The Supreme Court writes new law

[Guest eureka]

abella

Take a look at this bio, Argus. Impressive is an understatement.

[Yaro]

I think Argus, that you have a fundamental misunderstanding of the way our SCC and parliament interact.

The Parliament (effectively) enacted a group of basic laws of principle that we call our constitution. In doing so they force upon the SCC the responsibility to compare all future laws with the principles of the constitution. These basic rights are to hold a place above future law, in order to subvert these laws will in future require a much higher standard then simple majority.

The government can enact any law they want, they have a not-withstanding clause, and baring that they can even change the constitution with a large enough majority.

This is not only within the purview of the SCC; it is absolutely there primary function.

No lawyer or Judge without an agenda will tell you that gay right for example was not protected by the constitution but still some call it the SCC making law which it simply clearly was not the case.

FTA Lawyer, I am curious as to what you would consider to be a good replacement? I am personally not against change although I don't believe that the US system has worked very well, and I do think that our current system has worked well I could see potential issues.

[Guest eureka]

FTA:

You might be interested in some comment concerning legal challenges anf political interference.

That QFHSA challenge that I referred to was the only comprehensive challenge to Quebec's language laws that has been made. In spite of the high powered team behind the preparation of the case, it was opposed fiercely by political interests.

It was launched in 1977 and the federal government took 2 1/2 years to allot a tax number. Though filed, it never came to trial as the active workers dropped out under intense political pressure from federal and provincial authorities. I had left Quebec by the time so never was involved with that part I wish I had been.

Pressure came from all political stripes; from governments and opposition. It seems that the fear of Levesque's promised "social disorder was stronger than the impulse to uphold Justice and the Rights of citizens.

I always wonder whether the SCC would have "let Justice be done though the Heavens fal," or whether it would have rendered the cowardly decision that would achieve the least violent response.

[FTA Lawyer]

I think Argus, that you have a fundamental misunderstanding of the way our SCC and parliament interact.

The Parliament (effectively) enacted a group of basic laws of principle that we call our constitution. In doing so they force upon the SCC the responsibility to compare all future laws with the principles of the constitution. These basic rights are to hold a place above future law, in order to subvert these laws will in future require a much higher standard then simple majority.

The government can enact any law they want, they have a not-withstanding clause, and baring that they can even change the constitution with a large enough majority.

This is not only within the purview of the SCC; it is absolutely there primary function.

No lawyer or Judge without an agenda will tell you that gay right for example was not protected by the constitution but still some call it the SCC making law which it simply clearly was not the case.

FTA Lawyer, I am curious as to what you would consider to be a good replacement? I am personally not against change although I don't believe that the US system has worked very well, and I do think that our current system has worked well I could see potential issues.

<{POST_SNAPBACK}>

Yaro,

I haven't really thought through the pros and cons of various alternatives. I certainly don't want to see partisan political pandering (good alliteration eh?) clouding up the appointment process like in the U.S., but I would like to see some form of check and balance against the otherwise total authority of the PM.

The harsh reality here is that the SCC is becoming increasingly busy all the time, so more and more it picks and chooses the cases it will hear (as many cases require "leave" to get into the SCC). So there is potential for bias in the screening process before a matter ever gets to a hearing before the panel.

And since we have no rules requiring anything but simple majority in SCC decisions, any question of law and societal values that gets before the court can be tipped one way or the other by any single Justice...so it would seem appropriate that society as a whole should have as much input as is feasible to prevent a PM from making appointments in his or her personal interest rather than what's best for Canada.

To illustrate the importance of my point, consider an example like the Sue Rodriguez "assisted suicide" case. Of the 9-member full panel, 5 Justices said the law against assisted suicide was constitutional and therefore dismissed the case, 4 Justices said it was unconstitutional and would have declared the law null and void.

To have such decisions with such rammifications decided by simple majority is another debate in and of itself. In my view, there should have to be a higher standard. But the point is that 4 of the top legal minds in the country (presumably) would have set a course for Canada that is completely opposite to the one we got, and obviously, if only one of those Justices had changed their mind, then Canada's social status quo would have been instantly different.

(And please no debates about assisted suicide here...there's a current thread for that elsewhere...I'm not advocating one side or the other, just saying what a profound influence on our country each SCC appointee can have).

FTA Lawyer

[newbie]

To have such decisions with such rammifications decided by simple majority is another debate in and of itself.  In my view, there should have to be a higher standard.  But the point is that 4 of the top legal minds in the country (presumably) would have set a course for Canada that is completely opposite to the one we got, and obviously, if only one of those Justices had changed their mind, then Canada's social status quo would have been instantly different.

FTA Lawyer

<{POST_SNAPBACK}>

I'm not sure how else you can change the SCC over and above what we have now and still be democratic. There will always be cases that are 5 to 4, for and against. SSM came down to basically 1 vote in the House of Commons. But I can live with those narrow margins because I support the democratic system and the concept of "majority rules."

[Argus]

abella

Take a look at this bio, Argus. Impressive is an understatement.

<{POST_SNAPBACK}>

Perhaps, if you are easily impressed. She has a lot of honorary degrees. That doesn't impress me, frankly. She has sat on any number of commisions, boards and panels. That is impressive, sort of, but it speaks more of someone who is a political activist than anything else.

And really, if you look at what Abella did while a judge, and what Charon did, you can clearly see that both were apointed specifically because of their political beliefs and orientation, not for any great perceived legal wisdom.

Political judges

[Guest eureka]

Perhaps a simple majority for certain issues and more clear for others. I have some dificulty in deciding which would be appropriate.

[FTA Lawyer]

To have such decisions with such rammifications decided by simple majority is another debate in and of itself.  In my view, there should have to be a higher standard.  But the point is that 4 of the top legal minds in the country (presumably) would have set a course for Canada that is completely opposite to the one we got, and obviously, if only one of those Justices had changed their mind, then Canada's social status quo would have been instantly different.

FTA Lawyer

<{POST_SNAPBACK}>

I'm not sure how else you can change the SCC over and above what we have now and still be democratic. There will always be cases that are 5 to 4, for and against. SSM came down to basically 1 vote in the House of Commons. But I can live with those narrow margins because I support the democratic system and the concept of "majority rules."

<{POST_SNAPBACK}>

I hear what you are saying. I guess I'm saying that the difference is that a vote on SSM in the House of Commons is democracy by definition, whereas a judicial interpretation of a law that was passed by the House of Commons is hardly cloaked with the concept of a democratic mandate...especially when the judges are not elected (I'm not saying they should be, just pointing out that they are not, and therfore are not meteing out democracy when they make decisions).

It would be safer in my mind to have some form of further hearing / deliberation in the event that there cannot be at least a "weighted majority" decision in the SCC. We require unanimity from criminal juries...and 2/3 majorities for civil juries (in Alberta...maybe different elsewhere), so why would we be satisfied that when those same cases get up to the highest court in the land that one individual can mean the difference between black and white?

Even the fact that as we go up the chain we keep adding more judges to the bench (1 at trial, 3 at Court of Appeal, 5, 7, or 9 at SCC, depedning on the imortance of the issue) would suggest that we want to lessen the chance that only one person (with their inherent potential for bias and error) makes the call. Allowing 5-4 majorities defeats the purpose to a great extent.

FTA Lawyer

[Yaro]

I disagree that it is one person deciding though. Its 9 people deciding and the decision doesn't ever come down to one person.

I'm no lawyer so I will try to explain what I mean statistically.

If you flip a coin 9 times and after the 8th flip it comes to a count of 4 to 4 then the last flip could be viewed as "the deciding flip"

But

If you flip 9 separate coins at the same time and 5 of them come up heads then it wasn't a matter of it coming down to 1 coin regardless of the fact that it was the margin. I do understand the potential problem with appointing someone based on a single position but regardless of the methodology you’re going to wind up with something either democratic and potentially biased or something undemocratic and potentially biased.

For example take the gay marriage issue, now law professors and judges were pretty unified in the opinion that the charter should have protected the right to gay marriage. The majority of the country was for gay marriage and yet there was real concern that if there was a free vote it would not have passed. So that’s a case of SCC: should have been yes, commons votes (if democratic) real possibility of no, referendum yes. It seems to me a catch 22, courts aren't democratic, and never should be. After all isn't this portion of the SCCs job to prevent tyranny of the majority?

Now that does make me think that maybe in cases without 2/3rds majority issues of charter challenge should be deferred to the commons? I don't know if I like that any better because in the past the courts have been the group protecting our rights...

Ugly situation that I honestly don't see a good way out of... (Although I tend to not try to fix what doesn't appear to be broken...which has been my position on SCC nominations)

[Guest eureka]

Almost any thinker who has written on democracy and political systems has said that Judicial Review is the essence and the essential element in democracy With the caveat that the judiciary must be independent of political influence.

Referring any charter actions back to the Commons would be undemocratic in that any decision ofn the Commons would be a political one and not a sober assessment of what is at issue.

Election is not to be thought od sonce it would inevitably be political. In the same way, Parliamentary approval of nominations would make the judiciary beholden to politics and politicians.

That is the problem with the USA whose Supreme Courts are known, historically, as Conservative or Liberal Courts. It actuallt goes right through their judicial system.

I can see no better way than we have now given the broad consultation that does take place before any appointment.

[tml12]

Almost any thinker who has written on democracy and political systems has said that Judicial Review is the essence and the essential element in democracy With the caveat that the judiciary must be independent of political influence.

Referring any charter actions back to the Commons would be undemocratic in that any decision ofn the Commons would be a political one and not a sober assessment of what is at issue.

Election is not to be thought od sonce it would inevitably be political. In the same way, Parliamentary approval of nominations would make the judiciary beholden to politics and politicians.

That is the problem with the USA whose Supreme Courts are known, historically, as Conservative or Liberal Courts. It actuallt goes right through their judicial system.

I can see no better way than we have now given the broad consultation that does take place before any appointment.

<{POST_SNAPBACK}>

Eureka,

You're right that the US system is polarize between left and right wing.

But what about our Supreme Court? It may not be polarized left or right.

But after 12 years of Liberl rule it certainly has to have a Liberal slant...

[mcqueen625]

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

<{POST_SNAPBACK}>

I disagree because Harper said that the Notwithstanding clause was put into the Charter for a reason and should be used when the court's go too far. On the other hand Martin stated quite clearly just before the last election that as far as he was concerned the Supreme Court of Canada WAS the final say in this country. To me that is abandoning his responsibility to govern this country to a bunch of socially activist judges that for the most part were appointed by either himself of Chretien, and those appointment's came about because these lawyers were political hacks and their appointements were simply rewards for services rendered.

I must also remind everyone that these judiciary appointees are not accountable to the people of this country for any hardship they may cause to this country due to their asinine rulings, and it appears that Martin and his roving band of morons are quite content to allow these appointees to continue running this country. The cure of course if to scrap the Charter, and replace it with a document that truly makes these judges accountable for every decision they make. Of course then you may actually have potential appointees refusing appointments, because it is quite obvious that none of them would want to be held accountable to the people of this country.

[FTA Lawyer]

I disagree that it is one person deciding though. Its 9 people deciding and the decision doesn't ever come down to one person.

I'm no lawyer so I will try to explain what I mean statistically.

If you flip a coin 9 times and after the 8th flip it comes to a count of 4 to 4 then the last flip could be viewed as "the deciding flip"

But

If you flip 9 separate coins at the same time and 5 of them come up heads then it wasn't a matter of it coming down to 1 coin regardless of the fact that it was the margin. I do understand the potential problem with appointing someone based on a single position but regardless of the methodology you’re going to wind up with something either democratic and potentially biased or something undemocratic and potentially biased.

<{POST_SNAPBACK}>

Yaro,

I don't dispute your statistical analysis, in theory. The problem is, when a 9 member panel hears a case, they don't go their 9 separate ways and all come back with a written decision and then add them up and see who wins.

The practicality is that the judges lobby each other to persuade/convince/coerce, whatever you want to call it, and they often pick one of them to write on behalf of all of those who are of the same view. So if judge "x" is sitting on the fence, and the other 8 have aligned in two opposing factions, it truly can come down to one person's call.

Maybe things are working well and we don't need to fix anything on appointments or the way the SCC operates, but tell that to the guy who gets a 5-4 split from the SCC that says he goes to jail for the rest of his life, when the dissenting justices were going to send him home...

I disagree because Harper said that the Notwithstanding clause was put into the Charter for a reason and should be used when the court's go too far. On the other hand Martin stated quite clearly just before the last election that as far as he was concerned the Supreme Court of Canada WAS the final say in this country. To me that is abandoning his responsibility to govern this country to a bunch of socially activist judges that for the most part were appointed by either himself of Chretien, and those appointment's came about because these lawyers were political hacks and their appointements were simply rewards for services rendered.

I must also remind everyone that these judiciary appointees are not accountable to the people of this country for any hardship they may cause to this country due to their asinine rulings, and it appears that Martin and his roving band of morons are quite content to allow these appointees to continue running this country. The cure of course if to scrap the Charter, and replace it with a document that truly makes these judges accountable for every decision they make. Of course then you may actually have potential appointees refusing appointments, because it is quite obvious that none of them would want to be held accountable to the people of this country.

mcqueen,

I think I pretty much said what is in your first paragraph, and therefore agree with you, right up to the last sentence where you go a bit awry.

While I contend that there is potential for abuse in the current appointment system for the SCC, you'll be hard pressed to find any legal scholar who will agree that the current Justices are all just a bunch of former "political hack" lawyers with patronage positions.

In any courtroom in this country, Provincial or Federal, sits some judges who are clear political appointees, and others who have never been more politically involved than voting at election time. Oddly enough, the reason a judge was appointed in the first place arguably has no correlation whatsoever to the quality of the jurist that they turn out to be.

As to your second paragraph, eureka has already addressed this issue quite correctly. One of the cornerstones of a developed democracy is to have an independant judiciary...and the rule of law. Judges need to have the security of knowing that their powers and their livelihoods are not in any way contingent on their "accountability" to Parliament or lobby groups or even the general public.

Interpreting the law often requires judges to say and do things that are widely unpopular...but they should, in fact they must, do these things if we are to uphold order in our society. When you say "accountable for every decision they make" what you are really advocating is elected judges...which means decisions get made based on what result will more likely lead to the most votes next time around...a horrible scenario (which does exist in some U.S. states...and leads directly to the "Judge Judy" form of "justice").

Did you ever wonder how those t.v courtrooms could actually be "real courts of law"? Elected judges = need for votes = get a t.v. show and keep up your ratings with ridiculous screaming and throwing things etc. God help us if the Canadian system ever deteriorates to such embarrasing standards.

FTA Lawyer

[Yaro]

That’s an interesting point FTA, maybe a system where judgments are multi staged first a sequestered and considered legal opinion written from each judge then a combined decision... perhaps with some form of weighting?

At least it would add transparency to each judge’s decision making process and maybe reduce the role of lobbying or political hackary...

Maybe in effect each judge gets 2 votes, 1 after an individual consideration and 1 after a combined consideration, Or maybe a system where a the judge would simply have the option of abstaining there vote after combined consideration?

I disagree because Harper said that the Notwithstanding clause was put into the Charter for a reason and should be used when the court's go too far.

Harper argued hard against the inclusion of this clause, and I agreed with him. The charter is the representation of our basic rights as human beings and citizens of Canada, there should never, ever, under any circumstances be an out for the government to circumvent those rights. At the end of the day if you weren't a political hack and if you understood the process you would probably be defending the PM on this issue.

Referring any charter actions back to the Commons would be undemocratic in that any decision ofn the Commons would be a political one and not a sober assessment of what is at issue.

The referral back to the commons wouldn't be undemocratic; it would be TOO democratic if anything. And I am not suggesting that it’s the best system but I can also see the flip side where some people are uncomfortable with a system of simple majority. It’s a difficult situation.

[FTA Lawyer]

The charter is the representation of our basic rights as human beings and citizens of Canada, there should never, ever, under any circumstances be an out for the government to circumvent those rights. At the end of the day if you weren't a political hack and if you understood the process you would probably be defending the PM on this issue.

<{POST_SNAPBACK}>

Yaro,

Sorry to pick on you on this, but it has to be done. For one of the most referenced documents in the political dialogue of Canadians, the Charter is probably the least understood.

As I have said a number of times, the Charter is the proverbial "rule that was made to be broken." It is specifically designed, and intended to be violated as the drafters understood the inherent conflicts between individual and collective rights, as well as inherent conflicts of one individual's rights with those of another individual.

Everyone harps on about the "notwithstanding clause" because it is a direct way for a government to enact a law it knows to be contrary to the Charter, so it is characterised as a bad thing, never to be used (as you have specifically suggested).

However, other sections make Charter violations permissible. Consider the wording of s. 7 of the Charter:

"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."

By definition, a person's "life, liberty, and security of the person" can be taken away by the State, so long as it is done in accordance with the principles of fundamental justice (which in large part implies "due process").

Also, s. 1 of the Charter, specifically qualifies the entire Charter, and is therefore referred to as the "saving" section becuase it can provide justification for a Charter violation. The section reads as follows:

"The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

So, as I've said before, the "sound-bite" position of Paul Martin that he will never violate the Charter is simply invalid and unsupportable. Unfortunately, the masses eat it up 'cause it makes him sound like a knight in shining armour for human rights.

If you want a concrete example, the roadside screening device used by police to initially test if a person may be driving over the legal limit is a good one. Section 10 ( of the Charter says that upon arrest or detention a person is entitled to get a lawyer immediately (I'm paraphrasing). When you are in the back of a cop car being asked to blow into a screening device you are definitely detained.

BUT, the state of the law is that you are NOT entitled to speak to a lawyer before doing the roadside screening test. The Supreme Court confirms that this practice by police indeed violates an individual's rights under s. 10 (, however, the SCC is satisfied that this violation is a reasonable limit and is "saved" by s. 1 (because impaired driving is so prevalent and such a societal evil that stopping it is more important than upholding the individual's rights).

Is Paul Martin going to amend the Criminal Code to take away roadside screening devices because they violate the Charter? Of course not. Do you really want that Yaro? I suspect not, even though you say that "there should never, ever, under any circumstances be an out for the government to circumvent" Charter rights.

I recommend not calling people "political hacks" and criticising them for not understanding an issue when in doing so you prove yourself to be the true culprit.

FTA Lawyer

[BHS]

Almost any thinker who has written on democracy and political systems has said that Judicial Review is the essence and the essential element in democracy With the caveat that the judiciary must be independent of political influence.

Referring any charter actions back to the Commons would be undemocratic in that any decision ofn the Commons would be a political one and not a sober assessment of what is at issue.

Election is not to be thought od sonce it would inevitably be political. In the same way, Parliamentary approval of nominations would make the judiciary beholden to politics and politicians.

That is the problem with the USA whose Supreme Courts are known, historically, as Conservative or Liberal Courts. It actuallt goes right through their judicial system.

I can see no better way than we have now given the broad consultation that does take place before any appointment.

<{POST_SNAPBACK}>

Eureka,

You're right that the US system is polarize between left and right wing.

But what about our Supreme Court? It may not be polarized left or right.

But after 12 years of Liberl rule it certainly has to have a Liberal slant...

<{POST_SNAPBACK}>

The terms "Conservative" and "Liberal" when applied to the American Supreme Court refer to judicial philosophy, not political philosophy. There's a big difference. A judicial conservative tends to rule strictly by the text of the Constitution, while a judicial liberal tends to view the Constitution as a "living document" that requires updated interpretation not strictly in keeping with the original text.

By the by, it's not just 12 years of Liberal rule, but 32 out of 42 years (since Pearson in 1963) of Liberal rule that have created the slant not just in our judiciary, but in all of our political institutions as well. Especially if you consider (as I surely do) the old Progressive Conservative Party a cadre of Liberals in blue suits. I mean, "progressive conservative" is a friggin oxymoron fer cryin out loud.

[Guest eureka]

That is not the true distinction, BHS. The terms aply to the makeup of the Courts who are appointed in the US because of their political affiliation. There are a thousand examples of Courts circumventing the Constitution in both directions in accordance with the political direction.

The current situation is a good example when the appointments are made to guarantee the furtherance of the Republican extreme Right agenda.

It has taken two centuries of Constitutional misinterpretation to have the Bill of Rights nationalised rather than being a code for federal relations. Then, as I have previously referenced, the Slaughterhouse cases in 1873, reversed the "due process" which was the enabling clause for the "nationalisation" temporarily. That reflected the wishes of the Republican appointers.

[Guest eureka]

FTA:

I have said many times that I think the Charter was no more than a codification of existing Rights> I do not agree that it was "made to be broken." Rather it simply put into words the existing state of Law.

I am not sure that the drafters did know the distinctions between various aspaects of Rights. Trudeu as the principal did not. Trudeau was a Jesuit trained classicist who understood Rights as the French do. That is as Personality Rights not Individual Rights.

As such, he was easily able to contemplate the trumping of individual by collective far more easily than Anglo Saxons could.

The notwithstanding clause is there over the opposition of the drafters and of Rights advocates. It is there solely because one or two Provincial Premiers could not accept that their crowns would not be enlarged with the Charter. Interestingly, it was not Quebec that initially wanted this retrogade step.

There are good arguments to be made for the Clause but not that it can be maintained and renewed for so long as the violaters have a legislative majority. It offends the very principle of the Rule of Law.

I do not see Secs 1 & 7 as providing for violation of the Charter. The Right to fundamental justice is surely a higher individual right than any other.. Without it, there would be no protection for Individual Rights.

"The limits prescribed by Law" do, in my opinion merely reflect the "idea of the "fist to nose" of Mill. The Law is the intervener to ensure that the contact is not made.

I don't really see anything there that was not present in existing Common Law. A Charter is, by definition, an affirmation of existing Rights or a grant of new ones. This Charter merely affirmed the existing state and gave nothing new. It did, though, by application of the Notwithstanding Clause. give governments the ability to suspend Rights.

[RB]

I disagree that it is one person deciding though. Its 9 people deciding and the decision doesn't ever come down to one person.

I'm no lawyer so I will try to explain what I mean statistically.

If you flip a coin 9 times and after the 8th flip it comes to a count of 4 to 4 then the last flip could be viewed as "the deciding flip"

<{POST_SNAPBACK}>

If you flip one coin 9 times and the result is 4 heads 4 tails, the coin itself is bias or you are rather darn lucky, you need to do more flips to get 4 heads and 4 tails statistically

If you flip 9 separate coins at the same time and 5 of them come up heads

lacks mathematical rigor

[RB]

abella

Take a look at this bio, Argus. Impressive is an understatement.

<{POST_SNAPBACK}>

Perhaps, if you are easily impressed. She has a lot of honorary degrees. That doesn't impress me, frankly. She has sat on any number of commisions, boards and panels. That is impressive, sort of, but it speaks more of someone who is a political activist than anything else.

And really, if you look at what Abella did while a judge, and what Charon did, you can clearly see that both were apointed specifically because of their political beliefs and orientation, not for any great perceived legal wisdom.

Political judges

<{POST_SNAPBACK}>

Abella is someone women can draw on for strength and someone to follow

[FTA Lawyer]

FTA:

I have said many times that I think the Charter was no more than a codification of existing Rights> I do not agree that it was "made to be broken." Rather it simply put into words the existing state of Law.

I am not sure that the drafters did know the distinctions between various aspaects of Rights. Trudeu as the principal did not. Trudeau was a Jesuit trained classicist who understood Rights as the French do. That is as Personality Rights not Individual Rights.

As such, he was easily able to contemplate the trumping of individual by collective far more easily than Anglo Saxons could.

The notwithstanding clause is there over the opposition of the drafters and of Rights advocates. It is there solely because one or two Provincial Premiers could not accept that their crowns would not be enlarged with the Charter. Interestingly, it was not Quebec that initially wanted this retrogade step.

There are good arguments to be made for the Clause but not that it can be maintained and renewed for so long as the violaters have a legislative majority. It offends the very principle of the Rule of Law.

I do not see Secs 1 & 7 as providing for violation of the Charter. The Right to fundamental justice is surely a higher individual right than any other.. Without it, there would be no protection for Individual Rights. 

"The limits prescribed by Law" do, in my opinion merely reflect the "idea of the "fist to nose" of Mill. The Law is the intervener to ensure that the contact is not made.

I don't really see anything there that was not present in existing Common Law. A Charter is, by definition, an affirmation of existing Rights or a grant of new ones. This Charter merely affirmed the existing state and gave nothing new. It did, though, by application of the Notwithstanding Clause. give governments the ability to suspend Rights.

<{POST_SNAPBACK}>

With all due respect eureka, you're wrong on this one. There is a bright line in Canadian common law that sits right on 1982. Countless decisions of the courts have been re-decided in light of the Charter. In criminal law in particular, a vast number of "pre-Charter" cases were no longer considered good law almost immediately after the Charter came into force.

To this day, when we are researching cases on which to make current arguments of principle, we almost invariably do not use pre-1982 cases, and it is commonplace to hear lawyers counter such arguments with "that's a pre-Charter case...so it is of little use".

Here's a quote from an SCC case decided in March of 1983:

Both Judge Bigué of the Provincial Court and Dubé J.A. made clear and thorough analyses of the various decisions of this Court and of the other Canadian superior courts regarding the effect of a flagrant denial of the rights of an inmate, recognized by the Canadian Bill of Rights, on the admissibility in evidence of a statement. It should be mentioned that, at the time of the trial, the appeal, and above all, the decision of this Court to authorize the appeal, Canada did not yet have the Canadian Charter of Rights and Freedoms. The coming into force of the Charter now greatly diminishes the importance this appeal had at the time, namely that it provided this Court with an opportunity to review the rule as to the admissibility of statements under such circumstances.

Your opinion on s. 1 and s. 7 may make for an interesting lecture in a university philosophy class, but my statement was one of fact, not opinion. People's Charter rights are routinely violated by the State, and all of the courts in the land have concluded that s. 1 and s. 7 allow it.

I referred to the Rodriguez case earlier...here is the headnote of that case from the SCC majority:

Per La Forest, Sopinka, Gonthier, Iacobucci and Major JJ.: The appellant's claim under s. 7 of the Charter is based on an alleged violation of her liberty and security of the person interests. These interests cannot be divorced from the sanctity of life, which is the third value protected by s. 7. Even when death appears imminent, seeking to control the manner and timing of one's death constitutes a conscious choice of death over life. It follows that life as a value is also engaged in the present [page521] case. Appellant's security of the person interest must be considered in light of the other values mentioned in s. 7.

Security of the person in s. 7 encompasses notions of personal autonomy (at least with respect to the right to make choices concerning one's own body), control over one's physical and psychological integrity which is free from state interference, and basic human dignity. The prohibition in s. 241(, which is a sufficient interaction with the justice system to engage the provisions of s. 7, deprives the appellant of autonomy over her person and causes her physical pain and psychological stress in a manner which impinges on the security of her person. Any resulting deprivation, however, is not contrary to the principles of fundamental justice. The same conclusion is applicable with respect to any liberty interest which may be involved.

The expression "principles of fundamental justice" in s. 7 of the Charter implies that there is some consensus that these principles are vital or fundamental to our societal notion of justice. They must be capable of being identified with some precision and applied to situations in a manner which yields an understandable result. They must also be legal principles. To discern the principles of fundamental justice governing a particular case, it is helpful to review the common law and the legislative history of the offence in question and, in particular, the rationale behind the practice itself (here, the continued criminalization of assisted suicide) and the principles which underlie it. It is also appropriate to consider the state interest. Fundamental justice requires that a fair balance be struck between the interests of the state and those of the individual. The respect for human dignity, while one of the underlying principles upon which our society is based, is not a principle of fundamental justice within the meaning of s. 7.

Assisted suicide, outlawed under the common law, has been prohibited by Parliament since the adoption of Canada's first Criminal Code. The long-standing blanket prohibition in s. 241(, which fulfils the government's objective of protecting the vulnerable, is grounded in the state interest in protecting life and reflects the policy of the state that human life should not be depreciated by allowing life to be taken. This state policy is part of our fundamental conception of the sanctity of life. A blanket prohibition on assisted suicide similar to that in s. 241( also seems to be the norm among Western democracies, and such a prohibition has never been adjudged to be unconstitutional or contrary to fundamental human rights. These societies, including [page522] Canada, recognize and generally apply the principle of the sanctity of life subject to narrow exceptions where notions of personal autonomy and dignity must prevail. Distinctions between passive and active forms of intervention in the dying process continue to be drawn and assisted suicide in situations such as the appellant's is prohibited with few exceptions. No consensus can be found in favour of the decriminalization of assisted suicide. To the extent that there is a consensus, it is that human life must be respected. This consensus finds legal expression in our legal system which prohibits capital punishment. The prohibition against assisted suicide serves a similar purpose. Parliament's repeal of the offence of attempted suicide from the Criminal Code was not a recognition that suicide was to be accepted within Canadian society. Rather, this action merely reflected the recognition that the criminal law was an ineffectual and inappropriate tool for dealing with suicide attempts. Given the concerns about abuse and the great difficulty in creating appropriate safeguards, the blanket prohibition on assisted suicide is not arbitrary or unfair. The prohibition relates to the state's interest in protecting the vulnerable and is reflective of fundamental values at play in our society. Section 241( therefore does not infringe s. 7 of the Charter.

As well, s. 241( of the Code does not infringe s. 12 of the Charter. The appellant is not subjected by the state to any form of cruel and unusual treatment or punishment. Even assuming that "treatment" within the meaning of s. 12 may include that imposed by the state in contexts other than penal or quasi-penal, a mere prohibition by the state on certain action cannot constitute "treatment" under s. 12. There must be some more active state process in operation, involving an exercise of state control over the individual, whether it be positive action, inaction or prohibition. To hold that the criminal prohibition in s. 241(, without the appellant being in any way subject to the state administrative or justice system, falls within the bounds of s. 12 would stretch the ordinary meaning of being "subjected to ... treatment" by the state.

It is preferable in this case not to decide the difficult and important issues raised by the application of s. 15 of the Charter, but rather to assume that the prohibition on assisted suicide in s. 241( of the Code infringes s. 15, since any infringement of s. 15 by s. 241( is clearly justified under s. 1 of the Charter. Section 241( has a pressing and substantial legislative objective and meets [page523] the proportionality test. A prohibition on giving assistance to commit suicide is rationally connected to the purpose of s. 241(, which is to protect and maintain respect for human life. This protection is grounded on a substantial consensus among western countries, medical organizations and our own Law Reform Commission that in order to protect life and those who are vulnerable in society effectively, a prohibition without exception on the giving of assistance to commit suicide is the best approach. Attempts to modify this approach by creating exceptions or formulating safeguards to prevent excesses have been unsatisfactory. Section 241( is thus not overbroad since there is no halfway measure that could be relied upon to achieve the legislation's purpose fully. In dealing with this contentious, complex and morally laden issue, Parliament must be accorded some flexibility. In light of the significant support for s. 241( or for this type of legislation, the government had a reasonable basis for concluding that it had complied with the requirement of minimum impairment. Finally, the balance between the restriction and the government objective is also met.

This excerpt shows the SCC using the wording of s. 7 to "impinge on the security of [Rodriguez'] person" by "depriv[ing] the appellant of autonomy over her person and caus[ing] her physical pain and psychological stress..."

It also shows an acceptance that an infringment of s. 15 in these circumstances "is clearly justified under s.1".

FTA Lawyer

[Guest eureka]

FTA:

A most interesting post that I read quickly, and I will never have time to go through it in detail.

However, it appears that the Courts may have it wrong. The blanket statement that the Charter does not derogate from any existing right surely means that anything that was decided as a right under Common Law can not be lost by virtue of the Charter? And, a Charter, by definition, is, at worst, an affirmation of existing rights. This also was the affirmation of government when the Charter was debated.

I agree that some rights are being curtailed and am no fan of the Charter which is misused, I think, and not to benefit.

An example of a Common Law vs. Charter conclusion - though not Canadian - is the recent decision of British Courts on the detention of terrorist suspects. It is said that under the Charter, government would have a stronger case. I measure that against the most fundamental provision of the Charter; the "no derogation" principle.

I suggest that the Charter, properly applied, can not find against established Common Law other than to improve rights in the light of societal advances.

[Yaro]

Yaro,

Sorry to pick on you on this, but it has to be done. For one of the most referenced documents in the political dialogue of Canadians, the Charter is probably the least understood.

Don't ever feel bad about pontificating on legal issues to me, I don't claim to be well educated on the subject and I certainly won't take offense. I appreciate any learned opinions on subjects I am interested in.

As I have said a number of times, the Charter is the proverbial "rule that was made to be broken." It is specifically designed, and intended to be violated as the drafters understood the inherent conflicts between individual and collective rights, as well as inherent conflicts of one individual's rights with those of another individual.

Everyone harps on about the "notwithstanding clause" because it is a direct way for a government to enact a law it knows to be contrary to the Charter, so it is characterised as a bad thing, never to be used (as you have specifically suggested).

I agree its good for the government to have an out, I just don't think that the out should be embedded as a rule requiring simple majority. If your going to have a rule of simple majority then the Charter has no point, its just a flowery document.

Doesn't the government always have the ability to override the Charter with a significant enough majority?

However, other sections make Charter violations permissible. Consider the wording of s. 7 of the Charter:

"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."

By definition, a person's "life, liberty, and security of the person" can be taken away by the State, so long as it is done in accordance with the principles of fundamental justice (which in large part implies "due process").

I agree that due process is part of what is implied but I also think that fundamental justice implies a reasonable standard of fairness which is why I like it better then simple due process which implies the unimpeded notion of potentially draconian legality.

Also, s. 1 of the Charter, specifically qualifies the entire Charter, and is therefore referred to as the "saving" section becuase it can provide justification for a Charter violation. The section reads as follows:

"The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

So, as I've said before, the "sound-bite" position of Paul Martin that he will never violate the Charter is simply invalid and unsupportable. Unfortunately, the masses eat it up 'cause it makes him sound like a knight in shining armour for human rights.

Here is where I disagree, Paul Martin's position to me seems to be not to use the not-withstanding clause which would give him the ability to simply ignore the charter instead of having to accept the courts rulings as to its extent. Its a question of standard to me, I am aware that the government can enact laws that limit our freedom. However they can only do this so long as they are just and consistent with a free and democratic society as determined by the courts. In the case of the not-withstanding clause even this then level of civil defence disappears.

If you want a concrete example, the roadside screening device used by police to initially test if a person may be driving over the legal limit is a good one. Section 10 ( of the Charter says that upon arrest or detention a person is entitled to get a lawyer immediately (I'm paraphrasing). When you are in the back of a cop car being asked to blow into a screening device you are definitely detained.

BUT, the state of the law is that you are NOT entitled to speak to a lawyer before doing the roadside screening test. The Supreme Court confirms that this practice by police indeed violates an individual's rights under s. 10 (, however, the SCC is satisfied that this violation is a reasonable limit and is "saved" by s. 1 (because impaired driving is so prevalent and such a societal evil that stopping it is more important than upholding the individual's rights).

That's actually a perfect example, as it meets the test of s. 1 and so doesn't require the use of the not-withstanding. This is the type of law that can already be passed without the not-withstanding clause, the only type of law that requires the use of the not-withstanding clause is legally by definition an unreasonable restriction on our freedom and/or unjust.

Is Paul Martin going to amend the Criminal Code to take away roadside screening devices because they violate the Charter? Of course not. Do you really want that Yaro? I suspect not, even though you say that "there should never, ever, under any circumstances be an out for the government to circumvent" Charter rights.

He doesn't need to, it doesn't break the charter, it passes the internal test of reasonably. The not-withstanding clause would only required in a case where the standard is unreasonable. I think the standards set out in s. 1 are fine, I have no problem with them but the not withstanding clause standard does bother me.

I recommend not calling people "political hacks" and criticising them for not understanding an issue when in doing so you prove yourself to be the true culprit.

FTA Lawyer

Political hack wasn't directed at you, it was directed at an individual who most definitely has a VERY strong political bias. I personally don't believe I have a political bias in this case other then being a libertarian on the issue of personal freedoms.

If you flip one coin 9 times and the result is 4 heads 4 tails, the coin itself is bias or you are rather darn lucky, you need to do more flips to get 4 heads and 4 tails statistically

The mathematical principle is sound whether there is 3 flips or 3 septillion flips.

lacks mathematical rigor

Not really, while I agree that more flips would provide a better mathematical base, I don't think that's relevant as we are talking about a specific outcome rather then a specific application of any randomization model.