The Supreme Court writes new law

[Argus]

Rosalie Abella, losing no time in demonstrating the political activism which got her appointed to the Supreme Court, demonstrated that the Supreme Court will make the real decisions on how Canada is to be governmed without regard to the wishes of Canada's elected parliament.

An earlier decision by the Supreme Court which effectively granted full Charter protection to anyone in the world who stepped briefly onto Canada's shores - and which has cost us billions and billions since and robbed us of any real control over refugees and immigration, has now been extended. Now even those who aren't on our shores get Charter protection.

In a 7-2 decision which Abella wrote, the SC demonstrated an almost smug contempt for the wishes of Parliament in overruling a decision to prevent the immigration of two families because of severely handicapped children. It has been a longstanding policy that importing people who will place an undue burden on our social services was not in our interests, but Abella, in a logic so paper thin you could blow it apart in a stiff wind, she said that since the two potential immigrants are well-off there should be no undue burden on our social safety net. In doing so she completely ignored the fact there is no provision for wealthy individuals to pay for their handicapped children's health care or education.

Granted, a wealthy parent can afford private schools and help support their child, but they're not about to spend millions on the health care such children will need throughout their lives when public medicare is available, nor will they ignore other support services made available by the state . They will certainly use their economic resources at times to overcome lineups, and perhaps have them treated in the US, but the bulk of the enormous medical expenses will be borne by the taxpayers. And, of course, it is impossible to enforce any promise from the parents otherwise.

Why this intervention by the courts? There is no legal justification behind the Supreme Court even intruding into such an immigration decision. The parents aren't here, and aren't Canadians. This is yet another decision by a Supreme Court which seems not merely to be blissfully unconcerned with Canada's well-being, but to actually wish the country harm.

[fellowtraveller]

Who brought the action before the Court then?

[Argus]

Who brought the action before the Court then?

<{POST_SNAPBACK}>

The would-be immigrants.

[Canuck E Stan]

CBC news story on the decision

Canadian officials must reconsider a decision to deny immigrant status

[FTA Lawyer]

CBC news story on the decision

Canadian officials must reconsider a decision to deny immigrant status

<{POST_SNAPBACK}>

I have not yet read the decision, but this CBC story helps quite a bit in answering Argus's original concerns.

The decision does not really make new law, nor does it compel immigration officials to permit these applicants...it just sends it back to be re-decided by different officers...AND the reason for sending it back is to reconsider the merits of the decision in light of the wealthy individuals' commitments to personally pay for any services their disabled children may need.

I guess the point is if the only reason to deny the applicants is the potential financial burden their kids will place on our society...and there is a way to completely remove that concern...then maybe they should not be refused.

As far as the general criticisms of the SCC being able to trump Parliament you have one particular person to thank for that...Trudeau. Although it is not fair to put all of the blame on him, because the Charter (the atomic bomb of Judicial Activism) does have the fabled "notwithstanding clause" which allows Parliament to veto anything the SCC or any other court does. Unfortunatley, because we have so little principle or integrity in our government (and I mean as a whole, not just the current Liberal one) there's not a politician in the nation who will actually invoke it because it is potential political suicide.

Ralph Klien has threatened it a number of times, but never followed through...and Stephen Harper has hinted at it at times and that has branded him as too scary to be PM. Government would much rather pass the buck (e.g. gay marriage issue) and then say "hey, not my fault...its the Charter and the SCC...what do you expect me to do, my job!?!?!?"

FTA Lawyer

[Guest eureka]

The SCC always could trump Parliament. Could and did many times long before the Charter.

Then, there was no escape clause at all for legislative bodies. That is exactly why the Charter has lessened the protections.

I give you the example of Quebec's language laws. Before the Charter they could have been overturned at Common Law. Now, there is the NWC.

[Argus]

The SCC always could trump Parliament. Could and did many times long before the Charter.

Then, there was no escape clause at all for legislative bodies. That is exactly why the Charter has lessened the protections.

This is quite simply wrong.

[Argus]

CBC news story on the decision

Canadian officials must reconsider a decision to deny immigrant status

<{POST_SNAPBACK}>

I have not yet read the decision, but this CBC story helps quite a bit in answering Argus's original concerns.

The decision does not really make new law, nor does it compel immigration officials to permit these applicants...it just sends it back to be re-decided by different officers...AND the reason for sending it back is to reconsider the merits of the decision in light of the wealthy individuals' commitments to personally pay for any services their disabled children may need.

I guess the point is if the only reason to deny the applicants is the potential financial burden their kids will place on our society...and there is a way to completely remove that concern...then maybe they should not be refused.

I suppose the point really was that Parliament enacted those laws for a very good reason. There are few things about our immigration system which make sense, but not bringing in disabled people is one of them.

You know as well as I do that there is absolutely no legal way to hold them to any promise to pay for their children's special needs, either educational or in the area of extraordinary health care. So why should the government be compelled to reconsider at the behest of foreigners?

[Guest eureka]

I take it you will, in your own god time, explain how it is wrong.

[tml12]

The SCC always could trump Parliament. Could and did many times long before the Charter.

Then, there was no escape clause at all for legislative bodies. That is exactly why the Charter has lessened the protections.

This is quite simply wrong.

<{POST_SNAPBACK}>

I agree that an unelected Supreme Court should not come overall the decision of an elected Parliament.

Yet, we can complain all we want about how things work in Ottawa and get nowhere.

What are the other options? And, perhaps more importantly, are they feasible?

[Guest eureka]

There is np alternative. If the SCC should ever be prevented from overturning unconstitutional legislation then the Rule of Law is dead. Democracy is gone.

[tml12]

There is np alternative. If the SCC should ever be prevented from overturning unconstitutional legislation then the Rule of Law is dead. Democracy is gone.

<{POST_SNAPBACK}>

That's true but I think Argus's point was that they overturned legislation which was passed by a democratically elected Parliament and they themselves are not elected.

Certainly we need the SCC but alternatives could be, for example, a U.S.-style judicial appointment process.

[Argus]

There is np alternative. If the SCC should ever be prevented from overturning unconstitutional legislation then the Rule of Law is dead. Democracy is gone.

<{POST_SNAPBACK}>

What is unconstitutional? I mean, really. I'm serious. Given the leeway of politically active justices, especially of the type Martin and Chretien have appointed, to "interpret" written law in whatever way they choose, can we actually say the Constitution means anything more than the present justices say it does?

Replace all the present Supreme Court justices with Nazis. What does the Constitution now say? Why, it says that there's nothing wrong with gassing Jews, of course. Replace all the justices with stern, fundamentalist Christians. Now what does the Constitution say about gay marriage and such? Replace the justices with trendy, left-leaning political activists who've had little to do with the actual practice of law like the last two appointments, and now what does it say?

The Constitution is a rag not worth the paper it's written on, not so long as the Supreme Court is able to interpret it without guide or restriction, based on their own political and social beliefs and prejudices. Now if the SC was made up of learned, scholarly judges of great wisdom and experience who had a thorough respect for the wishes of the framers of the Constitution, and Parliament's democratic place in selecting policy and paths for the nation --- but that's not how Supreme Court justices are put in place.

The rule of law existed long before the Charter, when Parliament was the supreme court of the land. And the rule of law would continue to exist if the Charter suddenly disappeared.

[Guest eureka]

Argus's pont is entirely invalid. The most important part of a democratic system is an unelected judiciary entrusted with the capacity for Judicial Review. Parliament has frequently passed uncinstitutional legislation and only the courts have saved us from the unintended (in Canada's case) consequences.

God forbid a US style appointment process. Look at what they get. A Court that is beholden to the whims of a President. A Court of often incompetents who are there only because their biases are the same as the President who appointed them.

[tml12]

Argus's pont is entirely invalid. The most important part of a democratic system is an unelected judiciary entrusted with the capacity for Judicial Review. Parliament has frequently passed uncinstitutional legislation and only the courts have saved us from the unintended (in Canada's case) consequences.

God forbid a US style appointment process. Look at what they get. A Court that is beholden to the whims of a President. A Court of often incompetents who are there only because their biases are the same as the President who appointed them.

<{POST_SNAPBACK}>

Yes but the PM could well appoint judges here who are Liberal (in Martin's case) and not just to the SCC but to Senate and corporations, etc. with hardly any affirmation process.

[Guest eureka]

Let's have those types of appointments, Argus. Let's have an American style Supreme Court. A Court that can uphold the stifling of Free Speech as the American Court has done in the past. A Court that can deny Freedom of Association as the Court has done in the past. A Court that can do both as it does now with the Patrior Act. A Court that once ruled against due process as it did in 1873.

Those things do not happen in Canada since our appointments are not political. All are carefully chosen for their legal expaertise and experience. Don't give me the nonsense about the last two appointments. There is no failt to be found in them.

Ifyou want a dictatorship or the possibility of Fascism, then by all means let,s have Nazis or the others you like appointed. They can only come through the process of an executive choice without the wide consultation that is inherent in the Canadian system.

Would you like an opening for the anti-abortionists or the anti-Gays? Or the anti-anything progressive? Or the teaching of Intelligent design in the schools? Then do it the way Bush does; or the way Reagan does.

Would you like an attempt to bring back the Unamerican Activities a la Reagan who regretted its passing in an interview in the Washington Post and appointed the kind of judges who might have thought it useful. Is that what we need in Canada.

I don't think I ever hear anything so naive as the absurd criticisms of the SCC - or the Senate - that I read on these boards. Particularly when the model to be followed is that of the US which teeters on the edge of Fascism from time to time.

[Argus]

Argus's pont is entirely invalid. The most important part of a democratic system is an unelected judiciary entrusted with the capacity for Judicial Review. Parliament has frequently passed uncinstitutional legislation and only the courts have saved us from the unintended (in Canada's case) consequences.

God forbid a US style appointment process. Look at what they get. A Court that is beholden to the whims of a President. A Court of often incompetents who are there only because their biases are the same as the President who appointed them.

<{POST_SNAPBACK}>

I don't understand how anyone sane can examine the US and Canadian supreme courts and conclude that ours is somehow less free of bias than theirs. Just because there is a lot of press coverage and supposition about how each new US nominee feels about abortion and guns while we hear virtually nothing about ours does not make theirs more biased. In fact, the US court has a history of outstanding legal accumen, articulation and wisdom, while ours - eh, ours, well. Let's just say the world jurists pay little attention to it.

As for beholden to the president, US justices are no more in thrall to what a president says or wants or wishes than a Canadian justice. However, each US nominee is extensively critiqued, examined, reviewed and interviewed, while our process is mostly secret. Even conservatives are criticising Bush's appointment of an inexperienced lawyer to the bench, and that appointment might not go through.

Meanwhile in Canada, the fact that Martin would appoint two Supreme Court justices who had so little experience merely to support his gay marriage position 0 with virtually no opposition, is indicative of what little sense of responsibilty Canadian PMs have had in appointing SC judges. I mean, Martin doesn't even believe in gay rights, really. It's just politics. But a passing political fight was all it took to appoint incompetents to the bench. Just so long as they were known as political activists of the left.

[August1991]

Not to get off-topic, but that was well stated, Argus:

Meanwhile in Canada, the fact that Martin would appoint two Supreme Court justices who had so little experience merely to support his gay marriage position 0 with virtually no opposition, is indicative of what little sense of responsibilty Canadian PMs have had in appointing SC judges. I mean, Martin doesn't even believe in gay rights, really. It's just politics. But a passing political fight was all it took to appoint incompetents to the bench. Just so long as they were known as political activists of the left.

Evidence of Martin's views of gay marriage?

The openly gay public works minister recalled Paul Martin's half-joke to him in June as same-sex marriage cleared the Commons amid a bruising national debate.

"The prime minister said to me after the vote: `Well, after all I've been through on this Brison, you'd better get married.'"

CTV

----

I don't understand how anyone sane can examine the US and Canadian supreme courts and conclude that ours is somehow less free of bias than theirs.

eureka tends to define "free of bias" as anything that eureka happens to agree with.

[Argus]

Let's have those types of appointments, Argus. Let's have an American style Supreme Court. A Court that can uphold the stifling of Free Speech as the American Court has done in the past.

I can't see the US supreme court upholding the stifling of free speech to the degree the Canadian Supreme Court is doing NOW, in upholding the government's ban on advertising during election. The court based it's upholding of the law, despite it being unconstitutional, on the "clear and pressing need" of defending us against a supposed army of evil, cigar chomping rich people who would otherwise sway us with their irresistable advertising campaigns, though they had never attempted to do so in the past.

Those things do not happen in Canada since our appointments are not political.

Uhmmm. not political? What planet or alternate reality do you make your home in?

All are carefully chosen for their legal expaertise and experience.

Neither legal expertise or experience (the last two appointees had virtually none) figure into appointments to the Canadian supreme court.

Don't give me the nonsense about the last two appointments. There is no failt to be found in them.

Well, no, you wouldn't find fault in them because they are political activists from the left. Those seeking strong legal experience and knowledge, however, might quibble.

I don't think I ever hear anything so naive as the absurd criticisms of the SCC - or the Senate - that I read on these boards.

You inhabit a special little world centred around you and your beliefs, don't you? I think your mind is so utterly closed to any outside thought, let alone criticism of leftist political activities, causes and beliefs that you sincerely are flabbergasted whenever you run across people who disagree with your politics.

[FTA Lawyer]

The SCC always could trump Parliament. Could and did many times long before the Charter.

Then, there was no escape clause at all for legislative bodies. That is exactly why the Charter has lessened the protections.

This is quite simply wrong.

<{POST_SNAPBACK}>

eureka,

I'll tell you what's wrong about your statement.

We are talking judicial activism here, and prior to the Charter, the SCC (and actually the JCPC - Judicial Committee of the Privy Council before it) had virtually zero ability to impart any activism.

You are right that they could declare legislation "unconstitutional" but only on a "division of powers" basis. That is, Provincial legislation that infringed on Fed jurisdiction could be struck or "re-written" to the extent necessary to remove the infringement (and vice-versa for Fed legislation infringing improperly on Prov. jurisdiction).

Aside from infringing jurisdiction, Parliament and the Prov. Legislatures had absolute legislative freedom.

The impact of the Charter is that it now provides a huge list of principles on which legislation can be struck or "re-written" by courts from as high as the SCC to as low as your local Prov. Ct.

The Charter (in s. 1) also provides a mechanism for balancing conflicting rights (eg. one individual vs. another's or individual vs. collective) and this is where judcial activism is truly able to flourish.

Not only does the SCC have the mandate to determine when a law or gov't. action breaches someone's rights, but they can decide when such a breach is nevertheless permissible. Further, they can decide when to chose one set of rights over another set.

The only element of "supremacy of Parliament" that remians in light of the Charter is the "notwithsatanding clause", which allows a government to expressly take an action or pass a law notwithstanding that it is in violation of the Charter.

So I stand by my original statement that those who don't like the level of judicial activism that we currently have can place a majority of the blame on the Charter and its "father" PET.

That being said, those who complain that it seems improper for unelected judges to be usurping the function of an elected government have a particular problem in their argument...it was the elected government that made the Charter law and created the current situation.

As such, the unelected members of the SCC have a specific mandate from the electorate to enforce the Charter as they are currently doing. If we truly don't like it, we as an electorate have every authority to take that mandate away by amending the Constitution and abolishing the Charter. Short of such a mammoth procedure, we simply need to lobby our current elected officials to use the notwithstanding clause...as it has been used in Quebec...if we want to put control back into the hands of Parliament.

Either way, it's a political landmine, and no "national" politician or political party would seem to be able to muster up the courage to actually give it a shot.

FTA Lawyer

[FTA Lawyer]

Let's have those types of appointments, Argus. Let's have an American style Supreme Court. A Court that can uphold the stifling of Free Speech as the American Court has done in the past. A Court that can deny Freedom of Association as the Court has done in the past. A Court that can do both as it does now with the Patrior Act. A Court that once ruled against due process as it did in 1873.

Those things do not happen in Canada since our appointments are not political. All are carefully chosen for their legal expaertise and experience. Don't give me the nonsense about the last two appointments. There is no failt to be found in them.

Ifyou want a dictatorship or the possibility of Fascism, then by all means let,s have Nazis or the others you like appointed. They can only come through the process of an executive choice without the wide consultation that is inherent in the Canadian system.

Would you like an opening for the anti-abortionists or the anti-Gays? Or the anti-anything progressive? Or the teaching of Intelligent design in the schools? Then do it the way Bush does; or the way Reagan does.

Would you like an attempt to bring back the Unamerican Activities a la Reagan who regretted its passing in an interview in the Washington Post and appointed the kind of judges who might have thought it useful. Is that what we need in Canada.

I don't think I ever hear anything so naive as the absurd criticisms of the SCC - or the Senate - that I read on these boards. Particularly when the model to be followed is that of the US which teeters on the edge of Fascism from time to time.

<{POST_SNAPBACK}>

Wow...talk about "naive" and "absurd"...

"our appointments are not political"?????????!!!!!!!!!!

Our SCC appointments (and Senate and other Superior Court etc.) are made as a prerogative of the Prime Minister...meaning absolutely at the pleasure of the current PM...no one (not even Queen Elizabeth herself) can do anything to influence or block the decision AT ALL. This is the "executive choice" which you say is bad and doesn't exist here...you're wrong.

I'm not in favour of the U.S. system because I do feel that it forces candidates to be nominated more for their political views than for their abilities or experience, but at least in that system the nominee has to go through approval hearings and there is some ability of the public to know who the people are that are weilding so much control over the shaping of their society.

Now, we are not in a state of total disarray in Canada. Consider the process being used to replace the retiring Justice Major...Tradition says the new judge should come from the Western provinces and so the Justice Minister has asked for a parliamentary committee to submit a short-list of qualified candidates from the region for consideration.

This is all fine and well, but, should the PM not like the short-list, he can pick WHOMEVER HE WANTS, FOR WHATEVER REASON, WITHOUT EXPLANATION.

I'm not going to say recent appointments are "bad" ones, but it is no coincidence that they happened to have views perfectly aligned with the Government agenda on gay marriage.

And remember when the Gomery Commission was created? One of the very first questions openly put in the media was "which PM appointed him?". Why ask the question? Because our system of appointments is as political as it gets...it just so happens that thankfully, as Canadians we seem to have maintained a concept of merit as well.

FTA Lawyer

[Guest eureka]

I am afraid that I must disagree with you, FTA. The SCC was not limited to the question of division of powers. There are many precedents for that including decosions of the Privy Council.

When I was involved with the QFHSA challenge to Bill 101 in Quebec, the Constituional advisers to our lawyers were Eugene Forsey and Frank Scott. Both thought that the SCC could overturn Quebec's language laws based on the lack of power of the Quebec government to enact such legislation - not on its jurisdiction vis a vis the Federal government.

A different tack we used was having Joe Clark promise a reference to the SCC in return for our support. The principle had nothing to do with division of powers but the lack of power of any government to reduce the rights of one sector of the community: the Rule of Law.

The suggestion that the appointees to the SCC lacked legal experience is simply absurd - I know you are not making that. However, no appointment to the SCC is made without wide consultation with more than a committee. Provincial Attorneys Genral amongst others are also in the picture.

The PM does indeed have the theoretical Constitutional power to appoint whomever he chosses, but, in practise and by convention, cannot. No Prime Minister would remain PM very long if he ever chose to do so. There are those regional interests that would not sit quietly and Parliament would not tolerate it. There would be a quick non-confidence vote and a public outcry that would make Adscam seem like a children's story.

[FTA Lawyer]

I am afraid that I must disagree with you, FTA. The SCC was not limited to the question of division of powers. There are many precedents for that including decosions of the Privy Council.

When I was involved with the QFHSA challenge to Bill 101 in Quebec, the Constituional advisers to our lawyers were Eugene Forsey and Frank Scott. Both thought that the SCC could overturn Quebec's language laws based on the lack of power of the Quebec government to enact such legislation - not on its jurisdiction vis a vis the Federal government.

A different tack we used was having Joe Clark promise a reference to the SCC in return for our support. The principle had nothing to do with division of powers but the lack of power of any government to reduce the rights of one sector of the community: the Rule of Law.

The suggestion that the appointees to the SCC lacked legal experience is simply absurd - I know you are not making that. However, no appointment to the SCC is made without wide consultation with more than a committee. Provincial Attorneys Genral amongst others are also in the picture.

The PM does indeed have the theoretical Constitutional power to appoint whomever he chosses, but, in practise and by convention, cannot. No Prime Minister would remain PM very long if he ever chose to do so. There are those regional interests that would not sit quietly and Parliament would not tolerate it. There would be a quick non-confidence vote and a public outcry that would make Adscam seem like a children's story.

<{POST_SNAPBACK}>

eureka,

Well, I'm not sure we disagree that much on the Constitutional question after all. Yes, there were provisions in the Constitution, 1867 which could be applied by the SCC to overturn actions of a government other than division of powers...so my statement on this point was oversimplistic.

In fact, on the 1st Bill 101 ruling, the SCC shot down some of the French-only provisions on the basis that it violated the entrenchment of billingualism in the Constitution. Here's a little blurb from a CBC report on the point:

"Originally it restricted the use of English in the National Assembly and the courts, but these provisions were contrary to section 133 of the Constitution Act, 1867 and were struck down by the Supreme Court of Canada in 1979 (see Quebec (A.G.) v. Blaikie, [1979] 2 S.C.R. 1016)."

My point stays the same though, that the real opportunity for judicial activism did not really happen until the courts were given the mandate to make discretionary decisions on balancing of competeing rights (with the advent of the Charter). Prior to that, all they were doing was interpreting Parliament's intent from the words of the Constitution (mostly in division of powers cases, but of course, on various other sections of the Constitution as well).

Frankly, I think we can bury the hatchet on this one...at risk of getting even more detailed and arcane and losing everyone else's interest on this thread.

However, I can't agree with your contention that a deviation from convention on behalf of the PM in the appointment process would lead to any real consequences, let alone an immediate non-confidence vote and a public outcry that would dwarf ADSCAM.

Just ask Alberta's "Senator's in Waiting" how much influence can really be placed on the PM's discretion. Although, I suppose you'd be right on the money if the SCC appointment was set to come from Ontario and a PM picked someone from the West...that would be grounds for gov't-toppling.

FTA Lawyer

[Argus]

The suggestion that the appointees to the SCC lacked legal experience is simply absurd - I know you are not making that. However, no appointment to the SCC is made without wide consultation with more than a committee. Provincial Attorneys Genral amongst others are also in the picture.

"Judge Abella, who has spent only a very few months in the actual practice of law, has climbed up the political / legal ropes based on her reputation as a “human rights” activist. In fact, many of her decisions were based not on any established law, but rather on her own peculiar ideology. For example, in the case of Rosenberg (1998) Judge Abella ignored the decision of the Supreme Court of Canada (Nesbit v. Egan-1995). Although lower courts have traditionally been bound to adhere to the decisions of higher courts, especially the the Supreme Court, Abella simply dismissed the Supreme Court decision as “wrongly decided”, which arguably she had no jurisdiction to do."

Supreme Court is Political Toy

[FTA Lawyer]

Argus,

Thanks for the article...the paragraph right after the one you cite supports my earlier statement about the PM's authority in making appointments to the SCC:

The so-called “new” appointment system of judges is merely the “old” system whereby the Prime Minister still makes the appointment from a short list provided him by the Minister of Justice, and the latter only appears before a Parliamentary Committee to “review the qualifications and track records of the appointed judges.” The committee cannot vote on the appointments, there is no mechanism to object to nominations, and any decision of the Committee is not binding on the Prime Minister.

FTA Lawyer