Canada Supreme Court Rules Against Harper Again

[guyser]

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.

Ok thanks Tim

Didnt think you could come up with examples so thanks for confirming what I knew.

In the future please refer to it as SCCRTALB *

*Supreme Court Canada That Are Liberal Bias

[ToadBrother]

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.

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.

Ah, I see, so you think the court should just sit on its hands if, in you're largely subjective view, the constitutional issues are ambiguous.

If the US Bill of Rights is any example, there are darned few civil liberties cases that hit the high courts that don't have a measure of ambiguity. If they didn't, it's unlikely they would ever reach that point.

The Constitution Act, 1982, and really, the weight of constitutional jurisprudence dating back decades, set the Supreme Court as the adjudicator of constitutional issues. It's not limited to "unambiguous" constitutional challenges, and thank goodness for that.

I get it, the Court has made judgments you don't like. Heck, the court has made judgments I don't like. But it's job, and indeed the job of pretty much ever court with the final say on constitutional matters anywhere in the world, is to review legislation brought before it. Trying to claim only unambiguous cases should be reviewed is not only absurd, but frankly demonstrates a rather bizarre view of how a constitutional court functions.

[TimG]

Ah, I see, so you think the court should just sit on its hands if, in you're largely subjective view, the constitutional issues are ambiguous.

How is that any different from your subjective view that the court should impose its interpretation on the elected legislature whenever they have an opportunity to do so? The SCC is subjective. Objectivity does not exist no matter how much you wish to believe it does. Given that reality the court should err on side of letting the elected representatives decide because normal laws can be reversed by the next government. Court mandated interpretations are near impossible to overturn.

IOW - even if the SCC created laws that I supported I would still oppose activism because I don't like laws that cannot be overturned by the next democratically elected government.

I get it, the Court has made judgments you don't like. Heck, the court has made judgments I don't like. But it's job, and indeed the job of pretty much ever court with the final say on constitutional matters anywhere in the world, is to review legislation brought before it.

This is a strawman. The SCC has its place. The trouble is it does not always stay within the bounds of where it should operate. Just because it can create new laws does not mean it should. There are many rulings where the SCC decided exactly that way (i.e. it is up to the legislature to decide). Their should be more rulings like that. Edited April 20, 2015 by TimG

[guyser]

IOW - even if the SCC created laws that I supported

They dont create

Just because it can create new laws does not mean it should.

Rinse and repeat.

I think thats your problem. The SCC does not create laws, but has laws brought to them for review.

[guyser]

The SCC woke up one day and said......" Eveybody gets Thursday off"


Woot !

Oh they dont create laws.....?....... :angry:

[TimG]

I think thats your problem. The SCC does not create laws, but has laws brought to them for review.

Irrelevant semantics. Creating new constitutional rules is the same as creating laws. The difference is the constitutional rules are decided by nine unaccountable individuals and cannot be changed by future governments (given the fact that constitutional change is next to impossible in this country). Edited April 20, 2015 by TimG

[guyser]

Irrelevant semantics. Creating new constitutional rules is the same as creating laws. The difference is the constitutional rules are decided by nine unaccountable individuals and cannot be changed by future governments.

Again, there is your problem.

When you understand this come on back and say so.

As it stands now, your argument is useless.

[Keepitsimple]

Again, there is your problem.

When you understand this come on back and say so.

As it stands now, your argument is useless.

Tim's argument makes perfect sense to me.

[Argus]

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.

And absolute power corrupts absolutely.

[On Guard for Thee]

And absolute power corrupts absolutely.

What is corrupt is attempting to subvert the charter to appeal to voter base.

[ToadBrother]

How is that any different from your subjective view that the court should impose its interpretation on the elected legislature whenever they have an opportunity to do so? The SCC is subjective. Objectivity does not exist no matter how much you wish to believe it does. Given that reality the court should err on side of letting the elected representatives decide because normal laws can be reversed by the next government. Court mandated interpretations are near impossible to overturn.

IOW - even if the SCC created laws that I supported I would still oppose activism because I don't like laws that cannot be overturned by the next democratically elected government.

This is a strawman. The SCC has its place. The trouble is it does not always stay within the bounds of where it should operate. Just because it can create new laws does not mean it should. There are many rulings where the SCC decided exactly that way (i.e. it is up to the legislature to decide). Their should be more rulings like that.

You have yet to provide even a vaguely rational definition of what laws the Supreme Court shouldn't intrude on. The best you've have come up with is only to review unambiguous cases, which not even you seem to want to defend.

Let's face it, you have no real standard for what the high court should or should not review. You don't even really have an objective definition of "activist".

The court is using the powers conferred upon it by the Constitution Act, 1982, and in fact by decades of previous Parliamentary acknowledgment of the notion of the Supreme Court's role as an interpreter of the constitution. This is hardly a perfect system, but it is the system we have. We decided 33 years ago that while democracy is a noble thing, unrestrained democracy is not, and that a high court with the ability to strike down legislative overreach is as important as democracy, and indeed absolutely key to preserving democracy.

The government has Section 33 if it wants, but it is becoming very clear that Section 33 carries such significant political penalties that it's likelihood of ever being used, even when it offends YOUR sensibilities, that it will become little more than a constitutional oddity.

And really, the US has worked with a Bill of Rights and a Supreme Court with pretty much unlimited judicial oversight powers for two and a quarter centuries without that country turning into some sort of pawn of the SCOTUS justices, so all these dire warnings of the end of Canadian democracy are hyperbolic to the point of idiocy.

Edited April 21, 2015 by ToadBrother

[Argus]

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.

In fact, all the Quebec judges sided with Quebec. No surprise there.

[Argus]

What is corrupt is attempting to subvert the charter to appeal to voter base.

Wheras subverting the charter because of your own personal ideological views is okay...

[ToadBrother]

Wheras subverting the charter because of your own personal ideological views is okay...

By definition, the Supreme Court cannot subvert any part of the Constitution, since it is the interpreter of the Constitution.

The remedies to rulings you don't like are:

1. Invoke Section 33 - A partial solution to those Charter sections identified as being overridden. Of course, it has become very clear over the last three decades that there are likely to be significant political costs.

2. Take it back to the Supreme Court for review. Strangely enough, the Supreme Court does on occasion actually review prior Court's rulings.

3. Amend the Constitution - If it is egregious a violation of the Charter, then surely a government will be able to easily find widespread support to alter or clarify the Charter.

4. Accept that some legislation is going to get turfed because it breaches the Court's interpretation of the Charter, so fashion better legislation.

[On Guard for Thee]

Wheras subverting the charter because of your own personal ideological views is okay...

And now,with your scholarly legal knowledge, would you please inform us in which way they subverted the charter. We wait with baited breath...

[Rue]

Toad your second response to me is illogical. First off you state something that you suggested I argued against which I did not.

You clearly do not understand the role of the Supreme Court of Canada. To start with there is no such thing as a constitutional court. All courts were created by the constitution not just the Supreme Court of Canada and there is no court that simply handles constitutional legal issues.

You created that name for the Supreme Court and its silly.

The Supreme Court of Canada has among its many legal functions the duty where and only where necessary to hear Charter of Rights arguments.

It also yes may consider whether a law contradicts the Charter of Rights. No one said otherwise. Not me, not anyone else.

We have never argued the Supreme Court of Canada does not have the jurisdiction to consider what it did.

What we have argued and you do not understand is that in this case the law the Supreme Court pronounced as unconstitutional because it was "cruel and inhumane" was in our opinion bad law in that it questioned the intent of the legislator.

The intent of the legislator to decide how long a sentence should be is NOT and has never been unconstitutional. That is its precise mandate.

The Supreme Court of Canada does not in this case question its right to establish a sentence-it questioned the AMOUNT or LENGTH of sentence.

Can you go back and read the decision please. You have gone off on a tangent and missed the legal issue actually being disputed.

The Court found the LENGTH of the sentence cruel and inhumane NOT the right to define the length of sentence.

However in so doing it made the mistake of mixing the two with imprecise language and in fact had to create legal fiction to justify its finding.

In Canadian law, using hypotheticals, or legal fiction is usually not done unless its based on something that actually has happened with a law that actually exists.

To go as far as this court did in creating a legal fiction and one that made an erroneous assumption the crown would not pursue a summary procedure for the hypothetical posed is the problematic issue and it can't stand as good law because all the legislator has to do is rewrite the law now to address the hypothetical.

From the sounds of it you believe the Supreme Court has an unlimited right to interpret the Charter any way it wants and legislators must conform.

Actually that is patently false. The elected assembly not the judiciary has the final say and if the Supreme Court wants to battle the intent of voters using the approach the Chief Justice did, it would eventually create a constitutional crisis because the Judiciary in Canada also has limits and a new law could be passed restating how far it could go in interpreting the Charter and in theory even get rid of the Charter.

[On Guard for Thee]

The SC does have the right, and the obligation to interpret the Charter when a case regarding same reaches them. It can be limited by the notwithstanding clause. And no, the elected assembly cannot get rid of the Charter. In this case, as has already been pointed out, the court ruled the law was too broad basically, and could end up allowing a prosecutor to apply an indictment where is wasnt warranted.

[Keepitsimple]

The SC does have the right, and the obligation to interpret the Charter when a case regarding same reaches them. It can be limited by the notwithstanding clause. And no, the elected assembly cannot get rid of the Charter. In this case, as has already been pointed out, the court ruled the law was too broad basically, and could end up allowing a prosecutor to apply an indictment where is wasnt warranted.

In which case, THAT case could have been appealed - if in fact it was ever to occur. An appeal possibility is one of the elements that factors into prosecutorial discretion and plea-bargaining and as the last 20 years have shown, no such hypothetical cases have resulted in indictments. There is a reason why three SCC judges came out so strongly against the ruling. There is a reason who Rosie DiManno's column also takes them to task. And beyond the schoolyard cheering of another perceived Harper wrist-slap, there's a reason why many including those SCC judges - are uncomfortable with the rationale behind the ruling.

[On Guard for Thee]

In which case, THAT case could have been appealed - if in fact it was ever to occur. An appeal possibility is one of the elements that factors into prosecutorial discretion and plea-bargaining and as the last 20 years have shown, no such hypothetical cases have resulted in indictments. There is a reason why three SCC judges came out so strongly against the ruling. There is a reason who Rosie DiManno's column also takes them to task. And beyond the schoolyard cheering of another perceived Harper wrist-slap, there's a reason why many including those SCC judges - are uncomfortable with the rationale behind the ruling.

And there is a reason why 6 agreed with the ruling and no amount of schoolyard Harper cheerleading will change that. They will simply have to go and rewrite the legislation and try again.

[TimG]

Let's face it, you have no real standard for what the high court should or should not review. You don't even really have an objective definition of "activist".

And you don't have any objective standard for what you think the SCC should do. Basically, your standard is "whatever the judges feel like" and that is a lot less objective than my standard which is "err on the side of leaving it to elected officials".

This is the core of the argument. You seem to be unable to acknowledge that there is no absolute truth when it comes to constitution and almost every ruling is subjective reflection of the ideology of the judges on the court. In the US they are up front when it comes to these biases and the players constantly jocky to get judges with ideologies that they approve on the court. In Canada many people have this delusional conceit that the judges are impartial. They aren't.

Edited April 21, 2015 by TimG

[cybercoma]

There is an objective standard. It's called the Charter of Rights and Freedoms, as well as past judicial decisions. They're not free to just make up stuff on the spot.

[guyser]

Tim's argument makes perfect sense to me.

Ok, chalk it up to two people not knowing the SCC does NOT make laws .

Funny thing is, this very site contains info that agrees with this....namely....

The courts are the interpreters and arbitrators of Canadian law. The courts do not actually make law; that is, they do not have the power to pass legislation. The legislative branch of government (that is, the federal Parliament and provincial/territorial legislatures) performs this function. Nor do the courts have the power to enforce laws. The executive branch of government, with its bureaucracies and police forces, performs the role of enforcement. Rather, the courts’ role is to interpret the laws passed by the legislature, arbitrate disputes between parties over the application of law, and direct the executive on the proper enforcement of the law.

http://mapleleafweb.com/features/supreme-court-canada-role-history-and-operation#supreme

I do hope this clears things up.

Edited April 21, 2015 by Guyser2

[cybercoma]

I do hope this clears things up.

It won't. We're talking about a radical skeptic who denies the validity of anything that doesn't conform to his beliefs.

[TimG]

There is an objective standard. It's called the Charter of Rights and Freedoms, as well as past judicial decisions. They're not free to just make up stuff on the spot.

Sure they are. How else could a panel of judges infer a "right to death" from a "right to life". Or a "right to strike" from "freedom of association"? By making interpretations of the constitution the SCC does create brand new rights from nothing. Edited April 21, 2015 by TimG

[guyser]

Well that didnt take long.