International Law

Amici Curiae: The Disney Spectacle, the Supreme Court Selection Show and the Assange Circus

By TheCourt.ca

Judgment on the Judiciary: Deshamps J. out, Selection Panel In

On May 18th of this year, Justice Marie Deschamps, 59, announced that she would be retiring from the Supreme Court at the end of the summer. Specifically, she would be stepping down on August 7, 2012, exactly ten years to the day she was appointed.

Deschamps J. is not the only Supreme Court judge making announcements though. On August 8, 2012, Rob Nicholson, the Minister of Justice, announced the members of the Selection Panel responsible for finding her successor: Jacques Gourde,  Kerry-Lynne Findlay, and Greg Rickford, all hailing from the house of Harper, Francoise Boivin from the New Democratic Party, and Stéphane Dion from the Liberal party. The five-member panel is to review and assess a list of qualified candidates proposed by the Prime Minister, Minister of Justice, the Chief Justice of Canada, the Chief Justice of Quebec, the Attorney General of Quebec and other prominent legal organizations.  Prior to sitting on the SCC bench, Deshamps J served on the Quebec Court of Appeal and the Quebec Superior Court. With only two other justices from Quebec remaining on the bench, Justice Lebel and Justice Fish, s. 6 of the Judges Act necessitates that her successor be from Quebec. Hence the earnest consultation with Quebec officials.

Many questions are surfacing with this appointment (not however, the bilingualism debate raised in the appointment of Moldaver J., because the Quebec appointment will certainly be bilingual). The selection committee and Prime Minister Harper must consider the gender dynamic. With so many discussions on diversity on the bench taking place in recent days (TheCourt.ca wrote one here), many are watching to see whether the 4-5 split of male to female will go the other way. Additionally, this will be Harper’s fifth appointment, with two more coming down the pipeline as Justices Fish and LeBel are required to retire in November of 2013 and 2014 respectively. Former dean of law at the University of Western Ontario Philip Slayton, cautioned, ?Quite shortly, the Prime Minister will have appointed seven of the nine judges, which I think is just about unprecedented in Canadian judicial history, and you can be sure that all of these judges are people that Harper feels philosophically and idealistically comfortable with.”

Judges, and I would hope Supreme Court judges in particular, are supposed to check their political ideologies at the door, but the very fact that soon seven out of the nine will be Harper-appointed justices, may not sit right in the minds and stomachs of Canadians. Left-leaning Canadians have been weary since Deschamps J.?s announcement in May.

These concerns point to the significance of the selection panel. After a great deal of procedural flip-flopping from the appointments of Justices Rothstein, Cromwell, Moldaver and Karakatsanis, the process will hopefully provide the transparency and balance to ensure public confidence in the judiciary’s impartiality.

Disney Caught in the Headscarf Debate

Disney characters come in all different genders, ethnicities, cultures, etc. Some live underwater and make friends with sea creatures, while others are friendly sea creatures themselves. Some have bright blonde hair, while others prefer to cover their black hair. It seems unfathomable that anyone would take issue with Aladdin and his fez. But some people at Disney have taken issue with a headscarf worn by a female employee in their ever-popular Disneyland Resort in Anaheim, California.

Imane Boudlal, 28, has filed a federal discrimination lawsuit against Disney on Monday. She claims that she was taunted by her colleagues on a regular basis; she was called names like ?terrorist? and ?camel.? After reporting these incidents of harassment to her seniors, she was given two options: to either abide by the company?s workplace wardrobe policy and take off the headscarf, or work backstage and out of public view.

Despite their wardrobe policy, Disney asserts that it sincerely endeavours to accommodate religion-related attire. Her seniors, for example, offered her Disney-themed hats to wear over her hijab. (Think Mickey Mouse ears worn over a headscarf.) Unsurprisingly, Ms. Boudlal found these alternatives to be unacceptable.

The complainant seems intent on going forward with the discrimination case. She has also turned to local media in recent days. As a company founded on enlivening our imagination, Disney?s strategies to cope with cultural difference seem sadly unimaginative.

Curiouser and Curiouser: Assange, Asylum and International Law

Almost two months ago, the ever-controversial Julian Assange, founder of the equally controversial Wikileaks, had the world sitting up and taking notice yet again, when he walked into the Ecuadorian embassy in London, UK, and asked for asylum. TheCourt.ca covered the initial proceedings here, and ever since then, developments on the case have not fallen out of public consciousness. As of writing this, Assange?s asylum has been granted by Ecuador, but he has been forced to remain within the confines of Ecuadorian embassy, since the British government has refused him safe passage from the embassy to an airport to leave the UK.

Then there is the political maelstrom brewing between the UK, US and Ecuador, with allegations of threats to storm Ecuadorian embassy headquarters in London by the British government being made;  the this in turn has led to much analysis of the comments made to the Ecuadorian government, with expert consensus being that it was indeed, a bad legal move. And, Assange?s own nation, Australia, which consistently taken on the role of the bystander, has now begun to prepare for Assange?s extradition to the US; a strange move, considering that Ecuador has not given any indication that it is ready to give Assange up yet. In fact, the South American country is open to talks with the UK, after which it is even considering going to the International Court of Justice, in the Hague. And lest the public forget the individual at the centre of this chaos, Assange himself made an appearance on the balcony of the Ecuadorian embassy, speaking out against his status as the ?victim of the global war on free speech.?

If all of this sounds like the plot of a bizarre political thriller from deep within Hollywood, it wouldn?t be a bad estimation of the events. And it seems like a story of Machiavellian proportions, since both sides seem to be leaving out important bits that will likely go against them on the international field. The New York times commentary, for instance, points out that Assange made no mention of the allegations of sexual assault he faces in Sweden, with other news sources pointing out that the same South American countries that Assange thanked for protecting and supporting him, having deplorable human rights records themselves. On the other hand, a website to dedicated to wading through the legalities of Assange?s extradition tries to shed light on whether Sweden will indeed hand him over to the US, and if there is a real danger to his life.

Whatever the outcome, it is interesting to trace the development of the events; what began as an attempt to extradite Assange from one European country to another has quickly morphed into a question of international diplomacy, and of power blocs on the global stage. And at the centre of it all is whether all sides involved will respect established norms of international law. The actions of the states involved will surely have ramifications far beyond Assange?s case; for instance, it would not be too much of a stretch to replace Assange with a purported war criminal, and the sexual assault allegations being replaced with those of murder or violence. What would a country hosting, or providing asylum to the individual be expected to do in that case? Even as legal myths surrounding the situation attempt to be cleared up, the newest quandary seems to be whether and if the norms of international law can be upheld securely in the pursuit of justice, whichever side that quest might benefit.

Full post as published by The Court on August 20, 2012 (boomark / email).