A Judge's revealing Comments

[blueblood]

Can we elect airline pilots too?

Pilots can get fired, judges can't...

[g_bambino]

Pilots can get fired, judges can't...

Each jurisdiction in Canada has a judicial council [that] may even recommend that a judge be removed from the bench if it becomes necessary...

Department of Justice

[Wilber]

Pilots can get fired, judges can't...

They can be fired by their employer and licenses removed by government inspectors. Judges are subject to neither.

[Wilber]

Each jurisdiction in Canada has a judicial council [that] may even recommend that a judge be removed from the bench if it becomes necessary...

Yes, a council of other judges.

[Bugs]

Odd since these judges were appointed by the conservatives or liberals. Perhaps the disrespected legislation was the result of the opposing parties actions. Ie a conservative judge twisting liberal legislation for conservative party motives. This only goes to show how entrenched the corruption is within the ranks of Canada. We need to get the communist conservatives out out out.

Liberal or Conservative are names of organizations. It isn't even important, because both parties are 'pragmatic' more than principled. What makes minimum sentences for repeat offenders a Liberal or a Conservtive issue, for example? Either party could support these legal changes because they don't involve a very big change, and it is selective, aiming for the very people you'd most want in jail.

But that doesn't mean the legal profession doesn't have lots of ideology -- they do. At contemporary Canadian universities, the law schools are hotbeds of ideologies, none of which have much relationship to Canadian political parties. They are into radical feminism and all the gender stuff to the max. They are also into human rights, and get themselves into new forms of inequality that, so far, to citizen has seen fit to seek a remedy at Court. Same sex marriage is a big issue ...

Some of them are probably figuring out how to base a law practice on protecting animal rights.

These are the ideologies to fear, because, when coupled with Human Rights arguments, and the power of the Law, they are preparing revolutionary changes in laws that will never go through Parliament.

The implications are frightening.

[Smallc]

Yes, a council of other judges.

Would you prefer a council of chimps?

[g_bambino]

Yes, a council of other judges.

Yes. And? The claim was made that judges can't be fired. The claim was proved to be wrong.

[Argus]

Thank god someone is still able to stop Parliament from thwarting Canadians Charter rights.

Yes, it's especially handy when that someone gets to define what those rights are, even if nobody else ever seemed to realize those rights existed - having never been a part of the Charter or in the minds of those who wrote it.

[Argus]

Because we know just how well non-professionals can work in a complex system.

I fail to see the problem here. For centuries our system has been based upon the notion that Parliament makes the laws, but the judges interpret them.

This is quite mistaken. For centuries Parliament ruled supreme. It could, with little effort, simply overturn any ruling by any court, including the Supreme Court. That changed when Trudeau brought in a new constitution and the Charter - modelling them after the US constitution. Suddenly we had a third arm of government - unelected - with the ability to overrule parliament and anything parliament did, and to alter laws as it suited them.

[Argus]

I agree the problem is with the law. It figures given we put so-called ordinary people in charge of passing them.

The problem is not with the law when the courts can "read in" things by extension. Ie, the law says that certain groups are protected from discrimination. Homosexuals are considered, but then rejected as being one of those groups. That is, parliament decides not to include them. The courts decide otherwise, and put them in anyway, despite the clear writing in the law.

Another example might be the courts decision to accept "oral histories" from natives as actual evidence in treaty rights cases. It went against all current law and jurisprudence, but they did it anyway. If someone's great grandfather fourteen times removed remembers hearing something from his brother in law, well that's evidence.

Then there's the marriage law. Now when the Liberals altered this law they had to fight against their own MPs who were extremely wary that any changes might legalize homosexual marriage. The Liberal government actually wrote into the law that it definitely did not apply to homosexuals. The courts decided otherwise and simply altered the law.

There are numerous such examples of the courts, rather than interpreting the intent of parliement simply substituted their own beliefs for those who wrote and passed the laws.

[Argus]

Common sense would be fine...if it even existed. Our system has been this way for hundreds of years and it has worked very well.

Our system is only a few decades old. We threw out the old system when we brought in a new Constitution.

[Jerry J. Fortin]

The problem is not with the law when the courts can "read in" things by extension. Ie, the law says that certain groups are protected from discrimination. Homosexuals are considered, but then rejected as being one of those groups. That is, parliament decides not to include them. The courts decide otherwise, and put them in anyway, despite the clear writing in the law.

Another example might be the courts decision to accept "oral histories" from natives as actual evidence in treaty rights cases. It went against all current law and jurisprudence, but they did it anyway. If someone's great grandfather fourteen times removed remembers hearing something from his brother in law, well that's evidence.

Then there's the marriage law. Now when the Liberals altered this law they had to fight against their own MPs who were extremely wary that any changes might legalize homosexual marriage. The Liberal government actually wrote into the law that it definitely did not apply to homosexuals. The courts decided otherwise and simply altered the law.

There are numerous such examples of the courts, rather than interpreting the intent of parliement simply substituted their own beliefs for those who wrote and passed the laws.

[Jerry J. Fortin]

The problem with the current system is that the courts are interpreting instead of applying the law.

[Argus]

So, in my opinion, this judge is right, in a sense. The law doesn't exist until they make a decision and pass judgment. Sure they have particular guidelines, but ultimately you can't know the outcome until it happens. OJ's living proof. Not guilty in the criminal trial, but guilty in the civil trial.

This is nonsense. In one of the cases cited the judge clearly understood what the law was and what the intent of those who framed the law was - on marighuana. He didn't "interpret" the law in a unique way. He simply disagreed with the law and refused to punish the person under the law, even though that violated all jurisprudence. The result was that a prolific drug dealer never went to jail.

[Argus]

The principals have changed far less than they have remained the same; we're talking about the core tenets of the judicial system, not incidentals like its scope.

We're talking about a new ability of courts to overrule parliament, and to substitute their own biases, their own ideological beliefs for those of parliament.

[Argus]

There are people on this forum who seem to believe that the American system is flawless and the grafting of elements of it onto ours will somehow solve the deficiencies of our governmental structure.

I always thought the American judicial system was a mess. However, we now HAVE an American constitution, or rather, an inferior copy of it, but without the safeguards of the American system.

[Argus]

None of which is an indicator that the basics of the judicial sytem are flawed. What you point to tends to imply a problem with the laws themselves, as well as, perhaps, the penal system.

I suggest you examine the criminal code some day. You'll find, as I have stated numerous times on this forum, that most laws, especially laws governming violent offenses, have a large range or scale of possible punishments. The problem is that judges out and out refuse to apply the more severe levels of punishment. If a given law allows for a range of between 1-10 years in prison, 95% of the sentences will be 3 years or less, regardless of the severity of the crime or the background of the criminal. Judges in Canada see it as their job to find reasons for lowering sentences as much as possible.

The only actual laws which are poorly written are the ones definining homocide. It is all too easy for murderers to escape just punishment under those laws. Far too many murderers are found guilty of manslaughter instead of first degree murder, as they ought to be because it's almost impossible to prove intent under the law.

[Argus]

No, you presented some information without explanation of how it supported your claim; I already said that your examples were more significant of problems in areas beyond the courts, not with the bench itself.

Yes, you dismissed them without thought. Indications of problems beyond the courts? Because the judges refuse to apply strict sentences? How is that anyone else's fault but the judge?

[Argus]

the end picture of a government over riding my legal rights is not a pretty one...NAZI Germany and American McCarthyism come to mind...I trust the Courts despite any imperfections to protect me more than the government...

The government was able to override your rights for the entire history of this country up until the new constutition. Somehow we managed to get by without Nazi salutes.

[Argus]

Who are you to determine if they've done a crappy job? It seems that the judge in the second article was held accountable by those at higher levels. They won't be making the same types of rulings again.

Oh? Was he punished? Fined? Suspended? Was the criminal put in prison? What exactly did the court do other than complain rather impotently that they didn't like his ruling?

[Argus]

When has the judiciary subverted the Charter?

Every time they decide to use their own personal ideological beliefs to find a way to "read in" some perversion of the Charter which grants new rights.

[Argus]

Lets get rid of conditional sentences then.

The Conservatives are doing that, actually. It was a nifty idea, but reckoned without the delight judges had in being able to set free murderers and rapists. Parliament never thought conditional sentencing would be used for such crimes.

[Argus]

That's not true all of the time. The perception is that the judges never give the top sentence, but it's not always true. It depends what precedent has been set for similar circumstances.

I've been reading crime stories for about thirty years now and I can't recall a single case where a judge EVER handed out the highest sentence allowed under law.

[Argus]

Yes, a council of other judges.

There was a case in Ontario where some complete misfit of a judge named Paul Cosgrove - who got his robes because he lost his re-election campaign for the Liberal Party - made a series of ludicrous, outrageous decisions, one of which set a murderer free and drew the most openly insulting condemnation from an appeals court I have ever heard of. It still took over ten years of hearings, appeals, charter arguments, and more appeals to get him off the bench.

[g_bambino]

Yes, you dismissed them without thought.

That is, of course, completely disingenuous. Not making the same assumptions you automatically jump to does not mean I didn't give anything thought. Indeed, one could possibly say that assumption making is hardly thought at all.