FTA Lawyer

Interesting idea, eureka, but the Charter can't render its own provisions to be null and void. And a Charter absolutely can be used to reduce or remove rights...and I've pointed out repeatedly on this board that our Charter does just that!!! Section 15(2) of our Charter is an express enshrinement of Parliament and the Legislatures' abilities to pass laws that outright take away rights and impose discriminatory policies...as long as the objective is to right past wrongs. Section 1 is the specific acknowledgement that individual rights will often be at odds with collective interests of society and expressly authorizes government to limit or remove an individual's rights so long as that is done in a way that can be demonstrably justified in a free and democratic society. As you and others seem to think that I am expressing personal opinion when it comes to this issue, I am going to include the following quote from the SCC decision in R. v. Oakes and hopefully prove to you that the Charter does inherently permit and in many cases require certain rights to be abrogated in favour of others: "Section 1 both guarantees the rights and freedoms set out in the provisions that follow it and states explicitly the exclusive justificatory criteria (outside of s.33) against which limitations on those rights and freedoms may be measured. The onus of proving that a limitation on any Charter right is reasonable and demonstrably justified in a free and democratic society rests upon the party seeking to uphold the limitation. The standard of proof is a preponderance of probabilitites based on: (1) the objective to be served by the measures limiting a Charter right must be sufficiently important, at least relating to societal concerns that are pressing and substantial in a free and democratic society, to warrant overriding a constitutionally-protected right or freedom; and (2) the means must be reasonable and demonstrably justified, in proportion to the importance of the objective. The proportionality test involves three components: i. the measures must be fair and not arbitrary, carefully designed to achieve the objective in question, and rationally connected to that objective; ii. the means should impair the Charter right as little as possible; and iii. there must be a proportionality between the effects of the limiting measure and the objective." So there you have it, the instruction manual on how our Charter can and does operate to reduce or remove rights...(or to use the SCC's terms "limit", "impair" and "override" rights and freedoms) FTA

You posted material that you full well know is simply not honest. I do not believe I know more then you, I believe that you posted an opinion based upon a faulty premise. That is that without the non-withstanding clause that SCC decisions become final, that is completely and unarguably untrue. With support at a significant enough level parliament can pass ANY law, in a democracy the super majority is final. I can certainly understand where you might not agree with the standard without the not-withstanding clause and I think we agreed to disagree on that before as an accepted matter of personal opinion. I've actually invoked the Charter on behalf of clients and obtained remedies pursuant to it in real courts with judges and everything. This is untrue. The Charter can be changed, that is the proper mechanism for making such changes. Exceptions are in and of themselves the cancers that create tyranny. The whole point of the Charter is that it applies equally to everyone, when you make exceptions you, by definition, create inequalities. This is not a fair example, by my understanding of this case Ann Geddes could have been arrested by the original law but I sure as hell can't fairly be caste in the light of defending a pedophile. No action is parliament’s prerogative; your suggestion that because parliament chose not to take the steps necessary to invoke supremacy they do not possess that supremacy is factious. Or through the process of altering the Charter, an onerous task to be sure but not impossible and the logically and morally correct path. No you don't, you change the mechanism and raise considerably the level support required. I am not defending Martins position on the matter, that’s not relevant. As a lawyer you posted information that was untrue, there are many here me included that would have taken that post at face value if I did not happen to have a discussion with my retainer about this very topic. I could very well have used your post to base own decision making off of and that’s what I found objectionable. Well that and the fact that I asked my wife about it and she hates talking politics and I am sure that it cost me a night of sex, and in reality THAT is what really ANGERS ME! Okay Yaro, lets walk you and your lawyers through this one... My statement, which is completely 100% legally accurate is summed up wonderfully by this sentence from my post: "If we have the Charter as is, but minus the Notwithstanding Clause, then the final say on the state of any law that (as Sage properly points out) engages the Charter would rest squarely on the shoulders of the S.C.C." You then say I post false information because Parliament could always overrule the S.C.C....by merely amending the Charter. I said, If we have the Charter AS IS, BUT MINUS THE NOTWITHSTANDING CLAUSE. I will give you that amending the Charter would allow Parliament to take back control and overrule the SCC, but if that's what you suggest as a remedy to an overzealous SCC decision, then why in the hell would you not just keep the Notwithstanding Clause?! All the Notwithstanding Clause is is a method of temporarily amending the Charter for a specific purpose. (You do understand that you would have to amend the Charter to take away some of it's protections in order to deal with the scenario we are talking about don't you?) My statements were made from the presumed position that the whole reason Martin made this suggestion was to treat the Charter as inviolable and never to be altered or detracted from...in that context what I have said is completely 100% true. And by the way...amend the Charter? Are you f-ing kidding? So for the 20 years that it takes to bring about that change via the next Charoletttown or Meech Lake type gong-show, the law as made by the overzealous SCC is the law we're stuck with and Parliament is completely powerless to do anything about it. The practical impossibility of your suggestion is exactly why the Provinces would only sign up if they had the safety valve of the Notwithstanding Clause. And keep in mind, the SCC makes particularly influential rulings on a regular basis...are you seriously suggesting that the proper way of maintaining Parliamentary supremacy in such a scenario is to make repeated Constitutional Amendments? That defeats the whole purpose of having a Constitution at all...it is supposed to be virtually constant. As far as the Sharpe case, it's the perfect example, and you simply don't understand it and have obviously not read it (and I use it as an example of SCC versus Parliament...I'm not saying you support child pornography...I hope you see that). Anne Geddes was always clearly excepted from the law under the "artistic merit" subsection, much like anatomy professors and others had express exemptions. Sharpe is a paedophile and the whole point of his case going to the SCC was for him to protect his ability to possess and make child pornography so long as it was only for his personal use and gratification. The SCC found he was entitled to that right under the Charter and created new exceptions to the law (that Parliament never included) that afforded him protection. Under the SCC exception, if a 40 year old adult male wants to videotape himself having sex with a 14 year-old girl he can...so long as she consents and he is not in a position of authority to her. Under Parliament's version of the law, this activity was criminal. The point is that the only way for Parliament to make this activity criminal again (without amending the Charter) would be to use the Notwithstanding Clause because the highest court in the land has declared that this activity ought not to be criminal because it infringes the Charter rights of the 40 year-old man. Your solution would be to amend the Charter...that would mean taking out the protections in the Charter for Freedom of Expression...entirely...because the SCC reasoning that cleared the way for Sharpe is their interpretation of the extent of the freedom of expression...this is far worse than using the Notwithstanding Clause to re-enact a law and say as a society, we don't much care if we are violating the rights of Mr. Sharpe the paedophile because we are more concerned with protecting children. Anyway, make of this what you will, but in no way was I posting anything dishonest or to sandbag non-lawyers out there into adopting my views. There may be plenty of people on this board deserving of that criticism, but I expect most of the people here will acknowledge that I'm not one of them. FTA

Insanity should not be mistakenly labled "Liberal Activism". Cases like this are why we have 1) Appeal Courts and 2) Judiciary Review Panels. FTA

You criticize people for generalizing Americans...and scarcely a sentence later you refer to "conservatives" as "hillbillies". What an incredibly compelling display of rational discourse. FTA

Well, actually Yaro, take my post to any Constitutional Law expert you want because it is absolutely sound. Perhaps the problem is having "peripheral knowledge" and thinking you know more than you do. I've actually invoked the Charter on behalf of clients and obtained remedies pursuant to it in real courts with judges and everything. If we have the Charter as is, but minus the Notwithstanding Clause, then the final say on the state of any law that (as Sage properly points out) engages the Charter would rest squarely on the shoulders of the S.C.C. I'm not saying Parliament couldn't pass any laws anymore...but any law that brought upon it Charter scrutiny would only stand as passed by Parliament if the S.C.C. said so. If the S.C.C. declares a law passed by Parliament to be unconstitutional for breaching the Charter, it can only be lawfully re-instated by using the Notwithstanding Clause. An amendment by Parliament to toe the line with what the S.C.C. has declared is not Parliamentary Supremacy...passing a law because it's what the majority of MP's want "notwithstanding" that it might violate part of the Charter is Parliamentary Supremacy. For example, in the Sharpe case, the S.C.C. outright created exceptions to the prohibitions against child pornography that were passed into law by Parliament...so as to not trample the rights of Mr. Sharpe the paedophile (and also to prevent less revolting people from unintentionally being caught by the criminal law). Parliament has done nothing to respond to the Sharpe decision...so the law, as amended by the S.C.C. is what we have to this day...not the law that Parliament passed. IF a government wanted to say...to hell with the likes of Mr. Sharpe, and we're not convinced that less revolting people are going to be troubled by this law...and decided to re-insate the law that they passed in the first place, it could only be done with the Notwithstanding Clause (becuase the S.C.C. declared the original form of the law to be unconstitutional). Take the Notwithstanding Clause away, and you are stuck with the law as handed back to you by the S.C.C. Martin may be officially proposing now to simply pass a Federal statute barring the feds from using the clause...which as many have pointed out is hardly strengthening the Charter...any subsequent gov't can just repeal the statute...But, as I originally posed the post...am I wrong or did he not expressly challenge Harper to agree to a CONSTITUTIONAL AMENDMENT to do away with the clause? Anyone? FTA

Not to be too mouthy, but have you even read the previous posts on this thread?...We've been all over the 1960 Bill of Rights!?!?!?! FTA

I don't know if it was just me, but I'm pretty sure that tonight Paul Martin tried to goad Harper into agreeing to a Constitutional Amendment to do away with the Notwithstanding Clause. Anecdotally, I venture to say that a common gripe of Canadians which transcends partisanship is that the Courts are routinely meddling where our elected officials ought to be exercising their mandate to pass legislation for our citizens. The phrase "judge-made law" is an expletive, not a reverance of the wonderous glory that the Charter has brought to us...even amongst many people who are pro-Charter. I think that this will potentially hurt Martin more than it could possibly help him...he's basically saying he doesn't want the government to be able to decide what is best for Canadians anymore...if elected on this platform plank is he proposing to send a reference to the S.C.C. for their blessing before he introduces any new law? What would be the point of debating anything in the Commons...the only opinions that would matter would be the 9 appointed justices of the S.C.C. Now, some may argue that is the way things are now, but at least Parliament still holds the hammer (if anyone would have the balls to use it to stand up for principles). Just wait until he realizes that the Notwithstanding Clause may very well be the only thing that would ensure a government's ability to push ahead with his new national daycare program (that's right...it won't be long before a stay-at-home parent brings a s. 15 application arguing that such measures unfairly subsidize parents who want the government to raise their kids...). There are even plausible scenarios that would require the use of the Notwithstanding Clause to protect medicare from the evils of private health care providers (and the dreaded "two-tier system"). The S.C.C. has just finished weighing in on private health insurance for example...if Martin really wanted to protect medicare from this incursion (which he doesn't really, but that's for another thread) he could outlaw private insurance by using the Notwithstanding Clause. If Candians wanted to regain control of deciding what behaviour they consider "decent" and outlaw swinger's clubs, they could do so with...you guessed it...the Notwithstanding Clause. If Canadians are sickened by the "soft" prisons that we have (as is apparent in a new thread on the board)...we could do away with much of the comforts that inmates have...all we need is the Notwithstanding Clause. Etc. Etc. Etc. To eliminate the Notwithstanding Clause is to truly hand over the supremacy of Parliament to the Supreme Court of Canada...a move that would fly in the face of the entire British Parliamentary system from which our country developed. What an idiot...and all to try and disingenuously snag some more votes. FTA

FTA, there is no question that to be free in a civilized society, individuals need to be guaranteed protection from the State (ie. from the wishes of the majority). The question, in mind, is whether a Charter is the best way to achieve this protection. On the face of it, an explicit charter which clearly states how the State cannot encroach on an individual seems good. In practice, this is not so obvious. Britain does not have a single, explicit charter yet individuals and minorities have been well protected. FTA, to make a comparison, do you think English grammar and spelling would improve if the government established a single code of grammatical and spelling rules? Well, the French language has precisely that. <{POST_SNAPBACK}> If not the Charter that we have, what should we do instead? In reality, we would go back to the 1960 Bill of Rights, which essentially is the same as the Charter (with a few minor differences, including protection of property rights). Either way, we have legislation that would be interpreted by the courts to monitor the government...or do you advocate revocation of the Bill of Rights also? Maybe there are better ways, I'm just not sure what they are. FTA OMG!FTA, do you mean individual Canadians had no rights before Diefenbaker's Bill of Rights? (Of course, they did.) Look, FTA, the issue here is whether it is best to look to a single source for an answer (Bill of Rights, Civil Code, Charter of Rights) or several sources (common law, precedent). FTA Lawyer, who decides the rule/law of English grammar? Precedent, what works. Who decides the rule/law of French grammar? An academy, wise people. ---- Now then FTA, as a normal person (not as a lawyer), what - IYV - is the best way to find the "truth": appeal to experts or what works best? (FTA, lawyer? What law school produced you?) I never said Canadians had no rights prior to the 1960 Bill of Rights...but the point I'm making is that we've had a piece of legislation substantively similar to the Charter for almost 50 years now...and that document is just a codification of the common law principles that developed before it. The Charter is merely one further step in the evolution...take good common law, pass a statute to codify it...take a statute and elevate it to the status of constitutional document...can't simply be repealed by the next government who comes along... If what you are saying is we should reverse the development of our democratically advanced system of rights and freedoms by a century or so and just go back to good ol' common law (i.e. true "judge-made" law), then I will still choose to stick with the Charter...flaws and all. As to your question regarding what law school "produced" me...are you questioning whether or not I am a lawyer or are you just trying to take a shot at the instituiton that I attended? What if I told you that I went to two different law schools (placing in the top ten percent at each)...which one will you blame? FTA

That's not what internationally reknowned forensic accountant Al Rosen, PhD thinks...he sees the activity as evidence of a leak... FTA

We've crossed our wires a bit here. The vast majority of cases end by way of guilty plea, but not necessarily a "plea bargain" (i.e. where the Crown offers a deal in order to invite a guilty plea). Many times the accused pleads guilty and argues for one outcome while the Crown argues for a different (and much more harsh) one...and it is then up to the judge to decide what to do. This is not a plea bargain. The only incentive I can see to plead guilty is to get a reduced sentence, and certainly there appears to be a noted lack of enthusiasm on the part of Crowns - at least in Ontario, to charge people under the firearm laws (certainly here in Ontario), especially those which carry mandatory minimum sentences. But as already noted, slack, limp wristed judges are part of the problem. Nothing personal. You actually seem to be a reasonable fellow - for a lawyer. :-) It's the ethics of lawyers I dislike, or rather, the required ethics of the profession. I understand the logic behind those required "ethics". But the result is that, for example, a lawyer working for Bernardo - or Hitler, for that matter, is "ethically" required to do their utter best to keep them from being punished and put them back on the street. It's very hard to reconcile that with any sense of morality. But really, so many cases should be straightforward and handled quite quickly, but aren't because of the complexities of laws and evidence - and the lawyers involved. I think most of these street criminals should be given someone to 'advise" them, whose sole interest is justice - not the well-being of the offender, nor the desires of the Crown, but justice. They should make sure the suspect/offender is not being mistreated, and advise them of what they ought to say before their rapid visit to a judge. Basic advice that anyone fairly intelligent would give. Someone who is caught in the act of knocking over a liquor store should be visiting a judge within a day or two and sentenced almost at once. At least in a perfect world. And I don't care how police got their evidence. If they broke a law, they should be punished, but the evidence should be admissible. <{POST_SNAPBACK}> You are right that an offender gets credit for a guilty plea on sentencing (becuase it prevents victims from being dragged through the system and saves boatloads of taxpayer money and demonstrates an element of remorse) but this does not mean that the Crown is the one offering the incentive. Sometimes, in the face of a good Crown case and a harsh Crown position on sentence, the best thing to do is not take a plea bargain, but plead guilty and argue for the best sentence you can get from the judge. As far as your comments about "ethics" your concerns are common, but in my view a bit off the mark. It is wrong to confuse a lawyer's ethics with his or her duty to provide full answer and defence to the client. The basis of our adversarial system is that the truth (i.e. justice) is most likely to be found where both sides vigorously put forward their best case...in doing so, each adversary works as a direct counterbalance to the other, to prevent either side from unfairly controlling the process. The concept of ethics puts up the boundaries within which a defence lawyer must operate. Ethics do not drive the vigorous representation of the client, ethics prevent a lawyer from acting inappropriately in pursuit of the client's best interests. For example, if a client admits to me that he has committed a crime, he or she is nevertheless entitled to force the system to prove his guilt beyond reasonable doubt. If we didn't require this, then involuntary or fraudulent confessions would be the norm and people would be wrongfully convicted on a regular basis. As such, I can test the reliability of the Crown's case through vigorous cross-examination and by forcing them to meet their obligations to run a fair trial. This is all pursuant to my duty to represent my client. The ethical aspect comes in and dictates that where a client tells me he did it, I am ethically precluded from putting forward a defence theory that suggests that someone else did it, or from cross-examining in a way that suggests my client wasn't at the scene...even if that would be the best way to "get him off". I am never entitled to mislead the Crown or the Court, and if my client or any witness does so, I am obligated to correct the misinformation or withdraw from the case. The "morality" component that you refer to is in the fact that as a defence lawyer I will have times that my efforts at holding the Crown to task will result in an individual, whom I personally know to be guilty, walking free. What you need to understand though, is that I do not possess that knowledge as a member of "the people" or society at large. I only know he did it because he told me...and he only told me because of the strict principle of solicitor-client privilege. If you take away the concept of solicitor-client privilege, the accused will simply never tell anyone he did it, so "the people" will be no better or worse off than if an accused is afforded the right to tell his lawyer in confidence. And if your response is...well fine then, make the guy run his own "simplified" trial without the help of a lawyer who knows he did it but still tries to get him off, then our entire history of law says...okay, but then the victim has to prosecute by himself to keep the trial fair...you can't have a highly trained advocate on one side but not the other...destroys the notion of the adversarial system and destroys the idea of fair due process. Your notion of sentencing the guy who knocks over a liquor store in a day or two is appealing...but you pre-suppose that we know who did it...and just because someone is arrested and charged, doesn't mean we know who did it. Remember that David Milgaard was a slam-dunk case...or so the cops, Crown and Court thought. Evidence could put him at the scene of the crime, he had no alibi, and he had a previous related criminal record. Everything suggested that he was the guy who did it. BUT HE DIDN'T...and he lost over 20 years of his life for this "mistake" of justice. Our system has it's problems and inefficiencies etc. but I prefer being able to feel confident that a person who gets put in jail is supposed to be there. Finally, if the evidence is admissible, no matter how the police got it, we encourage lawlessness and truly thrust ourselves full-force into a police-state...where cops would be the most feared element of society, not criminals. Canada takes a very balanced approach on this issue. In the U.S., any mistake by the cops leads to a "fruit from the poisonous tree" analogy and all subsequent evidence connected to the mistake is deemed inadmissible. In Canada, we embark on a detailed analysis to determine if the evidence should be excluded when it has been obtained unlawfully. Where the evidence is "real" or physical like drugs or a gun and was otherwise discoverable, and the actions of the police are not blatant bad faith, the evidence usually remains admissible. FTA

Definitely the most insightful comment in the history of the Forums. <{POST_SNAPBACK}> Hey, everyone's entitled to a little sarcasm once in a while... FTA

Reverse onus already exists for certain specified crimes (e.g. murder) or situations (e.g. allegedly committing an indictable offence while on bail for another) and frankly, it is possible that Martin could get it for gun crime without using the notwithstanding clause (i.e. it is clearly a breach of s. 7 but might be saved by s. 1 due to the pressing concern over escalating incidents of gun violence). I would much prefer using reverse onus for people where there are reasonable and probable grounds to believe they have committed a gun crime rather than mindlessly blow billions on registries and gun bans that can only serve to punish the law-abiding...even though it is a partial erosion of liberty. BUT, the difference in running a regular bail hearing versus a reverse-onus one is dramatic...it's not simple semantics. In the normal scenario, you are considered released with no conditions, unless the Crown can show why conditions are necessary. And you only get detained if various levels of conditions of release are insufficient. Detention is truly a "last resort". In the reverse onus scenario you are considered detained unless you can demonstrate how all of the grounds regarding bail (Primary - ensure attendance in court; Secondary - prevent commission of further offences; Tertiary - overall protection of the administration of justice) can bet met if you were to get released. We should not just lightly move to reverse onus as though it is really no different...unless you have spent time in a Remand Centre (even if only as a visitor rather than a resident) you can't really appreciate this fact. And for those who would blindly trust the police and the state...wake up! I recently had a client who was arrested two feet outside of jail after being released from a sentence. He was arrested WITH A VALIDLY SIGNED WARRANT for having stolen a car. He was re-processed, spent several days in 23 1/2 hour lock-up and had to attend court. The problem was that he was in jail on the date that the car was stolen...the absolute best alibi known to the criminal justice system. Do you think the cops checked that before applying for the arrest warrant? Do you think they checked it before executing the warrant? Do you think they investigated it when he told them he was in jail at the time...before they put him back in jail? No. It would have taken all of 5 minutes to make one call or type in his name on the computer... There is a reason we have protections in our system, and why defense lawyers have an incredibly important role to play in making us be able to feel confident that we have done the right thing before taking away a person's liberty. FTA

I thought all CPC'rs were the law and order type, I think the only time you need to be worried as a white chick in Edmonton or a black man in Toronto is if you have an illegal gun... <{POST_SNAPBACK}> ...and I thought that "Liberals" were all about Defending The Charter ...get back to me when you recognize the contradictions inherent between what Paul Martin says he stands for and what he says he wants to do in this harebrained proposal. In all seriousness, yes. I'm all for law and order. I'm all for strengthening the RCMP and for increased security at border-crossings and ports. I'm for more police in places that need a stronger law enforcement presence. I'm all for tougher sentences of violent crime. Tougher parole conditions for violent crime. I'm all for keeping dangerous people locked up longer, even if it means (gasp!) creating more prison spaces. I'm even for unmonitored security cameras in public areas; cameras that keep 24 hours of footage that police could access with a warrant if they had reason to believe the camera contained evidence about a crime. I'm strongly in favor of enforcing the laws we have. I'm certainly not in favor of breaking the law in the name of appearing to be tough on urban gun violence. The question is, when did Mr Defender Of The Charter decide that you really *can* "cherry pick" from the Charter? As Canadians we scoff at Americans getting so amped up about terrorism that they're willing to erode personal liberty with legislation that gives the state excessive power to suspend someone's rights in the name of protecting Americans from terrorists. And yet here we are starting down a slippery slope towards the same thing in the name of protecting Canadians from urban terrorists. -k <{POST_SNAPBACK}> **APPLAUSE** FTA

WTF???????!!!!!!! Canadians who like Harper are to blame for ADSCAM????!!!!! WTF???????!!!!!!! Maybe we ought to look more seriously at Western separation movements if yours is the attitude that is seriously what we who want to remove Western Alienation are up against. Perhaps you should change your handle to goodgrief because it is far more appropriate than one like eureka which inherently suggests some form of enlightenment. FTA

Are you suggesting an elimination of the Federal system of confederation in Canada? Because if rights and freedoms of Canadians was "solely a provincial interest" as you recommend, then I dare say we would have completely different standards in various provinces such that it would be really hard to explain why we call ourselves a single country. And really, the 1982 Charter has nothing to to with dividing power between Feds and Provinces (with the exception of acknowledging Quebec as a distinct society)...that's s. 91 and s. 92 of the 1867 Constitution. So really what you are looking for is an entirely new Constitution? Both Federal and Provincial governments are bound by the Charter, and both Federal and Provincial judges have authority to interpret laws in light of the Charter...including the ability to strike laws down (with the buck stopping at the SCC of course). When Alberta was choked about the re-writing of the definition of marriage, it was not the Charter that prevented Klien from doing something about it...it was the fact that s. 91 of the Constitution gives exclusive jurisdiction to the Federal government to define marriage. The Charter may have been what gave the Liberals the idea to flip-flop on SSM, but it wasn't the tool that made it possible for them to change the definition...it was the original Constitution itself. FTA

Do I have to take my balls out to vote? FTA

You have already posted that something close to 90% of cases are settled by plea bargain. It is patently obvious that we do not have anything like the kind of court facilities required to try a great percentage of these cases. So don't even try and tell us that Crowns don't do plea bargains except in special cases. They are clearly required to do plea bargains in most cases. I'm willing to bet that in their regular reviews their supervisors criticise Crowns who do not plea bargain enough cases. ... Mind you, the more obvious solution would be a massive reform in the criminal justice system which took most of the lawyers out of the system and greatly simplified the laws and rules of evidence. <{POST_SNAPBACK}> Argus, We've crossed our wires a bit here. The vast majority of cases end by way of guilty plea, but not necessarily a "plea bargain" (i.e. where the Crown offers a deal in order to invite a guilty plea). Many times the accused pleads guilty and argues for one outcome while the Crown argues for a different (and much more harsh) one...and it is then up to the judge to decide what to do. This is not a plea bargain. I don't remember where I put the stats up, so I'll apologize just in case the way I wrote it suggested that the percentage of guilty pleas was actually plea bargains. And as far as Calgary goes...the Chief Crown expects his minions to be able to justify why they have shown leniancy and entered a plea bargain. There is certainly no pressure to make deals...it's totally opposite. And our judges are almost certainly the toughest in the country...particularly our Court of Appeal. Although, maybe I'm proving your point...'cause I'm pretty sure Calgary doesn't have a proportionate per capita gun crime problem like Toronto's. (And yet we have piles of guns out here...must be the registry that's keeping us in line) But what the hell, we've always been crazy out here in the West...and scary too...did I mention we're scary? Whatever you Torontonians do, don't take any advice from us...or vote for political parties that have any connection to our province whatsoever...end of the country it would be... As far as your suggestion for sweeping reform...what would simplified rules of evidence do to keep gangsters off the streets and guns out of criminals' hands? And I'm not just asking because you seem to be wanting to put me out of business! FTA

All quite proper - in theory. Now back to the real world. ... If I appoint 9 arch conservative born-again Christian lawyers to the SC you know very well they will "interpret" almost every law differently than the judges who are there now. You can, if you so desire, "interpret" all sorts of laws in just about any way you want. Especially if you have a lot of biases and prejudices, and are a political activist, as the two recent judges were. And, of course, those who get to be judges in the first place are not selected for their great wisdom or ability. They're political suckups, some of them, apparently, having bought their robes by giving free legal services to the Liberals in Quebec. So please don't preach to us about how the SC only interprets laws, but doesn't make them. <{POST_SNAPBACK}> Argus, We may just be arguing semantics, and I take your points regarding the appointment process...but that's a different thread. The reality is that the Charter was enacted by, you guessed it, Parliament. Every statute that the courts get to interpret...again Parliament. The common law? Well, this is truly judge-made law, BUT...Parliament is free to (and historically often has) wipe out common-law decisions by passing statutes. And, this brings me to a point I've made several times here in the past few days...if a court, including the SCC, ever interprets a law in a way that the government doesn't like (i.e. puts a spin on it that is akin to "making law") then Parliament can squash the will of the court like a bug, exert it's legislative supremacy and use the notwithstanding clause. Politicians complaining about courts making law are simply too lacking in principles to risk losing their jobs and pensions for the greater good of the country (which is what they are supposed to do). And as a public, rather than complain about courts making law, we ought to be informed enough to tell our politicians to use the notwithstanding clause where appropriate / necessary...i.e. do their jobs and govern the country...instead of ignorantly submitting to Paul Martin's scare tactics about how the notwithstanding clause is an implement of the Devil and "un-Canadian". FTA

And this is why they brought in the amendments to the Criminal Code in 1996 which direct incarceration to be the last resort, and allow for conditional sentences...two measures which many people seem to passionately oppose. I'm not disagreeing with you...just pointing this out. FTA

rbacon, Ironically, in Canada a life sentence is truly a life sentence. That is, there is no set number of years after which the life sentence expires. Whether in or our of custody, you are always serving your life sentence, and can be immediately returned to prison for even an alleged parole violation. What you are after is no parole (i.e. keep offenders behind bars for the entirety of their life sentences). It's an attractive idea, but the problem is the cost. Not sure how we could possibly pay for what you are suggesting. As far as no plea bargains, that will never (and should never) happen. What you must understand is that most often, the Crown is only interested in a plea bargain if they have a particular reason to do so, like: - Evidentiary problems with their case - Missing or recanting witnesses - Serious risk of harm to witnesses or informants if trial goes ahead - etc. The standard of proof of "beyond reasonable doubt" is not easy to meet, so many times the Crown will make a plea bargain because it is much better to get something than to blow all of your resources on a trial and get nothing. And the harsh reality is that the entire justice system would screech to a halt if every person accused of a crime had to go to trial...which is what would happen with no plea bargains...every accused would have nothing to lose by running their trial...only opportunity to gain. As it is, in Provincial Court in Calgary we are often looking at 8-10 months to get a trial date...with the current amount of plea-bargains. If no plea bargains happened, we'd be looking at the 3-4 year range for trial dates within a matter of a few weeks. Then you'd have every single case being thrown out of court for failure to conduct trial within a reasonable time (the current standard is up to 12-16 months...assuming no delay is caused by the accused...after which the Court will likely throw out the case). FTA

Yes but do we want the courts making laws that govern our rights. Shouldn't it be the work of the federal government to do so? Just asking. <{POST_SNAPBACK}> Well actually... The courts don't make laws. They interpret the laws made by Parliament to determine whether or not they comply with the Charter. Sometimes, the government has overstepped its bounds, and the courts strike the law, or interpret it in such a way as to ensure it is consistent with the Charter. It is always the right of Parliament to impose its will regardless of what any court in the land says, by using the notwithstanding clause. Politicians just love not using it because they can pass the buck on hard decisions and blame the SCC if the result is unpopular. Why do you think the Liberal gov't put the reference to the SCC on same-sex marriage? Abdication of their responsibility as legislators to put laws in place and back them up with the notwithstanding clause if necessary. Anytime the public actually wants Parliament to put the pants back on, all they have to do is let it be known that they won't crucify a politician who uses the notwithstanding clause to keep the courts at bay. The problem is that Paul Martin has been driving the message hard that any politician who would use the clause is necessarily a tyrant who hates Canada and doesn't believe in minority rights...and the poorly informed public just eats it up. FTA

FTA, there is no question that to be free in a civilized society, individuals need to be guaranteed protection from the State (ie. from the wishes of the majority). The question, in mind, is whether a Charter is the best way to achieve this protection. On the face of it, an explicit charter which clearly states how the State cannot encroach on an individual seems good. In practice, this is not so obvious. Britain does not have a single, explicit charter yet individuals and minorities have been well protected. FTA, to make a comparison, do you think English grammar and spelling would improve if the government established a single code of grammatical and spelling rules? Well, the French language has precisely that. <{POST_SNAPBACK}> August, If not the Charter that we have, what should we do instead? In reality, we would go back to the 1960 Bill of Rights, which essentially is the same as the Charter (with a few minor differences, including protection of property rights). Either way, we have legislation that would be interpreted by the courts to monitor the government...or do you advocate revocation of the Bill of Rights also? Maybe there are better ways, I'm just not sure what they are. FTA

I don't really understand what you are trying to say here. And whether or not we need a new government (I agree we do) really has nothing to do with whether or not the Charter ought to stay or go. In my view, the Charter is far from perfect, but it does allow citizens a swift and meaningful method of protecting themselves from unwarranted state intervention. To the extent that you are not happy with the way the SCC is interpreting it, that is what the notwithsatnding clause is for. Unfortunately, no politician has the conviction to actually use it because many, especially Paul Martin, have villianized it with ridiculous rhetoric. Where Parliament wants to maintain its supremacy over the courts it can do so easily...unfortunately too many politicians govern in the interest of increasing their pension payout rather than in the public interest, so nobody will take a stand when the SCC steps on the lawmakers' toes. FTA

Wow... Leafless you are taking a very naive approach to this issue. Canada is increasingly becoming known world-wide for the number of wrongful convictions that we have been uncovering as of late. Even with all of the protections that our Charter affords, innocent Canadians spend large portions of their lives behind bars. The Charter is not an escape route for criminals, it is a strict code of conduct for our government and its agents, including the police. The fact that the guilty will also benefit is a necessary consequence of protecting the innocent. As a criminal lawyer, I too am a citizen, and I don't want criminals out wandering the streets that I live on. The reality is, if the police toe the line, get warrants for searches, don't physically abuse prisoners, follow procedure and act always in good faith, I will never have a successful Charter argument to make on behalf of a client. The number of successful Charter arguments I have made are an indictment of an increasingly untrustworthy state, including the Justice department and the police forces...and without the Charter I would have been virtually powerless to uncover and set right the wrongdoings. I enjoy living in a society where I can refuse to talk to agents of the state, I cannot be arbitrarily detained while walking down the street, my home cannot be violated by overzealous police, the government cannot tell me how to live my life (by and large)...all of these freedoms are protected by the Charter. If you think that governments can be trusted to just do the right thing, take the quote given to you by Sparhawk to heart. The Nazi party was validly and democratically elected before heading off toward extermination of Jews. If you cringe at the symbolic cliche of Naziism, consider that it is within most of our current population's lifetime that "Indians" were given the right to vote in Federal elections...and it's not that long ago that women were not legal persons in Canada. There are elements of the Charter that I criticize often, however, I am prepared to argue that it should remain. FTA

$43,000.00 over 12 years from 20 different judges and their spouses collectively? I don't think that you'll be getting an anchor chair at W-5 any time soon. I'm all for exposing Liberal corruption, but this is just proof of Canadian citizens being politically involved. FTA