Is Stephen Harper Encouraging Judicial Activism?

[Evening Star]

There were no examples.

There were some given in the NP article I linked to.

[cybercoma]

Argus,

I think Andrew Coyne (@acoyne) must have been reading your posts when he wrote this commentary:

Indeed, the most common complaints about the Charter, that it has confined Parliament’s powers to make laws for the general good, while handing unelected judges the power to make law, are not only exaggerations: they could as well be said about the rule of law itself.

All laws, not just the Charter, bind the legislatures that pass them, at least until they are changed. All laws, not just the Charter, limit the discretion of governments. That is precisely their point. The purpose of law is not to restrain the citizens: governments can do that very well in its absence, as in any dictatorship. It is, rather, a restraint on government. We do not trust our leaders enough to permit them to rule by fiat. We make them put it in writing. We grant them this much power, and no more.

Read more: http://fullcomment.nationalpost.com/2012/04/16/andrew-coyne-canadas-charter-of-rights-imposes-vital-limits-on-the-discretion-of-government/

Edited April 18, 2012 by cybercoma

[eyeball]

It is so ironic how opposition to the Charter is framed within a context of freedom lost to tyranny.

[dre]

It is so ironic how opposition to the Charter is framed within a context of freedom lost to tyranny.

Its to be expected though. Generation Useless has lived through decades of freedom and prosperity. They dont know anything else, and they have forgotten some of the hard lessons that resulted in us putting these kind of constraints on government.

[Argus]

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.

In a democratic state, the idea the government would take away inalienable rights, as opposed to peripheral so-called rights, is kind of silly. It is your vote which protects you, not some silly piece of paper.

[Argus]

From that link ...

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?

Sure. I trust politicians to act in their own best interests. That's the best protection of your rights, that trying to take them away would not be in their best interests because we'd vote them out. I like the fact that I can boot people out for making bad laws and stupid regulations. I really dislike that I can't do that when the people making bad laws and stupid regulations have black robes. I accept that politicians are often idiots. What I find astonishing is that you guys seem to assume that the moment some lawyer, even if he's an ex-politicians, puts on a black robe he assumes a majesty and a sense of justice that ought to have him sculpted in marble for the ages to admire. I make no such assumption, which is why I am so uncomfortable with such people making laws which affect this country. They are unelected, and cannot be challenged.

[Argus]

Argus,

I think Andrew Coyne (@acoyne) must have been reading your posts when he wrote this commentary:

All Coyne stated was the obvious. Yes, all laws bind. The difference is that the laws used to be debated and voted on by our elected representatives and could be amended or withdrawn if they proved wrongheaded. Now they're written by people who are unelected, who are not responsible for the problems they create, who cannot be challenged, and whose laws cannot be overturned. The Bertha Wilson decision comes to mind here.

[Argus]

Its to be expected though. Generation Useless has lived through decades of freedom and prosperity. They dont know anything else, and they have forgotten some of the hard lessons that resulted in us putting these kind of constraints on government.

I'm not a boomer, so spare me your juvenile insults.

The hard lessons? Sorry, oh world-weary one, but in fact, the hard lessons I've learned is that you can't protect rights with a SYSTEM. People protect rights, not a system. As I've stated before, you can draw up whatever impressive little charters you want and decorate them in bacon. They're not worth the paper they're written on if the government is determined to go around them.

Edited April 18, 2012 by Argus

[cybercoma]

In a democratic state, the idea the government would take away inalienable rights, as opposed to peripheral so-called rights, is kind of silly. It is your vote which protects you, not some silly piece of paper.

Your vote protects you on one day of the year. And in our FPTP democracy less than 40% of the vote can give you an unimpeded mandate to force your policies on the other 60% of people that opposed you. That aside the purpose of the Charter is to protect minority rights against the tyranny of the majority. It's an added layer of defence against a government trampling on vulnerable populations just to garner more votes.

[cybercoma]

All Coyne stated was the obvious. Yes, all laws bind. The difference is that the laws used to be debated and voted on by our elected representatives and could be amended or withdrawn if they proved wrongheaded. Now they're written by people who are unelected, who are not responsible for the problems they create, who cannot be challenged, and whose laws cannot be overturned. The Bertha Wilson decision comes to mind here.

The courts don't write laws.

[Argus]

The courts don't write laws.

Don't be pedantic. Of course they do.

[Argus]

Your vote protects you on one day of the year.

No, it protects you all year long. Because the government in power knows that day is coming. Governments of whatever stripe spend most of their time in office making sure they stay in office by not ticking off the voters too much to recover from.

And in our FPTP democracy less than 40% of the vote can give you an unimpeded mandate to force your policies on the other 60% of people that opposed you

.

The plain and simple fact is governments are elected by a small percentage of the electorate. That is not the percentage of people who always vote for a given party, but the swing voters who move around. So it doesn't do you any good to ram nasty stuff through that only your supporters like. You'll still lose come next election, as the swing voters flee.

That aside the purpose of the Charter is to protect minority rights against the tyranny of the majority.

Which, of course, runs completely counter to the entire theory of the democratic will of the people.

In fact, the phrase 'tyranny of the majority' is simply another anti-democratic phrase which says "We can't trust the people to make decisions. We must do it for them."

So what you in fact are supporting is a tyranny by the minority as opposed to a 'tyranny' by the majority. And certainly the Charter has tended to behave in that fashion.

[cybercoma]

Which, of course, runs completely counter to the entire theory of the democratic will of the people.

In fact, the phrase 'tyranny of the majority' is simply another anti-democratic phrase which says "We can't trust the people to make decisions. We must do it for them."

So what you in fact are supporting is a tyranny by the minority as opposed to a 'tyranny' by the majority. And certainly the Charter has tended to behave in that fashion.

You seem to have a fundamental misunderstanding of the Charter. It doesn't force anything upon the government or the people. It is not a tyranny in this way. What it does is stop the government from unfairly or unjustly forcing things upon people that are vulnerable. Your contempt for the Charter is held by such a minority of people that it's becoming an anachronism. So I don't even care to humour your outmoded criticisms any longer.

[jacee]

In a democratic state, the idea the government would take away inalienable rights, as opposed to peripheral so-called rights, is kind of silly. It is your vote which protects you, not some silly piece of paper.

Omigod ... how touchingly naive! You really think politicians are looking after OUR rights?

"Your vote" ... only protects you if it's accompanied by a whopping donation to the party.

[Argus]

You seem to have a fundamental misunderstanding of the Charter. It doesn't force anything upon the government or the people. It is not a tyranny in this way. What it does is stop the government from unfairly or unjustly forcing things upon people that are vulnerable. Your contempt for the Charter is held by such a minority of people that it's becoming an anachronism. So I don't even care to humour your outmoded criticisms any longer.

Ignorance is bliss, I guess. If you don't have any more knowledge of the reality of law than what you gleaned from a few breathy newspaper stories then I guess you're in awe of the majesty of the charter. I can see why anyone criticizing it would cause offense. After all, it's YOUR charter. The publicists told you so, and that's as far as you're looking.

And changing from a complaint about 'the tyranny of the majority' to 'the government' doesn't change the fact that the Charter is designed to thwart the will of the people in the name of some amorphous or 'elastic' concept such as fairness of inequity - as judged by people whose judgement cannot be challenged, and who cannot be questioned or removed.

Edited April 18, 2012 by Argus

[cybercoma]

as judged by people whose judgement cannot be challenged, and who cannot be questioned or removed.

Section 33.

[jacee]

I like the fact that I can boot people out for making bad laws and stupid regulations.

No YOU can't.

[jacee]

Ignorance is bliss, I guess. If you don't have any more knowledge of the reality of law than what you gleaned from a few breathy newspaper stories then I guess you're in awe of the majesty of the charter. I can see why anyone criticizing it would cause offense. After all, it's YOUR charter. The publicists told you so, and that's as far as you're looking.

And changing from a complaint about 'the tyranny of the majority' to 'the government' doesn't change the fact that the Charter is designed to thwart the will of the people in the name of some amorphous or 'elastic' concept such as fairness of inequity - as judged by people whose judgement cannot be challenged, and who cannot be questioned or removed.

Suppose you vote for a party that loses. Your MP resents that you didn't vote for him, has his cop buddies trump up a charge, throw you in jail.

And there you sit ... until the next election ... if you're lucky and your party wins, maybe the new MP will get you released ... maybe ... maybe not ... and nobody will stand up for you because they don't want to go to jail.

That's the way you want it, right?

No court, no judge, no Charter of Rights ... just an MP ... who doesn't like you.

Come to think of it ... I'm starting to warm to the idea!

And that's the problem.

Without the courts and the judges and the Charter, we are all vulnerable to abuse by partisan politicians ... with no limits on their power to harass and intimidate those who don't vote for them.

The system has protections and checks and balances built in for a reason.

[g_bambino]

Without the courts and the judges and the Charter, we are all vulnerable to abuse by partisan politicians...

And some people seem to be willing to accept that in the name of their devout worship of populism.

[jacee]

Some current items relevant to this discussion.

Yes. The Charter of Rights has given judges too much power

No, the Charter of Rights has not given judges too much power

End of an era looms on Supreme Court

Judge Fish has carried on the legacy of the Gang of Five – a faction of Supreme Court of Canada judges whose orientation toward the rights of the accused in criminal cases dominated the court in the 1990s. The Gang is no longer – and with successive retirements, there has been a gradual transformation of the court.

...

And in a 2010 ruling, R v. Gomboc, Judge Fish aligned with Chief Justice Beverley McLachlin to protest a majority decision that police can seize electricity-use records.

“When we subscribe for cable services we do not surrender our expectation of privacy in respect of what we access on the Internet, what we watch on our television sets, what we listen to on our radios, or what we send and receive by e-mail on our computers,” they said.

However, as the 1990s wore on, their judgments began to kindle increasing controversy. The court was criticized for being too activist; for using the Charter to bind the hands of police and prosecutors and swinging the law too far in favour of accused criminals. When Beverley McLachlin was appointed Chief Justice in 1999, sweeping criminal- law judgments became more the exception. The court permitted more intrusive searches, created a right to detain suspects for investigative reasons and, in three right-to-silence cases, permitted police to press suspects until they made potentially damaging admissions.

“Bright and committed detectives have been given a huge authority to use tricks, inducements, lies, polygraphs and psychological techniques largely free of scrutiny by lawyers and even in the face of multiple assertions of the so-called right to silence,” said Donald Stuart, a Queen’s University law professor.

...

Of the four judges appointed by Mr. Harper, each is perceived as holding conservative or moderate opinions on rights of the accused. The only one with deep expertise in criminal law – Mr. Justice Michael Moldaver - is widely seen to be in favour of enhanced police powers and less Charter litigation.

It appears that the much maligned 'individual rights' era of Supreme Court rulings was only a brief blip in the '90's, no doubt trying out the power of the new Charter. The backlash occurred before the Harper era and continues. Harper will want to be seen as influencing this, to satisfy his 'law and order' constituency, so will likely take it even further away from individual rights and toward more state/police power.

It will be interesting to watch the outcomes when the G20 cases come to the courts. If the rights of innocent protesters are not upheld, then we can look forward to an increasing police state, imo ... and backlash from the increasingly activist public, especially combined with protests of the 'austerity' agenda.

The independence of the judiciary, however, remains a saving grace:

However, legal experts add a caveat to their analysis. It is far from unheard-of for judges to jolt the expectations of the government that appointed them.

“People will be watching Justice Moldaver especially closely,” said University of Toronto law professor Kent Roach. “He is obviously a criminal-law expert and he may very well surprise some of his critics.”

With lower-court judges beginning to strike down Mr. Harper’s changes, the looming question is whether the relatively cautious Supreme Court bench with its frequent assertions of deference toward the will of Parliament, will follow suit.

Edited April 19, 2012 by jacee

[Tilter]

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:

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.

Parliament MAKES the laws--- the judges are only there to make sure the laws are followed. If the law says a hood go to a minimum of 10 years for armed robbery then the choices are only more years, not a reduced sentence.

[cybercoma]

Parliament MAKES the laws--- the judges are only there to make sure the laws are followed. If the law says a hood go to a minimum of 10 years for armed robbery then the choices are only more years, not a reduced sentence.

Oh man. You really have no idea what the Constitution is do you?

[g_bambino]

Oh man. You really have no idea what the Constitution is do you?

Apparently he does not.

[cybercoma]

Apparently he does not.

I started explaining it in my reply, but erased it. He has to be trolling. There is no way he doesn't know how the Constitution and Charter work.

[Argus]

Suppose you vote for a party that loses. Your MP resents that you didn't vote for him, has his cop buddies trump up a charge, throw you in jail.

You mean like Jean Chretien tried to have the chairman of the Business Development Bank of Canada arrested for trying to call in a loan to Chretien's ex-con friend?

Sorry. Couldnt resist.

And there you sit ... until the next election ..

.

I do? Are you under the illusion that sort of thing happened prior to the charter?

Do you think habeas corpus is a term invented by the charter?