Supreme Court Appointments

[idealisttotheend]

To begin with, I haven't seen any great enthusiasm for the American style "checks and balances" only a call FOR checks and balances. At the moment, there are NONE. If the government in power chooses to appoint raving lunatics from the extreme left or right, or whatever, nothing whatever can stop them, or even delay them.

There is one check. Don't elect people who would appoint raving lunatics to the SCC.

It's more profound than it looks, not "the" government, "our" government.

[Guest eureka]

Rhe Supreme Court cannot add to laws: it cannot expand them: it cannot change them. The Court can only interpret and rule on constitutionally or application. Any change following a SCC decision must be made by Parliament.

That is the check on a law making body that is lacking in an American style system where appoinyments are blatantly political thus removing the third pillar in the system of "checks and balances" from effective overseeing of the laws. Only rarely does an American SCC decision go against the wishes of the administration of the time: so rarely that it has been cause for notoriety.

[SirRiff]

first of all hello to any who may recall my name

on the SCC

does anybody even remember the entire reason we have elected officials?

to implement the will of democracy?

to make decisions for the masses?

frankly i think the less the elected goverment makes the big decisions, the less legitimate our democracy is to an extent.

who are we expecting to be informed on the issues?

who are we holding accountable?

who has an opportunity to justify thier decisions and convince canadians?

only our elected gov.

now i dont trust martin as far as i could throw him ( and with my bad back i shouldnt be throwing anyone- anybody catch the throwback reference? 10 points) but having a democratic system if almost more important then who is in it at any one moment.

without a legitimate system we will have little faith in anything, even if good decisions are being made.

<pine> wouldnt it be great to actually have the option to elect someone who justifies and explains huge important decisions with real life personal communication and opens up real discussion?

</pine>

[maplesyrup]

I kinda go along with WK's comments:

August 25, 2004 - The snarky little "rubber-stamp" characterization, found in the lede in the yarn below, is not the sort of thing we should be seeing coming out of Canadian Press. The newspapers are supposed to play those games, not CP.

But that's not what's bugging me. It's this: is it just me, or does anybody else also think this Vic Toews guy is a goof?

I mean, does he actually think he's fooling anybody with his dime-store Clarence Darrow kvetching about process (a process his party agreed to in advance, incidentally)? Doesn't he know that Canadians will look at this, and see that his REAL objections are about putting two extraordinary women on the high court who don't correspond to his own red-necked, mouth-breathing, knuckle-dragging, troglodyte perspective on a modern democratic society?

Guess not.

[Argus]

Rhe Supreme Court cannot add to laws: it cannot expand them: it cannot change them.

Demonstrably untrue. Just ask any gay rights activist or native.

[Guest eureka]

If it is "demonstrably untrue," then please demonstrate. Show me one law that has been changed in any way by the SCC.

[Hugo]

Show me one law that has been changed in any way by the SCC.

You can find a whole list right here.

[Guest eureka]

You will not find one there. If you think there is, then describe it.

[Hugo]

R. v. Morgentaler threw out s.251 of the Criminal Code.

R. v. Butler ordered a new trial with a different interpretation of s.163(8) of the Criminal Code.

If you want more, I suggest you read the cases. But those two examples completely refute your ignorant allegation, so this debate is over.

[Guest eureka]

I am much afraid that you do not seem to grasp anything you read. The ignorance is all on your side.

The SCC did not alter law in those cases or any other: it interpreted laws. It is now up to Parliament to change or reword the laws in an appropriate way. Or, to change the Constitution so that its legislation is not unconstitutional.

That is what the Rule of Law is all about: that is what a democracy is all about - underpinned by the Rule of Law.

We can't simply have a rule of those laws that you like; written in the way that you like them.

[Hugo]

The SCC did not alter law in those cases or any other: it interpreted laws.

I'm sorry, but I still don't understand. Please tell me how striking a law completely off the books is "interpreting" that law.

[maplesyrup]

Judging of judges fails the test

To go back to the Supreme Court, the fact that unelected judges wield such power calls for some form of public review of their nominations. This should be done by the elected representatives of the public, in an open yet dignified forum, where the professional accomplishments and previous judgments of the prime minister's nominees would be respectfully reviewed and possibly questioned. Needless to say, the ersatz consultation hastily devised by the Martin government does not meet the test of public scrutiny.!

Touchy subject it seems. I think the notwithstanding clause should be removed or abolished.

[idealisttotheend]

If I may interject...

I'm sorry, but I still don't understand. Please tell me how striking a law completely off the books is "interpreting" that law.

From your link

he Supreme Court considered seven issues:

  1. Whether s. 251 of the Criminal Code violates the rights and freedoms guaranteed by ss. 2(a), 7, 12, 15, 27 and 28 of the Charter.

  2. If such a violation occurs, whether it is justifiable under s. 1 of the Charter.

  3. Whether s. 251 of the Criminal Code is ultra vires the Parliament of Canada.

  4. Whether s. 251 of the Criminal Code violates s. 96 of the Constitution Act, 1867.

  5. Whether s. 251 of the Criminal Code unlawfully delegates federal criminal power to provincial Ministers of Health or Therapeutic Abortion Committees and, as such, whether the Federal Government has abdicated its authority in this area.

  6. Whether ss. 605 and 610(3) of the Criminal Code violates the rights and freedoms guaranteed by ss. 7, 11(d), 11(f), 11(h), and 24(1) of the Charter.

  7. If such a violation occurs, whether it is justifiable under s. 1 of the Charter.

Striking the law off the books was a function not of the interpretation of the law (S. 251) but rather an interpretation of the Charter. The law was found to viotate S. 7 of the Charter and therefore by the interpretation of the CHarter (a law passed by politicians) it was struck.

So theoretically, eureka is absolutely right. the SCC can only interpret laws not make them. But realistically the judges do come about as close to making law as possible without being making law through things such as reading etc.

This too though, is the will of the politicians. S.1 of the Charter is what makes virtually any law in the country wide open to judicial interpretation by effectively giving the judiciary the sole (or rather supreme) right to determine what is and is not "reasonable in a free and democratic society." Note that this even leaves the interpretation of "free" and "democratic" completely in the judicial purview.

Many would say determining what is reasonable in a free and democratic society is what politicians get paid for but they gave the supreme call on that away. While I'm not sure it hasn't actually been good for the country that this is so (though there are notable exceptions IMO like native fisheries in Altantic Canada), the politicians made the Charter and the politicians (and only the politicians) can change it.

[Argus]

The SCC did not alter law in those cases or any other: it interpreted laws. It is now up to Parliament to change or reword the laws in an appropriate way. Or, to change the Constitution so that its legislation is not unconstitutional.

Not neccesary. If you change the judges, you effectively change the interpretation of the constitution. After all, in the Morgentaler case, the judges on the appeals court ruled the law constitutional. Were the judges on the SC more wise than those on the appeals court? Probably not, just more political.

That is what the Rule of Law is all about: that is what a democracy is all about - underpinned by the Rule of Law

Clearly you aren't completely familiar with what the rule of law means. If the law is so open to interpreation that it can vary 180 degrees depending on the opinion of whichever judge happens to have the last rule then there is no rule of law.

Martin deliberately stacked the court with judges who he knows will rule as he wishes on the gay rights issue. Had it been Harper, and he had wanted to decide "what the rule of law" was, he could have appointed strict conservative judges who would have ruled his way.

We can't simply have a rule of those laws that you like; written in the way that you like them.

When you get to hand pick your judges based solely on your understanding of their political and social views, and how closely they intertwine with your own then that is exactly what you have.

It is blatantly obvious that these judges were appointed to support liberal party social policy objectives, and specifically to let Martin hold up his arms helplessly and say the Supreme Court made him do it - on the gay rights issue.

[Argus]

If it is "demonstrably untrue," then please demonstrate. Show me one law that has been changed in any way by the SCC.

Well, one I can think of was where the court basically rewrote the book on what constitues a native. It ordered that the Metis, who are a mix of French and natives be recognized as natives - which to me is absurd and brings into question how much native blood you need in your system before getting native rights.

Then, more recently, and more in keeping with the topic o these appointments, the appeals courts have rewritten the marriage act and ordered the government to let gays marry despite the clearly expressed will of parliament in the bill.

I also seem to recall they made the rather startling decision to accept "oral histories" passed down through the generations as evidence of treaty rights, something no government had ever accepted for anyone else.

[Guest eureka]

None of those is a rewriting of the law and, it is for Parliament to make the final judgement.

The Rule of Law is not what appears to be inferred or implied. The Rule of Law is the very heart of democracy. Briefly, it is the contract between citizens and upheld by government. It is the coming together of a society under laws agreed to by the citizens. Governments and citizens are equally bound to obey the law. A fundamental element is that governments must not commit arbitrary acts.

The function of a Supreme Court is to ensure all those elements and, particularly, to defend the citizens against governments that do commit arbitrary acts. This what checks and balances mean and is what we have where the US does not since its Court is now just a tool for whatever Presidency is in office. And, that Americanization and politicization is what certain political interests wish to subject Canada to.

That is what elections are all about: to pass judgment on the government's performance in this and not just to keep an economy humming. So many seem to think that government is nothing but the oil for the "Market" machine. That is governments least important function.

The idea that history should not play a part is dangerous. It is what got Canada into trouble in the first place. Canadian Supreme Courts - and federal politicians, in the past, looked at the Constitution as a "living tree" evolving with the social needs of the country. The Lords of the Privy Council decided that it was a "ship of state" sailing on majestically and unchanging.

The Privy Council decided that only words could be considered. It ruled that there could be no consideration of intent or of changing conditions or of history. Which do you prefer?