Should the Supreme Court be making our laws?

[Mr.Canada]

It seems to me that there is no point in having a parlaiment if the people who don't agree with the decision made can just take it to court, where the court(which is socialist) will always rule agasinst the government decision. Why not just have sitting judges rule the country. It would cut out the middle man. It would save a lot of money in paying MP' s and MPP's for no reason. No need for a senate e ither. let's do away with all of it and just let the judges run the country. They are already anyways.

Honestly? What's the point?

[Guest]

The judges just intepret the charter, don't they? The answer is to amend the charter. I believe a government majority can do that. Or put saner judges on the bench at the Supreme Court.

Edited October 13, 2012 by bcsapper

[cybercoma]

The Supreme Court doesn't make laws.

[Mr.Canada]

The Supreme Court doesn't make laws.

They decide what can be a law and what cannot be a law. It's all communist bs to me. We elected a government to make the laws but now we have judges striking down those laws over ruling the majority. This is wrong.

[Bonam]

I think it's a crucial part of our system of checks and balances. No single branch of government must be allowed to have unfettered reign to modify the nation's laws too greatly or too swiftly. And yes, if the need and unanimity was great enough, the charter could always be amended.

[cybercoma]

They decide what can be a law and what cannot be a law. It's all communist bs to me. We elected a government to make the laws but now we have judges striking down those laws over ruling the majority. This is wrong.

Judges do not decide what can and cannot be a law. That is decided by the electorate.

We have primary and secondary laws in our system.

The primary laws determine what secondary laws are considered valid. In Canada the primary law is the Constitution and Charter of Rights and Freedoms. Secondary laws are particular pieces of legislation passed by the government. The secondary laws must meet the criteria of validity set forth in the primary laws (Charter).

It is not the judges of the SCC that decide what law is valid or not. They apply primary laws in exactly the same way as lower courts apply secondary laws.

Your criticism of judges being able to interpret and apply primary laws, if it was reasonable, ought to apply equally to secondary laws. It doesn't because then we would have a lawless society.

Edited October 13, 2012 by cybercoma

[Smallc]

I believe a government majority can do that.

A majority in both houses of the Parliament of Canada and in the legislatures of all ten provinces.

They decide what can be a law and what cannot be a law.

Based on the Constitution of Canada.

It's all communist bs to me.

Well, that's your problem.

We elected a government to make the laws but now we have judges striking down those laws over ruling the majority. This is wrong.

Does the Constitution mean nothing to you, then?

[Smallc]

In Canada the primary law is the Constitution and Charter of Rights and Freedoms.

Just for clarification, the Charter is part of the Constitution.

[cybercoma]

Just for clarification, the Charter is part of the Constitution.

Yeah. Thanks. I meant it as one long title.

[cybercoma]

By the way, Mr. Canada.... if you scrap the Constitution as the test for legal validity, you need to replace it with something else.

There are lots of things you can do. You could say a law is valid because it is written as a law.

Of course, you would then be required to follow any law the government makes, regardless of any moral exception that you have to it. That means in nazi Germany laws around executing Jews, the Roma people, political dissidents, homosexuals, and the disabled would have been perfectly valid and you would be required to follow them because it's unreasonable to object to valid laws.

Another approach might be to say a law is valid only if it meets some moral criteria. That introduces the problem changing morality and determining whose moral system would be the benchmark.

A third idea is to say that a law is valid when it has been applied by judges and only when a judge has rendered a decision. The problem there, of course, is that this leaves judges with absolutely no framework. That means they could make whatever decision they wanted for whatever reason they wanted to make them. I know Argus thinks this is the way courts work, but he's wrong. It isn't. Legal decisions are like writing a chapter in a book. You can't begin telling the story of Snow White and insert a chapter from 50 Shades of Grey.

Edited October 13, 2012 by cybercoma

[Bonam]

You can't begin telling the story of Snow White and insert a chapter from 50 Shades of Grey.

Why not? Authors mix ideas and themes from different genres all the time. Not that I necessarily disagree with what you're saying, that judges should have some framework to work from, but that's not at all a good analogy.

[cybercoma]

No. You're just not understanding the analogy. Authors can mix "themes and ideas from different genres," but they would still be congruent with the framework of the story being told in that book. What wouldn't make sense is for one of the chapters to be from a completely different book that's totally unrelated to the rest of the text.

[August1991]

It seems to me that there is no point in having a parlaiment if the people who don't agree with the decision made can just take it to court, where the court(which is socialist) will always rule agasinst the government decision.

....

Honestly? What's the point?

Imagine that the federal Parliament (majority rules) passed a law to impose a special "left-handed person" tax. Since about 10% of the population is left-handed, this tax law may get through parliament. The 90% who are right-handed don't care; they don't pay the new tax. And federal MPs who look to get re-elected, don't care either unless their riding has many left-handed voters.

----

Mr. Canada, Canada is a federal state. We have a Constitution to protect various minorities within Canada. We have a Supreme Court to ensure that these rules are followed correctly.

[Peter F]

the court(which is socialist) will always rule agasinst the government decision.

Not true. The SCC has ruled in favour of the government and its laws many many many times. Just go look at the decisions of the SCC and the Federal Courts.

The laws of parliament have a huge dominating impact on the courts decisions.

[Mr.Canada]

Mr. Canada, Canada is a federal state. We have a Constitution to protect various minorities within Canada. We have a Supreme Court to ensure that these rules are followed correctly.

While the needs and wants of the majority get trampled. It's disgusting.

[cybercoma]

While the needs and wants of the majority get trampled. It's disgusting.

The needs and the wants of the majority, in a civilized society anyway, end at their "right" to trample on and oppress the minority.

[Michael Hardner]

While the needs and wants of the majority get trampled. It's disgusting.

We've seen what that means to you - you were admittedly fine with a gay minority staying out of site - basically hiding in fear in the past.

The definition of 'disgusting' is a highly personal one, and I don't think I could understand yours, ever.

[jacee]

They decide what can be a law and what cannot be a law. It's all communist bs to me. We elected a government to make the laws but now we have judges striking down those laws over ruling the majority. This is wrong.

Can you provide a link, some evidence or examples of what you're complaining about please?

We have 3 branches of government for good reasons - checks and balances on the power of each. That's democracy ... nobody gets to have absolute power.

The Constitution sets out the basic principles of democratic government in Canada when it defines the powers of the three branches of government: the executive, the legislative and the judicial. The executive power in Canada is vested in the Queen. In our democratic society, this is only a constitutional convention, as the real executive power rests with the Cabinet. The Cabinet, at the federal level, consists of the Prime Minister and Ministers who are answerable to Parliament for government activities. As well, Ministers are responsible for government departments, such as the Department of Finance and the Department of Justice. When we say “the government” in a general way, we are usually referring to the executive.

The legislative branch is Parliament, which consists of the House of Commons, the Senate and the Monarch or her representative, the Governor General. Most laws in Canada are first examined and discussed by the Cabinet, then presented for debate and approval by members of the House of Commons and the Senate. Before a bill becomes a law, the Queen or her representative, the Governor General, must also approve or “assent to” it. This requirement of royal assent does not mean that the Queen is politically powerful; by constitutional convention, the Monarch always follows the advice of the government.

The Department of Justice

The Minister of Justice is responsible for the Department of Justice, which provides legal services such as drafting laws and providing lawyers for the government and its departments. This department also develops policies and programs for victims, families, children and youth criminal justice. The Minister of Justice is also the Attorney General or chief law officer of Canada.

In the provinces, the same process applies but the Queen’s provincial representative is called the Lieutenant Governor.

Our Constitution also provides for a judiciary, the judges who preside over cases before the courts. The role of the judiciary is to interpret and apply the law and the Constitution, and to give impartial judgments in all cases, whether they involve public law, such as a criminal case, or private (civil) law, such as a dispute over a contract. They also contribute to the common law when they interpret previous decisions or set new precedents.

http://www.justice.gc.ca/eng/dept-min/pub/just/05.html

I guess it's the last thing you're upset about?

But parliament can change laws if they don't like the interpretation.

What they can't change easily is the Constitution that protects US from our governments: The government can't make laws that violate our rights, and if they do the courts will nullify those laws ... to protect the rights of citizens.

So what exactly is your complaint?

What's the context for this discussion?

And if you think there's too much overturning of laws made by the Harper government, maybe that's because they're making too many laws that violate people's rights. Harper's known to ignore/dismiss the advice of Constitutional lawyers and plow ahead with bad laws that the courts will overturn ... to protect us from our government.

And that's how it should be.

Tories on e-snooping: 'Stand with us or with the child pornographers'

Edited October 13, 2012 by jacee

[g_bambino]

While the needs and wants of the majority get trampled. It's disgusting.

You'd no doubt say something different if you were the minority.

But, at least this is consistent with your expressed support for Fancoesque fascism.

[ed.: sp]

Edited October 15, 2012 by g_bambino

[Sleipnir]

If the Supreme Court starts making the Canadian law, then we wouldn't be a democratic society anymore - but rather a kritarchy society.

[guyser]

If the Supreme Court starts making the Canadian law, .

We wll wake you when they start.

So far, they never have started.

[g_bambino]

It seems to me that there is no point in having a parlaiment if the people who don't agree with the decision made can just take it to court, where the court(which is socialist) will always rule agasinst the government decision...

This is rife with misunderstanding and sets up so many false dilemmas. The courts don't rule in favour of anyone who disagrees with any law. The courts aren't "socialist", nor even presided over mostly by judges who are personally left-leaning. The government isn't always conservative.

There is such a thing as a constitution in this country and it sets out the structure of the Canadian federation and each of the eleven states within it. Structures require limits, and so the constituton - through ancient conventions and acts of parliament (either originating here or inherited) - places restrictions on each of the main institutions of governance. Since the constitution is within the purvue of parliament (or the parliaments, depending on what part of the constitution we're talking about), the legislatures remain supreme, but have essentially agreed to place limitations on themselves and it is the role of the courts to determine when a legislature has passed a law that extends beyond those boundaries. This, among other things, protects us from the tyranny of the majority.

That, ironically, is why you have the right to express your minority view that favours facism.

[Moonlight Graham]

They decide what can be a law and what cannot be a law. It's all communist bs to me. We elected a government to make the laws but now we have judges striking down those laws over ruling the majority. This is wrong.

What if the government passes a law that is unconstitutional? ie: A law that is unlawful. What is they pass a law saying police can come into anyone's home at any time without a warrant to search for evidence? What if they pass a law barring women and Jews from Parliament? See, laws need to be checked by the SCC, otherwise the government could do whatever it wanted.

[Sleipnir]

So far, they never have started.

Thanks captain obvious

Edited October 24, 2012 by Sleipnir

[guyser]

Thanks captain obvious

Im guessing it wasnt obvious to you.

Pardon me, just what did you mean then? The SCC cannot make laws, not now then tomorrow and never!