Canada Supreme Court Rules Against Harper Again

[ToadBrother]

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

That doesn't even make sense. In fact, the Charter is weaker than the US Bill of Rights, in that the US Bill of Rights has no Notwithstanding Clause to limit the entrenched rights in the US Constitution. It's the chief criticism I have of the Charter, though in Trudeau's defense, the Notwithstanding Clause was forced on him by the Premiers.

[Argus]

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Parliamentary supremacy is absolute, and even binding treaties still have enabling legislation which can be repealed by Parliament.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.

Excellent post.

[ToadBrother]

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.

You're knowledge of Charter tests seems woefully ignorant if all you can produce is a claim that Charter challenges have only helped gang members.

[On Guard for Thee]

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.

And your ignorance is showing again. Read why the SC chucked out the parts of the bill they did and then get back to us.

[Argus]

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.

The issue I take with many SC decisions is their growing habit of 'reading into' the Constitution things which the framers clearly had no intention of including. I'm concerned that there seem to be dubious legal logic in some of them and are being influenced by their own personal ideology and biases. Their decision to refuse to seat Judge Nadon was one such case. For those complaining about Harper not caring about the legality of things he does Harper consulted with two former Supreme Court judges prior to appointing Nadon and both thought it fine. The idea a Supreme Court could refuse an appointee of the government for the specious reasons they used gives rise to considerable doubt in the minds of some as to what sort of integrity test these people are imposing on their decisions. The assisted suicide decision was another one, where they actually reversed their own recent decision, perhaps because social views had changed.

Now I don't want to get to the point where we have a court, such as that in the US, which will accept a hundred years in prison for being caught with a joint is not 'cruel and unusual punishment' but the decision in this case to call a three year term for those in possession of illegal weapons 'cruel and unusual' when such sentences are clearly supported by the vast majority of the population seems ideologically driven.

[Argus]

And your ignorance is showing again. Read why the SC chucked out the parts of the bill they did and then get back to us.

I did. They used specious hypothetical possibilities.

By the way, you were a supporter of the long gun registry, weren't you?

Edited April 14, 2015 by Argus

[ToadBrother]

I did. They used specious hypothetical possibilities.

By the way, you were a supporter of the long gun registry, weren't you?

First of all, no I was not a support of the long gun registry, which essentially blamed rural Canadians for what really is, for the most part an urban problem.

As to your first point, I'm not going to defend every Supreme Court ruling. The the Supreme Court is as fallible as anyone else, and I think there's a great risk, at least from the point of view of appearances, of giving the Supreme Court a legitimacy greater than Parliament's. As I said in my other post, the opposition (both in Parliament and outside) has taken a great deal of pleasure in the Tories' problems with the Supreme Court in the last few years, which is understandable, but this has almost created a phenomenon that could best be described as Judicial Fetishism, in which the Supreme Court is viewed as having greater legitimacy and authority than Parliament. It amounts to "We hate Harper, but thank goodness the Supreme Court is there to fix all his evils..."

To be sure, the Tories have brought this on themselves in some cases. The Nadon case is a good example of what I think we can both agree was overreach on the Supreme Court's part, though it is rooted in Harper's attempt to politicize the courts (and yes, one can argue that previous governments have done the same). But go read the Government's submission on the Senate reference. It's laughably ridiculous, and I feel sorry for the Government's lawyers having to try to make the most absurd and obviously unsupportable claims in favor of reforms that not a single constitutional expert anywhere in the country thought was supportable.

The Tories have wanted this fight, because a good deal of their strategy has always been to cast themselves as the victim. During the opposition years, they were the victims of the Liberal media. During the minority years, they were the victims of Liberal bureaucrats and appointees, not to mention of evil opposition parties out to to ruin them. But in their majority, the old bogey men that served them so well don't exist, so who is left to proclaim has been victimizing them. Why, the Supreme Court empowered by that evil Liberal Charter of Rights and Freedoms (despite the fact that the Charter was the product of compromise between the Federal and Provincial Governments). The Supreme Court hasn't helped, though frankly I think the real problem with the Court is its supporters, who have fetishized it and ascribed an anti-Harper malice that probably doesn't exist at all. The Court has to remain somewhat inscrutable, and thus both the Tories and their enemies are able to ascribe intentions to it with little fear of the Court defending itself.

As to the Charter, I see nothing wrong with a Bill of Rights, and think any proper democracy should have an entrenched one. One can criticize the courts for their interpretations, but really that is no different than the accusations thrown at the US Supreme Court. But at the end of the day, a liberal democracy should have a government that has limitations on its actions, and in Canada, prior to 1982, those limits only really applied to the jostling between the Federal and Provincial governments, and citizens were left with whatever protections both levels decided to afford them.

[Bryan]

That doesn't even make sense. In fact, the Charter is weaker than the US Bill of Rights,

I'm talking about Canada, what does the US have to do with anything?

Notwithstanding Clause to limit the entrenched rights....

....the Notwithstanding Clause was forced on him by the Premiers.....

This is a good point. The notwithstanding clause was supposed to be the protection against an activist judiciary. It was a very necessary addition to the Charter, and governments should not be afraid to invoke it.

Edited April 14, 2015 by Bryan

[jacee]

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

What Charter rights do you want to give up?

Freedom of expression?

Arbitrary detention?

...?

If your rights were violated, would you challenge it at the SCC?

.

Edited April 14, 2015 by jacee

[ToadBrother]

I'm talking about Canada, what does the US have to do with anything?

This is a good point. The notwithstanding clause was supposed to be the protection against an activist judiciary. It was a very necessary addition to the Charter, and governments should not be afraid to invoke it.

Since the US has had a Bill of Rights that even more strongly protects individual liberties, I think it's very pertinent. And the Notwithstanding clause, considering it allows abuses of some of the Charter rights, ought to be revoked. I don't think liberties should be up to Parliament or the Provinces to decide, and both should be bound without exception to honor them.

[Topaz]

Seems like the only time Harper did something correct was electing his judges to set on the Supreme Court. Ten times he's been turn down by them.

[Bryan]

Since the US has had a Bill of Rights that even more strongly protects individual liberties, I think it's very pertinent. And the Notwithstanding clause, considering it allows abuses of some of the Charter rights, ought to be revoked. I don't think liberties should be up to Parliament or the Provinces to decide, and both should be bound without exception to honor them.

If you revoke the Notwithstanding clause, you need to shut down the SCC too. The public needs protection of judicial activism.

[ToadBrother]

If you revoke the Notwithstanding clause, you need to shut down the SCC too. The public needs protection of judicial activism.

So tell me, what do you propose is a citizen's remedy if they're rights are violated by a level of government?

[WWWTT]

That doesn't even make sense. In fact, the Charter is weaker than the US Bill of Rights, in that the US Bill of Rights has no Notwithstanding Clause to limit the entrenched rights in the US Constitution. It's the chief criticism I have of the Charter, though in Trudeau's defense, the Notwithstanding Clause was forced on him by the Premiers.

What YOU are saying is actually a contradiction.

The charter would only be "weak" if no one respected or applied the charter.

Terms such as weak and strong can only be used if someone is testing.

As well, section 33 of the charter is not so commonly used as you imply.

Furthermore where it has been sterotypically used in Quebec language/signs etc, it has hurt the province in it's crusade to defend their culture.

WWWTT

[Bryan]

So tell me, what do you propose is a citizen's remedy if they're rights are violated by a level of government?

First, a much stricter standard as to what really qualifies as a legitimate violation of rights. Too many of the cases we do see are utter BS that should never have been heard. The one referenced in this thread is a prime example of that.

Then, an elected judiciary, and a regularly invoked notwithstanding clause (that must be renewed every election cycle).

[ToadBrother]

First, a much stricter standard as to what really qualifies as a legitimate violation of rights. Too many of the cases we do see are utter BS that should never have been heard. The one referenced in this thread is a prime example of that.

Then, an elected judiciary, and a regularly invoked notwithstanding clause (that must be renewed every election cycle).

1. What percentage of cases making it to the Supreme Court do you feel are "utter BS"?

2. How would creating another layer of politicians, this one with the power to annul all or part of legislation, be an improvement? It strikes me that your objections to the Supreme Court would in fact become far more real with an elected Supreme Court.

[ToadBrother]

What YOU are saying is actually a contradiction.

The charter would only be "weak" if no one respected or applied the charter.

Terms such as weak and strong can only be used if someone is testing.

As well, section 33 of the charter is not so commonly used as you imply.

Furthermore where it has been sterotypically used in Quebec language/signs etc, it has hurt the province in it's crusade to defend their culture.

WWWTT

Constitutions are as much about possibility as probability. While the Notwithstanding Clause carries a political price, the fact that some fundamental rights can be temporarily abrogated to my mind weakens the Charter.

[Bryan]

1. What percentage of cases making it to the Supreme Court do you feel are "utter BS"?

2. How would creating another layer of politicians, this one with the power to annul all or part of legislation, be an improvement? It strikes me that your objections to the Supreme Court would in fact become far more real with an elected Supreme Court.

I have no way of knowing what the percentage is. I've seen several of them make the news lately. There could be just as many if not more valid ones that don't make the news.

2. How would creating another layer of politicians, this one with the power to annul all or part of legislation, be an improvement?

It makes the judiciary accountable to the people who elect them. If people en masse believe in a given law, and vote for it, it should stand unless and until the public votes otherwise.

[Argus]

As to your first point, I'm not going to defend every Supreme Court ruling. The the Supreme Court is as fallible as anyone else, and I think there's a great risk, at least from the point of view of appearances, of giving the Supreme Court a legitimacy greater than Parliament's.

In certain cases it appears to be taking that mantle on itself. It has made a number of decisions which, even though I think were correct insofar as I believe these were things Canada ought to be doing, should have been done by order of Parliament, not the courts. The fact Parliament refused to address them (in large part because society was so deeply divided) should not have caused the courts to step in and make decisions on their behalf. The marriage act, abortion and assisted suicide decisions, among others, would come under that heading. The SC has become, in effect, a way activist groups to get changes in important aspects of the country's social makeup made into law without any input from parliament.

As to the Charter, I see nothing wrong with a Bill of Rights, and think any proper democracy should have an entrenched one. One can criticize the courts for their interpretations, but really that is no different than the accusations thrown at the US Supreme Court

Perhaps so, but that does not make the accusation unfair. If the Bill of Rights was explicit and could not be changed without consent of some mechanism I would be less bothered than one which is at the whim of whatever interpretation a court chooses to place upon its statements.

[ToadBrother]

I have no way of knowing what the percentage is. I've seen several of them make the news lately. There could be just as many if not more valid ones that don't make the news.

It makes the judiciary accountable to the people who elect them. If people en masse believe in a given law, and vote for it, it should stand unless and until the public votes otherwise.

In other words, you're basing your opinion on bad rulings solely on headlines.

And an elected judiciary would undermine judicial independence. Judges must have the freedom to make unpopular rulings, otherwise they simply become yet another pack of politicians. The Constitution would cease to have supremacy, and the will of the mob would take over.

The Supreme Court justices are selected by the Government which Parliament selects. Those same judges can be removed by the Governor General if the Government feels they are not fulfilling their roles. Even bad rulings can be resubmitted to the Supreme Court for review, so it's not as if the Supreme Court exists behind an unbreachable law.

The value of an independent judiciary has been recognized for centuries, and the abuses by elected judges in jurisdictions where they can be found are well documented. Everything from undermining the core notion of judicial independence to the notion of judges campaigning, and thus receiving money which can only be perceived as attempts by those donating it to sway future judicial decisions. Elected judges at any level is a horrible idea, and one that introduce substantial risks of injustices be committed.

[Bryan]

Judges must have the freedom to make unpopular rulings,

Absolutely not. They should be required to enforce the laws as they are written. If the voters disagree with their decision, by definition that decision is wrong and should be over-ruled.

[Derek 2.0]

Not at all. The issue was that the mandatory was too broad.

Exactly, within their ruling, the SCC had no issue with the three year sentences (as there are already), as gun crimes are felonies (under the Criminal Code/Firearms Act), the contention was with the allowance of gun crimes resulting in summary convictions.

[Bryan]

In other words, you're basing your opinion on bad rulings solely on headlines.

No. On the meat of the stories that I've been following since before the bills in question were even tabled. The tougher sentencing ruling is just the latest example of that.

[Derek 2.0]

What the court said was that the mandatory minimums were fine for almost all cases, but they imagined a 'hypothetical situation' where it would be cruel and unusual - even though that hypothetical situation has never arisen in the entire history of Canada. They were clearly looking for an excuse. As ivory tower types living in upper class neighbourhoods, children going to private schools, violent crime is just an academic consideration to them, and they certainly don't worry about it.

An actual, real world example, that can and does happen within the scope of our current laws, is when gramps forgets/doesn't get his PAL renewal off prior to his licence expiring........if such a thing happens, gramps is in possession of prohibited firearms.......Likewise, if going to the range or hunting, and I forget my wallet at home, but was pulled over for a traffic stop, I too would be in possession of prohibited firearms.

Of course once Bill C-42 passes (it is currently in second or third reading), such paper crimes will be done away with.......none the less, I consider this one a win for Harper in some aspects....When the Liberals/NDP scream that Harper is eroding gun control, he can point to the SCC this legislation.........

[Derek 2.0]

I find it difficult to understand why some are so happy about no minimum sentences for actual criminals, while being for legislation that accomplishes nothing while targeting the wrong people, it's a logical disconnect.

Exactly, and political theatre....