Tory MP eats crow after ruffling judical feathers

[Canuck E Stan]

I don't know if I believe the rumour about the 15 y.o. prostitue. But if it is true that should definitely be an issue, regardless of the gender of said prostitute.

Ok. That's what I found to be slanderous. Whoever posted that could surely be sued if they can't prove it.

For those who want to know.

Lawrence Metherel is the prostitute who claimed was involved with Graham.Metherel claimed Graham supported him with $1500 a month for 15 years starting in 1980 when he was 15 years of age.

It was all reported in tha Gay magazine FAB by Metherel.

Behind every successful man is an underaged boy?

[August1991]

Further reading of McClachlin's (you were apparently spelling it wrong too August) quotes, I've decided that she should definitely step aside immediately. She's is clearly an activist judge and is very proud of that fact.

I relied on the Supreme Court web site.

Here's a link to an Ottawa Citizen article about the original speech in December 2005 in New Zealand.

"The rule of law requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws or hostile public opinion," said a prepared text of the lecture Chief Justice McLachlin gave to law students at Victoria University of Wellington late last week.

...

In another ruling that has been described as one of the Supreme Court's boldest, the judges used unwritten constitutional principles in 1997 to order provincial governments to set up independent commissions to set judges' salaries.

Critics complained the court entered new territory by telling legislatures the process they were to use in doing their jobs.

There are two issues here. First, do Canadians want a Charter of Rights and activist, common law style justices? (In a related point, was the Chief Justice wise to give the speech she gave? The quotes provided suggest the speech lacked nuance.) Second, why did the press spokesperson for the Chief Justice deny what Vellacott stated?

Meanwhile, the Liberal Party is calling for Vellacott's resignation:

The Liberals today demanded that Conservative MP Maurice Vellacott resign from his position as chair of the Standing Committee on Aboriginal Affairs over his recent derogatory comments about the Supreme Court of Canada.

“For years, Conservatives who did not like our democratically-adopted laws have been attacking our judges,” said Liberal Opposition Leader Bill Graham. “But this weekend Mr. Vellacott went too far. The Prime Minister must ask Mr. Vellacott to resign as Chair of the Aboriginal Affairs Committee.”

And so far, none of McLachlin's NZ speech has appeared in any newspaper.

[Hicksey]

When they find rights where there never were any before, I call that judicial activism.

That case should not have been decided until parliament clarified that part of the constitution. Instead the judge went ahead and decided the case and set the precedent. Considering our system is largely based on precedent, they changed the constitution without a vote in the house and that IMHO is unconstitutional.

Not that I'd don't agree with relationship rights for homosexuals('gay marriage' is a different issue on wihch you can research my opinion), but it was gotten the wrong way. This sets the course for other causes to be had through the courts when they dont get what they want from Ottawa. Such core changes to our society should ony be able to be made by people that can be held accountable for their actions.

The document prohibited descrimination against identifiable groups. The constitution wasn't changed, it was interpreted as the justices were supposed to do. How is deciding that homosexuals are a group anything more than interpretation ? As I said, your problem is more with the loose wording in the original document.

No. You're not getting my point. Until that ruling those same words did not bequeath those rights. It was the loose wording that allowed the justice to find rights in words that were not so interprets before her ruling. And if the SCOC justice was worthy of the robe, instead of ruling on the issue should have continued the issue pending clarification of the law.

Yes, the wording was loose. And the justice knowing that issued a judgement that effectively changed the constitution without an amendment when the justice should have deferred such a deficiency in the constitution to parliament for clarification.

Outcome be damned, I think in Canada the judgement would have been the same even with the change in conduct. That I can accept. But IMHO the justice's actions here leave a lot to be desired. You can't tell me the justice in question didn't understand the consequences of the actions. This is what I mean by judicial activism. It happens both ways I admit and though I like some rulings more than others, they all hurt the system. Changes on that level should never be decided by anyone that cannot be directly held accountable by the voting public.

[Hicksey]

It's hard to take any carping about the courts seriously when everyone, regardless of their political strips, knows that the peopel who whine about the liberal/Liberal biases of the court today would be singing the praises of a high court stacked with conservative/Conservative appointees handing down rulings against gay marriage, abortion etc. One's justice is another's judicial activism.

Me, I recognize the flaws and foibles of the SCC, the political nature of the game and the apparent biases of its members. But, since I generally am in acordance with those biases, I don't particularily care and I am honset enough to admit it.

Just the opposite. Like you I am willing to accept that the high courts are going to have political overtones. But its members must be above reproach and know when to defer to parliament. Politically motivated rulings help no one and in the end ultimately hurt the legitimacy of the system. Though I admit like you that I like some rulings much more than others, I think overall legitimacy and transparency is still the best policy.

IMHO arms of government not accountable to voters through the ballot box should not be able to change our constitution. I really don't care if it takes longer or whether it will change the outcome or not. Changes to core values set out in our constitution should not be handed down from the courts. Interpret and apply. If there's not enough there to make a judgement defer to parliament for clarification. Argue that nothing was changed all you want, but in a system based on precedent a new ruling with a new interpretation is essentially new law.

I'm not so much worried about the issue upon which the activism happened here as I am about the activism itself. This just happened to be a well known example.

[Argus]

For those who want to know.

Lawrence Metherel is the prostitute who claimed was involved with Graham.Metherel claimed Graham supported him with $1500 a month for 15 years starting in 1980 when he was 15 years of age.

It was all reported in tha Gay magazine FAB by Metherel.

Behind every successful man is an underaged boy?

As I said, I find it incredible that this has never even made it into the mainstream press. These are serious allegations, whether they're wrong or not, about a man who is leader of the official opposition. And no one even dares talk about it. I think the general voting public have a right to know if a party leader is screwing around with prostitutes of any kind, especially a married party leader. But the allegations of screwing around with a 15 year old prostitute are far worse.

[Argus]

Further reading of McClachlin's (you were apparently spelling it wrong too August) quotes, I've decided that she should definitely step aside immediately. She's is clearly an activist judge and is very proud of that fact.

Some of the quotes that stood out in my mind:

"...the legitimacy of the modern democratic state arguably depends on its adhesion to fundamental norms that transcend the law and executive action."

And how do I know what these "fundamental norms" are, especially if they're unwritten? How do I know my fundamental norms are the same as hers? And if they're fundamental norms shouldn't society itself have written them into its constitution? Where does she get off substituting her own beliefs for those of society?

The arrogance of judges!

"It is sufficient that the law provide a general idea of what kind of result may ensue, and that the result, once established by judicial rulings, be justifiable in terms of what is written on the books and legal convention or usage."

In other words, as I have long written, supreme court judges decide on the outcome based on their own beliefs, then they read the laws to see how they can establish some basis of support for their decisions.

And it's not as though the government did a lengthy search for the wisest of judges either. It's more like "Have we got a disabled black lesbian francophone in Quebec who agrees with our political world view to stick into the vacancy? How about an albino transgendered bestiality activist with dyslexia from Mannitoba who'll support our beliefs on native rights?"

Like I said, I could probably walk into a decent sized law office in Ottawa, Toronto or Vancouver, drag out nine lawyers at random, call them the Supreme Court, and they'd do as good or better a job as the illustrious activists under Mcwhatevehernameis.

[Guest Warwick Green]

Lawrence Metherel is the prostitute who claimed was involved with Graham.Metherel claimed Graham supported him with $1500 a month for 15 years starting in 1980 when he was 15 years of age.

It was all reported in tha Gay magazine FAB by Metherel.

http://www.axisofevilradio.com/documents/b...rahampicnic.pdf

As I said, I find it incredible that this has never even made it into the mainstream press. These are serious allegations, whether they're wrong or not, about a man who is leader of the official opposition. And no one even dares talk about it. I think the general voting public have a right to know if a party leader is screwing around with prostitutes of any kind, especially a married party leader. But the allegations of screwing around with a 15 year old prostitute are far worse.

Over this period of time we have seen an extensive broadening of gay rights, addition of sexual orientation to the hate speech law and the passage of a bill legalizing gay marriage. Unfortuately at the same time we have seen a lot of homophobia too.

Until I read this thread I was unaware that Bill Graham may have had a homosexual relationship with a prostitute. The fact that the relationship was same-sex is irrelevant (we don't make a fuss about people have straight sex relations) but if this sexual orientation is widely known in his riding but has never become an issue it shows maturity in the political process.

A teen hooker - of either gender - of course is something else.

[Argus]

Until I read this thread I was unaware that Bill Graham may have had a homosexual relationship with a prostitute. The fact that the relationship was same-sex is irrelevant (we don't make a fuss about people have straight sex relations) but if this sexual orientation is widely known in his riding but has never become an issue it shows maturity in the political process.

A teen hooker - of either gender - of course is something else.

Most people, like yourself, in the general public, are not aware of his exual orientation. He is "out" to family and friends, to co-workers and election volunteers, to party members, and of course, the media know he is gay. As far as the general voting public is concerned he is a married father who is faithful to his wife.

[Michael Hardner]

No. You're not getting my point. Until that ruling those same words did not bequeath those rights. It was the loose wording that allowed the justice to find rights in words that were not so interprets before her ruling. And if the SCOC justice was worthy of the robe, instead of ruling on the issue should have continued the issue pending clarification of the law.

It wasn't the law that needed to be clarified, it was the constitution. It was the constitution that guaranteed those rights, and the law has to conform to it.

Yes, the wording was loose. And the justice knowing that issued a judgement that effectively changed the constitution without an amendment when the justice should have deferred such a deficiency in the constitution to parliament for clarification.

It did not change the constitution. The wording is the same, but the meaning was challenged and settled by the justices. This is what they do.

Outcome be damned, I think in Canada the judgement would have been the same even with the change in conduct. That I can accept. But IMHO the justice's actions here leave a lot to be desired. You can't tell me the justice in question didn't understand the consequences of the actions. This is what I mean by judicial activism. It happens both ways I admit and though I like some rulings more than others, they all hurt the system. Changes on that level should never be decided by anyone that cannot be directly held accountable by the voting public.

Call it justicial activism if you want, but this is what the justices do - they settle constitutional matters. No document is perfect, or you wouldn't need a Supreme Court.

All of this talk of unaccountable justices 'making laws' is a direct result of this controversial decision. Many of you would have the entire process restructured because of that same decision. Does this make any sense ? Unfortunately in legal matters, you win some and you lose some.

Trying to restructure the whole process based on that decision is an example of throwing the baby and babysitter out with the bathwater. Even Mr. Harper has stated that he likes the existing set-up as it puts legislative and legal sides in check for each other.

The system is the same in the US where there are more conservative judges, and there we find - big surprise - liberals saying the same things that conservatives say in Canada.

Your man is in power now. Just watch how much change he initiates with respect to this system. I don't think there will be much.

[August1991]

Tonda McCharles in the Toronto Star refers to the NZ speech:

But the controversy continued when Vellacott referred reporters to a speech given in December by McLachlin to a New Zealand news conference as justification for his own opinions about judges.

"You look it over, you make your own deductions. Draw your conclusions," he said.

The speech is a complex analysis of when and how unwritten constitutional principles enter into legal debates, with no references to the views Vellacott ascribed to the chief judge.

That's bad journalism. It wasn't a press conference, it was a speech at a university. To dismiss the speech as a "complex analysis" avoids the point. This is not reporting, it's editorial.

BTW, this what McLachlin said:

"The rule of law requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws or hostile public opinion," said a prepared text of the lecture Chief Justice McLachlin gave to law students at Victoria University of Wellington late last week.

(From Ottawa Citizen link above).

Call it justicial activism if you want, but this is what the justices do - they settle constitutional matters. No document is perfect, or you wouldn't need a Supreme Court.

Well, not quite. When there is a written code, then it is up to the judge to apply the code to the specific case. That is the sense of a Charter.

When there is no code, but only a series of precedents, then a judge must sometimes find the relevant precedents to make a determination.

In Canada, we've got the worst of both worlds. An activist court and a code.

The system is the same in the US where there are more conservative judges, and there we find - big surprise - liberals saying the same things that conservatives say in Canada.

Michael, I tend to agree with you. Although even in the US, I'm not sure that any Chief Justice has been so vociferous in declaring the right to be activist.

In any case, I wonder whether Canadians want to have an activist court. The fact that there is controversy surrounding this activism suggests to me that Canadians do not agree with the Chief Justice. If she wants to get into the business of advancing causes, she'd better be careful not to find herself without a following.

In addition, the problem with her open-minded approach to the law is that it can lead in the future to dangerous results.

[Hicksey]

No. You're not getting my point. Until that ruling those same words did not bequeath those rights. It was the loose wording that allowed the justice to find rights in words that were not so interprets before her ruling. And if the SCOC justice was worthy of the robe, instead of ruling on the issue should have continued the issue pending clarification of the law.

It wasn't the law that needed to be clarified, it was the constitution. It was the constitution that guaranteed those rights, and the law has to conform to it.

Yes, the wording was loose. And the justice knowing that issued a judgement that effectively changed the constitution without an amendment when the justice should have deferred such a deficiency in the constitution to parliament for clarification.

It did not change the constitution. The wording is the same, but the meaning was challenged and settled by the justices. This is what they do.

Outcome be damned, I think in Canada the judgement would have been the same even with the change in conduct. That I can accept. But IMHO the justice's actions here leave a lot to be desired. You can't tell me the justice in question didn't understand the consequences of the actions. This is what I mean by judicial activism. It happens both ways I admit and though I like some rulings more than others, they all hurt the system. Changes on that level should never be decided by anyone that cannot be directly held accountable by the voting public.

Call it justicial activism if you want, but this is what the justices do - they settle constitutional matters. No document is perfect, or you wouldn't need a Supreme Court.

All of this talk of unaccountable justices 'making laws' is a direct result of this controversial decision. Many of you would have the entire process restructured because of that same decision. Does this make any sense ? Unfortunately in legal matters, you win some and you lose some.

Trying to restructure the whole process based on that decision is an example of throwing the baby and babysitter out with the bathwater. Even Mr. Harper has stated that he likes the existing set-up as it puts legislative and legal sides in check for each other.

The system is the same in the US where there are more conservative judges, and there we find - big surprise - liberals saying the same things that conservatives say in Canada.

Your man is in power now. Just watch how much change he initiates with respect to this system. I don't think there will be much.

That was a change in constitutional law whether or not you want to admit it because now judges in future cases are beholden to rule according to this precedent. They weren't so obliged before that so there was a change. And because of that change they are now obliged to rule differently than they were before that judgement. I don't know why this is so hard to understand.

I'm not asking for a system overhaul, I am asking that core consitutional changes/changes in interpretation be decided by elected officials accountable to the voting public. On most issues I would defer to the courts.

[August1991]

The more I read about this, the less I like what I read.

Here is how activists see the task ahead - it's about social change:

"It is consistent with our whole hypocritical approach to human rights," said Toronto lawyer Mary Eberts, a frequent equality-rights litigant who is writing a book on the topic entitled, Symbol or Substance? "We talk a good game, but we don't actually do anything. Our Supreme Court does not lead social change. It follows social change."

In her revealing 2001 speech, Chief Justice McLachlin pulled no punches in describing the odds the court was facing. "The language of equality is so open and general that it is difficult to assign a precise legal meaning," she said.

"At the same time, every nuance is critical. Too narrow an interpretation, and one sends the law down a formalistic cul-de-sac," she said. ". . . Too broad an interpretation, and one risks undermining long-standing social institutions and upsetting the careful equilibria crafted by Parliament and the legislatures to maintain social stability."

Link

"I think the public is coming to a better understanding of the shallowness of that question: Are they activist or are they not activist?" Chief Justice McLachlin said.

Link

(There is nothing weaker than to dismiss an opposing view as "shallow", as many posters to this forum will attest.)

[Michael Hardner]

That was a change in constitutional law whether or not you want to admit it because now judges in future cases are beholden to rule according to this precedent. They weren't so obliged before that so there was a change. And because of that change they are now obliged to rule differently than they were before that judgement. I don't know why this is so hard to understand.

I understand it, I just don't understand why this case has caused people to declare that judges are making the law.

I'm not asking for a system overhaul, I am asking that core consitutional changes/changes in interpretation be decided by elected officials accountable to the voting public. On most issues I would defer to the courts.

And how would you decide which issues ? Whatever basis you choose will tip the balanced. Yes, there is a balance now (a balance that Harper says he 'likes') between judicial and legislative. If you want to give more rights to the legislative side, then what's going to happen when, say, a Liberal/NDP coalition decides that the RC church must allow women to be priests ?

[Hicksey]

That was a change in constitutional law whether or not you want to admit it because now judges in future cases are beholden to rule according to this precedent. They weren't so obliged before that so there was a change. And because of that change they are now obliged to rule differently than they were before that judgement. I don't know why this is so hard to understand.

I understand it, I just don't understand why this case has caused people to declare that judges are making the law.

I'm not asking for a system overhaul, I am asking that core consitutional changes/changes in interpretation be decided by elected officials accountable to the voting public. On most issues I would defer to the courts.

And how would you decide which issues ? Whatever basis you choose will tip the balanced. Yes, there is a balance now (a balance that Harper says he 'likes') between judicial and legislative. If you want to give more rights to the legislative side, then what's going to happen when, say, a Liberal/NDP coalition decides that the RC church must allow women to be priests ?

We're taling about clarification here, not outright changing of the wording which is already under the juridiction of parliament. Your example would require a change that would allow parliament to force religions to do things against their doctrine which right now is unconstitutional.

[Michael Hardner]

We're taling about clarification here, not outright changing of the wording which is already under the juridiction of parliament. Your example would require a change that would allow parliament to force religions to do things against their doctrine which right now is unconstitutional.

I don't see the difference. The marriage issue was about the definition of "groups", but the example I gave would be about how to define "freedom" of religion. Don't you think ? Or am I missing something...

[Hicksey]

We're taling about clarification here, not outright changing of the wording which is already under the juridiction of parliament. Your example would require a change that would allow parliament to force religions to do things against their doctrine which right now is unconstitutional.

I don't see the difference. The marriage issue was about the definition of "groups", but the example I gave would be about how to define "freedom" of religion. Don't you think ? Or am I missing something...

A changing of the wording would be required to force churches to have to go against their doctrine, as opposed to the changed interpretation in the previous case.

Now if you want a good example of your case it would be whether after the change in interpretation that allowed gay marriage, churches could be forced to marry homosexuals. It could be argued that the right of

homosexuals to marry comes before the right of religous freedom of the church because it chuches right denies them the right to get married. I doubt that would happen in real life because both the liberals and conservatives have said the notwithstanding clause would be used to block it. But that argument could be made. That would require an interpretation on which right stands higher on the heirarchy of rights defined in the constitution.

[geoffrey]

The only people that should be making laws and changes to laws in this country is the House of Commons, anything else and we aren't a democracy.

The surpeme court in this country is way too powerful, they can declare things legal and illegal at whim, and completely just based on their beliefs, and not based on law.

If it isn't written down or based on precedent, then it's not law. You can't randomly declare something legal whenever you feel it should be, we have elected people to do that.

[Michael Hardner]

But how can you even decide what needs to be interpreted and what doesn't without going to the court to ask ?

You're looking at this with the clarity of hindsight. How could we decide that "freedom" needs to go to the court to be clarified but "group" doesn't ? Ultimately you have to go to somebody.

[geoffrey]

But how can you even decide what needs to be interpreted and what doesn't without going to the court to ask ?

You're looking at this with the clarity of hindsight. How could we decide that "freedom" needs to go to the court to be clarified but "group" doesn't ? Ultimately you have to go to somebody.

Yup, the HoC. Judges have no ability to change or make laws, they interpret them, nothing else.

All that needs to be interpreted is whats on paper and how it applies to the situation at hand. Personal judgements not based on previous precedent or written law have no place.

For example, saying that gays are a 'group' is not in the power of the justices. The HoC should decide that. Where was it written previously that they are a group? It isn't, that law needs to be passed by elected people first, then the justices can apply it to real situations.

[Argus]

Call it justicial activism if you want, but this is what the justices do - they settle constitutional matters. No document is perfect, or you wouldn't need a Supreme Court.

Or "unwritten rules" which are known only to judges.

[August1991]

The only people that should be making laws and changes to laws in this country is the House of Commons, anything else and we aren't a democracy.

Sorry, Geoffrey, but that's simply wrong. There is a whole body of law that fixes the limits of what the House can or cannot do, or what the Sovereign can or cannot approve. That is the essence of constitutional law under the common law system.

In Canada, in addition, we have an explicit Constitution and a Charter of Rights which hems in the powers of the federal and provincial governments. When there is a question about what a government can or cannot do, then we turn to the Supreme Court for an answer.

The surpeme court in this country is way too powerful, they can declare things legal and illegal at whim, and completely just based on their beliefs, and not based on law.

If it isn't written down or based on precedent, then it's not law. You can't randomly declare something legal whenever you feel it should be, we have elected people to do that.

Here I tend to agree with you. IMV, the Supreme Court has overstepped its power to answer questions. In particular, it's using the Charter as a stepping stone to create a new common law.

Canada is not a laboratory in which the Supreme Court can perform social experiments using the Charter of Rights as a recipe book.

[shoop]

Odd, how Martin campaigned to remove the one remaining check on the Court's potential misuse of the Charter, i.e. the Notwithstanding clause.

Yet another reason it's a good thing the Conservatives won in January.

Here I tend to agree with you. IMV, the Supreme Court has overstepped its power to answer questions. In particular, it's using the Charter as a stepping stone to create a new common law.

Canada is not a laboratory in which the Supreme Court can perform social experiments using the Charter of Rights as a recipe book.

[Michael Hardner]

All that needs to be interpreted is whats on paper and how it applies to the situation at hand. Personal judgements not based on previous precedent or written law have no place.

For example, saying that gays are a 'group' is not in the power of the justices. The HoC should decide that. Where was it written previously that they are a group? It isn't, that law needs to be passed by elected people first, then the justices can apply it to real situations.

See my previous post. It may be perfectly clear to you when the HoC decides and when the Supreme Court does but it's not clear to anybody else. If the court can't decide what a 'group' is then why do they get to decide what a 'freedom' is, or what an 'infringement' is ? It's all language and if you're going to put another layer of decision making in there, then you're just giving the power to that body.

Again, all of this is reactionary, based on one decision that people don't seem to like.

[Wilber]

Being the country's final arbitrator does make the Supreme Court exceptional and somewhat God like. That doesn't make the people who sit as Supreme Court justices either exceptional or God like. They have no more immunity to criticism than anyone else in our society, whether that criticism is justified or not.

[Hicksey]

All that needs to be interpreted is whats on paper and how it applies to the situation at hand. Personal judgements not based on previous precedent or written law have no place.

For example, saying that gays are a 'group' is not in the power of the justices. The HoC should decide that. Where was it written previously that they are a group? It isn't, that law needs to be passed by elected people first, then the justices can apply it to real situations.

See my previous post. It may be perfectly clear to you when the HoC decides and when the Supreme Court does but it's not clear to anybody else. If the court can't decide what a 'group' is then why do they get to decide what a 'freedom' is, or what an 'infringement' is ? It's all language and if you're going to put another layer of decision making in there, then you're just giving the power to that body.

Again, all of this is reactionary, based on one decision that people don't seem to like.

Let's play the devil's advocate.

If the decision were reversed on the same type of agenda-driven decision, who would object?

I used this example solely because it was a well known example of a court reinterpreting the constitution to include rights not conferred before the court was asked to intervene. Perhaps this was not a good example from the standpoint that it regards an issue that people have strong feelings about and can cloud one's objectivity.

If the situation were reversed in the same manner it was made, who would object and on what grounds?

I would because the process under which the decision is conceived is faulty. The first time they made the decision on that basis and in that way it was wrong and though I may agree more with the new outcome, it doesn't become the right thing to do.

My primary concern is that politicians will prefer to ramrod agendas that they know they'll never get through the house through the SCOC because in the SCOC they have someone they can paint in a bogeyman's robe, an entity that can't be held accountable by the people and they can stand there lily white in the midst of it all. I think the precedent is dangerous.