Another Harper Government Law Overturned

[WWWTT]

There is no appealing a SCC ruling. If they say something it is law and can never be changed or overridden by a democratically elected government. They have made a series of rulings where they choose to impose their peculiar politics on the rest of the country. The only reason you don't have a huge problem with this is the court is currently favoring your politics. But if that changed you would be complaining about unelected ideologues subverting democracy.

Looks like you're right, here's the quote from the link I'm providing below:

^12] in 1946, the Judicial Committee finally heard the appeal and upheld the decision of the majority of the Supreme Court,^[13] clearing the way for Parliament to enact legislation to end all appeals to the Judicial Committee, whether from the Supreme Court or from the provincial courts of appeal. In 1949, Parliament passed an amendment to the Supreme Court Act which abolished all appeals, making the Court truly the Supreme Court.^[14] However, cases which had been instituted in the lower courts prior to the amendment could still be appealed to the Judicial Committee. The last Canadian appeal to the Judicial Committee was not decided until 1960.^[15]

However I disagree with the rest of your comment.

WWWTT

Edited to add the link I forgot!!!!

http://ri.search.yahoo.com/_ylt=A0LEVv35yElTkEQA6W8XFwx.;_ylu=X3oDMTByMG04Z2o2BHNlYwNzcgRwb3MDMQRjb2xvA2JmMQR2dGlkAw--/RV=2/RE=1397373305/RO=10/RU=http%3a%2f%2fen.wikipedia.org%2fwiki%2fCourt_system_of_Canada/RK=0/RS=NZB6I2d_E2X4ZrcQkWraKotkWhw-

Edited April 13, 2014 by WWWTT

[TimG]

However I disagree with the rest of your comment.

So you like living in a country where public policy is decided by unelected technocrats? Personally I prefer a democracy. Bad policy that can be overturned by the next elected government is infinitely better than bad policy imposed by technocrats that can never be repealed. Edited April 12, 2014 by TimG

[Bob Macadoo]

So you like living in a country where public policy is decided by unelected technocrats? Personally I prefer a democracy. Bad policy that can be overturned by the next elected government is infinitely better than bad policy imposed by technocrats that can never be repealed.

Policy is not imposed by the SCC, its function in our existing framework is. If the "democratic" leaders were actually aware of the legislation they try to enact they might understand that is not a standalone writ twisting in the wind....it must weave into our existing framework so that it may function without the gaping holes produced by the current crop a feces.

Just for the record....most legislation is developed by unelected technocrats......just dumb ones in this case.

[WWWTT]

So you like living in a country where public policy is decided by unelected technocrats? Personally I prefer a democracy. Bad policy that can be overturned by the next elected government is infinitely better than bad policy imposed by technocrats that can never be repealed.

Yes I do!

I don't hold "democracy" with such high esteem as you may.

Democracy provides fantastic opportunities for special interest groups with wealth to buy elections and politicians!

WWWTT

[TimG]

Policy is not imposed by the SCC, its function in our existing framework is.

They make it up as they go along. There is generally no way for politicians to know if something they want to do will pass the SCC because the SCC takes reasonable interpretations of the constitution and tosses them out and rules based on whatever legal fad has caught their fancy.

Just for the record....most legislation is developed by unelected technocrats......just dumb ones in this case.

Yeah - and it can be repealed by the next government. The SCC should not be tossing laws out because of minor technicalities - it should reserve it powers for issues that are fundamental to our society. When it comes to the details of administering government the SCC should defer to the government - not because the government is always right - but if the government tries something and it does not work they (or a different government) can change it later. Once the SCC sets policy it is set in stone and can never be changed. This is why the unelected technocrats on the SCC are really bad for democracy. Edited April 13, 2014 by TimG

[On Guard for Thee]

So your statement about this law violating the constitution was what then?

It violates the charter of rights. Specifically section 11 (h), which says you can't be punished twice for the same conviction. Otherwise known as "double jeopardy".

[Bob Macadoo]

There is generally no way for politicians to know if something they want to do will pass the SCC...

Sure there is...its called doing the job right. How many Acts had judgements against them in the previous 30 years prior to this gov't? Either the premise of the Act is in conflict or the people they employ to develop their writs should be shitcanned. In any case their view is not unknowable......just takes proper professionals working for you.

......the SCC takes reasonable interpretations of the constitution and tosses them out and rules based on whatever legal fad has caught their fancy.

Please provide example of "reasonable" interpretation that the court has tossed or a "fad". Is the Charter a fad, or was that exaggeration?

When it comes to the details of administering government the SCC should defer to the government

You say this like it leaves the GG and lands on their docket. The gov't is given plenty of time before and after to alter, direct, or reinterpret their legislation so as to mould it into the existing framework......nope you get Pierre La Douche types with shit eating grins who have no intellect or business talking about ribbon cutting or kisding babies let alone fundamental legislation that alters the foundation of our democracy to which you value. Maybe we should abolish them with the senate....save some money....then we can just ask for judgements from the gov't......I'm sure that's fair and balanced.

[Big Guy]

So you like living in a country where public policy is decided by unelected technocrats? Personally I prefer a democracy. Bad policy that can be overturned by the next elected government is infinitely better than bad policy imposed by technocrats that can never be repealed.

I disagree with your major premise.

Every functional democracy has a built in set of checks and balances to mitigate an attempt for one of the branches to take power. I believe that in Canada and the US it is the judiciary which is one of the most important cogs in the wheel. The make up of the judiciary usually outlasts the individuals in the other branches. This gives stability and strength to the system.

Without a judiciary, what would keep a majority government from changing election rules to guarantee that it was always re-elected?

There have been a number of cases in Canadian and American history where the judiciary has protected the elected branches from themselves.

[TimG]

How many Acts had judgements against them in the previous 30 years prior to this gov't?

In the last 10 years there has been a generation change on the court and the current crop of justices only seem to care about rights. Responsibility or the ability to govern a country are irrelevant considerations. And it is not just Conservative laws - a recent court case that rules that the special assistance given to a dyslexic student in BC was not enough and they had a charter right to a gold plated Cadillac education paid for by the taxpayer. This is the type of judgement that gives me an extremely low opinion of the current SCC.

That said, I am willing to withhold judgement on the pre-trial case until I read the actual judgement but going by the media coverage this one sounds like another case where the justices are imposing their political views on the country.

Edited April 13, 2014 by TimG

[TimG]

Without a judiciary, what would keep a majority government from changing election rules to guarantee that it was always re-elected?

Don't get me wrong - the judiciary is a necessary part of the system. The issue is how the judiciary seems to be ruling on matters that are political questions and should be addressed in the political arena and not the judicial.

[Wilber]

I think people just want some truth in sentencing. It's a good thing judges have no leeway when it comes to murder convictions. God only knows what we would see. No one ever comes close to serving a maximum sentence for anything else. If a person actually does get jail time, after double credit for time served and mandatory release after 2/3 of the sentence, the actual time behind bars bears no resemblance to the actual sentence. In the sales world it would be called bait and switch, which happens to be illegal.

Edited April 13, 2014 by Wilber

[Keepitsimple]

I disagree with your major premise.

Every functional democracy has a built in set of checks and balances to mitigate an attempt for one of the branches to take power.

Could you provide a source that indicates the Supreme Court has any such responsibility in Canada? Only since the Charter of Rights came into being has the judiciary taken upon itself a more activist approach to interpreting the law - and legislation.....it's been like a snowball going downhill.

[Moonlight Graham]

What evidence do you have to support this statement?

They're Supreme Court justices.

Bear in mind judges are not chosen for the Supreme Court because of their brilliance or wisdom, nor indeed for their knowledge of law. All that is tertiary to the central point of what province they come from, what their ethnicity and gender is, and what their political leanings are.

As to how lawyers become judges in the first place. They suck up to people. Again, their legal knowledge and wisdom are really not at issue. The various Canadian legal associations will tell you anyone who is a member of the bar, ie, any lawyer, who has practiced law for a brief period of time, is qualified to be a judge.

The judges chosen to be on the Supreme Court are not your average judges. They're almost always well-respected, very high-serving judges. Before they were picked, all of the current SC Justices were serving on the highest provincial or federal courts. All of the current SC judges previously served on their provincial Court of Appeal (the highest judicial courts in a given province). I'm not saying they're the best judges in the country, but they're among them. They don't put crappy lawyers on the SC for a reason....you'd get crappy decisions.

Most MP's have a fair grasp of the law (many are lawyers), but it's hard to compare the law expertise of SC Justices who are engulfed in the highest matters of law much of their waking life vs politicians who have a lot of other distractions beyond legislation.

For some reason the Harper gov seems to be getting a lot of legislation rejected by the SC, even though Harper appointed a majority of the Justices. Maybe one reason is that Harper himself was never a lawyer, unlike most modern PM's like Chretien, Martin, Kim Campbell, Mulroney, Trudeau etc.

[TimG]

The judges chosen to be on the Supreme Court are not your average judges. They're almost always well-respected, very high-serving judges.

What does "well respected mean"? They follow the orthodoxy that is currently in vogue among legal academics? Why does this make them qualified to permanently decide public policy?

Maybe one reason is that Harper himself was never a lawyer, unlike most modern PM's like Chretien, Martin, Kim Campbell, Mulroney, Trudeau etc.

Which means he does not play the game by the rules that this out of touch legal elite wish to set. That does not make him wrong. Edited April 13, 2014 by TimG

[On Guard for Thee]

What does "well respected mean"? They follow the orthodoxy that is currently in vogue among legal academics? Why does this make them qualified to permanently decide public policy?

Which means he does not play the game by the rules that this out of touch legal elite wish to set. That does not make him wrong.

It makes him wrong if you look into the facts. We have consistanly less and less crime in this country, so why do we need a tough on crime bill? Suck up a few votes maybe, from old lady's in rooming houses that feel afraid about the 6 o'clock news?

[WWWTT]

Sure there is...its called doing the job right. How many Acts had judgements against them in the previous 30 years prior to this gov't?

Probably a lot more than what you might think if you researched it.

Other lower courts can also reject the un constitutional laws too!

WWWTT

[WWWTT]

For some reason the Harper gov seems to be getting a lot of legislation rejected by the SC, even though Harper appointed a majority of the Justices. Maybe one reason is that Harper himself was never a lawyer, unlike most modern PM's like Chretien, Martin, Kim Campbell, Mulroney, Trudeau etc.

I doubt that.

Harper has well over 80+ people on his staff and consults with legal professionals all the time.

If anything, he probably argues with the legal advise and goes against their consultation for the sake of playing up to those that are making the political donations!

WWWTT

[Bob Macadoo]

Probably a lot more than what you might think if you researched it.

Other lower courts can also reject the un constitutional laws too!

WWWTT

Don't say I'm wrong and then provide no proof....thats ingenuine. To your other point....thats exactly my point as well, someone tried to claim that these items shouldn't be adjudicated by the SCC, and I agreed.....they should've been amended before then.

[WWWTT]

Don't say I'm wrong and then provide no proof....thats ingenuine. To your other point....thats exactly my point as well, someone tried to claim that these items shouldn't be adjudicated by the SCC, and I agreed.....they should've been amended before then.

Off the top of my head there's the McGuinty special G8/G20 laws rammed through QP. Didn't take the SCC to shoot that one down.

Then there was the prostitution laws. But that was appealed by the conservatives.

Also I can remember the municipal laws banning home owners raising chickens. There was a threat that it was going to be challenged in the courts alleging that the law was not in line with the charter (and I agree). Municipalities across Canada dropped that law so fast that the story was soon forgotten! Another one I heard on the municipal level that was going to be challenged via charter was laws forcing homeowners to clean snow and ice from publicly owned sidewalks in front of their house. Haven't heard of follow up.

As far as saying you're wrong. In order to provide the links/examples, a lot of work has to be done researching. Probably why you made the comment that you did.

Like I said before, with some research, I'm sure there's a ton more examples!

This a well known famous way of governments getting around the Charter, just create new laws that are in violation, and force those that are charged to fight them.

What really has been changing over the last 10-15 years is that courts, judges and the SCC are becoming more pro active in challenging the un constitutional laws. But it still takes a tremendous of financial burden on the behalf of private citizen funds!

We're still a long ways away from a real true democracy!

WWWTT

[Bob Macadoo]

Off the top of my head there's the McGuinty special G8/G20 laws rammed through QP. Didn't take the SCC to shoot that one down.

I think we are in agreement here but just to be clear.......how many cases did the SCC judge against the Crown in the 20 years prior to 2005?

1) Not many got there as bills weren't passed that would be challenged.

2) Bills that were shot down early (prov appeal) were amended or repealed.

3) Bills that did make it were found to be within the framework.

As far as saying you're wrong. In order to provide the links/examples, a lot of work has to be done researching. Probably why you made the comment that you did. Like I said before, with some research, I'm sure there's a ton more examples!

Well thats dishonest......you've made it seem I don't know what I'm talking about without a shred of proof. I'd expect that from some here.....from my review you seem like a genuine debater. If you disagree with my premise say so but qualify that you have no idea either. Mine was based on the absence of headlines when searched......yours has none except to disagree.

We're still a long ways away from a real true democracy!

Definition of true is subjective......we got a democracy......its not the perfect form of governance but its better than any alternative we've stumbled across so far. Edited April 13, 2014 by Bob Macadoo

[Argus]

It violates the charter of rights. Specifically section 11 (h), which says you can't be punished twice for the same conviction. Otherwise known as "double jeopardy".

No, it actually doesn't. The law does not stop people from having time taken off their sentence for time served before trial. It stops judges from giving them two or three days off for every day served.

[Argus]

I disagree with your major premise.

Every functional democracy has a built in set of checks and balances to mitigate an attempt for one of the branches to take power.

Not, they don't. Canada certainly doesn't. You're thinking of the US and their different branches of government (which leads to massive gridlock). Canada only has one branch of government which has power, and that's parliament. The SC is not a branch of government.

Without a judiciary, what would keep a majority government from changing election rules to guarantee that it was always re-elected?

You mean the way the Russian judiciary guarantees freedom and democracy there?

Lawyers don't guarantee freedom, nor do judges. It is the will and cultural values of the people at large who guarantee freedom. There are lots of lawyers and judges in Saudi Arabia and Iran and Egypt. Has that halped freedom any? Has that restricted the government?

[Argus]

I think people just want some truth in sentencing. It's a good thing judges have no leeway when it comes to murder convictions. God only knows what we would see. No one ever comes close to serving a maximum sentence for anything else.

You don't have to wonder. Imposing the minimum parole requirements was the only way they could get enough support in parliament to ban the death penalty. Judges and parole boards have always had a soft spot in their hearts for murderers. You only have to look at what judges do with those convicted of manslaughter these days. Most of those cases I've read were not really manslaughter at all in that the criminals involved deliberately sought to kill someone, and succeded. In these cases, and in attempted murder cases, judges generally impose as lenient as sentence as they can get away with. A year or two for taking someone's life (not counting early parole) is not unusual.

[Argus]

They're Supreme Court justices.

In other words, they're political appointees. Any cretin can get on the Supreme Court if he's appointed to it by the politicians in power.

The judges chosen to be on the Supreme Court are not your average judges. They're almost always well-respected, very high-serving judges.

How would you know? Do you know how many judges there are in Canada? Do you know how many of those are NOT 'well respected'? It seems to terms like 'well respected' are donned with the robe. ALL judges are 'well respected' with the exception of a very few known to insiders (and only insiders).

Before they were picked, all of the current SC Justices were serving on the highest provincial or federal courts.

Which means nothing. Again, those judges are political appointeees, and their wisdom and judgement are not really the motivating factors. Any number of former MPs and cabinet ministers have been given judgeships as patronage appointments after losing their elections.

Paul Martin Jr. made it very clear that you can appoint judges for any reason you want when he appointed two gay rights campaigners to the supreme court specifically to ensure his legislation was voted on favourably.

A really good lawyer, one who is really succesful, stays a lawyer. It's not like the government tries to find these people and persuade them to be judges. You need to apply and campaign for the job.

Edited April 13, 2014 by Argus

[Argus]

It makes him wrong if you look into the facts. We have consistanly less and less crime in this country, so why do we need a tough on crime bill? Suck up a few votes maybe, from old lady's in rooming houses that feel afraid about the 6 o'clock news?

We don't have less and less crime. And even if we did that doesn't mean we should be lax with those who commit crimes, especially violent crimes.

I don't approve of the ridiculous sentences one sees south of the border, but our system really is far too soft on those who harm others. And with 3 days off for every day served combined with early parole it's even slacker.