Derek 2.0 Posted October 20, 2014 Report Share Posted October 20, 2014 If the Supreme Court upheld your rights to have weapons and the government trampled on it with the notwithstanding clause, would you not be ready to revolt? In Canada, there is no such right.......there isn't even a right to property.......none the less, to attempt to answer your question, I'm (like many gun owners) politically active and donate money/time to gun advocacy groups in an attempt to change laws that I/we disagree with..... Now, with the BCTF, if they feel, in such a scenario their rights to smaller class sizes and fewer disabled children in their classrooms have been violated, wouldn't a better course of action be to double down efforts within their union and political action in hopes of helping elect a Government (BC NDP) that might reverse this egregious affront to their human rights?......Of course, they did do this prior to the last election, and we all know the results..... Quote Link to comment Share on other sites More sharing options...
overthere Posted October 20, 2014 Report Share Posted October 20, 2014 (edited) They interpret the validity of laws in relation to the Constitution and the Charter of Rights and Freedoms. The government doesn't get to do whatever it wants. The SC addresses points of law that arise from cases referred from lower courts, and occasionally provide interpretations if requested by the federal government. All courts operate within the framework of the Constituion and Charter. They do not make laws and their decisions do not have the effect of creating a new law. Your statement on governments not getting to do what they want is not relevant. Edited October 20, 2014 by overthere Quote Link to comment Share on other sites More sharing options...
cybercoma Posted October 20, 2014 Author Report Share Posted October 20, 2014 (edited) The SC addresses points of law that arise from cases referred from lower courts, and occasionally provide interpretations if requested by the federal government. All courts operate within the framework of the Constituion and Charter. They do not make laws and their decisions do not have the effect of creating a new law. Your statement on governments not getting to do what they want is not relevant. You're not telling me anything I don't know. You are, however, sidestepping the fact that the Supreme Court can and does strike down legislation as not constitutionally valid. Their job is to ensure that the government doesn't draft whatever wild-assed legislation they feel like. Edited October 20, 2014 by cybercoma Quote Link to comment Share on other sites More sharing options...
overthere Posted October 20, 2014 Report Share Posted October 20, 2014 Their job is to ensure that the government doesn't draft whatever wild-assed legislation they feel like. It is not and never will be. The govt is free to draft whatever it pleases. Quote Link to comment Share on other sites More sharing options...
cybercoma Posted October 20, 2014 Author Report Share Posted October 20, 2014 Don't play semantics. You know exactly what I mean. The government can make whatever laws it wants, but the Supreme Court can strike those laws from the books if they infringe on people's rights and freedoms. Quote Link to comment Share on other sites More sharing options...
overthere Posted October 20, 2014 Report Share Posted October 20, 2014 I'm not playing semantics. No court and that very definitely means the Supreme Court should never be in the lawmaking business as you said they were. You just did it again, claiming they can strike laws from the books. They cannot do that either. They can rule against a case before them in the context of stating that it does not comply with the will of Parliament when they created the law or the Charter or the Constitution, but they cannot repeal anything any more than they can create any laws. Quote Link to comment Share on other sites More sharing options...
cybercoma Posted October 20, 2014 Author Report Share Posted October 20, 2014 Why does parliament have to re-write prostitution legislation? Quote Link to comment Share on other sites More sharing options...
The_Squid Posted October 20, 2014 Report Share Posted October 20, 2014 (edited) db.... Edited October 20, 2014 by The_Squid Quote Link to comment Share on other sites More sharing options...
The_Squid Posted October 20, 2014 Report Share Posted October 20, 2014 I'm not playing semantics. No court and that very definitely means the Supreme Court should never be in the lawmaking business as you said they were. You just did it again, claiming they can strike laws from the books. They cannot do that either. They can rule against a case before them in the context of stating that it does not comply with the will of Parliament when they created the law or the Charter or the Constitution, but they cannot repeal anything any more than they can create any laws. Of course they can. Here is a simple example: http://en.wikipedia.org/wiki/Sauv%C3%A9_v._Canada_(Chief_Electoral_Officer) The Court overturned the prior decision of the Federal Court of Appeal and held that s. 51(e) of the old Canada Elections Act, which prohibited prisoners from voting, was unconstitutional. They made the law that any inmates serving more than 2 years in prison can not vote. Section 51(e) had been repealed before the date of the Court's judgment, but the decision applied equally to substantially the same provision found in s. 4© of the new Act. The Court decided that the provision violated section 3 of the Charterand could not be saved under section 1. As a result of the decision, all adult citizens living in Canada are now able to vote, save the top two officials of Elections Canada.[1] As Parliament has not amended the Canada Elections Act to reflect the Court's decision, the provision is still part of the Act,[2] even though it is of no force or effect. The Supreme Court has the ultimate power of judicial review over Canadian federal and provincial laws' constitutional validity. If a federal or provincial law has been held contrary to the division of power provisions of one of the various constitution acts, the legislature or parliament must either live with the result, amend the law so that it complies, or obtain an amendment to the constitution. http://en.wikipedia.org/wiki/Supreme_Court_of_Canada Quote Link to comment Share on other sites More sharing options...
Wilber Posted October 21, 2014 Report Share Posted October 21, 2014 They got a mandate to govern, a strong one, and that includes doing things you don't agree with. Too bad for you. No, the Supreme Court does not make laws, where do you come up with this gibberish? Unelected court officials do not make laws in Canada. The Parliament of Canada makes laws. The Supreme Court may and does interpret laws enacted by the elected government, but the day they make it is the day democracy has departed. No government has a mandate to do anything they please. That assumption cost Campbell and Hansen their jobs over the HST and would have cost the Liberals the election if the NDP handn't royaly screwed up their campaign. My comment on the SC was badly worded. What I meant was how it interprets a law determines how all future rulings on that law will be made. You are right in that they don't actually make laws. Quote Link to comment Share on other sites More sharing options...
dre Posted October 21, 2014 Report Share Posted October 21, 2014 Spare me the melodrama. The important rights have been long established and protected. All the courts do now is turn trendy social causes into "rights". Actually thats not even close to being true... Heres a list of judgements from this year alone. Almost all them are rulings on substantive legal issues. 1. Imperial Oil v. Jacques - 2014 SCC 66 - 2014-10-17 2. R. v. Lepine - 2014 SCC 65 - 2014-10-16 4. Kazemi Estate v. Islamic Republic of Iran - 2014 SCC 62 - 2014-10-10Supreme Court Judgments Constitutional law 5. R. v. Mohamed - 2014 SCC 63 - 2014-10-10Supreme Court Judgments 6. R. v. Steele - 2014 SCC 61 - 2014-10-09Supreme Court Judgments Criminal law 7. R. v. Conception - 2014 SCC 60 - 2014-10-03Supreme Court Judgments Constitutional lawCriminal law 8. Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) - 2014 SCC 59 - 2014-10-02Supreme Court Judgments Constitutional law 9. R. v. Mack - 2014 SCC 58 - 2014-09-26Supreme Court Judgments Criminal law 10. Amex Bank of Canada v. Adams - 2014 SCC 56 - 2014-09-19Supreme Court Judgments Constitutional law 11. Bank of Montreal v. Marcotte - 2014 SCC 55 - 2014-09-19Supreme Court Judgments Civil procedureConstitutional law 12. Marcotte v. Fédération des caisses Desjardins du Québec - 2014 SCC 57 - 2014-09-19Supreme Court Judgments Constitutional law 13. R. v. Mian - 2014 SCC 54 - 2014-09-12Supreme Court Judgments Constitutional lawCriminal law 14. Sattva Capital Corp. v. Creston Moly Corp. - 2014 SCC 53 - 2014-08-01Supreme Court Judgments Arbitration 15. R. v. Hart - 2014 SCC 52 - 2014-07-31Supreme Court Judgments CourtsCriminal law 16. Quebec (Commission des normes du travail) v. Asphalte Desjardins inc. - 2014 SCC 51 - 2014-07-25Supreme Court Judgments 17. R. v. Taylor - 2014 SCC 50 - 2014-07-18Supreme Court Judgments Constitutional law 18. Canada (Attorney General) v. Confédération des syndicats nationaux - 2014 SCC 49 - 2014-07-17Supreme Court Judgments Civil procedure 19. Grassy Narrows First Nation v. Ontario (Natural Resources) - 2014 SCC 48 - 2014-07-11Supreme Court Judgments Aboriginal law 20. R. v. Sipos - 2014 SCC 47 - 2014-07-10Supreme Court Judgments Criminal law 21. R. v. Quesnelle - 2014 SCC 46 - 2014-07-09Supreme Court Judgments Criminal law 22. United Food and Commercial Workers, Local 503 v. Wal‑Mart Canada Corp. - 2014 SCC 45 - 2014-06-27Supreme Court Judgments 23. Tsilhqot’in Nation v. British Columbia - 2014 SCC 44 - 2014-06-26Supreme Court Judgments Aboriginal law 24. R. v. Spencer - 2014 SCC 43 - 2014-06-13Supreme Court Judgments Constitutional law 25. Canadian Artists’ Representation v. National Gallery of Canada - 2014 SCC 42 - 2014-06-12Supreme Court Judgment Overall, the judiciary is our least political and least partisan branch of government. Their role in protecting citizens from illegal legislation has been proven crucial in our society over, and over, and over again. The basic difference between you and I is I don't put judges on a pedestal. There are the same as politicians and given a choice between a politician making a choice that can be overturned in the next election and a judge making a choice that is near impossible to reverse I say let the politicians decide. Actually the basic difference seems to be that you dont understand the role of the judiciary, or the how they are different from politicians. Unlike politicians judges that issue rulings have to provide a written legal justification, that outlines the decision, and they need agreement from the majority of their piers for their judgement to carry the day. So you basically have legal experts issuing rules that are not only supported by legal justification and caselaw, but are also weighed against the opinions of their peers. Youre critisizing a system that you dont even have a passing understanding of. Quote Link to comment Share on other sites More sharing options...
TimG Posted October 21, 2014 Report Share Posted October 21, 2014 (edited) Unlike politicians judges that issue rulings have to provide a written legal justification, that outlines the decision, and they need agreement from the majority of their piers for their judgement to carry the day.Experts are experts at generating documents to rationalize what they want to believe. Every case that makes to the supreme court has compelling legal arguments supporting both sides. If they did not the appeal would have never been heard in the first place. What this means is the actual decision is really just an expression of the biases of the SCC justices rather than a choice between right and wrong. The fact that the SCC justices don't always agree further re-enforces my point. You appear to be completely ignorant of human nature and don't seem to understand that no system changes the fact that every human is a slave to their biases. Edited October 21, 2014 by TimG Quote Link to comment Share on other sites More sharing options...
dre Posted October 21, 2014 Report Share Posted October 21, 2014 Experts are experts at generating documents to rationalize what they want to believe. Every case that makes to the supreme court has compelling legal arguments supporting both sides. If they did not the appeal would have never been heard in the first place. What this means is the actual decision is really just an expression of the biases of the SCC justices rather than a choice between right and wrong. The fact that the SCC justices don't always agree further re-enforces my point. You appear to be completely ignorant of human nature and don't seem to understand that no system changes the basic nature of humans. Oh I have no doubt there are biases involved in SCC rulings. The difference is theres checks and balances, and judgements have to be weighed against written caselaw and legislation, and a legal justification has to be provided to the public and/or the participants in the case. Theres no such checks in the legislative branch. A supreme court justice cant "whip" the rest of the panel to force them to agree. And its illegal to accept payment for judgements where-as selling legislation to special and corporate interests is a practical reality. The court has to provide a public and legal justification for its rulings. Politicians can sneak laws into huge omnibus bills without evening MENTIONING them, never mind providing a logical or legal justification for them. This is exactly why almost every country where people dont live in mud huts has some kind of constution to protect citizens from the whims of legislators, who are by their very nature interested in the short term, getting re-elected, and securing campaign contributions. Just because you dont understand the reason doesnt mean there isnt one. In any case at least you conceded that your previous point about "all justices do is turn trendy social causes into rights", was complete hogwash. Quote Link to comment Share on other sites More sharing options...
TimG Posted October 21, 2014 Report Share Posted October 21, 2014 (edited) Oh I have no doubt there are biases involved in SCC rulings.Which is my point. Legal justifications are a dime a dozen and the fact that they have to back up their decisions with justifications that rationalize their views does not make them any less biased. This is why it wrong to look at SCC rulings as some statement of absolute truth. The are opinion. Nothing more. Nothing less. Which is why to have a democracy the elected representatives need to have the power to overrule the court if they feel the view of the court does not reflect the views of the voters. In normal cases this means the legislature can pass a new law. In Charter cases this means the legislature invokes the notwithstanding clause. This is exactly why almost every country where people dont live in mud huts has some kind of constution to protect citizens from the whims of legislators, who are by their very nature interested in the short term, getting re-elected, and securing campaign contributions.Our basic rights are protected and cannot be overridden with the notwithstanding clause. The only thing that can be affected are SCC interpretations of the charter which are often "trendy social causes" which should be left to elected politicians. Edited October 21, 2014 by TimG Quote Link to comment Share on other sites More sharing options...
overthere Posted October 21, 2014 Report Share Posted October 21, 2014 You are right in that they don't actually make laws. and they cannot repeal anything either. Here is a simple example: Your example does not illustrate the SC making laws or repealing laws. Try again. Quote Link to comment Share on other sites More sharing options...
The_Squid Posted October 21, 2014 Report Share Posted October 21, 2014 and they cannot repeal anything either. Your example does not illustrate the SC making laws or repealing laws. Try again. You claimed they cannot strike laws from the books. Please explain this: As a result of the decision, all adult citizens living in Canada are now able to vote, save the top two officials of Elections Canada.[1] As Parliament has not amended the Canada Elections Act to reflect the Court's decision, the provision is still part of the Act,[2] even though it is of no force or effect. They struck down the law that didn't allow prisoners to vote. Now prisoners can vote. Explain. Quote Link to comment Share on other sites More sharing options...
overthere Posted October 21, 2014 Report Share Posted October 21, 2014 You claimed they cannot strike laws from the books. Please explain this: As a result of the decision, all adult citizens living in Canada are now able to vote, save the top two officials of Elections Canada.[1] As Parliament has not amended the Canada Elections Act to reflect the Court's decision, the provision is still part of the Act,[2] even though it is of no force or effect. They struck down the law that didn't allow prisoners to vote. Now prisoners can vote. Explain. No problem. The Chief Electoral Officer acting under the authority of the Act has the authority to permit persons the right to vote. He exercised it in this case. The Supreme Court did not make the legislation, neither can they repeal the legislation. Sometimes that obliges the government to act to serve the public interest, but they retain the right to enable or disable legislation. So you are 100% wrong in saying they 'struck down the law". They didn't. They cannot, under the very Constituion they interpret. A little reading will reveal that many, many Acts have provisions, usually called Regulations, that are part of the Act but have measure of flexibility usually at a Minsters discretion. These are often changed or used to permit exceptions. Quote Link to comment Share on other sites More sharing options...
The_Squid Posted October 21, 2014 Report Share Posted October 21, 2014 (edited) No problem. The Chief Electoral Officer acting under the authority of the Act has the authority to permit persons the right to vote. He exercised it in this case. The Supreme Court did not make the legislation, neither can they repeal the legislation. Sometimes that obliges the government to act to serve the public interest, but they retain the right to enable or disable legislation. So you are 100% wrong in saying they 'struck down the law". They didn't. They cannot, under the very Constituion they interpret. A little reading will reveal that many, many Acts have provisions, usually called Regulations, that are part of the Act but have measure of flexibility usually at a Minsters discretion. These are often changed or used to permit exceptions. They made the legislation that applied to prisoners invalid. They struck it down. Prisoners can now vote despite what the legislation says. And you say they can't strike down laws? They did!! They do it all the time! Edited October 21, 2014 by The_Squid Quote Link to comment Share on other sites More sharing options...
Wilber Posted October 21, 2014 Report Share Posted October 21, 2014 (edited) They made the legislation that applied to prisoners invalid. They struck it down. Prisoners can now vote despite what the legislation says. And you say they can't strike down laws? They did!! They do it all the time! No, they defined the reasons a person can denied the vote. Do you think electoal officers should be able to arbitrarily decide who can vote and who cannot? Edited October 21, 2014 by Wilber Quote Link to comment Share on other sites More sharing options...
The_Squid Posted October 21, 2014 Report Share Posted October 21, 2014 No, they defined the reasons a person can denied the vote. Do you think electoal officers should be able to arbitrarily decide who can vote and who cannot? you missed the point... they struck down the law that denied prisoners a right to vote. Quote Link to comment Share on other sites More sharing options...
Wilber Posted October 21, 2014 Report Share Posted October 21, 2014 you missed the point... they struck down the law that denied prisoners a right to vote. Because that part of the law was unconstitutional. That is a primary function of the SC, to see that government follows the Constitution when it enacts laws. Laws that violate the Constitution and Charter are not legal. It is a very simple principle that anyone should be able to understand. Quote Link to comment Share on other sites More sharing options...
overthere Posted October 22, 2014 Report Share Posted October 22, 2014 As Parliament has not amended the Canada Elections Act to reflect the Court's decision, the provision is still part of the Act,[2] even though it is of no force or effect. Quote Link to comment Share on other sites More sharing options...
The_Squid Posted October 22, 2014 Report Share Posted October 22, 2014 As Parliament has not amended the Canada Elections Act to reflect the Court's decision, the provision is still part of the Act,[2] even though it is of no force or effect. You're playing semantics. They struck down that part of the legislation that is unconstitutional. It has no force despite still being in legislation. Quote Link to comment Share on other sites More sharing options...
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