Your Thoughts of the Supreme Court of Canada

[square]

People are forgetting that the Constitution was brought in by parliament. One would think that a government would vet legislation against it's own rules before passing it.

[Argus]

People are forgetting that the Constitution was brought in by parliament. One would think that a government would vet legislation against it's own rules before passing it.

You are forgetting that the SC is liable to change the rules at any time and for any reason they desire.

[square]

You are forgetting that the SC is liable to change the rules at any time and for any reason they desire.

Can you give me an example when the Supreme Court changed the rules?

[ColdComfort]

Can you give me an example when the Supreme Court changed the rules?

Assisted suicide. It's ban was constitutional a decade or two ago and now it's not. The Court has explicitly said it is not bound by it's earlier rulings.

[bush_cheney2004]

You are forgetting that the SC is liable to change the rules at any time and for any reason they desire.

Yes...I thought this concept was already well understood as garden variety "Charter Politics" in Canada.

[square]

Assisted suicide. It's ban was constitutional a decade or two ago and now it's not. The Court has explicitly said it is not bound by it's earlier rulings.

They didn't change any of the "rules" in that decision. What the Court did was look at the new evidence and came to the conclusion that the risk could be mitigated. Therefore the state was not justified in having a blanket prohibition.

Edited April 22, 2016 by square

[Argus]

Can you give me an example when the Supreme Court changed the rules?

Well, for one, they decided that they had the authority to set health care policy. They did this in the insite ruling, where they decided, after listening to a variety of mostly very prejudicial witnesses, that the government would be required to allow and fund the insite injection site for illegal narcotics users. Most people previously thought the government itself got to set health policy and decide how health care dollars were spent, but the Supreme Court has decided they are better equipped to make such decisions. To justify their interference, they used the old standby which said "Uhm, not doing whatever it is we want you to do is a charter violation."

They basically said that criminals who want to break the law had their rights violated if the government did not allow a site where they could be supervised for their own safety while they break the law.

Edited April 22, 2016 by Argus

[ColdComfort]

They didn't change any of the "rules" in that decision. What the Court did was look at the new evidence and came to the conclusion that the risk could be mitigated. Therefore the state was not justified in having a blanket prohibition.

They also said that constitutional principles had developed since Rodriguez. Either way the rules are changed. The section of the Crim Code is in one case constitutional and then is not.

[square]

They also said that constitutional principles had developed since Rodriguez. Either way the rules are changed. The section of the Crim Code is in one case constitutional and then is not.

What "rules" did they change? Are you a Judge?

[ColdComfort]

The main problem with the Charter is it's terms are so abstract Judges can read just about any result they want into it. As a result it comes down giving political power to one class of Canadian society in this case lawyers, law professors and the like. We have only to look at the US experience with a similar document. Southern men just before the Civil War decided that Black people were not included in the Constitution at all. Later they came up with 'seperate but equal' to justify segregation. Minimum wage laws were struck down in the thirties as they found a freedom to contract in the Constitution. Today it's different values like personal autonomy; in another generation it will be something different. There is no legal reasoning involved. It's all about nine old lawyers guided by their own personal views.

Many politicians like Allan Blakeney and Sterling Lyon opposed Pierre Trudeau's Constitution for this reason. The notwithstanding clause was part of the compromise that ensured their support. Politicians should use it when they don't agree with a judgement. Democratic institutions can also amend the Constitution if they think judicial power is too great.

[Peter F]

There is no legal reasoning involved. It's all about nine old lawyers guided by their own personal views.

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15860/index.do

That SCC decision is the most recent released . Are you seriously saying that no legal reasoning was involved in the decision? That they just made it all up without reference to legisltation and Law?

[ColdComfort]

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15860/index.do

That SCC decision is the most recent released . Are you seriously saying that no legal reasoning was involved in the decision? That they just made it all up without reference to legisltation and Law?

Yes. For a number of reasons. First, the principle of overly broad legislation is not in s. 7 of the Charter. It's a creation of the Courts from previous cases. Secondly, it presumes to judge what purposes the legislation can legitimately have. That is it substitutes it's own judgement for that of Parliament. Thirdly, in deciding if the means is overbroad it does so on the basis of hypothetical cases. Normally, in a legal context you expect some evidence to support this.

As for as I can tell the Court's 'reasoning' is exactly what Parliament does in debating a proposed law. There's is nothing in it of relying on a text or evidence.

You might want to read this case which also creates a doctrine called the "Honour of the Crown" no where to be found in the Charter or any other law. Most of the reasoning is a particular view of Canadian history and it's colonial past. Hardly something I would call legal reasoning.

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/12888/index.do

[TimG]

That SCC decision is the most recent released . Are you seriously saying that no legal reasoning was involved in the decision? That they just made it all up without reference to legisltation and Law?

Lawyers are trained to construct legal reasonings to support any number of POVs depending on what they need to do to win their case. It is no different for SCC rulings. The SCC does not take on cases where there are not valid legal reasonings for both sides of the argument. When the SCC picks one argument as the "right" one they are doing so based on their personal values and prejudices. It is simply wrong to characterize the opinions of 9 unelected judges as something that cannot be questioned or ignored (via the notwithstanding clause) if parliament decides that is what people want. Edited April 25, 2016 by TimG

[Peter F]

. It is simply wrong to characterize the opinions of 9 unelected judges as something that cannot be questioned or ignored (via the notwithstanding clause) if parliament decides that is what people want.

Of course SC judgements can be questioned - which is why they publish the reasons for thier judgments and the dissents to those reasons. Of course the powers of the day brought in the Notwithstanding clause as a compromise to get others who did not want the SCC over-ride legislatures.

Who is arguing different? The arguments I have been hearing is that the SCC is meaningless piffle that has no authority to rule on anything - especially in regards to 'Rights' and interpretations of the Charter. Nevermind that that same Charter as approved by multiple legislatures specifically designates the SCC as being the body that is actually assigned the specific duty of interpreting the Charter.

All that means nothing.

The SCC is criticized for making decisions based upon thier own supposed liberal morals and ethics. These critics claim that the courts decisions are based upon nothing but. I suspect these critics have never a single one of the hundreds of decisions made available by the court. Or, more likely and far more understandable, the critics get lost in the words that are beyond thier comprehension; roll thier eyes; yawn and put the decisions aside with the firm conviction that these lawyers dont make any sense and are therefore just piling words on a page to baffle the peons with bullshit.

What about the judges who dissent? They write up thier reasons - based upon law - for thier dissent. Are they just talking out of their arses too?

Anyways I'm ranting. I have to ask should there be any legal forum for a citizen to appeal at all? Is there such a thing as an unjust law? Are we, should we, be at the mercy of legislatures in all things?

[ColdComfort]

I have to ask should there be any legal forum for a citizen to appeal at all? Is there such a thing as an unjust law? Are we, should we, be at the mercy of legislatures in all things?

From 1840 to 1982 that is the Constitution we had, except for specific rights involving language and religious schools. Elections and democracy were the means to rid ourselves of bad laws and government. Canadians called it responsible gov't. Can you honestly say that in 1980 Canada was in such a sad state we needed an undemocratic means to clean up the mess.

Yes. Politicians are still in control either through the notwithstanding clause or amendments.

[TimG]

The SCC is criticized for making decisions based upon thier own supposed liberal morals and ethics. These critics claim that the courts decisions are based upon nothing but.

In a lot of cases the legal reasoning is specious and the only way to make a decision is to rely on personal values. It is not wrong to do that but it is wrong to claim that these SCC decisions are anything but a reflection of the personal politics of the people who sit on the bench.

What about the judges who dissent? They write up thier reasons - based upon law - for thier dissent. Are they just talking out of their arses too?

Dissenting judges are dissenting based on their values and prejudices too. What is your point?

I have to ask should there be any legal forum for a citizen to appeal at all? Is there such a thing as an unjust law? Are we, should we, be at the mercy of legislatures in all things?

There is a wide spectrum and it is easy to invent hypothetical situations where the court should strike down unjust laws. The trouble with the current court is they have gone way beyond the obvious cases and are making decisions where the question of whether something is 'unjust' really depends on one's political leanings. By doing this the court is taking sides in what should be a political discussion.

[Peter F]

Yes. For a number of reasons. First, the principle of overly broad legislation is not in s. 7 of the Charter. It's a creation of the Courts from previous cases. Secondly, it presumes to judge what purposes the legislation can legitimately have. That is it substitutes it's own judgement for that of Parliament. Thirdly, in deciding if the means is overbroad it does so on the basis of hypothetical cases. Normally, in a legal context you expect some evidence to support this.

As for as I can tell the Court's 'reasoning' is exactly what Parliament does in debating a proposed law. There's is nothing in it of relying on a text or evidence.

You might want to read this case which also creates a doctrine called the "Honour of the Crown" no where to be found in the Charter or any other law. Most of the reasoning is a particular view of Canadian history and it's colonial past. Hardly something I would call legal reasoning.

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/12888/index.do

Response the First: Overly Broad Legislation is not in s.7 of the Charter.

"7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

The principles of fundamental justice do not embrace 'overlybroad legislation'. Unless there is a good reason for doing so. Fundamental Justice is not some concept that the Court just 'made up' 10 or 20 years ago. The Principles of Fundamental Justice have been around since King John reluctantly signed the Magna Carta back in 1972 or somthing. It was Fundametal Justice that brought those armed and dangerous Barons to that particular field.

Denying the imprisoned water is not in section 7 either - but Fundamental Justice is. So folks don't die of thirst in jails nor are they subjected to overly broad legislation without appeal.

The words Fundemental Justice have some meaning don't they? Does the term not encompass many things? And yes, it most certainly is a creation of the courts from previous cases. Judges and union negotiators have one thing in common: they know that words have meaning.

Response the Second: Presuming what legislation intends.

They didn't presume anything. They went back and read remarks from the Justice Minister to determine what the intent of the legislation in question was. They did presume that the Minister meant what he said.

Response the third: Using hypothetical cases for legal argument.

Of course they use hypothetical arguments. And they also relate those hypotheticals to cases at hand - as they did in the case linked.

Debates in legislatures when crafting laws are chock full of hypotheticals. 'What about situation X? What happens then? Is such a thing what we want with this legislation? '

Its an entirely legitimate process when making decisions.

Response the Fourth: "honour of the Crown"

Unfortunatly the link you provided leads me to 404. But I do remember readiing a decision regardding the Honour of the Crown. That decision, If I remember right, was about interpretation of treatys in regards to modern times hunting and fishing rights. The SCC court said that the Crown deals

in good faith. It means what it says and does not bullshit those who the crown is negotiating with. At least the idea was that that is how Judges interpreting treaties should read things. If the crown signed onto a treaty allowing the natives to hunt for sustenance in perpetuity, then thats what the

crown meant.

That is the concept behind "honour of the Crown". It may be that the Queens flunkies negotiating contracts have absolutely no intention of following through on this clause or that clause - but the Courts of the land should under no circumstance assume that clauses agreed to by the Crown were just lies and bullshit.

That is legal reasoning: There is a point to the Honour of the Crown concept. It holds governments to the terms of contracts they enter into.

[Peter F]

From 1840 to 1982 that is the Constitution we had, except for specific rights involving language and religious schools. Elections and democracy were the means to rid ourselves of bad laws and government. Canadians called it responsible gov't. Can you honestly say that in 1980 Canada was in such a sad state we needed an undemocratic means to clean up the mess.

I most certainly can honestly say that. Gay Marriage rights prove that. The Morgantaler decision proves it. The Women are not Chattel decision proves it too - even though that came long before any charter of rights - it was a Supreme Court deciding that government legislatures were being unjust.

[blueblood]

I most certainly can honestly say that. Gay Marriage rights prove that. The Morgantaler decision proves it. The Women are not Chattel decision proves it too - even though that came long before any charter of rights - it was a Supreme Court deciding that government legislatures were being unjust.

People also can decide that govt legislatures are unjust. They write a bad law or go too far they can get tossed. Can that happen to a judge on the supreme court?

[Peter F]

People also can decide that govt legislatures are unjust. They write a bad law or go too far they can get tossed. Can that happen to a judge on the supreme court?

Sure they can kick out any government they so please. Judges on the SCC can be booted too but the process certainly is not easy and shouldn't be easy. The reason SCC judges are appointed for life is so that they can say the government is wrong without fear of being removed from the bench. Its a good thing and, yes, also a troublesome thing. Thats why PM's pick (within certain parameters) who will fill the openings on the bench. They certainly aren't going to pick folks who are ideologically opposed to the PM's ideology - or maybe they will. Its up to the PM.

Edited April 25, 2016 by Peter F

[eyeball]

People also can decide that govt legislatures are unjust. They write a bad law or go too far they can get tossed. Can that happen to a judge on the supreme court?

What if they write a law that says they can't be tossed? We all get out our guns and kill them?

[Peter F]

In a lot of cases the legal reasoning is specious and the only way to make a decision is to rely on personal values. It is not wrong to do that but it is wrong to claim that these SCC decisions are anything but a reflection of the personal politics of the people who sit on the bench.

Dissenting judges are dissenting based on their values and prejudices too. What is your point?

There is a wide spectrum and it is easy to invent hypothetical situations where the court should strike down unjust laws. The trouble with the current court is they have gone way beyond the obvious cases and are making decisions where the question of whether something is 'unjust' really depends on one's political leanings. By doing this the court is taking sides in what should be a political discussion.

I will ignore your contention that there are no legal reasons for judges making decisions and its all about thier personal ideology. I consider that all unsubstatiated bullshit - ignoring all the decisions upholding legislation or rejecting legislation where arguments regarding laws and precedent consume whole forests of paper.

Let us assume you are correct - and to be honest I to a large extent agree - that ones decisions, be they judges or bloggers or ditch-diggers or politicians, are based upon ideology. How can any of us escape such a thing? Even SCC judges? Or writers of Constitutions?

As you said: What is your point?

[TimG]

I will ignore your contention that there are no legal reasons for judges making decisions

Look up the word 'rationalization'. What they do is decide on how they want to rule and then construct a legal argument to rationalize their desired conclusion. It is a mistake to assume that the legal reasons led to their decision when it was most likely the other way around. Almost everyone does this and judges are no exception. In fact, lawyers are trained to do exactly this when they defend people they know are guilty in court.

As you said: What is your point?

My point is that people should recognize the SCC judgements for what they are: the personal opinions of people who choose a career as a judge. Nothing more and nothing less. One can agree with these personal opinions or not. From a matter of practicality the system is set up in this country so the SCC get the final say on these questions unless and elected government chooses to use the notwithstanding clause. If the SCC keeps micromanaging governments eventually that taboo will be broken like the deficit taboo was broken by Trudeau. Edited April 25, 2016 by TimG

[blueblood]

Sure they can kick out any government they so please. Judges on the SCC can be booted too but the process certainly is not easy and shouldn't be easy. The reason SCC judges are appointed for life is so that they can say the government is wrong without fear of being removed from the bench. Its a good thing and, yes, also a troublesome thing. Thats why PM's pick (within certain parameters) who will fill the openings on the bench. They certainly aren't going to pick folks who are ideologically opposed to the PM's ideology - or maybe they will. Its up to the PM.

And that is dangerous as you have an unelected cabal that can make whatever decision it wants based on their own personal preferences and not be held accountable for it. It would be easier to stomach an unaccountable body if they had a term limit, but there isnt one. essentially an unelected body rules the country.

[Peter F]

It would be easier to stomach an unaccountable body if they had a term limit, but there isnt one. essentially an unelected body rules the country.

They are not essentially running the country! Lordy, you think parliaments don't matter? Legislation doesn't matter? Budgets don't matter? all because of some unelected judges that make decisions that may or may not please you?

The SCC only makes decisions about whats brought to them to make decisions about. They are tasked to make a decision concerning some question or other. They don't wander the halls of parliament shredding whatever legislation takes thier fancy.

Even if your dream came true and the SCC judges served for limited terms - Even then! - What supposed acountability would they have? They'd have to justify thier decisions? They do that already. They could be removed at the whims of some PM? How would that be accountable?. Would they be required to serve prison sentences - and some PM's whim - to teach them a lesson?