculates that this contempt may have deeper roots than ideological indoctrination. If he's right, then we should figure out what it is if we want to effectively combat a form of hostility that can be violent at wrost and discourages males to adopt civilized tastes that seem too femmy.

So far, I am in complete agreement. But I have trouble with Thursday's ateiology. He says:

My own theory of male homophobia is that it is rather easily explainable in Darwinian terms. The human male is almost always pretty obsessed with having sex with human females. However, the one thing in the universe that most resembles a human female is, of course, a human male. Therefore, without some intervening factor, there is the significant possibility that many men would end up obtaining sexual release with other (very horny) men instead of trying to persuade (sometimes reluctant) women.


What Thursday is talking about is "opportunistic homosexual behaviour." It is just not the case that this is universally disdained or considered unmanly in human cultures. As Richard Posner points out in Sex and Reason, societies without companionate marriage between men and women are pretty relaxed about men who substitute male sex objects for women when women are unavailable, at least as long as those men take the active role in anal intercourse and the passive role in oral sex. A man who takes the converse roles may be considered contemptible, but not evil or threatening. A few cultures -- Periclean Athens and tradtional warrior Pushtun culture -- create a system of socially-approved pederasty, in which a younger male can be penetrated with only minimal loss of status and no loss on the older, active male's part.

As Posner also points out, Puritan-Protestant cultures which valued companionate marriage are more anxious about opportunistic homosexuality, and so created even more extreme penalties for sodomy in the case of the active partner. This is perhaps because opportunistic homosexuality is a bigger threat to companionate marriage.

At the more theoretical level, the trouble with Thursday's hypothesis is that it posits male sexual activity as being highly costly in evolutionary terms. But the premise of evolutionary psychology is that male sexual activity is extremely cheap (if not perhaps costless). Men are capable of several orders of magnitude more sexual experiences than offspring. As many animals show, as long as there is a heterosexual preference, there is no great evolutionary cost to homosexual acts.

Even if there were such a cost, it would explain only why (most) males are averse to engaging in homosexual acts themselves, not why they have a problem with other males doing so. Naively, we would expect males to want other malest to be homosexual, since it reduces intra-gender competition.

A better explanation comes from the modularity of the mind. In order to reduce infectious disease, we became programmed with a sense of disgust at unhygenic acts. The "disgust" module will be overriden by the "sexual desire" module. But if we don't feel the sexual desire, then disgust will return. This explains both the reaction of heterosexual males to depictions or even references to gay sex, and also the symmetrical view of many gay males about heterosexual acts. (Read Dan Savage.)

But I don't think this is the full explanation of why Thursday's students talk and act as they do. Why is it so important not to be thought a "fag"?

I thnk one obstacle to thinking this through right is that we tend to imagine that the only biological purpose of sex is procreation. It is obviously correct that desire for sex exists most fundamentally because a sexually-reproducing organism that did't have such a desire wouldn't be any of our ancestors. But there is no reason that sex can't play other functions as well. It can build up relationships of common action (which are obviously evolutionarily useful) and it can express status hierarchies (which also have straightforward evolutionary explanations).

In every culture, a penetrated male is reduced in status. I suggest that the median male heterosexual brain has in it a module for homosexual sex which is all about status hierarchies. Calling someone a fag (and therefore penetrated) is an assertion of dominance over them. To be confused with a "fag" is to lose status, especially where social egalitarianism prevails, eliminating the countervailing sense that cultural accomplishment grants status.

What is to be done? I'm not sure. I think we have to recognize that homophobia (I have concentrated on male hostility to male homosexuality) is part of the nature we are put on this earth to rise above. It won't wither away after the revolution, but liberal North America has obviously done a good job in socializing its boys to affirm that such discrimination is inappropriate. Of course, this has not prevented them/us from being anxious about being thought to be homosexual. That anxiety is sometimes comic, but it has unfortunate results.

Anyway, to my readers of all sexual orientations, Happy Valentine's Day!

Saturday, February 03, 2007

Hiatus Update

I expect to be back to normal posting after February 22. I even hope to do some or all of the SCC cases decided since I announced a hiatus at the beginning of December, since there have been a number of interesting ones. In the meantime, just ill-formed theological thoughts and attacks on cartoon dragons.