Your Thoughts of the Supreme Court of Canada

[TimG]

See the discussion on proportionality. We don't cut people's hands off for stealing. That's the point you're missing.

It is not an question of absolutes. It really depends on the values of the people deciding what the punishments should be. In Canadian society we have a diverse group of people with widely varying values on the question yet instead of leaving to parliament to set the standard based on the current values of the population, an elite cabal of unelected judges who do not represent the views of all Canadians has decided that they are the only people entitled to decide what constitutes a reasonable punishment for a crime. This is wrong. Edited April 18, 2016 by TimG

[eyeball]

The SCC is the real threat to democracy in this country.

Its the only part of our democracy with any integrity left - and without it we'd be truly screwed.

[eyeball]

Do you even know what a dictatorship is?

A whipped vote.

[blueblood]

It is not an question of absolutes. It really depends on the values of the people deciding what the punishments should be. In Canadian society we have a diverse group of people with widely varying values on the question yet instead of leaving to parliament to set the standard based on the current values of the population, an elite cabal of unelected judges who do not represent the views of all Canadians has decided that they are the only people entitled to decide what constitutes a reasonable punishment for a crime. This is wrong.

Where it gets dicey is "what is reasonable?" That could be anything. The unelectable scc is a two way street as they could take an excessive tough on crime status articulating that a harsh sentence is reasonable as they arent tortured (that will never happen though). Easentially its an unelected cabal of elites drunk with power that are exercising it at will. If a judge is granted that kind of power, ideally there should be a timeline on the expiry of said power.

However constitutions can be ammended and the notwithstanding clause can be used. If the supreme court keeps pushing the envelope that could likely happen...

[cybercoma]

It is not an question of absolutes. It really depends on the values of the people deciding what the punishments should be. In Canadian society we have a diverse group of people with widely varying values on the question yet instead of leaving to parliament to set the standard based on the current values of the population, an elite cabal of unelected judges who do not represent the views of all Canadians has decided that they are the only people entitled to decide what constitutes a reasonable punishment for a crime. This is wrong.

The judges hear the specifics of the accuseds' situations. You may want to live in a society where someone who inherits guns receives the same sentence as someone who's stockpiling black market firearms to use in the commission of crimes, but thankfully we have a constitution that doesn't allow such painfully stupid legislation to be legally valid. Edited April 18, 2016 by cybercoma

[cybercoma]

Where it gets dicey is "what is reasonable?" That could be anything. The unelectable scc is a two way street as they could take an excessive tough on crime status articulating that a harsh sentence is reasonable as they arent tortured (that will never happen though). Easentially its an unelected cabal of elites drunk with power that are exercising it at will. If a judge is granted that kind of power, ideally there should be a timeline on the expiry of said power.

However constitutions can be ammended and the notwithstanding clause can be used. If the supreme court keeps pushing the envelope that could likely happen...

That's not how the notwithstanding clause works.

[blueblood]

The judges hear the specifics of the accuseds' situations. You may want to live in a society where someone who inherits guns receives the same sentence as someone who's stockpiling black market firearms to use in the commission of crimes, but thankfully we have a constitution that doesn't allow such painfully stupid legislation to be legally valid.

And thats why the criminal code has applicable firearms offences as per your scenario.

[blueblood]

That's not how the notwithstanding clause works.

Last i checked cruel and unusual punishment isnt inalienable...

It can be used, however is political suicide to use it in the current political environment

[cybercoma]

And thats why the criminal code has applicable firearms offences as per your scenario.

You mean as per the scenario that the Chief Justice outlined where Harper's legislation would give the same sentence to someone who inherits a firearm as it would to someone involved in organized crime. The punishment is therefore disproportionate because the legislation far too broad in scope when it gives the same sentence to someone who accidentally gets a gun without a license and someone who willingly stockpiles firearms without a license for criminal reasons.

[cybercoma]

Last i checked cruel and unusual punishment isnt inalienable...

It can be used, however is political suicide to use it in the current political environment

The clause has to be written into the legislation before it goes to the SCC and it expires every 5 years.

[Bonam]

It still is the government's job to decide on guideline for sentences. The government can't however violate people's rights by forcing judges to give out disproportionate sentences. Something Argus refused to address is proportionality.

Here's an example. Someone's elderly father is a firearm collector. He gets sick and moves into his daughter's home. She doesn't have his zeal for guns and doesn't have a firearms license. When her father passes away she inherits his guns. She's now breaking the gun possession law by having firearms in her possession without a proper license because she inherited the guns. Mandatory minimum sentencing would have her serving the same sentence as a gang member who was in possession of unlicensed firearms and involved in organized criminal activity.

This from the person that always dismisses anyone that presents a hypothetical scenario or an analogy? Nice.

But no, the judges can simply rule that the person in your made up scenario is not guilty, since there is no criminal intent. Next try?

[square]

What is the role of parliament in sentencing?

[The_Squid]

This from the person that always dismisses anyone that presents a hypothetical scenario or an analogy? Nice.

But no, the judges can simply rule that the person in your made up scenario is not guilty, since there is no criminal intent. Next try?

That example was given by the SCC as to why the law needed changing. Cyber coma didn't make it up.

And no, a court can't simply rule someone is not guilty if in fact they are guilty.

[blueblood]

This from the person that always dismisses anyone that presents a hypothetical scenario or an analogy? Nice.

But no, the judges can simply rule that the person in your made up scenario is not guilty, since there is no criminal intent. Next try?

Also if people would read the damn criminal code.

There are two different offences, one with two different sentences.

There is possession of firearm without a licence which would cover the girl in the scenario and knowingly possess firearm without a license which would encompass the gang bangers. Not only that if the girl makes attempts to get a license or is in the process of getting one or if she has a plan to get the guns disposed of it clearly says that the charge doesnt apply.

Not only that, one can be a summary sentence which can be a fine, the other has a mandatory minimum.

That scenario is fear mongering to say the least.

[dre]

What is the role of parliament in sentencing?

Parliament should provide sentencing guidelines. But the final determination should be made by people with intimate knowledge of each cases facts.

The judge needs to be able to consider both aggravating and mitigating factors, hear victims impact statements, etc etc.

Mandatory minimums are especially bad because they don't remove discretion in sentencing the sentencing process... They shift it from judges to prosecutors, who have no training in sentencing, and who's decisions are not reviewable or transparent. A prosecutor can trade away counts that carry MMS's during the plea bargain process... or not... based solely on their own whims, and prosecutors have no inherent concern for the functioning of the justice system as a whole. They build careers by chalking up "wins" and fairness and proportionality are not part of their mandate.

Edited April 18, 2016 by dre

[Argus]

Harper appointed a bunch of Marxists? LOL. Yes, it's only your opinion.... And one that's asinine to say the least.

I think Harper's ability to appoint conservatives to the Supreme Court was greatly restricted by the fact that after some 50 years of liberal government there were virtually no conservative judges on the bench.

Of course no one ever criticized those liberal governments of appointing 'ideologically acceptable' judges. That was just assumed to be the norm. Only when the Conservatives took power did we start hearing people decrying that the government might want to appoint judges who were more aligned with their ideological views. Only then was it a 'crisis'.

Edited April 18, 2016 by Argus

[blueblood]

Parliament should provide sentencing guidelines. But the final determination should be made by people with intimate knowledge of each cases facts.

The judge needs to be able to consider both aggravating and mitigating factors, hear victims impact statements, etc etc.

Mandatory minimums are especially bad because they don't remove discretion in sentencing the sentencing process... They shift it from judges to prosecutors, who have no training in sentencing, and who's decisions are not reviewable or transparent. A prosecutor can trade away counts that carry MMS's during the plea bargain process... or not... based solely on their own whims, and prosecutors have no inherent concern for the functioning of the justice system as a whole. They build careers by chalking up "wins" and fairness and proportionality are not part of their mandate.

Defence lawyers also build their careers with chalking up wins...

Also if judges arent going to hand out sentences as to what society deems appropriate, there will be govts elected that are going to find ways to get the judges to smarten up.

Its not good for society if the judiciary and the parliament are in a power struggle

Edited April 18, 2016 by blueblood

[blueblood]

I think Harper's ability to appoint conservatives to the Supreme Court was greatly restricted by the fact that after some 50 years of liberal government there were virtually no conservative judges on the bench.

I guess one could say the same about the civil service.

[dre]

Defence lawyers also build their careers with chalking up wins...

Absolutely, which is why neither defense attorneys or prosecutors should have any discretion in terms of sentencing. That job should be done at a sentencing hearing lead by a judge.

[blueblood]

Absolutely, which is why neither defense attorneys or prosecutors should have any discretion in terms of sentencing. That job should be done at a sentencing hearing lead by a judge.

However as we know judges come from either defence lawyers or prosecutors.

[Argus]

Bruce Carson.

https://en.m.wikipedia.org/wiki/Bruce_Carson

Carson wasn't a crook. He was an incompetent idiot who continually got into money problems and couldn't pay his bills. How this schmuck wound up in the PMO is beyond me, but there's no allegation he did anything illegal once there.

Incidentally, his convictions for 'fraud' which was actually for not paying bills, were thirty five years ago and before he started working for the Liberals.

All the legislation being overturned for being unconstitutional.

Most of the legislation the Supreme Court overturned during Harper's time in office was legislation passed by previous governments. A study done of this has shown that despite the left wing media meme that he and the SC were at war the SC didn't overturn laws any more often than they did for previous governments. The only difference was that when the SC overturned laws under Chretien or Turner or Mulroney the media didn't take it as the SC standing up to the evil overlord who hated freedom the way they did with Harper.

[Argus]

Parliament should provide sentencing guidelines. But the final determination should be made by people with intimate knowledge of each cases facts.

A 'guideline' is one that someone can choose to ignore. You cannot ignore sentencing scales. If a law says someone gets six months to 5 years you can't choose to sentence them to twenty years. Parliament has always been responsible for setting sentencing rules for each and every crime. Why is a mandatory minimum any different than the many other laws which have sentence scales written into them?

Mandatory minimums are especially bad because they don't remove discretion in sentencing the sentencing process..

Judges do not and never have had unlimited discretion in sentencing. If parliament applies a minimum sentence to a given law that is because parliament, given the seriousness with which that crime is regarded, wants to send a message, and requires the sentence to be at least minimally strict. The criminal code is littered with such laws. The meme among the left is that Harper's government practically invented the minimum, but they've been around for decades.

[The_Squid]

Carson wasn't a crook. He was an incompetent idiot who continually got into money problems and couldn't pay his bills. How this schmuck wound up in the PMO is beyond me, but there's no allegation he did anything illegal once there.

Incidentally, his convictions for 'fraud' which was actually for not paying bills, were thirty five years ago and before he started working for the Liberals.

No, Carson's not a crook at all...

On February 6, 2009, during leave from his position as head of the Canada School of Energy and Environment, the Deputy Minister of Natural Resources Cassie Doyle received an email from Carson's account, lobbying for a $25 million grant on behalf of the organization. Carson stated later that the email was drafted before he returned to the Prime Ministers office, and that it had been sent accidentally.^[3]

Carson was present at the signing of the contract, witnessing and initialing it. The contract guaranteed 20 percent of the gross profits go to Michele McPherson. McPherson is 22 years old,^[3] his fiancee, and an alleged former escort. She is alleged to have acted as an intermediary.^[4][4][6]

[dre]

The meme among the left is that Harper's government practically invented the minimum, but they've been around for decades.

I cant speak for the imaginary people in your head that you call "the left". But I certainly don't think Harper invented MMS's. Most of our MMS provisions were part of C-68 that was passed in the mid nineties by the liberals.

The Harper government was so inept at writing legislation that it left behind almost no substantive legal legacy at all.

[TimG]

The Harper government was so inept at writing legislation

The problem here is an ideologically driven court that has decided it is the only body in the country entitled to write laws.