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TOP COURT TALES BY PHILIP SLAYTON Factumv. oral argument Which one has the most sway over Supreme Court justices' decisions? broken. Or is it really? Pleading in person before a panel of O Supreme Court judges seems fraught with significance. You can watch lawyers doing it on the Supreme Court web site and see for yourself. An interesting recent case archived on the web site is Prime Minister of Canada v. Khadr, heard on Nov. 13, 2009. Omar Khadr, a Canadian citizen, is being held by the Americans at Guantanamo Bay. The issue is whether the Canadian government has a legally enforceable obligation to request his repatriation. Lower courts have said it does. The Khadr proceedings began, as do ral argument is the centrepiece of a Supreme Court of Canada case. That's when a case is made or all Supreme Court hearings, with gowned judges filing in self-consciously in order of seniority, and slowly sitting down on high-back chairs upholstered in red leather. (Dahlia Lithwick, an American writer on legal matters who watched the Khadr hearing, described the judges in Slate magazine as "all sorts of quirky outliers, including women, people with French accents, and men with fantastic hair.") The chief justice ritually introduced the case and named the various counsel scheduled to appear. Everyone looked grave, as befits an important occasion. The lawyer for the Department of Justice, the appellant, began his argument confidently, but was quickly subjected to a barrage of vigorous and pointed questions. He seemed rattled, and got 18 FEBRU AR Y 2010 www. C ANADIAN Law ye rmag.com red in the face. Later he regained some of his poise. The court heard from the respondent and a number of interveners. All were questioned extensively. The judges seemed caught up in debate, thinking hard, trying to decide what to do, grappling with big issues. But was the Khadr hearing mostly portentous show? Did the judges have a good idea what they were going to decide before they filed into the courtroom? Many savvy participants — including some judges themselves — have said that this is often the case. It's the written submissions, they say, that really count, submissions carefully studied before the oral argument, and analyzed by judges' law clerks in so-called bench memos. Earl Cherniak is a senior and much- TODD JULIE