Government Legislation and the Supreme Court

[Gord]

I believe that the Supreme Court of Canada should rule on the validity of any legislation passed by the Federal Government prior to it becoming official. My reasoning for this is simple. The only people that can afford to contest any legislation before the Supreme Court are the rich and the corporate world because the average Joe cannot afford to do so. So if Canada is a true believer in freedom for all its citizens then let the Supreme Court rule on the validity of all legislation and if the legislation does not pass the Supreme Court then the government has the opportunity to get it right.

[bradco]

I believe that the Supreme Court of Canada should rule on the validity of any legislation passed by the Federal Government prior to it becoming official. My reasoning for this is simple. The only people that can afford to contest any legislation before the Supreme Court are the rich and the corporate world because the average Joe cannot afford to do so. So if Canada is a true believer in freedom for all its citizens then let the Supreme Court rule on the validity of all legislation and if the legislation does not pass the Supreme Court then the government has the opportunity to get it right.

We would need a heck of lot more than 9 judges then I guess.

[B. Max]

That would require a constitutional amendment. I would prefer an overhaul of the senate. Whos job it should be to pass legislation from the house. A EEE senate with veto power from each provinces representatives. This would also require a constitutional amendment.

[Charles Anthony]

It would require a lot more than a constitutional amendment. It would require a population who really did not want democracy.

As little as I care about democracy, I can not imagine hoards of people wanting their "laws" imposed upon them by a supreme court

over-ruling their elected officials -- any more than they may already be.

I believe that the Supreme Court of Canada should rule on the validity of any legislation passed by the Federal Government prior to it becoming official.

Just out of curiosity: who should establish the rules by which the Supreme Court of Canada must follow???

The only people that can afford to contest any legislation before the Supreme Court are the rich and the corporate world because the average Joe cannot afford to do so.

Sorry. That will never change. That is the price you must pay to live in a great big country.

So if Canada is a true believer in freedom for all its citizens then let the Supreme Court rule on the validity of all legislation and if the legislation does not pass the Supreme Court then the government has the opportunity to get it right.

Your observation demonstrates to me that Canada is NOT a true believer in freedom for all its citizens -- if Canada can believe in anything.

[Jerry J. Fortin]

Why in the world would we want to Supreme Court of Canada to decide the outcome of legislative efforts?

I am not comfortable with the fact that these people are SELECTED by the government instead of ELECTED by the people who are supposed to be masters of the government. I favour an overhaul of government myself, in a way that would make them more accountable to the public. Whenever I get the chance I always site the attributes of direct democracy.

[bradco]

Electing a surpeme court defeats the purpose of the court. It is supposed to be a non-politicized body as much as possible. They shouldnt be selected by the government though....maybe selected by another means...I dont have any good ideas but maybe by some sort of body that represents judges in this country (Im assuming there must be one). It is supposed to protect minorities from democracy (democracies arent immune from doing bad things). That being said there is always the notwithstanding clause so I dont see why people get all worked up about the courts. If the government wants to pass a bill the courts cant stop them.

[Gord]

The problem with today's system is the government passes laws which sometimes are illegal because they are in violation of constitution or civil rights. The problem is the average Joe does not have the financial ability to take these laws through the stages of the court system where they finally end up in the Supreme Courts docket. All I am saying is let the Supreme Court rule on new laws prior to them becoming law. The court could then point out where the discrepancies are. It would be up to the government then to amend these discrepancies if they still want to proceed with the legislation.

[FTA Lawyer]

The SCC has routinely refused to interpret legislation absent a "live dispute". The concept of "mootness" is centuries-old in our system. Without a factual foundation on which the legislation can be tested, the SCC would have to try to invent all of the possible scenarios that could arise in order to make some kind of decision about the constitutionality of the law.

Furthermore, what of the little guy (or the independently wealthy for that matter) who comes across a situation in real-life that wasn't contemplated by the SCC in its 'pre-authorization" of the law? He would have no choice but to convince the SCC to hear his case because all the lower courts of the land could do is say..."we're bound by the SCC and the SCC has already said this law is good."

As we have it today, a lowly Provincial Court judge can strike Federal legislation if it is contrary to the Charter. If the Government appeals cases on the basis of issues of national importance which go beyond the original dispute, it is common place for them to pay the costs of the little guy who is forced to be a respondent.

So, in other words, for a $200.00 filing fee, some time of your own and possibly paying a lawyer a couple thousand, anyone in this country can ask a court to strike a bad law...that's pretty damn good access to justice at first instance.

Yes, appeals get expensive, but we also have a remarkable Legal Aid system for most matters as they move up toward the SCC.

The current status quo is far better than the notion of SCC pre-approval of every law. As already mentioned above, we'd need to have a few more than 9 justices for such a system (I'd peg it at about 75...I mean, don't you realize that there are already dozens of lawyers employed by every prov. and fed. gov't. whose sole job it is to evaluate legislation for constitutional compliance?!)

This is a really bad idea.

FTA

[August1991]

So in other words, for a $200.00 filing fee, some time of your own and possibly paying a lawyer a couple thousand, anyone in this country can ask a court to strike a bad law...that's pretty damn good access to justice at first instance.

I'm happy FTA brought this thread back to the top and I'll add my two cents.

The OP contains a misunderstanding about how our judicial system works. An individual may find herself in court seeking justice and that's what the judge may try to deliver. In a similar sense, an ill patient may find himself in a hospital seeking a cure and that's what a doctor will try to provide.

But a good court is always seeking better ways to resolve differences (like a good hospital is always seeking better cures). The Supreme Court is extremely aware of this role. If an interesting case came forward, one that required a new way of considering law, the Supreme Court and lower courts would ensure that the case was heard.

BTW, the government can and occasionally does refer questions to the Supreme Court for an opinion. Lawyers in the Justice department vet laws before they are submitted to parliament.

Whether any of this works well is another question but I don't see how having the Supreme Court eyeball new legislation would solve any of the many problems in our judicial system.

[jbg]

I believe that the Supreme Court of Canada should rule on the validity of any legislation passed by the Federal Government prior to it becoming official. My reasoning for this is simple. The only people that can afford to contest any legislation before the Supreme Court are the rich and the corporate world because the average Joe cannot afford to do so. So if Canada is a true believer in freedom for all its citizens then let the Supreme Court rule on the validity of all legislation and if the legislation does not pass the Supreme Court then the government has the opportunity to get it right.

We would need a heck of lot more than 9 judges then I guess.

That's not the real problem. Speaking as a lawyer, ruling on a law, in the absence of a "case or controversy", in a common law system is totally improper. With the presentation of at least one case, the Court gets to evaluate how a law works in practice.

The initial post was an intelligent one, and it is a good question.