Canada Supreme Court Rules Against Harper Again

[Derek 2.0]

Does that prevent people from being killed in prison? How many non-gun crimes take place in prison?

I have no idea, nor really care.........how many crimes committed within prison affect public safety in a negative way?

[Rue]

Web you are not right or wrong. The concept of "inherently exploitative" though is not truly a legal concept, its a moral or political one and so its up to society through its elected legislators to decide whether it is or is not and wants to either regulate or prohibit it. There is a public exercise through the drating of legislation to enunciate the public or moral values of the day. That pretty much is how criminal laws come about.

Some argue of course that sex for money is exploitative if the prostitute is not doing what they do out of free will.Is it free will or as a result of economic conditions, psychological conditions, drug addiction? That's the kind of debate we get into. I think certain high class escorts do what they do out of free will, they want the money, but then other prostitutes are drug addicts or mentally ill or have some other chain of events that compels them into prostitution and so it would not be free will and therefore exploitative. Certainly run away children taken in by pimps, child prostitution, the trade of illegal immigrants and forcing them into prostitutes is exploitative.

I say that because defining prostitution as legal or illegal either way is not a constitutional issue. Maybe the amount of sentence would be if its not enunciated clearly.

Technically any jail sentence could trigger the Charter of Rights being used to claim the sentence is cruel and unusual if the length of sense does not have some reasonable connection to the type of crime and extent and nature of the crime. However the time to determine that is once the sentence is handed out, not before, at least usually until now.

The bizarre thing as I said is that there was a summary procedure for the exact scenario the Chief Justice used as a pretense to strike out the entire law. What is more confusing is the court could have waited until they felt there was too harsh a sentence and lowered the sentence or asked for a rewrite not an entire throwing out of the legislation.

By doing what she did the Chief Justice has crossed a line not done in Canada which is to reject the intent of elected legislators. Her job is to stay neutral and get involved if procedures are violated in the administration of justice. Its up to voters to decide whether they like or dislike a law or feel it should be reformed because its too harsh for example.

I am not sure where the Supreme Court was headed on this one. I personally suspect its pay back from the Chief Justice for feeling insulted by Harper on a previous unrelated matter and that is too bad, because even if Harper was wrong on comments he made, the Chief Justice has to remain neutral and above such things.

I don't think she is acting in a politically detached matter on this one but that is my personal opinion only.

I also personally believe use of a dangerous weapon should aggravate the crime, i.e., we require it be defined as more serious than if a weapon was not used.

That is a concept used in many criminal codes around the world in democratic nations and not just Canada.

I also respect the political not legal opinion of those who do not agree with the aggravated concept of crime and harsher sentences.

Its a debate. Ultimately we elect legislators to express our positions. Convicts when convicted have stated in their personal opinion concepts of aggravated crime, i.e., harsher sentencing for the way a crime is carried out, i.e., with excess violence or certain weapons, does make them think twice. So for example its a reason a lot of gangs stick to certain weapons and not cop killer bullets or certain automatic long guns but its a complex issue for sure.

The aggravated sentencing for using specific weapons came in as a way to curb street gangs and does work in their choice of weapons according to them.

I defer to police who asked for this aggravated sentencing as they believe it helps discourage use of certain weapons. Any help they can get why not. We are not talking about the right to have a weapon. We are talking about not having the right to use guns in criminal acts.

Edited April 20, 2015 by Rue

[GostHacked]

I have no idea, nor really care.........how many crimes committed within prison affect public safety in a negative way?

Do you know how gangs work?

[PIK]

And another shoot out in TO on the weekend.

[PIK]

Bev needs to step down.

[webc5]

The point being if the person it under his or her free will; is allowed to establish a business and is allowed to advertise that you are available for the service. How can you target the person who receives those services and than pays for those services being a criminal? Point being you should have to reach a threshold of hurt before the government can throw you in jail it's not enough to say sex work is "inherently exploitative" because it's not. I fail to see the legality of criminality for the person who purchase those services from someone who is under his or her own free will.

[Argus]

Like China maybe, how about N. Korea. Oh yeah and there is also the US.

And United Kingdom...

[ToadBrother]

By doing what she did the Chief Justice has crossed a line not done in Canada which is to reject the intent of elected legislators. Her job is to stay neutral and get involved if procedures are violated in the administration of justice. Its up to voters to decide whether they like or dislike a law or feel it should be reformed because its too harsh for example.

You actually don't understand what a constitutional court does, do you? Whether you agree with this ruling or not, the intent of the Supreme Court in its rule as final arbiter on the constitutionality of any legislation is to test the legislation against the legislation against its interpretation of the Constitution. The Constitution has supremacy even over elected legislators.

[TimG]

to test the legislation against the legislation against its interpretation of the Constitution.

The problems are the court's interpretations stray frequently into the political realm which should be left to the legislature. Expansive and overreaching interpretations of the constitution subvert the court's intended purpose and turn it into an unaccountable political actor. Edited April 20, 2015 by TimG

[guyser]

Such as.............?

[On Guard for Thee]

Such as.............?

Yeah, I wanna hear the answer to that one too.

[Argus]

Such as.............?

Including gays under the marriage act wold be one. Assisted suicide another. The Nadon decision seemed very political, and this one has no logic behind it.

[ToadBrother]

The problems are the court's interpretations stray frequently into the political realm which should be left to the legislature. Expansive and overreaching interpretations of the constitution subvert the court's intended purpose and turn it into an unaccountable political actor.

I don't believe in the notion of "activist" courts. There is nothing in the constitution that says "courts must limit themselves." A decision may be right, it may be wrong, but the Supreme Court is charged as the SOLE body that can interpret the constitution.

[Big Guy]

I believe that just passing new legislation does not allow any bill to pass. This government has a majority and the control that Harper has over the members of his caucus is extraordinary. Harper could pass a bill which dissolves the Supreme Court. The Supreme Court would rule it unconstitutional and the military might have to decide who is correct.

The government can change the wording of any bill and pass it but if the spirit and intent of that legislation goes against our Constitution as interpreted by the Supreme Court then it will never become a law of the land.

Edited April 20, 2015 by Big Guy

[TimG]

I don't believe in the notion of "activist" courts.

Well, you would be departing from how legal scholars look at the issue and recognize different philosophical approaches to interpreting the constitution. for example: http://en.wikipedia.org/wiki/Originalism

IOW, different judges will come up with interpretations of the constitution based on their ideology. if one believes that judges should be conservative when it comes to extending interpretations then judges that do so with reckless abandon are "activist" judges that are intruding into domains that should be left to the elected legislature. This is a valid viewpoint from a legal and constitutional perspective.

Edited April 20, 2015 by TimG

[Big Guy]

I suggest that a judge is considered "activist" and following their particular ideology when you disagree with the decisions.

There is a reason why Justice is depicted as blindfolded. A Supreme Court judge is appointed with the assumption that they are as neutral as possible and allow the participating lawyers to present their arguments (with precedents) to present their best case. It is also expected that they will make a decision based on the validity of the best arguments.

You will believe that they are neutral when their decisions support YOUR ideology but biased and "active" when you disagree with their decision.

[TimG]

There is a reason why Justice is depicted as blindfolded. A Supreme Court judge is appointed with the assumption that they are as neutral as possible and allow the participating lawyers to present their arguments (with precedents) to present their best case. It is also expected that they will make a decision based on the validity of the best arguments.

Except there is no reality where that actually happens. Some judges are so ideological (e.g. Abella) that their votes can be predicted based on the subject of the case. The merits of the legal arguments are quite irrelevant.

[ToadBrother]

Well, you would be departing from how legal scholars look at the issue and recognize different philosophical approaches to interpreting the constitution. for example: http://en.wikipedia.org/wiki/Originalism

IOW, different judges will come up with interpretations of the constitution based on their ideology. if one believes that judges should be conservative when it comes to extending interpretations then judges that do so with reckless abandon are "activist" judges that are intruding into domains that should be left to the elected legislature. This is a valid viewpoint from a legal and constitutional perspective.

The problem with your view is that ""domains that should be left to elected legislatures" usually ends up being so incredibly subjective as to be a useless standard. What would constitute laws that the courts should always defer to Parliament on versus laws that courts should feel entitled to challenge Parliament on?

I will repeat that the Constitution grants the Supreme Court the sole right to interpret the constitution. That's not to say that the Court won't muck things up, but bad judgments are not activist judgments, and the idea that there is some special class of legislation that the Supreme Court should never ever ever review is to basically say the Supreme Court should not be a court of constitutional review at all.

[On Guard for Thee]

The problems are the court's interpretations stray frequently into the political realm which should be left to the legislature. Expansive and overreaching interpretations of the constitution subvert the court's intended purpose and turn it into an unaccountable political actor.

Once again you seem to have it backwards. Harper keeps on crafting legislation which is designed to cater to his base, and in doing so it runs roughshod over the constitution or charter. the courts duty is to correct that. The justices of course are people and as such they can make errors, but they dont have to worry about pleasing this or that voter, which is why they are essential as watchdogs.

[guyser]

Including gays under the marriage act wold be one.

I have no idea what you mean here.

The COnstitution says Marriage is a Federal right. The SCC was asked and agreed.

So thats a No as respects the intent of the other poster to invoke straying into the political realm .

Assisted suicide another.

In so far as changing their minds 23 years later?

Would it not be fair to say the political realm/ politicians itself had changed their minds?

The Nadon decision seemed very political,

It clearly states he had to be a member of something and he wasnt.

He failed three out of three requirements to be nominated.

No one has said he wasnt knowledgable to be one, no one says his resume over the years was lacking, it said that he had to be 3 of 3 on specific points and he wasnt .

[guyser]

Except there is no reality where that actually happens. Some judges are so ideological (e.g. Abella) that their votes can be predicted based on the subject of the case. The merits of the legal arguments are quite irrelevant.

Such as...........?

[TimG]

Such as...........?

Abella voted against the gun registry case despite the extremely clear legal basis for the government's argument. A classic example of ideology trumping common sense.

[guyser]

Abella voted against the gun registry case despite the extremely clear legal basis for the government's argument. A classic example of ideology trumping common sense.

Such as....The SCC...not individual Judges, there are many of them for a reason

[TimG]

The problem with your view is that ""domains that should be left to elected legislatures" usually ends up being so incredibly subjective as to be a useless standard.

Get over it. No matter how you cut it SCC rulings are based on extremely subjective standards set by the ideologies of the judges. Your belief that there is anything objective about the process is simply not supported by the evidence.

I will repeat that the Constitution grants the Supreme Court the sole right to interpret the constitution.

So? I am saying the SCC is a biased body that should be err on the side of leaving it up to the elected officials unless an issue is an unambiguous violation of the constitution. If judges choose to over turn laws when the constitutional issues are ambiguous then they are being activist.

[TimG]

Such as....The SCC...not individual Judges, there are many of them for a reason

If one judge has an obvious bias then all judges likely have a bias. There is also no reason to assume the biases will cancel each other out.