On October 2

On this day in ...
... 1980 (30 years ago today), Prime Minister Pierre Trudeau announced that Canada's government would seek unilaterally to "patriate" its Constitution -- the term used in Canada to describe a revision that would permit modification within Canada's governmental structure rather than by the British Parliament, as then was required. The announcement took place amid internal political battles. One concerned the status of Québec within the Canadian federation, a question left unresolved following a referendum in May. Eventually the dispute moved to the judiciary. Finally, on April 17, 1982, British Queen Elizabeth II came to Canada to proclaim the new Constitution Act (above left). (credit for photo, also showing Trudeau, seated at left) Included in the package was an instrument on which we've posted, the Canadian Charter of Rights and Freedoms.

(Prior October 2 posts are here, here, and here.)

On April 24

On this day in ...
... 1985 (25 years ago today), the Canada Supreme Court held that the governmental ban on Sunday shopping unconstitutionally infringed on the freedom of religion and conscience, guaranteed in Article 2(a) of Canada's Charter of Rights and Freedoms. (photo credit) In Regina v. Big M Drug Mart Ltd., Justice Robert George Brian Dickson wrote of the statute under review:

'To the extent that it binds all to a sectarian Christian ideal, the Lord's Day Act works a form of coercion inimical to the spirit of the Charter and the dignity of all non-Christians. It takes religious values rooted in Christian morality and, using the force of the state, translates them into a positive law binding on believers and non-believers alike.'

(Prior April 24 posts are here, here, and here)

On April 9

On this day in ...
... 1987, in RWDSU v. Saskatchewan, in which locals of the Retail, Wholesale and Department Store Union, along with other unions, challenged laws in several provinces, the Supreme Court of Canada held that there was no constitutional right to strike. They thus rejected the argument that the 1982 Canadian Charter of Rights and Freedoms -- stating in relevant part "2. Everyone has the following fundamental freedoms: ... d) freedom of association." -- includes such a right. The lone woman on the Court, Justice Bertha Wilson (left), was also the lone dissenter from this decision.
... 1609 (400 years ago today), Spain and Netherlands signed the Treaty of Antwerp, which ended nearly a half-century of hostilities between northern Netherlands and Spanish rulers and marked the beginning of the Twelve Years Truce, . In its announcement of an upcoming conference commemorating this quatrocentenary, Tilburg University continues:

Whereas at the expiration of the Truce in 1621, the war would resume for another quarter century, no serious strategic attempts were made any more by Madrid to re-conquer the Northern Netherlands.
The Twelve Years Truce did not only lay out the groundwork for the future final peace settlement in political terms, but also in legal terms. ...
Between the late 15th and late 17th centuries, peace treaties became much more elaborate legal instruments than they had been before. The legal principles, concepts and rules which were developed within the peace treaties of that period came to form a major part of the classical law of nations, and to its hardcore, the laws of war and peace. The Truce of Antwerp and papers documenting its negotiation process constitute important formative as well as informative sources for the laws of war and peace of the Early Modern Age.

Details on this conference, to be held April 23 & 24, are here. (credit for photo of Antwerp's circa 1580 Guildhouses)

(Prior April 9 posts are here and here.)

On January 21

On this day in ...

... 2004 (5 years ago today), the Royal Canadian Mounted Police "search[ed] the home and office of an Ottawa Citizen reporter who has written about the Maher Arar case, looking for evidence of a possible breach of the Security of Information Act," the Toronto Globe and Mail reported. Juliet O'Neill (left) had been covering the story of Arar, who, as we've posted, was transported to Syria after he stopped at a New York airport on his way back home to Canada. In October 2006, citing the Canadian Charter of Rights and Freedoms, Superior Court of Ontario Judge Lynn Ratushny invalidated section 4 of the Act, on which the raid relied as "overbroad vague and open to misuse," "infring[ing] upon O’Neill’s Charter rights to freedom of “expression, including freedom of the press." (Decision here.) There was no appeal of that ruling. (photo credit)

... 1919 (90 years ago today), in Dublin, members of the Dáil Éireann (right), the lower house of Ireland's parliament, met for the 1st time. In 2 short hours, "the Dáil adopted a Constitution," which would take effect in April of the same year, "and approved the Declaration of Independence." (photo credit)

News from Guantánamo

IntLawGrrls have posted often on matters related to Guantánamo, but we've not checked in recently. So here's a roundup of what's been happening:

Detainees Arraigned in Military Commissions

On Thursday, June 5, Khalid Sheikh Mohammed and four other detainees were arraigned before the military commissions at the Guantánamo Detention Center for their alleged participation in the September 11, 2001, attacks on the United States. The prosecution seeks the death penalty on the charges, which include conspiracy, murder in violation of war, attacking civilians, and material support for terrorism. The five detainees were among twelve detainees who had been held in secret CIA "black sites" prior to their transfer to Guantánamo in September 2006. U.S. government officials have admitted to waterboarding Mohammed while in secret custody; the other four arraigned detainees were also subject to torture and coercive interrogation techniques, including sleep deprivation, stress positions and forced nudity. The arraignment marks the first public glimpse of the alleged "masterminds" of 9/11 and over fifty members of the domestic and international media were permitted to view the proceeding, which was characterized by long conversation between the five detainees, much to the concern of defense counsel who believe the judge let the conversation inhibit the voluntary choice of legal counsel. Army Major. Jon Jackson, who represents one of the detainees, testified that his client, Mustafa Ahmad al-Hawsawi, had clearly been "intimidated" and pressured by Mohammed to disavow his military attorney and to represent himself. Judge Ralph Kohlmann, who had previously denied all defense requests to delay the arraignment, postponed ruling on al-Hawsawi's and another detainee's requests to represent themselves, but ruled that the other three detainees had "knowingly and voluntarily" refused legal counsel. (credit for above photo of Gitmo courtroom)

Military Commissions Judge Steps Down

Military Judge Peter E. Brownback III, who has been presiding over the commission case of Omar Khadr (the young Canadian alleged to have killed an American soldier in Afghanistan; prior posts here), stepped down and will be replaced by Col. Patrick Parrish. The Pentagon has not explained the reason behind the move. Judge Brownback had threatened to halt proceedings if the prosecution failed to release Khadr's detention records. He also had resisted setting a trial date until the classified prison log, which allegedly demonstrates that Khadr was abused and coerced into making incriminating statements, is provided to the defense. Brownback's rulings have not always been in favor of Khadr, however; for example, he declined to apply child soldier status to Khadr. But defense counsel felt that Judge Brownback was fair and was making an effort to make the process fair despite the severe shortcomings of the commission system.

Canada's High Court Denounces Guantánamo Detentions

On a related topic, in a case originally brought by Omar Khadr in the Canadian court system, on May 23 the Supreme Court of Canada unanimously ruled that the detention and interrogation of Omar Khadr at Guantanamo violated U.S. domestic law and international human rights obligations to which Canada is a party, and thus required Canada to disclose to Khadr certain documents in its possession. Disagreeing with the Canadian government, the Court concluded that the Canadian Charter of Rights and Freedoms did apply at Guantanamo. The Canadian Court found that because the U.S. Supreme Court had already ruled in Rasul v. Bush (2004) and Hamdan v. Rumsfeld (2006) that the detentions violated U.S. domestic law and international law. Thus it wrote in paragraph 24 that the principles of comity, which would normally justify deference to foreign laws and might preclude application of the Charter, do not apply in the case:

'The violations of human rights identified by the United States Supreme Court are sufficient to permit us to conclude that the regime providing for the detention and trial of Mr. Khadr at the time of the CSIS interviews constituted a clear violation of fundamental human rights protected by international law.'

Under section 7 of the Charter, which states that "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice," the Canadian government was required to disclose to Khadr's counsel records of interviews and information given to U.S. authorities by Canadian officials who interrogated Omar Khadr at Guantánamo. The Court based its decision on the principles articulated by the Stinchcombe case, which held that persons whose liberty is a risk as a result of being charged with a criminal offence are entitled to disclosure of the information in the hands of the Crown under section 7 of the Charter. The Court also held that its ruling did not necessarily mean that Khadr and his attorneys were entitled to unredacted copies of all documents. The trial judge presiding would review the materials and decide which documents fall within the scope of the disclosure obligation.

On May 10

On this day in ...
... 1995, in Canada, a court in Ontario gave a lesbian couple the right to adopt children. The women, each of whom wanted to adopt the biological child to which the other had given birth, successfully invoked the Canadian Charter of Rights and Freedoms to challenge a law limiting the right to joint adoption to opposite-sex couples.
... 1933 (75 years ago today), in "[a]n event unseen since the Middle Ages," as one website puts it, "German students from universities formerly regarded as among the finest in the world, gather[ed] in Berlin and other German cities to burn books with un-German' ideas. Books by Freud, Einstein, Thomas Mann, Jack London, H.G. Wells and many others" succumbed to fire as participants gave "the Nazi salute" (right).

On April 17

On this day in ...
... 1982, Queen Elizabeth II proclaimed Canada's Constitution Act. Effective the next day, the Act ended British authority in Canada, though it remains a constitutional monarchy and part of the Commonwealth. The Act also brought into force the written Canadian Charter of Rights and Freedoms. These events were nominated as a Legal Wonder of the World in IntLawGrrls' contest. (Incidentally, nominations are still being accepted.)
... 1961, with U.S. support by sea and air, 1,400 Cuban exiles landed on "a beach surrounded by a mosquito-infested swamp" at the island country's Bahía de Cochinos. The troops of Fidel Castro, Cuba's Premier, routed the invaders in what has come to be known as the Bay of Pigs fiasco. Speaking of President John F. Kennedy, who gave the green light for an operation that had been in planning well before Kennedy's inauguration 2 months earlier, the BBC wrote:

It was the worst foreign policy embarrassment of his career.

Announcing, from across the blogosphere, 5 new "Legal Wonders' nominees!

Heartfelt thanks to our colleague Anil Kalhan for making Dorf on Law the 1st cross-blog participant in our ongoing contest to Name the World's 7 Legal Wonders. After listing the nominees to date -- (1) the 13th Amendment to the U.S. Constitution, (2) the Constitution of the Republic of South Africa, (3) the Law Merchant, and (4) the Edicts of Aśoka -- he remarks:

Just as interesting as any particular candidate for "Legal Wonder" may be what the nominations say about the cultures from which these Legal Wonders have emerged and our own. Mary Rebecca Bynum has written that when she teaches her undergraduate course on "The Seven Wonders of the Ancient World," her purpose is not simply to teach students about the Seven Wonders themselves, but to explore "how members of one culture view other cultures, and what use they make of other cultures in their own world." This contest, too, may be as much a window into our own values, ideals, and culture as it is into the cultures that produced the particular "Legal Wonders" being nominated.

Then comes Anil's nomination:

So who or what do we nominate here at Dorf on Law? There are of course many worthy candidates, but I nominate Dr. B.R. Ambedkar [left], a Dalit (or so-called "untouchable")leader who at times clashed with Gandhi and other Congress leaders during the Indian independence movement and later became one of the principal architects of the Indian constitution, which among many other notable things abolished "untouchability." Over fifty years after his death, Ambedkar remains a deeply influential figure in contemporary India, and to some people a controversial one. A crude indicator of progress under Ambedkar's Constitution may be seen in the sweeping recent victory in the state of Uttar Pradesh by the Bahujan Samajwadi Party, a party created principally to represent and advocate on behalf of Dalits. Not only did the BSP surprise observers by winning an absolute majority of seats in the state -- returning Mayawati, the first Dalit woman to lead any of India's states, to power as the state's Chief Minister -- but it apparently did so with significant support from a "rainbow coalition" that included significant numbers of upper caste Hindus. On the other hand, for a sense of how far India has yet to go to fully realize its formal abolition of untouchability, recall my post on the status of Dalits from several months ago.

What's more, commenters at Dorf on Law added even more nominees, both positive and negative.

From commenter Caleb: "I'd suggest the Magna Carta [right] and -- in a bout of sentimentality perhaps -- the Canadian Constitution. It did what new contemporary constitutions did, and tried to enshrine principles of equality and protection between different groups without forcing assimilation."

Meanwhile, commenter Juan named: 1st, as a positive influence, the 4 1949 Geneva Conventions on the laws of war, and 2d, as a "fiasco," memoranda written by members of the Office of Legal Counsel, U.S. Department of Justice, in the wake of the terrorist attacks of September 11, 2001. Often called the "'torture
memos,'" many are reprinted in The Torture Papers.

Whew -- 5 new nominees in 1 fell swoop. And more to come, we hope: tell us yours, with a brief description of your reasons, by posting a comment or by e-mailing us at intlawgrrls@gmail.com.