Is Stephen Harper Encouraging Judicial Activism?

[cybercoma]

Or are the laws the Conservatives are passing simply that unfair and unjust? It seems they are meeting more resistance in the courts than any previous government. Could this be just the media paying closer attention?

The Globe & Mail writes:

Prime Minister Stephen Harper may not face strong opposition in Parliament or from the provinces, but his policies are brushing up against more core legal roadblocks than any of his predecessors faced.

...

“[Judges] think of themselves as being sworn to uphold the supreme law of the land, the Constitution,” the judge said. “It is all about doing what is just and fair. I think there is a broad range of areas where the courts are saying: ‘No, this is simply unfair.’”

http://www.theglobeandmail.com/news/politics/why-this-year-could-prove-to-be-the-charters-most-controversial/article2403185/singlepage/#articlecontent

Is judicial activism out of control? Are they activists at all? Judges claim to be politically neutral.

There's an elephant in the room, however. Limited government is one of the primary tenets of conservatism, as an ideology. Yet, the paradox here in Canada is that we have a conservative party that seems bent on testing the limits of government power. A conservative party that oversteps the bounds of government power. Does this not go against the very foundation of conservatism? Say the CPC is fiscally conservative (quibbles aside about them having the largest and highest-spending government in our history) and really are pulling the purse-strings tight, they're still increasing government power and testing those limits vis-a-vis the Charter. The irony of today's conservatism is that it's supposed to limit government, but it appears to be bent on increasing government power. They give the appearance of limiting government by cutting taxes and spending, but this is nothing more than a distraction from perhaps the more important areas where they're increasing government power: surveillance, crime and punishment, and immigration. When John Locke so many years ago feared tyranny, I'm sure taxes were part of it, but certainly he was more concerned with government control over people through surveillance and punishment. While the government reduces regulations and barriers to corporations and businesses, they seem to be erecting barriers twice as fast against individuals and their freedoms. Today's conservatism is broken, imo. It has moved away from the true definition of what it means to be a conservative.

[Wild Bill]

There's an elephant in the room, however. Limited government is one of the primary tenets of conservatism, as an ideology. Yet, the paradox here in Canada is that we have a conservative party that seems bent on testing the limits of government power. A conservative party that oversteps the bounds of government power. Does this not go against the very foundation of conservatism?

There's a big assumption in your argument, CC. You seem to be saying that judges are supreme, not our elected government.

I and many others have a problem with this. I understand that most of the time the courts should administer the laws that Parliament has passed but sometimes it seems the courts make their own law, at least in the way they apply it.

As a populist, I can never accept that!Politicians may not be that good at listening but they are a damn sight less deaf than the average judge!

So who oversteps their bounds? The government or some judges? To be honest, I'm not entirely sure but I don't think things are quite the way you are painting them.

[cybercoma]

There's a big assumption in your argument, CC. You seem to be saying that judges are supreme, not our elected government.

Any laws created by parliament must adhere to the Constitution. That's not an assumption.

[Moonlight Graham]

The irony of today's conservatism is that it's supposed to limit government, but it appears to be bent on increasing government power. They give the appearance of limiting government by cutting taxes and spending, but this is nothing more than a distraction from perhaps the more important areas where they're increasing government power: surveillance, crime and punishment, and immigration. When John Locke so many years ago feared tyranny, I'm sure taxes were part of it, but certainly he was more concerned with government control over people through surveillance and punishment. While the government reduces regulations and barriers to corporations and businesses, they seem to be erecting barriers twice as fast against individuals and their freedoms. Today's conservatism is broken, imo. It has moved away from the true definition of what it means to be a conservative.

I pretty much agree with the above. Luckily, we have the Charter and the SCC/courts to keep the CPC in check if any of their legislation is deemed unconstitutional. Hopefully the courts decide these matters fairly, though our constitution is particularly up for interpretation and "activism" by judges due to the 'reasonable limits' clause in Section 1 of the Charter.

Edited April 16, 2012 by Moonlight Graham

[cybercoma]

The courts can also face resistance from the government through section 33, aka the political suicide clause.

[Moonlight Graham]

There's a big assumption in your argument, CC. You seem to be saying that judges are supreme, not our elected government.

They aren't supreme, they are a check on Parliament's power. As CC says, the laws that Parliament passes must be constitutional.

Politicians may not be that good at listening but they are a damn sight less deaf than the average judge!

A Supreme Court judge is not your average judge. Yes they have power of interpretation, but I think history has shown that they usually get things right.

[cybercoma]

A Supreme Court judge is not your average judge. Yes they have power of interpretation, but I think history has shown that they usually get things right.

Not only that, but it's theoretically the 9 best judges in the entire country that sit on the Supreme Court.* So it's not a single judge rendering a decision, but the decision that's reached by 9 of the best justices we have.

Yes, Argus. They must be bilingual.

Edited April 16, 2012 by cybercoma

[jacee]

The courts can also face resistance from the government through section 33, aka the political suicide clause.

Some observers have therefore speculated that the act of invoking the notwithstanding clause could[ 8][ 9] prove to be politically costly.

As for judicial activism ... there are checks on it too. Harper can change laws (except constitution). Precedents in application of his laws are being made, but will be further scrutinized and refined as more cases are heard.

It's to be expected since Harper is not just testing limits but taking as much power as he can.

Not exactly a populist is he? ... nor a libertarian ... How many other types of conservatism are there? Or is he even a conservative at all?

Authoritarian puppet of the corporate oil oligarchy, imo.

[Topaz]

I said before and I said again, Harper may be the leader of the Conservative Party but his ideas are Reform/alliance and he only USES the name of Conservative, so people in the East would vote for him. Also, Harper himself, does follow rules as we all know and when he was charged with Contempt of Parliament, he basically said screw you!

[dre]

There's a big assumption in your argument, CC. You seem to be saying that judges are supreme, not our elected government.

I and many others have a problem with this. I understand that most of the time the courts should administer the laws that Parliament has passed but sometimes it seems the courts make their own law, at least in the way they apply it.

As a populist, I can never accept that!Politicians may not be that good at listening but they are a damn sight less deaf than the average judge!

So who oversteps their bounds? The government or some judges? To be honest, I'm not entirely sure but I don't think things are quite the way you are painting them.

Neither overstep their bounds and neither are supreme. The court deals with legal issues related to legislation (AKA Law), and the government deals with actually writing the laws.

Im not sure what you are really complaining about here. I guarantee you would never want to live in a country without an independant judiciary.

Our courts do a pretty good job all things considered. They are by far are most competent and least biased branch of government and they seem like the only entity at ALL with any interest in sticking up for the civil rights of Canadians. If fact, were it not for the courts we probably wouldnt even have any.

The judicial branch is especially important due to the abject laziness of todays privileged political class. These people dont even READ the bills they vote on, and they outsource more and more of the hard work simply because they are lazy. Without the possibility of judicial review the citizens have absolutely no recourse.

[Moonlight Graham]

Authoritarian puppet of the corporate oil oligarchy, imo.

Nah, he's just authoritarian in general IMO. In other words, a control freak. Cybercoma mentioned John Locke in the OP, and that kind of control is exactly what Locke and other liberal (in the Lockean sense of the word) political leaders of that period were fighting against: tyranny by the state.

[Moonlight Graham]

On another note, a few weeks ago I visited the Supreme Court of Canada. No tours, and not a ton to see, but interesting nonetheless. Parliament Hill is obviously much more interesting to visit.

[Keepitsimple]

Luckily, we have the Charter and the SCC/courts to keep the CPC in check if any of their legislation is deemed unconstitutional. Hopefully the courts decide these matters fairly, though our constitution is particularly up for interpretation and "activism" by judges due to the 'reasonable limits' clause in Section 1 of the Charter.

Funny - that's exactly what Stephen Harper said when Paul Martin won his minority government....for those handwringers who thought he had an evil agenda. Martin used that as part of his almost comical ranting when the Liberal Party was running around with "scary" and "soldiers in the streets" and "you won't recognize Canada" attack ads.

Edited April 16, 2012 by Keepitsimple

[Argus]

Or are the laws the Conservatives are passing simply that unfair and unjust? It seems they are meeting more resistance in the courts than any previous government. Could this be just the media paying closer attention?

No, I think the opposite. I think the laws the courts have overturned have, by and large, been just and fair. But I think the culture of the legal community has been divorced from mainstream Canada for decades now, and no longer really cares what the 'ordinary' Canadian wants or thinks or believes. There's a fundamental disconnect here where judges do what they feel like doing without regard to what harm that causes society.

And don't tell me they're just 'upholding the constitution'. As I've said before, the Charter, like the Bible, can be anything any man wants it to be. The judges are simply reading into it whatever they want in order to support they're own ideological beliefs. Look at the decisions cited. The insight, decision, for example, was the court saying that it has the right to overrule any decision made by the health department on health grounds. Ie, it can review whether the decision was correct or not, and then, if it doesn't like it, simply call it 'unconstitutional'. This is a direct usupurpation of the rule of government by unqualified, second rate judges with no health training whatever. Then there's the brothels decision. Again, the judges decided that they didn't believe that something which had been a crime for centuries should be a crime any more. So they simply called it "unconstitutional". It was a bizarre, and ludicrous decision with no basis in law. And it follows on their previous bizarre decision that they could legalize prostitution. Then there was that "all natives are ignorant savages and so you can't punish them like you would a white man" ruling. Nothing more than liberal bigotry written into law.

The SC recently shot down another law, a very reasonable law which said that in an emergency, the police could wiretap a phone, and get permission as soon as practicable afterwards. The case involved a kidnapping, and the police followed the law, getting a judge to sign off on it within 24 hours. The SC decided that it didn't care how sensible the law was because it went against their own ideological agendas.

Personally, I think the best way to celebrate the 30th anniversary of the Charter is to burn it. It's been an enormous albatross around this country's neck for decades, and cost billions upon billions upon billions of dollars, while largely benefiting criminals and enriching lawyers. It's also given a towering sense of self-importance to judges, most of whom are mediocre thinkers who are rarely more than second rate in their profession anyway - the really good lawyers are making too much money to want to be judges.

[Argus]

Not only that, but it's theoretically the 9 best judges in the entire country that sit on the Supreme Court.* So it's not a single judge rendering a decision, but the decision that's reached by 9 of the best justices we have.

Yes, Argus. They must be bilingual.

No, they don't have to be bilingual. But I disagree about competence. By my estimation, if you were to put together a really accurate list of the top 100 legal minds in Canada, none would be a judge. Judges are mediocre people who can't make it as lawyers, so they go to parties, suck up to politicians, and try to get a black robe so they can make something of themselves. There's a very good reason why one of the favorite appointments of failed politicians was to the courts. And it is from these, the dregs of the legal community, that the SC is selected

Edited April 16, 2012 by Argus

[Argus]

I pretty much agree with the above. Luckily, we have the Charter and the SCC/courts to keep the CPC in check if any of their legislation is deemed unconstitutional. Hopefully the courts decide these matters fairly,

But if they choose not to, there's not a thing you can do about it.

[cybercoma]

Personally, I think the best way to celebrate the 30th anniversary of the Charter is to burn it. It's been an enormous albatross around this country's neck for decades

It's funny you feel that way when it's looked at as the template for democracy around the world.

[Argus]

It's funny you feel that way when it's looked at as the template for democracy around the world.

Not actually true.

[cybercoma]

Not actually true.

Thirty years after Canada "brought home" its Constitution from Brit-ain and controversially enshrined the Charter of Rights and Freedoms, the nation's fundamental legal framework has emerged as the No. 1 constitutional model for the world, according to a new American study that also tracks the "free fall" decline of the U.S. Constitution as a template for other countries.

Read more: http://www.vancouversun.com/news/Canadian+model+global+template+study+finds/6459785/story.html#ixzz1sF5VMawJ

I apologize for spraying the bush_cheney2004/American Woman pheromone in this thread.

[dre]

But if they choose not to, there's not a thing you can do about it.

Yup the system isnt perfect for sure, its just better than the other options at present, and the judiciary is a hell of a lot more trustworthy and less fickle and prone to reactionism than our lazy assed political class.

[WWWTT]

I understand that most of the time the courts should administer the laws that Parliament has passed but sometimes it seems the courts make their own law, at least in the way they apply it.

This is false!

First off the government can not create any law that they may seem is fashionable or popular and expect judges to rubber stamp them.

When many laws are created they must be able to stand up in a court of law against many challenges against its legitimacy.

Are you suggesting that we throw out our judicial system because you disagree with the findings of a few judges?

WWWTT

[Argus]

I apologize for spraying the bush_cheney2004/American Woman pheromone in this thread.

Sorry if I don't take a mathematical formula which compares gradient degrees of influence as any actual indication of the value of our Charter of Rights.

[Argus]

Yup the system isnt perfect for sure, its just better than the other options at present, and the judiciary is a hell of a lot more trustworthy and less fickle and prone to reactionism than our lazy assed political class.

It's better than what other options? Can you demonstrate how the Charter has improved Canada's freedom? Can you show me the case law which has made Canadians (as opposed to criminals) free, where they weren't before?

What human rights do we have now that we didn't have before?

As for those fickle politicians, they, at least, can be tossed out on their asses, unlike judges.

[Argus]

This is false!

First off the government can not create any law that they may seem is fashionable or popular and expect judges to rubber stamp them.

So governments should not rule according to the will of the people?

Are you suggesting that we throw out our judicial system because you disagree with the findings of a few judges?

There was a judicial system here before the Charter, and it seemed to work pretty darn well. And when we wanted laws to change, we voted in people who would change them according to our will.

Edited April 16, 2012 by Argus

[cybercoma]

Sorry if I don't take a mathematical formula which compares gradient degrees of influence as any actual indication of the value of our Charter of Rights.

That's ok. You don't have to apologize about it.

There must be some value in it if it's being emulated around the world.