Canada Supreme Court Rules Against Harper Again

[guyser]

Laugh guyser we will see has the last laugh. I like many don't like the SC making ALL the rules in this country, why even have a government.

See....since the SC doesnt make ALL the rules, it must be you are hearing things in your head.......again.

[Rue]

First off, if the elected legislature wants to draft criminal law with larger minimum sentences for specific crimes it still can. Read the ruling carefully it did not rule that out. It was the method and wording used to define minimum sentence, that came into question not the right to increase sentences for specific crimes.

One of the reasons our criminal sentencing and terms of conviction seem too lenient is because we release convicts early because we have insufficient jails to house them and so convicts are necessarily released earl

So who pays to build the jails? If Harper was honest, he would explain if we want keep people in jail longer, we will need more jails and prison giards and that means large tax increases taxes to pay for that.

However the same audience he plays too for longer jail sentences he also plays to as not increasing taxes. That is the game.

So the question remains are the people who want longer sentences willing to pay more taxes to build more prisons, yes or no?

That is the question because until we answer that, its trendy and popular to say extend the sentence, the question still remains and where do you put the person whose sentence is extended?

As it is 95% of criminal charges are plea bargained and never see court because the criminal legal system as back logged past the point of anarchy and a lot of that comes from the Charter of Rights being used in criminal proceedings for legal issues its drafters never envisioned it being used for.

Edited April 14, 2015 by Rue

[On Guard for Thee]

Hey Rue, better do some fact checking, Harper has already spent hundreds of millions on prison construction and expansion and driven up the cost of operating the something like 86%. What better way to keep that system going than mandatory minimums. Next thing you know he will contract it out and we will be in full American style decline. The fact the actual crime rates have been dropping here for decades be damned!

[GostHacked]

I don't understand when you mean by not getting the message. Parliament does its job, and the SC does theirs.

IF the Parliament did their job, there would be no reason to even need a SCC.

[Shady]

IF the Parliament did their job, there would be no reason to even need a SCC.

Utter nonsense. Giving one body of government the power to write law and deem it automatically constitutional is a recipe for tyranny. One again you don't know what you're talking about. There's a separation of power for a reason.

[GostHacked]

Utter nonsense. Giving one body of government the power to write law and deem it automatically constitutional is a recipe for tyranny. One again you don't know what you're talking about. There's a separation of power for a reason.

I am making the argument that if the Parliament had the best interests of Canadians in mind when writing law, we would not need an SCC. I understand the need for it, because not every one who is in government is on the up and up, including many PMs and party leaders.

[ToadBrother]

As it is 95% of criminal charges are plea bargained and never see court because the criminal legal system as back logged past the point of anarchy and a lot of that comes from the Charter of Rights being used in criminal proceedings for legal issues its drafters never envisioned it being used for.

Even a plea bargain requires judicial oversight, as the accused is going to have to show up in a court room and plead guilty. It's rare but not unheard of that a judge will reject the plea agreement.

http://www.thespec.com/news-story/5556547-angry-judge-rejects-wholly-inadequate-guilty-plea-deal-in-fatal-crash/

[Shady]

I am making the argument that if the Parliament had the best interests of Canadians in mind when writing law, we would not need an SCC. I understand the need for it, because not every one who is in government is on the up and up, including many PMs and party leaders.

That's just not true. People can have "the best interest" of Canadians and still write legislation that should be constitutionally evaluated by an independent body. You're actually arguing this? Ridiculous.

[Big Guy]

Past governments have run a "constitutional test" on any legislation which they might be tabling before presenting it to parliament. That could come in the form of an constitutional expert independent legal opinion to actually speaking to some members of the Supreme Court. That process would not waste precious court time and not waste legislative time on bills that could not be facilitated because they went against the Constitution.

It appears that this Harper government chooses to use the Supreme Court as a fund raiser fro their core constituents. They know these bills will not pass but process them anyway so they can ask for more money and re election to fight these "active courts". Since Harper appointed 6 of them that argument should not make sense but it still seems to work.

The danger with using the Supreme Court for political gain is that the court may lose a little credibility with each anti-government decision. That is not good for Canada. The Supreme Court will still be around as our major last resort well after Harper and his government is gone.

[ToadBrother]

That's just not true. People can have "the best interest" of Canadians and still write legislation that should be constitutionally evaluated by an independent body. You're actually arguing this? Ridiculous.

The single most important reason to have an independent and ENTRENCHED high court is that it serves as one of the cornerstones of the separation of powers. In the traditional Westminster system the high court is still a creature created by legislation, and thus (at least theoretically) could have its role altered or limited by Parliament. In other words, in the classic "Bagehotian" constitution, separation of powers exists, but the boundaries and extent of the powers of the Executive and the Judicial branches are fully alterable by the Legislative branch. This is true because in the classic Westminster constitution Parliamentary supremacy is absolute, and even binding treaties still have enabling legislation which can be repealed by Parliament.

Parliament in such a country (I think only the UK and New Zealand have Parliaments that enjoy absolute constitutional supremacy) is still bound by political realities, so that while it is theoretically possible that the UK Parliament could simply legislate away any ruling it didn't like, for the most part Westminster for centuries has respected the independence of the courts. The Common Law in large part exists precisely because, even after 1689, Parliament saw that the good governance of the realm required empowered courts.

The situation is entirely different in Canada, however. Not only has Parliamentary supremacy always been restricted, there is still the matter that Canada is a federal state. Where all the actors may legislate and regulate in good faith, there is still potential collisions that would require a constitutional court that was constitutionally-empowered to decide on the particulars of any constitutional collision. Furthermore, even where Parliament or the Provincial legislatures are legislating in good faith, there are often ways in which legislation can run afoul of the Constitution that are non-obvious. Short of Parliament sending every piece of legislation off to the courts to make sure it passes the constitutional smell test, we have to put some faith in the legislative branch that it will behave responsibly. I would also argue that reference opinions should be restricted to a rather small class of legislation where the constitutional ramifications could be rather large (ie. Senate reform), otherwise the Supreme Court would begin to resemble a sort of legislative body on its own, overreaching its judicial function and become a sort of legislature of its own.

It strikes me that in the last decade of Tory rule, the government's own opponents have reacted to the Government's own tendency for stridency and legislative hyperbole by become more strident and hyperbolic in their own way. Opponents inside and outside Parliament are more prone to see evil behind every bill, and are beginning to develop this expectation that other branches of government somehow have some overarching authority to overrule the Government. It happened a year or so ago, when native protesters began demanding meetings with the Governor General, as if he had some special constitutional authority to override the Government simply because they were unhappy. And we see it in the way that the Supreme Court has been built up into a sort of Court of Vetoes, whereby Parliament should be reduced far below its station. No one seems to fully comprehend that offices like the Governor General and Supreme Court justice are appointed, and that while those offices hold enormous powers to override Parliament and the Government, that they, like the Senate, lack the democratic legitimacy that the House of Commons and the provincial assemblies possess.

Not that I feel the Court is behaving badly or overreaching. I don't believe in the notion of judicial activism, which really amounts to "Hey, I don't like that ruling!" I think the courts, even the highest courts, are fully capable of making bad rulings. When the Supreme Court does make a bad ruling, it's much much worse than when Parliament makes a bad law. At least Parliament has little difficulty fixing or repealing crappy laws. When the Supreme Court makes a bad ruling, it is considerably more difficult to reverse. So when the opponents of any Government cheer a court's reversal of an unpopular law, and build up the court's esteem to absurdly high levels, I think they do as much damage as a Government attacking and casting dispersions upon a court that reverses their legislation.

[cybercoma]

I don't understand when you mean by not getting the message. Parliament does its job, and the SC does theirs.

Parliament is not doing their job if they can't make legislation that doesn't violate the charter of rights.

[ToadBrother]

Parliament is not doing their job if they can't make legislation that doesn't violate the charter of rights.

This presumes that the interpretation of the rights in the Charter are non-ambiguous, but surely 228 years of Bill of Rights jurisprudence south of the border suggests that there is often considerable ambiguity, particularly where freedoms collide. There are any number of ways Parliament or the Provinces could view any specific legislation with Charter implications as being Charter-safe, and then find out it was not. Not every instance of laws being tossed out by the Supreme Court involve governments intentionally creating dubious legislation. You seem to be approaching this from the point of view that if a law is struck down by the Supreme Court, those that passed the law must always have mischievous or even miscreant intentions, which as absurd position.

The only way to remedy your complaint would literally be to send every piece of legislation passed by every lawmaking body in the land to the Supreme Court to make sure it passed muster. Any but the most trivial administrative laws, bylaws, laws, orders-in-council and other statutory instruments have at least a theoretical chance of touching on the Charter.

[Keepitsimple]

The SCC Minority report says it quite well (my bold):

The case turned not on the circumstances of the men accused in the two cases – neither even argued those minimum terms were unfair to them – but on “reasonable hypothetical” cases.

......................................

The ruling revealed a deep split on the court over judicial activism and criminal procedure. In a section called “Respecting Parliament,” the minority wrote: “Gun crime is a matter of grave and growing public concern. … This is the context in which Parliament’s choice to raise the mandatory minimums … must be understood. That choice reflects valid and pressing objectives, and it is not for this court to frustrate the policy goals of our elected representatives, based on questionable assumptions or loose conjecture.”

Justice Michael Moldaver, a former Toronto defence lawyer considered the court’s leading conservative on crime, wrote for the minority, joined by Justice Marshall Rothstein and Justice Richard Wagner.

The minority also said the discretion of prosecutors saves the law from being unfair; prosecutors can choose summary proceedings, a less serious approach that carries a mandatory sentence of just one year for the same crime. The minority said no reported cases since a Liberal government first passed a somewhat softer mandatory minimum sentence for illegal gun possession in 1995 have involved situations like the hypothetical ones envisioned by the majority. It said using such a hypothetical case is not grounded in commonsense or experience.

Link: http://www.theglobeandmail.com/news/politics/supreme-court-deals-new-blow-to-mandatory-sentencing-rules/article23957270/

Edited April 14, 2015 by Keepitsimple

[Moonlight Graham]

Harper gov's tough-guy BS is getting so tiring.

[cybercoma]

This presumes that the interpretation of the rights in the Charter are non-ambiguous, but surely 228 years of Bill of Rights jurisprudence south of the border suggests that there is often considerable ambiguity, particularly where freedoms collide. There are any number of ways Parliament or the Provinces could view any specific legislation with Charter implications as being Charter-safe, and then find out it was not. Not every instance of laws being tossed out by the Supreme Court involve governments intentionally creating dubious legislation. You seem to be approaching this from the point of view that if a law is struck down by the Supreme Court, those that passed the law must always have mischievous or even miscreant intentions, which as absurd position.

The only way to remedy your complaint would literally be to send every piece of legislation passed by every lawmaking body in the land to the Supreme Court to make sure it passed muster. Any but the most trivial administrative laws, bylaws, laws, orders-in-council and other statutory instruments have at least a theoretical chance of touching on the Charter.

I'm not even remotely suggesting that no legislation should fail a charter challenge. However, when just about every piece of legislation does, there's a problem.

[ToadBrother]

I'm not even remotely suggesting that no legislation should fail a charter challenge. However, when just about every piece of legislation does, there's a problem.

Except not even the majority of the Tories' legislation has run afoul. Some big ticket items certainly have, but they make up a pretty small portion of the Tories' legislative productivity over the last nine years.

[cybercoma]

Except not even the majority of the Tories' legislation has run afoul. Some big ticket items certainly have, but they make up a pretty small portion of the Tories' legislative productivity over the last nine years.

And proportionally it's far more than any other government's legislation in the history of the SCC.

[Bryan]

I'm not even remotely suggesting that no legislation should fail a charter challenge. However, when just about every piece of legislation does, there's a problem.

The problem is the liberal charter.

[cybercoma]

The problem is the liberal charter.

I've already seen your rabid hyperbole which proffers a blatant disregard for individual rights and freedoms. Forgive me if I laugh at your dismissal of the Charter of Rights as liberal partisanship, when it was ratified by every province but Québec.

[Bryan]

I've already seen your rabid hyperbole which proffers a blatant disregard for individual rights and freedoms. Forgive me if I laugh at your dismissal of the Charter of Rights as liberal partisanship, when it was ratified by every province but Québec.

Forgive me if I laugh at all the nonsense you type on this forum. As usual, you're lying about what I did and did not say.

All provinces ratifying it doesn't make it not a liberal charter. It absolutely is by any definition.

Edited April 14, 2015 by Bryan

[Argus]

Hey Rue, better do some fact checking, Harper has already spent hundreds of millions on prison construction and expansion and driven up the cost of operating the something like 86%. What better way to keep that system going than mandatory minimums. Next thing you know he will contract it out and we will be in full American style decline. The fact the actual crime rates have been dropping here for decades be damned!

Pssst! Your paranoia is showing again!

How many Canadians do you think are as sympathetic to criminals in possession of illegal firearms as you are?

You know, I bet I don't even have to check to know that pretty much everyone here happy with this decision was ranting about the evil Conservatives removing the long gun registry since you were so concerned about violent crime. Well, here's the supreme court being kind and forgiving to violent criminals with illegal weapons and you're standing on your feet applauding enthusiastically.

[ToadBrother]

The problem is the liberal charter.

And what pray tell is wrong with a Bill of Rights?

And don't give me that "bill of responsibilities" BS. That's inherent in our system of government.

[Argus]

I am making the argument that if the Parliament had the best interests of Canadians in mind when writing law, we would not need an SCC. I understand the need for it, because not every one who is in government is on the up and up, including many PMs and party leaders.

What makes you think the supreme court has the best interests of Canadians in mind with the dumb decisions they make? So far, if you take all the Charter decisions the Supreme Court has made since the Charter was signed and rolled them together you'd be hard pressed to find much of anything that has helped Canadians as a people, but you could find dozens and dozens of decisions which helped gang members, drug dealers, rapists, murderers and foreigners at the cost of Canadians as a whole.

The increased legal costs alone come to tens of billions of dollars, most of it paid by government which has to take it from other programs like health care. So instead of better health care we employ armies of lawyers to litigate often both sides of an issue through court after court which ponders hypotheticals on the heads of pins.

How is Canada a better place now than before the constitution was ever repatriated? I can't think of one single way.

[Bryan]

And what pray tell is wrong with a Bill of Rights?

"A" bill in the abstract is good. This one in practice is a disaster.

[ToadBrother]

And proportionally it's far more than any other government's legislation in the history of the SCC.

A couple of the major strike downs were of legislation that predated the current government; the sections of the Criminal Code banning assisted suicide and the anti-prostitution measures. The Senate ruling was actually a reference decision, so while it does strike down the Tories' nonsensical Senate reform bill, it did it simply as a matter of course, and not as a specific target.

So do you have some actual numbers as to ratio of bills passed to bills struck down? Because I've heard this claim a few times recently, and I'm dubious, to say the least.