Peter F Posted April 19, 2016 Report Posted April 19, 2016 How is that different from simply rewriting the legislation after it's written? They didn't rewrite anything - they rejected it for the reasons they gave. They saw the legislation as possibly resulting in Cruel and unusual punishment. Something the Constitution Act does not allow. They didn't rewrite the legislation at all and I cannot for the life of me understand why you keep insisting they rewrite legislation. Parliament can write up any laws they like. Hell they can even write a law that requires Judges to ignore the law if they so desire The court will reject such things of course. What they will NOT do is rewrite the legislation so that the courts can now apply it. So stop pretending that they do. The court rejected the minimum sentence crap and reverted to what the law was prior. Quote A bayonet is a tool with a worker at both ends
PIK Posted April 19, 2016 Report Posted April 19, 2016 (edited) Lets look at the case from last week. A 21 yr old native man gets 15 months for burning a little girl 25 times with a cig and twice with a lighter, arms, face and genitals, and she was left with no medical help. The judge says lingering affect of the residential schools that his grandparents were forced to attend, is the reason. That judge should be fired. This is not exactly about the SC but it should be mentioned. Edited April 19, 2016 by PIK Quote Toronto, like a roach motel in the middle of a pretty living room.
dre Posted April 19, 2016 Report Posted April 19, 2016 Sentencing guidelines which the courts are under no obligation to observe. You seen to completely miss the point: how can Parliament increase punishments for crimes and ensure the judiciary does not simply ignore the changes? What process is there for accountability that checks that judges actually follow the new guidelines? The short answer is there is none and there can be none according to the SCC. So your condescending lectures about 'how the system is supposed to work' are quite irrelevant. My point is that IN THE REAL WORLD parliament no longer has any control over punishments for crimes. Instead of using irrelevant lectures to avoid my point why do you try to address it: please explain how Parliament could increase the sentences for a crime like aggravated sexual assault and be certain that the judges will actually follow the new guidelines in 99% of the cases which do not have the hypothetical concerns raised in the judgment? Your'e trying to talk about a solution before you even establish there's a problem. What evidence do you have that judges in Canada ignore sentencing guidelines to the extent a remedy is required? And legislators should not have "certainty". They don't know the aggravating and mitigating circumstances of any cases. And furthermore mandatory minimums don't provide "certainty" anyways. They just move the discretion from one human to another. Quote I question things because I am human. And call no one my father who's no closer than a stranger
?Impact Posted April 19, 2016 Report Posted April 19, 2016 Lets look at the case from last week. A 21 yr old native man gets 15 months for burning a little girl 25 times with a cig and twice with a lighter, arms, face and genitals, and she was left with no medical help. The judge says lingering affect of the residential schools that his grandparents were forced to attend, is the reason. That judge should be fired. This is not exactly about the SC but it should be mentioned. Yes, the Alain Bellemare case is certainly hard to understand, I can't find the judgment on CanLii, does anybody have a link (not media summaries, lots of those)? From what I understand, the federal sentencing guidelines from 1996 were cited (Gladue report). Perhaps this is a problem with the guidelines. Quote
dre Posted April 19, 2016 Report Posted April 19, 2016 If this argument had any merit the SCC would have suspended the law and gave the goverment time to fix it. It didn't - it simply struck down the legislation which, despite your protests, sends a message that mandatory minimums are not acceptable and that parliament has no right to restrict what judges do in terms of sentencing. Except there is nothing in the constitution about mandatory minimums. This ruling is entirely based on the personal ideological preferences of the sitting judges. A different set of judges at a different time could have come up with different legal arguments that are just as valid as far as the constitution is concerned yet upheld the laws. The latter point is the most critical: the constitution is not a clear rule book that is not subject to interpretation. And since interpretation is required the personal biases of the judges matter whether you want to admit it or not. And since these rulings are a refection of the personal biases of the judges they should never be considered the last word on the questions. IOW: the conservatives did not violate the constitution. The simply disagreed with the ideology held by the current set of SCC judges. The decision wasn't about whether mandatory minimums are constitutional or not. The decision was that this particular law could result in cruel and unusual punishment as defined in Section 12, and affirmed in case-law in Latimer and Smith. The conservatives wrote a law that could result in jail time for extremely minor offenses. You could sell two joints and end up in prison. I doubt they actually intended for this to happen... no sensible government would want to pay 120k per year to incarcerate someone in this case, but its still a problem that needs to be addressed. Quote I question things because I am human. And call no one my father who's no closer than a stranger
?Impact Posted April 19, 2016 Report Posted April 19, 2016 None of your questions matter. The only question which counts is who gets to decide on the appropriate range of punishments for a given crime, the representatives of the people, or the unelected, unaccountable judiciary? If the people feel that a crime needs to be more severely punished why should the judiciary get to shake its collective head and disagree? The reasoning that a lousy one year in prison is 'cruel and unusual punishment' for a repeat drug trafficker is ludicrous, and just shows that judges can decide ANYTHING is unconstitutional if they're of a mind to do so. They could equally decide one day in jail is cruel an unusual punishment for a multiple murderer. It is within their power to do so, and there is no appeal. Interesting question. It might be worth investigating the "tyranny of the majority", a long understood concept and certainly why the founding fathers of the United States put so much effort into getting the appropriate checks and balances in the system. Similar thought is behind other western judicial systems, I only refer to the US system because it so much has been written about it. Justice is not easy, and we can certainly find plenty of examples we can disagree with but alternative systems have their own problems. The Crown may have more limited rights to appeal than the accused, but that does not mean it has no options at all. Generally those appeals would relate to errors in law (e.g. the judge wrongly excluded evidence), and not sentencing as the trial judges decision is usually respected. That doesn't mean however in egregious examples like you are implying cannot be successfully appealed. Quote
Argus Posted April 19, 2016 Report Posted April 19, 2016 They didn't rewrite anything - they rejected it for the reasons they gave. They rewrote it. The parliament of Canada decided that repeat drug traffickers were a problem, and thus imposed a minimum one year sentence on conviction. The judges decided, no, they didn't like that, and changed the law so that the sentence would now have no minimum. You can parse words as much as you want but it doesn't change reality. They saw the legislation as possibly resulting in Cruel and unusual punishment. They decided, after coming up with an extremely unlikely theoretical case, that it would be 'cruel and unusual punishment' to sentence that individual to one year in prison. However, they didn't base that on anything in the constitution, but on the prevailing view of Canada's judiciary that all sentences for all crimes should be as weak as possible. I think you'd find a hard time coming up with very many countries, or very many people in Canada, who would think a one year minimum for a repeat drug trafficker was cruel and unusual. Quote "A liberal is someone who claims to be open to all points of view — and then is surprised and offended to find there are other points of view.” William F Buckley
Argus Posted April 19, 2016 Report Posted April 19, 2016 (edited) And legislators should not have "certainty". They don't know the aggravating and mitigating circumstances of any cases. Is it possible for you to understand that sometimes they don't CARE what mitigating circumstances are, that for the greater good, for the protection of society, they want to impose a severe sentence for certain kinds of behaviour? Such was the case in the mandatory minimum for illegal possession of a restricted weapon which the supreme court struck down earlier. The elected representatives of the people wanted to strongly discourage a certain behaviour, in this case the macho arrogance of swaggering around with a gun. They did so. The SC shook its head, cuddled the poor illegal arms holders and gave them a hug and a pat on the back, sending them on their way to shoot up the streets. If that's the minimums are a little severe in some cases, so what? Everyone knows the law. Everyone knows the risks you take if you break it. It's not like we're dropping someone into prison for fifty years for stealing a gumdrop. Edited April 19, 2016 by Argus Quote "A liberal is someone who claims to be open to all points of view — and then is surprised and offended to find there are other points of view.” William F Buckley
Argus Posted April 19, 2016 Report Posted April 19, 2016 (edited) Interesting question. It might be worth investigating the "tyranny of the majority", a long understood concept and certainly why the founding fathers of the United States put so much effort into getting the appropriate checks and balances in the system. We've had this sort of discussion before. There's a certain mentality that likes to glorify the constitution as it were any sort of guarantor of our rights, especially against the evil "majority". But the fact is a constitution isn't worth the paper it's printed on WITHOUT the support of that majority. Russia has a constitution which guarantees all sorts of freedoms, so does China. They're both worthless. The only thing that guarantees rights it he will of the majority. if the majority decides that they want all blondes executed then they'll change the constitution to allow that and the judges will simply nod their heads and agree. Judges are useless as a guarantee of anything. All rights rest on the will of the majority. Edited April 19, 2016 by Argus Quote "A liberal is someone who claims to be open to all points of view — and then is surprised and offended to find there are other points of view.” William F Buckley
dre Posted April 19, 2016 Report Posted April 19, 2016 Is it possible for you to understand that sometimes they don't CARE what mitigating circumstances are, that for the greater good, for the protection of society, they want to impose a severe sentence for certain kinds of behaviour? If that's a little severe in some cases, so what? If its too severe for the crime its a violation of section 12. The government just needs to do their job... In this case just a TINY BIT of research and elbow grease would have been required to make an MM'S law for drug offenses that would achieved legislative goals in a way that's constitutional. Quote I question things because I am human. And call no one my father who's no closer than a stranger
Argus Posted April 19, 2016 Report Posted April 19, 2016 If its too severe for the crime its a violation of section 12. Because liberal judges want to use that section to change laws that they don't like. I think everyone knows that 'cruel and unusual punishment' in the constitution was referring to something like having someone whipped or tortured, or put in prison for fifty years for shoplifting. One year is not 'cruel and unusual' for repeat trafficking.. Quote "A liberal is someone who claims to be open to all points of view — and then is surprised and offended to find there are other points of view.” William F Buckley
dre Posted April 19, 2016 Report Posted April 19, 2016 They decided, after coming up with an extremely unlikely theoretical case, that it would be 'cruel and unusual punishment' to sentence that individual to one year in prison. However, they didn't base that on anything in the constitution. Yes they did. Its based on section 12 and the case-law related to it. Quote I question things because I am human. And call no one my father who's no closer than a stranger
dre Posted April 19, 2016 Report Posted April 19, 2016 Because liberal judges want to use that section to change laws that they don't like. I think everyone knows that 'cruel and unusual punishment' in the constitution was referring to something like having someone whipped or tortured, or put in prison for fifty years for shoplifting. One year is not 'cruel and unusual' for repeat trafficking.. Oh well why didn't you just say so! You "think that everyone knows"!!! That pretty much settles it then Quote I question things because I am human. And call no one my father who's no closer than a stranger
Argus Posted April 19, 2016 Report Posted April 19, 2016 Yes they did. Its based on section 12 and the case-law related to it. No, they used section 12. It's a catch all that any judge can use if he feels like it since that judge gets to decide what is cruel and unusual. They could just as easily say more than six days in jail for mass murder is cruel and unusual and it would have the same legal validity. "Cruel and unusual" is anything they say it is. Quote "A liberal is someone who claims to be open to all points of view — and then is surprised and offended to find there are other points of view.” William F Buckley
Peter F Posted April 19, 2016 Report Posted April 19, 2016 Argus: I think everyone knows that 'cruel and unusual punishment' in the constitution was referring to something like having someone whipped or tortured, or put in prison for fifty years for shoplifting. Just like you think everyone knows that the word 'everyone' doesn't include homosexuals too. The term written into the contstitution is 'Cruel and unusual' punishment. They could very well have written something specifically forbidding whippings and torture for minor crimes just to make sure that everyone knew that Argus knows exactly what they meant. But they didn't. They used the words Cruel and unusual and did not further define that term. I think they left it at that because they were quite willing to let educated people who know the law actually decide what that term means in relation to the cases brought before them. And too effing bad and so sad for those who did not agree. Quote A bayonet is a tool with a worker at both ends
bush_cheney2004 Posted April 19, 2016 Report Posted April 19, 2016 ....But they didn't. They used the words Cruel and unusual and did not further define that term. I think they left it at that because they were quite willing to let educated people who know the law actually decide what that term means in relation to the cases brought before them. And too effing bad and so sad for those who did not agree. The words had existed for at least 300 years (e.g. English Bill of Rights). Relevant to this discussion, they were intended to reign in harsh sentences and punishment at the hands of crown judges, not an elected representative government, which can impose sentences that set precedent and are lawful. In other words, the original "cruel and unusual" guys were the judges doing the bidding of a reigning monarch. Quote Economics trumps Virtue.
Peter F Posted April 19, 2016 Report Posted April 19, 2016 In other words, the original "cruel and unusual" guys were the judges doing the bidding of a reigning monarch. And they continue to do so. Quote A bayonet is a tool with a worker at both ends
square Posted April 19, 2016 Author Report Posted April 19, 2016 No, they used section 12. It's a catch all that any judge can use if he feels like it since that judge gets to decide what is cruel and unusual. They could just as easily say more than six days in jail for mass murder is cruel and unusual and it would have the same legal validity. "Cruel and unusual" is anything they say it is. Obviously the mandatory minimum violates the Charter of Rights; and found to be unconstitutional by the majority by the supreme court. You make it sound like it's one narcissist Jurist who runs the Supreme Court of Canada. Quote
cybercoma Posted April 19, 2016 Report Posted April 19, 2016 If this argument had any merit the SCC would have suspended the law and gave the goverment time to fix it. It didn't - it simply struck down the legislation which, despite your protests, sends a message that mandatory minimums are not acceptable and that parliament has no right to restrict what judges do in terms of sentencing. Except there is nothing in the constitution about mandatory minimums. This ruling is entirely based on the personal ideological preferences of the sitting judges. A different set of judges at a different time could have come up with different legal arguments that are just as valid as far as the constitution is concerned yet upheld the laws.The latter point is the most critical: the constitution is not a clear rule book that is not subject to interpretation. And since interpretation is required the personal biases of the judges matter whether you want to admit it or not. And since these rulings are a refection of the personal biases of the judges they should never be considered the last word on the questions.IOW: the conservatives did not violate the constitution. The simply disagreed with the ideology held by the current set of SCC judges.Ive got a novel idea. Read the fucking decision. Quote
cybercoma Posted April 19, 2016 Report Posted April 19, 2016 Your'e trying to talk about a solution before you even establish there's a problem. What evidence do you have that judges in Canada ignore sentencing guidelines to the extent a remedy is required? And legislators should not have "certainty". They don't know the aggravating and mitigating circumstances of any cases. And furthermore mandatory minimums don't provide "certainty" anyways. They just move the discretion from one human to another. They move the discretion from the person hearing the circumstances of the case to a bunch of partisans in Ottawa that will never hear the case. Quote
Argus Posted April 19, 2016 Report Posted April 19, 2016 Argus: Just like you think everyone knows that the word 'everyone' doesn't include homosexuals too. Huh? Wanna try that in English? The term written into the contstitution is 'Cruel and unusual' punishment. They could very well have written something specifically forbidding whippings and torture for minor crimes just to make sure that everyone knew that Argus knows exactly what they meant. But they didn't. They used the words Cruel and unusual and did not further define that term. They probably didn't realize to what extent ideologically motivated judges would choose to stretch the term to encompass anything they wanted to do. Quote "A liberal is someone who claims to be open to all points of view — and then is surprised and offended to find there are other points of view.” William F Buckley
Argus Posted April 19, 2016 Report Posted April 19, 2016 Obviously the mandatory minimum violates the Charter of Rights; ANYTHING the SC decides is against the Charter is against the Charter, regardless of reasoning or logic. For you to simply say we shouldn't complain because something is "obviously" against the Charter is an absence of thought. Quote "A liberal is someone who claims to be open to all points of view — and then is surprised and offended to find there are other points of view.” William F Buckley
square Posted April 19, 2016 Author Report Posted April 19, 2016 ANYTHING the SC decides is against the Charter is against the Charter, regardless of reasoning or logic. For you to simply say we shouldn't complain because something is "obviously" against the Charter is an absence of thought. If you want the reasons from the Justices than read the decision from the Supreme Court. Quote
Argus Posted April 20, 2016 Report Posted April 20, 2016 If you want the reasons from the Justices than read the decision from the Supreme Court. Their reasons were "because we say so". Or words to that effect. It revolves around how 'cruel and unusual punishment' is defined. And they can to define it any way they damned well want to. Quote "A liberal is someone who claims to be open to all points of view — and then is surprised and offended to find there are other points of view.” William F Buckley
cybercoma Posted April 20, 2016 Report Posted April 20, 2016 The irony with the conservatives on the forum blasting the SCC decision to shoot down this particular MMS is that Forcillo, the officer who shot Sammy Yatim, may be facing a 5 year MMS for attempted murder with a restricted firearm. While I condemn what he did, I do believe a 5 year sentence is disproportionate to the circumstances of his case. http://www.thestar.com/news/gta/2016/04/18/forcillo-asking-court-for-house-arrest-rather-than-jail.html Quote
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