Is Stephen Harper Encouraging Judicial Activism?

[Argus]

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.

Really? Where?

[cybercoma]

Really? Where?

Was the article I posted wrong?

[dre]

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.

Thats a different discussion and thats a question for legislators not the courts. They wrote the thing, and they can unwrite it if they want to.

What I was talking about is the idea of having an independent judiciary to reconcile conflicts between thousands of laws, and constitutional framework documents.

But to answer your question theres lots of good stuff in the Charter, some of it extremely important.

Section 3: the right to vote and to be eligible to serve as member of a legislature.

Section 7: right to life, liberty, and security of the person.

Section 8: freedom from unreasonable search and seizure.

Section 9: freedom from arbitrary detention or imprisonment.

Section 10: right to legal counsel and the guarantee of habeas corpus.

Section 11: rights in criminal and penal matters such as the right to be presumed innocent until proven guilty.

Section 12: right not to be subject to cruel and unusual punishment.

Section 13: rights against self-incrimination

Section 14: rights to an interpreter in a court proceeding.

Edited April 16, 2012 by dre

[Shady]

Is judicial activism out of control?

Upholding the constitution isn't judicial activism. It's their job.

[WWWTT]

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

Actually Harper did not do anything to change the constitution so technically the judges are acting well within their mandate!

If somehow you were under the impression that an act of parliament can somehow sweep away constitutional rights then that was a failure of misunderstanding on your part!

If Harper really wants to effectively implement his new judicial mandate then he can always try to make constitutional change or implements parts thereof to enforce.Its his political funeral if he tries!

WWWTT

[WWWTT]

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.

Tell that to people who did jail time for smoking pot

Tell that to women

Tell that to people from alternative lifestyles.

Tell that to natives.

And tell that to any minority.

Tell that to anyone who basically does not come from the 1%

WWWTT

[eyeball]

Upholding the constitution isn't judicial activism. It's their job.

Say what?

[August1991]

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?

I suspect that if Trudeau were alive today, he would largely agree with this result.

Trudeau lived under Duplessis and saw the consequences of dictators such as Stalin, Hitler and Castro. Trudeau believed that to protect best individuals, society needs counterweights. Trudeau generally supported unions because they are a counterweight to government power. And Trudeau believed that a civilized state needs written restrictions.

Our Charter of Rights is, willy nilly, Canada's version of the US 13 amendments.

If I fault Trudeau, it's because he critically didn't include the US 10th amendment to his Charter. IMV, this was a huge error and is at the source of our modern "National Question", Meech Lake, Distinct Status and all.

----

I believe in restricting the power of the State, and the federal government in particular. If Harper finds it difficult to pass laws, so much the better.

Edited April 17, 2012 by August1991

[PIK]

And where is the protection for anglo phones in the country? Did you not notice that the UN charter is just like canada's but one this is missing in canada language rights. Trudeau screwed the anglo. And it seems the charter helps more people that have nothing to do with canada.

[Evening Star]

Was the article I posted wrong?

Tbf, the article doesn't really say that other countries are deliberately referring to the Charter/Canadian constitution as a template as much as that since the early 80s, the sorts of provisions in the charter are becoming more common worldwide. The second option here seems more likely to me:

"What this strongly implies is that whatever Canada did in writing the Charter," said Law, meant that "other countries are imitating the Charter" or that Canada's constitution-makers in the early 1980s "did an excellent job of anticipating global trends."

Read more: http://www.vancouversun.com/news/Canadian+model+global+template+study+finds/6459785/story.html#ixzz1sJSyXlHr

I would be interested, though, in hearing about whether any other countries have deliberately looked to the Charter as a template or inspiration.

[Evening Star]

And where is the protection for anglo phones in the country? Did you not notice that the UN charter is just like canada's but one this is missing in canada language rights. Trudeau screwed the anglo. And it seems the charter helps more people that have nothing to do with canada.

IIRC, Bill 101 was found to be in violation of the Charter but QC invoked the notwithstanding clause.

PET denounced the law, famously.

Edited April 17, 2012 by Evening Star

[PIK]

Very intresting story about what thatcher thought of it.

http://fullcomment.nationalpost.com/2012/04/17/frederic-bastien-margaret-thatchers-problem-with-the-charter/

[Wild Bill]

Very intresting story about what thatcher thought of it.

http://fullcomment.nationalpost.com/2012/04/17/frederic-bastien-margaret-thatchers-problem-with-the-charter/

Very interesting! Every poster to this thread should read this carefully!

Here's a bit from the end:

"Ford’s predictions were well received in London and, three decades later, events confirmed the accuracy of his analysis. Fuelled by advocacy groups often funded with public money, the Canadian courts have launched a vast enterprise of social re-engineering. Thanks to affirmative action and multiculturalism, our traditions have been eroded and privileges given to politically correct lobbies at the expense of the equality of all under the law.

The Charter was supposed to give us a new sense of nationhood and pride. Instead, it added a whole range of new divisive issues to the ones that already existed. Canada was transformed into a collection of bitterly opposed, self-interested groups. The Constitution was used to transform their political objectives into rights in order to achieve gains at everyone else’s expense. This result is diametrically opposed to the stated objective. The British prophesy has come true."

[Evening Star]

I think that made me like the Charter more.

[Evening Star]

This is pretty good, though, with more detail on who has sought to emulate the Charter and why:

http://fullcomment.nationalpost.com/2012/04/17/adam-dodek-dont-hate-us-because-our-constitutions-beautiful/

[bleeding heart]

I think that made me like the Charter more.

And of course we all know, as it uncontroversially the case, that since Thatcher, the UK has been a beacon of decency, pride, and citizens getting along famously with one another.

[dre]

I believe in restricting the power of the State, and the federal government in particular. If Harper finds it difficult to pass laws, so much the better.

Rare moment of agreement here. When everything the government does is utterly stupid, GRIDLOCK is actually a pretty desirable thing.

[Argus]

Was the article I posted wrong?

There were no examples.

[Argus]

Thats a different discussion and thats a question for legislators not the courts. They wrote the thing, and they can unwrite it if they want to.

What I was talking about is the idea of having an independent judiciary to reconcile conflicts between thousands of laws, and constitutional framework documents.

But to answer your question theres lots of good stuff in the Charter, some of it extremely important.

Section 3: the right to vote and to be eligible to serve as member of a legislature.

Section 7: right to life, liberty, and security of the person.

Section 8: freedom from unreasonable search and seizure.

Section 9: freedom from arbitrary detention or imprisonment.

Section 10: right to legal counsel and the guarantee of habeas corpus.

Section 11: rights in criminal and penal matters such as the right to be presumed innocent until proven guilty.

Section 12: right not to be subject to cruel and unusual punishment.

Section 13: rights against self-incrimination

Section 14: rights to an interpreter in a court proceeding.

So it gave us rights we already had? And it only cost a couple of hundred billion dollars!

[Argus]

Upholding the constitution isn't judicial activism. It's their job.

I like how the article Cyber cited mentioned the new 'elastic' concepts the courts now use to judge whether something is unconstitutional or not...

[Argus]

Tell that to people who did jail time for smoking pot

What has the relaxed attitude police have towards small amount of pot got to do with the Charter?

Tell that to women

How has the Charter helped women?

Tell that to people from alternative lifestyles.

Like what?

Tell that to natives.

Natives who have been described by the Supreme Court as hopelessly inferior? Those natives?

And tell that to any minority.

How has the Charter helped minorities? Other than making it almost impossible to get rid of illegal immigrants and refugees?

Tell that to anyone who basically does not come from the 1%

It's good that you're so enthusiastic even though you apparently don't have any idea how the Charter has improved anything. Shows you're really great recruitment material for political parties. You'll apparently believe whatever they tell you.

[Argus]

I believe in restricting the power of the State, and the federal government in particular. If Harper finds it difficult to pass laws, so much the better.

Unsurprisingly, Quebec is a confused place of contrary laws, poor enforcement, massive corruption, and governments which find it almost impossible to follow any agenda of any kind. It's North America's Greece or Italy, kept from bankruptcy by the Canadian taxpayer.

[WWWTT]

Like what?

I'll use only this one.

I guess you never heard about gay marriage then?

WWWTT

[dre]

So it gave us rights we already had? And it only cost a couple of hundred billion dollars!

Yes it did. Those things were never really "rights" until the government was stripped of the power to arbitrarily remove them with a simple majority vote.

Constitutional documents dont "give people rights" they take AWAY the governments rights to violate them, or in the case of the charter they at least make it pretty damn hard.

[jacee]

I like how the article Cyber cited mentioned the new 'elastic' concepts the courts now use to judge whether something is unconstitutional or not...

From that link ...

The key yardsticks in this analysis are whether the goal of the law was important enough to justify breaching a Charter right and whether less intrusive ways of achieving the same goal were available.

After 30 years and hundreds of cases, some decidedly elastic concepts have also been added to the mix – such as whether the law was “arbitrary” or“grossly disproportionate” to the government’s goal.

Politicians pass laws to satisfy their constituents and funding sources so they can keep their jobs. They have only a four year perspective. The types of laws passed fluctuates with the political parties.

On balance, I'd much rather trust the courts than politicians to protect my rights from "arbitrary" and "grossly disproportionate" laws that cater to political pals.

In fact, I can't believe that anyone would trust our governments not to violate our rights if it suited them to do so.

Do you trust politicians that much Argus?