Canada Supreme Court Rules Against Harper Again

[ToadBrother]

This is largely BS because the constitution does not have anything close to the level of detail required to determine which laws are valid or not. In 99% of the cases, the decision made by the SCC is an interpretation that reflects the ideological biases of the judges and it is very likely that a different set of judges at a different time would have come up with a different interpretation.

To put it in your baseball terms: it is like a game a baseball where the rule book says there is a difference between a ball and a strike but does specify how to determine a ball or a strike and instead leaves it up to the umpire to determine whether any given pitch is a strike or not. This leads to a situation where the pitchers and batters find that the strike zone changes depending on who the ump is.

As far as the Charter goes, the Supreme Court's role is exceedingly young (33 years to be exact). Even in the US, where the Bill of Rights has been around for two and a quarter centuries, SCOTUS can still throw curve balls at Congress and the States. But that's really the point of a high court with constitutional oversight powers, to keep a document that is decades or centuries old relevant, and indeed to take into account changing national, societal and legal circumstances.

In the end, there are control mechanisms to reign in courts, the most potent being constitutional amendments. If the Supreme Court is abusing its powers as much as the Tories insist it is, then surely the popular discontent would easily allow the application of the 7/50 formula, which ought to be enough to modify most of the Charter freedoms (though the critical ones like Democratic Rights might require unanimous consent from Parliament and the Provinces). The other control mechanism is Section 33 (the Notwithstanding Clause), though it is limited to a maximum of five years.

So again, if the high court is behaving as egregiously as the Tories, or at least their supporters, suggest, well then public discontent must be very great indeed.

Of course, the problem is that the public doesn't appear to have the level of discontent that the Tories are exhibiting. Some of the rulings, like the Nadon ruling, are too technical to mean much to the average voter, but the recent rulings on prostitution and assisted suicide appear to be, to a large extent, in keeping with the public mood. And before someone criticizes the courts for recognizing the general views of society at any given time, keep in mind that that is the courts' job when faced with collisions of liberties, or collisions between the powers of other branches of government and liberties. The courts do not exist in a vacuum, and the very fact of their independence allows, and in some cases requires that they defy the will of the Executive or Legislative branches, and indeed, on occasion even the majority.

[ToadBrother]

They don't agree because there is no "true" interpretation of the constitution. Any given ruling is simply a reflection of the ideology of the judges. Nothing more. Nothing less.

That is not always true. Take the Senate reform reference opinion. The Court did exactly as every legal and constitutional expert expected, which was to take the British North America Act, 1867 and the Constitution Act, 1982, and the intentions of the framers in both cases, quite literally at their word. Now the Senate opinion is different, because it touches on the architecture of the Constitution, rather than attempting to interpret the Charter, but the fact remains that the opinion demonstrated a rather mechanistic view of the Constitution. I would say that the ruling on Quebec's attempt to force Ottawa to turn over long gun registry data sits in the same sphere; an architectural question, this time surrounding the division of powers between Parliament and the Provinces. It would be hard to imagine a court with a completely different set of justices ruling any differently in either case.

So I would say that it absurdly simplistic to call any ruling, even ones that the Court gets wrong, nothing more than opinion.

[TimG]

But that's really the point of a high court with constitutional oversight powers, to keep a document that is decades or centuries old relevant, and indeed to take into account changing national, societal and legal circumstances.

IOW - supreme court judges get change the position of the "strike zone" whenever it suits them. At least in the US they acknowledge that the political ideology of the SCOTUS judges matters. They don't pretend that these people are arbiters of truth.

In the end, there are control mechanisms to reign in courts, the most potent being constitutional amendments.

Yes, but these processes are cumbersome and divisive. This means the SCC gets to pass laws based on their own personal prejudices that are not shared by a large number of Canadians and these laws cannot be overridden. This is different from normal laws which may be passed by a government elected by a minority but can be overridden by the next elected government.

The other control mechanism is Section 33 (the Notwithstanding Clause), though it is limited to a maximum of five years.

This does not apply in all cases but I suspect the political resistence to using it is eroding as the SCC makes rediculous ruling after rediculous ruling. I hope we get to the point where that clause is routinely used by elected governments. Edited April 15, 2015 by TimG

[TimG]

I would say that the ruling on Quebec's attempt to force Ottawa to turn over long gun registry data sits in the same sphere; an architectural question, this time surrounding the division of powers between Parliament and the Provinces. It would be hard to imagine a court with a completely different set of justices ruling any differently in either case.

The gun registry case was 5-4. You are not trying very hard if you cannot imagine a different result from a court composed of different judges. A few cases like the senate reference would be the exception as opposed to the rule. Edited April 15, 2015 by TimG

[ToadBrother]

IOW - supreme court judges get change the position of the "strike zone" whenever it suits them. At least in the US they acknowledge that the political ideology of the SCOTUS judges matters. They don't pretend that these people are arbiters of truth.

Yes, but these processes are cumbersome and divisive. This means the SCC gets to pass laws based on their own personal prejudices that are not shared by a large number of Canadians and these laws cannot be overridden. This is different from normal laws which may be passed by a government elected by a minority but can be overridden by the next elected government.

This does not apply in all cases but I suspect the political resistence to using it is eroding as the SCC makes rediculous ruling after rediculous ruling. I hope we get to the point where that clause is routinely used by elected governments.

The eroding political resistance to Section 33 is a fantasy in the Tories' minds. It's clear that despite the hue and cry of the loyal party soldiers, the Government itself is not foolhardy enough to try it.

Here's a hint. Just because you think the Supreme Court isn't doing what it should do doesn't actually mean it isn't doing what it should do, nor does it mean your opinion is universally accepted, or even accepted by the majority.

If the Tories are too lazy or frightened to recommend constitutional changes, then that's their problem. Attacking the court won't buy them many votes, and will simply be another example of how partisans confuse their own self-limiting worldview with reality.

[TimG]

Here's a hint. Just because you think the Supreme Court isn't doing what it should do doesn't actually mean it isn't doing what it should do, nor does it mean your opinion is universally accepted, or even accepted by the majority.

And you would change your tune very quickly if the SCC started making rulings that you disagreed with even if they were supported by the majority. I think part of the problem is the type of lawyer who chooses a career as a judge is often going to have a left of center view of the world. This introduces a left wing bias into the system that cannot be easily removed by a government that has to choose from a limited pool of qualified candidates. Edited April 15, 2015 by TimG

[ToadBrother]

And you would change your tune very quickly if the SCC started making rulings that you disagreed with even if they were supported by the majority. I think part of the problem is the type of lawyer who chooses a career as a judge is often going to have a left of center view of the world. This introduces a left wing bias into the system that cannot be easily removed by a government that has to choose from a limited pool of qualified candidates.

The Supreme Court has made a number of rulings I disagreed with. But I'm an adult, and accept that the Court is not bound by my views, and indeed that the Court can make mistakes. I'm not a petulant whiner who believes whatever I think is absolutely correct. But then again, I have no strong partisan leanings towards any party, so really don't take it personally when any given government's law gets smacked down.

And spare me the "left of center" nonsense. It's a tiresome complaint, more Tory "woe are we, we are such victims" nonsense. Grow up.

[TimG]

The Supreme Court has made a number of rulings I disagreed with.

In the 90s, I always understood the logic behind the rulings even if I disagreed (I had a lot of confidence in the SCC back then). Now the rulings are scatter-shot. Some times the logic is sound even if I think the court is naive about how the ruling will be interpreted. Other times it is partisan dreck (the ruling on the Nadon appointment was the worst). The latest ruling on the mandatory sentences is bizarre. It upheld the principal of mandatory sentences but struck down the law based on hypotheticals which have never occurred. It is more political statement than ruling. I don't see what prevents the government from re-instating the law with provisions that explicitly exclude those hypotheticals. Edited April 15, 2015 by TimG

[On Guard for Thee]

In the 90s, I always understood the logic behind the rulings even if I disagreed (I had a lot of confidence in the SCC back then). Now the rulings are scatter-shot. Some times the logic is sound even if I think the court is naive about how the ruling will be interpreted. Other times it is partisan dreck (the ruling on the Nadon appointment was the worst). The latest ruling on the mandatory sentences is bizarre. It upheld the principal of mandatory sentences but struck down the law based on hypotheticals which have never occurred. It is more political statement than ruling. I don't see what prevents the government from re-instating the law with provisions that explicitly exclude those hypotheticals.

None of your post makes sense. First of all how can the court ruling be sound and naive at the same time. But thats just poor grammar. The Nadon ruling was the most obvious as it was nothing to do with anything other than the man didnt meet the qualifications. The very purpose of SC interpretatio of proposed legislation is to imagine possible hypotheticals that would simply cause a downstream challenge to the law when it is actually applied. Better to fix it beforehand. And actually it did not uphold MMSs. Thats the whole point of their finding.

[LemonPureLeaf]

I don't care what criminals do. They're scum and deserve to go to prison but the left would rather let them free with no punishment at all. The left wing is putting us all in danger. Hug a thug doesn't work it just encourages them to laugh at us.

[On Guard for Thee]

I don't care what criminals do. They're scum and deserve to go to prison but the left would rather let them free with no punishment at all. The left wing is putting us all in danger. Hug a thug doesn't work it just encourages them to laugh at us.

You dont care what criminals do....and then it just gets sillier from there. Make sure you dont get caught with ammunition anywhere near your guns, or you are off to jail for 3 years minimum. Oh yeah I forgot, you dont care.

[LemonPureLeaf]

You dont care what criminals do....and then it just gets sillier from there. Make sure you dont get caught with ammunition anywhere near your guns, or you are off to jail for 3 years minimum. Oh yeah I forgot, you dont care.

How will they catch me? Will they search my house daily to ensure this? Its unenforceable to any reasonable person.

[On Guard for Thee]

How will they catch me? Will they search my house daily to ensure this? Its unenforceable to any reasonable person.

So why bother having it in the criminal code.

[LemonPureLeaf]

So why bother having it in the criminal code.

I didn't write the law. Perhaps your local MP can shed some light on this for you. Do you know how to find out who your local MP is and where to find their phone numbers, addresses and email?

[On Guard for Thee]

I didn't write the law. Perhaps your local MP can shed some light on this for you. Do you know how to find out who your local MP is and where to find their phone numbers, addresses and email?

I know my local MP, I drink beer with him when hes in town. Cant see why I would need him to shine any light here. What it seems many dont understand is the law hadnt changed at all with regard to guns and their care and handling. The mandatory minimums where what was dropped as being unconstitutional...actually, draconian was one of the words used to describe Harpers attempt to amend the existing laws.

[jacee]

It is rather odd that Harper didn't craft the law to exempt the hunters.

That's Harper's real failing I think: He crafts laws to be as harsh as possible on the target criminals - appeal to his 'base' - but he and they seem too dense, devoid of complex thought, to realize that relatively innocent people can be caught up in those laws too. In this case it's quite ironic that his gun toting rural hunter base could end up behind bars for 3 years for putting their ammo on the wrong shelf.

But Harper isn't that dense.

So what was his agenda?

.

[ToadBrother]

In the 90s, I always understood the logic behind the rulings even if I disagreed (I had a lot of confidence in the SCC back then). Now the rulings are scatter-shot. Some times the logic is sound even if I think the court is naive about how the ruling will be interpreted. Other times it is partisan dreck (the ruling on the Nadon appointment was the worst). The latest ruling on the mandatory sentences is bizarre. It upheld the principal of mandatory sentences but struck down the law based on hypotheticals which have never occurred. It is more political statement than ruling. I don't see what prevents the government from re-instating the law with provisions that explicitly exclude those hypotheticals.

The hypothetical situation is hardly that farfetched.

[ToadBrother]

I don't care what criminals do. They're scum and deserve to go to prison but the left would rather let them free with no punishment at all. The left wing is putting us all in danger. Hug a thug doesn't work it just encourages them to laugh at us.

The fundamental notion that no punishment should be excessive is a core part of our judicial heritage. The Charter, like a number of constitutions out there, forbids the government from enacting overly harsh sentences.

[TimG]

The hypothetical situation is hardly that farfetched.

Only if you assume that prosecutors are morons who would lay charges against people guilty of administrative screw ups. The judges could have also upheld the law but require that the law be revised to exclude these hypotheticals. But they did not because they wanted to be political rather than judicial. Edited April 15, 2015 by TimG

[Spiderfish]

You dont care what criminals do....and then it just gets sillier from there. Make sure you dont get caught with ammunition anywhere near your guns, or you are off to jail for 3 years minimum. Oh yeah I forgot, you dont care.

Minor gun related cases are prosecuted summarily, not by indictment, which means a maximum sentence of 1 year. Summary offenses are not affected by the mandatory minimum.

[Spiderfish]

It is rather odd that Harper didn't craft the law to exempt the hunters.

I thought that as well. Maybe the fact that their has never been even one single case of a minor licensing or storage offense ever being prosecuted as an indictment was taken into consideration when drafting the legislation.

In this case it's quite ironic that his gun toting rural hunter base could end up behind bars for 3 years for putting their ammo on the wrong shelf.

Not at all, see above.

[Spiderfish]

I thought the minority SCC justices summed it up well:

"The hypothetical scenario advanced by the majority stretches the bounds of credulity."

[Spiderfish]

A couple of other quotes from the minority justices in the ruling stood out to me:

"It is not for this court to frustrate the policy goals of our elected representatives based on questionable assumptions or loose conjecture." - Moldover

"When matters of public safety are implicated, we should be wary of second guessing the choices of our elected representatives"

"In my view, sending our elected representatives back to the drawing board on (the law) would impede the goals of deterring and denouncing the unlawful possession of deadly weapons and keeping them out of the hands of those who would use them as instruments of intimidation, death, and destruction." — Moldaver

[GostHacked]

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 are eluding to corruption within the SCC and government. Which is a factor and needs to be dealt with. But how do you propose we go about getting charges on those who are corrupt and committing crimes against the Canadian people? More heads need to roll than just Duffy or Wallen.

[On Guard for Thee]

Minor gun related cases are prosecuted summarily, not by indictment, which means a maximum sentence of 1 year. Summary offenses are not affected by the mandatory minimum.

Its the 3 and 5 year MMS that the SC threw out. Basically what they are saying is what hasnt happened, should continue to not happen.

Edited April 15, 2015 by On Guard for Thee