Canada Supreme Court Rules Against Harper Again

[cybercoma]

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.

The Supreme Court never created brand new rights for anything. They've been written into the Charter from day 1. I'm sorry that you don't get that. Now if you want to suggest that you're more qualified to interpret the law than judges who've spent their entire lives studying, interpreting, and arbitrating these laws, then just come right out and say that so we can all have a good laugh.

[TimG]

I do hope this clears things up.

Semantic drivel. Take the recent ruling on the "right to strike" for government employees. Some people claim the right to collective action is a form of free speech but it is more than that. Collective bargaining requires a complex set of laws that take away the employers right to free association (i.e. they have to deal with the union). By creating the "right to strike" from nothing the SCC is now forcing laws on the population that restrict its rights because the court decided that collective rights are more important than individual rights. You can argue that there are not technically laws but they have the same effect which means I simple don't care about your silly semantic gyrations. Edited April 21, 2015 by TimG

[TimG]

The Supreme Court never created brand new rights for anything.

There is nothing in the charter about the "right to strike". To claim it was there from "day 1" is dishonest.

I also used to respect the expertise of the judges but over the last 10-15 years I have seen decision after decision which is ideologically driven garbage with little or no connection to common sense or a fair reading of the law. The fact that you like the rulings does not make them reasonable.

Edited April 21, 2015 by TimG

[guyser]

Semantic drivel.

LOL. Nice try.

You can argue that there are not technically laws but they have the same effect which means I simple don't care about your silly semantic gyrations.

You can argue all you want about semantics, its a totally losing position that is not backed up by any form of evidence, would certainly be laughed at in a room full of lawyers and legal scholars.

And it is laughed at here.

Knock yourself out looking all pissy becuase the court doesnt agree with your inane arguments about what it does.

Geez....now that should solve the probelm. I doubt it.

[ToadBrother]

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.

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.

Of course there is no "absolute truth", which is why you have a court to begin with. You have to have some agency independent of the other branches which can assert the power to interpret the constitution.

The Supreme Court will inevitably get things wrong. They are not gods. And of course they have biases, though I assert that in both the US and Canada, legal biases are different in critical respects from political biases.

At the end of the day, if the decisions are as egregious as you claim, then there are remedies, though those remedies have political consequences, as it should be.

You and the other critics have offered no remedy, other than vague claims that courts shouldn't hypothesize, or shouldn't second guess legislators, or there is some special ill-defined class of legislation that the courts should leave intact. These are so subjective as to be worthless.

Collision between the legislative and judicial branches has been as common in our system as collisions between the executive and the legislative. Even in the UK, where true Parliamentary supremacy still exists, and all courts are effectively creatures of legislation, such collisions occur. Of course the UK has more direct remedies, since their Parliament enjoys theoretically unlimited powers to alter statute, and even the powers of the courts themselves. But Canada is not built that way, and never really was (the Imperial Privy Council functioned as a constitutional court until those powers were devolved to the Supreme Court of Canada).

The Supreme Court has the final power to interpret the Constitution, and that is that.

[ToadBrother]

There is nothing in the charter about the "right to strike". To claim it was there from "day 1" is dishonest.

I also used to respect the expertise of the judges but over the last 10-15 years I have seen decision after decision which is ideologically driven garbage with little or no connection to common sense or a fair reading of the law. The fact that you like the rulings does not make them reasonable.

Constitutional literalism is as absurd as Biblical literalism.

[guyser]

Take the recent ruling on the "right to strike" for government employees

Post up the link to the decision then.

[cybercoma]

There is nothing in the charter about the "right to strike". To claim it was there from "day 1" is dishonest.

I also used to respect the expertise of the judges but over the last 10-15 years I have seen decision after decision which is ideologically driven garbage with little or no connection to common sense or a fair reading of the law. The fact that you like the rulings does not make them reasonable.

Look, Tim. It's only dishonest and difficult to understand if you're completely unwilling, let's hope not uncapable, of trying to understand their point. There's no honest discussion to be had if you're not even remotely concerned with actually trying to see why the court would rule in those ways and what those decisions actually said. You just see something that offends your hyper-partisan sensibilities and are denouncing the court out of hand because you would rather people not be able to have the ability to negotiate their work contracts nor have control over what their bodies are used for. If you would actually take the time to understand the judicial reasoning and put forward an argument that shows a reasonable understanding of the rule of law, the judiciary, and judicial responsibility, then perhaps a conversation can be moved forward. As it stands, however, you're more interested in denouncing anything that doesn't fit into your hyper-partisan worldview.

[cybercoma]

The Supreme Court has the final power to interpret the Constitution, and that is that.

And parliament then has the final power to overturn judicial decisions with the notwithstanding clause or by amending the charter.

[TimG]

The Supreme Court will inevitably get things wrong. They are not gods. And of course they have biases, though I assert that in both the US and Canada, legal biases are different in critical respects from political biases.

The only way judges are different from politicians is they are free to always make their decisions based on their biases, however, politicians are frequently required to compromise their principles and go against their biases.

At the end of the day, if the decisions are as egregious as you claim, then there are remedies, though those remedies have political consequences, as it should be.

Rulings that can be overturned with the notwithstanding clause are less of a concern. Eventually, the weight of endless rights being awarded will force governments to start using the clause with more frequency and they will find political support for using it. The bigger issues are the rulings that cannot be overturned with the notwithstanding clause (anything related to native rights).

[guyser]

The only way judges are different from politicians is ....

that they have legal qualifications that far exceed any popliticians.

They know more about laws, they know more about how the legal systems came about, legal precedent and responsibilities .

Politicians ? Not so much . No wonder they butcher making laws at times.

And politicians? Sometime they dont take the legal advice given and then claim the Justice of the SCC is wrong.

How about that huh?

[ToadBrother]

The only way judges are different from politicians is they are free to always make their decisions based on their biases, however, politicians are frequently required to compromise their principles and go against their biases.

Rulings that can be overturned with the notwithstanding clause are less of a concern. Eventually, the weight of endless rights being awarded will force governments to start using the clause with more frequency and they will find political support for using it. The bigger issues are the rulings that cannot be overturned with the notwithstanding clause (anything related to native rights).

Future Section 33 invocations will be as rare as Yeti sightings. This is nothing more than an empty threat.

[ToadBrother]

And parliament then has the final power to overturn judicial decisions with the notwithstanding clause or by amending the charter.

Only on some sections in the Charter (not all of them), and not in any other part of the Constitution.

[eyeball]

Eventually, the weight of endless rights being awarded will force governments to start using the clause with more frequency and they will find political support for using it.

No doubt some people will be just begging for less freedoms, especially other people's.

[Argus]

that they have legal qualifications that far exceed any popliticians.

Really? Let's not forget that 'legal qualification' has never been at the top of the list for an appointment to the SC.

The greatest legal mind in the country won't even be considered if he's from the wrong province when the appointment is being made, or if his ideological thinking is the opposite of the party in power. That government might and often will reach past him for someone with a given ethnicity or gender to give it good press. You can call Rosalie Abella a lot of things, but "great legal mind' is not among them. She was appointed because she was a gay activist. Period.

[ToadBrother]

Really? Let's not forget that 'legal qualification' has never been at the top of the list for an appointment to the SC.

The greatest legal mind in the country won't even be considered if he's from the wrong province when the appointment is being made, or if his ideological thinking is the opposite of the party in power. That government might and often will reach past him for someone with a given ethnicity or gender to give it good press. You can call Rosalie Abella a lot of things, but "great legal mind' is not among them. She was appointed because she was a gay activist. Period.

That really doesn't disprove the fundamental point that, in general, even politicians who are lawyers don't have the experience of your average justice on the Supreme Court.

But really, what is the point of this conversation? The Prime Minister appoints justices, and if substandard justices end up on the Supreme Court, then that is fundamentally the Prime Minister's fault. Since the current Supreme Court is very heavy with Stephen Harper's appointments, if they are as universally horrible as you claim, then Stephen Harper must accept the blame for that.

Of course, you are invoking considerable hyperbole here.

[guyser]

Argus,all that may have some truth to it, afterall a lot of it is who politics better, who gets in the face of the deciders better. That happens all the time. The best PM we never had is out there dead or alive, meaning someoen who would / is the best doesnt want it.

But the fact remains, whether you are right or wrong, those who sit on the Bench are far better at law than the politicians are .

[PIK]

Better at getting around it.

[On Guard for Thee]

Better at getting around it.

Nope. They just correct the politicians from tainting it, either through ignorance or partisanship.

[PIK]

In todays national post a interesting story on how the courts lowered the sentence on a non Canadian criminal, so he would not be sent back home under the new laws on non Canadian criminals. IMO This is going to far and heads need to roll. That sends quite a message. The courts will protect you, so keep on stealing.

Edited May 20, 2015 by PIK

[cybercoma]

In todays national post a interesting story on how the courts lowered the sentence on a non Canadian criminal, so he would not be sent back home under the new laws on non Canadian criminals. IMO This is going to far and heads need to roll. That sends quite a message. The courts will protect you, so keep on stealing.

Case name? Link to the court ruling? Link to the news article even?

[jacee]

Really? Let's not forget that 'legal qualification' has never been at the top of the list for an appointment to the SC.

The greatest legal mind in the country won't even be considered if he's from the wrong province when the appointment is being made, or if his ideological thinking is the opposite of the party in power. That government might and often will reach past him for someone with a given ethnicity or gender to give it good press. You can call Rosalie Abella a lot of things, but "great legal mind' is not among them. She was appointed because she was a gay activist. Period.

Really?

She looks pretty qualified to me.

http://jwa.org/encyclopedia/article/abella-rosalie-silberman

.

[poochy]

http://news.nationalpost.com/news/canada/bank-robbers-jail-term-slashed-by-ontario-court-so-he-would-avoid-deportation-to-syria took all of 30 seconds to find

[On Guard for Thee]

I suspect we best get used to SC smack downs of Harper's attempts to pass laws which are unconstitutional. He just doesn't seem to ever get it. C 51 and C 59 will surely be among the next big headlines.

[eyeball]

In todays national post a interesting story on how the courts lowered the sentence on a non Canadian criminal, so he would not be sent back home under the new laws on non Canadian criminals. IMO This is going to far and heads need to roll. That sends quite a message. The courts will protect you, so keep on stealing.

Relax, this case simply reaffirms the message that succeeding at your effort to turn your life around will be recognized with another chance. Nobody's head needs to roll at all.