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Partisan judges, how the Supreme Court runs our lives—and why it should be an election issue

Philip Slayton in conversation with Luiza Ch. Savage


 
Partisan judges, how the Supreme Court runs our lives—and why it should be an election issue

Photographs by Andrew Tolson

Philip Slayton is a former law professor and Bay Street lawyer. In 2007, he roiled the legal world with his scorching book, Lawyers Gone Bad: Money, Sex and Madness in Canada’s Legal Profession. Now he is taking on the pinnacle of the legal profession with his new volume, A Mighty Judgment: How the Supreme Court of Canada Runs Your Life.

Q: You write, “The Supreme Court of Canada runs our life.” How so?

A: Since the 1982 Charter, fundamental social, economic, and political decisions have been taken by the Supreme Court of Canada: more than by Parliament or by the cabinet or by the prime minister. The court runs the life of every Canadian by deciding fundamental issues that we care a lot about. For example, in the Morgentaler case of 1988, the court struck down Canada’s abortion law and since that time there has been no abortion law at all. We are the only country in the Western world in which that is true. In the Vriend case, the court overrode the express wishes of the government of Alberta, and decided that provincial human rights legislation protected a gay man. The court has also said, for example, that same-sex marriage is okay, and that Quebec cannot secede unilaterally.

Q: Do you think the judges have overstepped their role?

A: The Charter handed that power to these judges and they are not averse to using it. Have they overstepped? That’s a difficult question. I changed my mind as I wrote this book. I began by thinking you have nine people not elected by anybody, they can’t be kicked out, they work behind closed doors, this is not a good thing, this is not democratic. Then I realized the only opposition we have to a very powerful executive branch, an increasingly autocratic executive branch, is the Supreme Court. The judges on that court are the only people who can decide, ‘You can’t do that.’ They are the real opposition to government in this country. And as such, they are very valuable and important.

Q: So it’s a good thing they run our lives?

A: It’s a good thing they are able and ready to challenge governments—federal and provincial—and bring them to more constitutional ground. It’s a good thing they protect minorities from the tyranny of the majority.

Q: So what’s the problem?

A: The problem is that the country has gone Charter mad. Many issues that used to be solved in the political domain are now characterized as legal issues. There has been a transfer of political debate away from elected representatives to the courts and judges.

Q: Aren’t politicians complicit in this when they bring constitutional “references” and ask the court to weigh in on a difficult issue?

A: Politicians can now say, “Oh, that’s a tough one. That’s a Charter problem.” That’s not a power grab by judges. That’s politicians passing the buck. The judges don’t like these references. Currently there is a reference to the court on a national securities regulator. That is an inappropriate subject for the court. It’s going to the court because politicians can’t solve it, or don’t want to try. Or take the issue of Canada’s prostitution laws. How we think about prostitution is, to me, a political issue. But the more difficult, complex, and politically controversial something is, the more likely it is to end up in the courtroom.

Q: Are we heading to a constitutional confrontation between the court and the executive?

A: I think it’s inevitable. There have been a few times when the court was close to over-stepping the mark. It came close to instructing the federal government to seek the repatriation of Omar Khadr, a Canadian citizen, when it decided Khadr’s Charter rights had been breached at Guantánamo Bay, where he is a prisoner. You could sense them edging up to a much more overtly political role, getting involved in foreign relations.

Q: You write: “A Supreme Court judge is chosen by the prime minister, in private, using whatever criteria he happens to find appealing at the time.” What process would you propose?

A: There are four judges on the court who within the next four years or so will reach the mandatory retirement age of 75. There are others who may retire early. The next PM will shape this court, through appointments, for a generation and beyond. The people he appoints will draw the social and economic face of the country for decades to come. In light of that, the process for appointing judges should change. I favour the U.S. model.

Q: But many Canadians fear public confirmation hearings and putting a judge to a vote by the Senate would “politicize” the judiciary.

A: Once you accept that the Canadian Supreme Court and U.S. Supreme Court are these enormously important makers of policy—only someone who is naive or who is being nominated to a seat on the court denies that—the argument about politicizing the court seems beside the point. The court is a political institution. Why not treat it like one? There is this uncritical acceptance by the Canadian people of a notion that judges are above politics. They are not. By politics here, I don’t mean partisan politics. I mean the promotion of a social, economic, and political vision of how the country should be structured and run. Of course judges act on some view of the world. How could it be otherwise?

Q: The U.S. court is criticized as being divided along partisan lines. In your research, did you find differences between judges appointed by Conservative and Liberal prime ministers?

A: I didn’t see any obvious differences. People point out Jean Chrétien’s appointments to the court all had some connection to a provincial or federal Liberal party. If you look at the two Harper appointees, Marshall Rothstein and Tom Cromwell, it was widely acknowledged that Rothstein is a small-c conservative. Cromwell is harder to pigeonhole. But there is not the kind of screamingly obvious partisan point of view one sees in the U.S.

Q: What do you want to hear the election candidates debating with regard to the court?

A: The makeup of the court should be an election issue. People are asking, for example, do we need new fighter jets? We should ask, what about the Supreme Court? You want to be prime minister, Mr. Ignatieff? And you, Mr. Harper? What kind of people are you going to put on the court? I want to hear the candidates debating what the Supreme Court should do, how it should run.

Q: Harper’s first appointee to the court, Rothstein, was given a hearing before a parliamentary committee. But it was kind of a dud.

A: By all accounts it was a joke. There were very softball questions. The committee was instructed by an eminent law professor, Peter Hogg, that it couldn’t ask questions about controversial issues. Right from the get-go the committee was hobbled. It also didn’t have any power to reject the nomination. It was all window dressing.

Q: The U.S. has a cottage industry of interest groups that exist to influence the selection of judges. They vet the candidates, read all their past decisions, dig into their student papers and their speeches, and then they hand it over to the senators or leak it to the media.

A: Why not? It seems to me we are entitled to know more about these people who are going to be in very powerful positions for a very long time. Why shouldn’t we have a system in which, if we find out something we don’t like, we can stop a nomination? Canadians still have this tremendous deference to judges, even to candidates for judicial office. We don’t want to challenge them. We don’t want to say anything that might be considered rude or impertinent. Deference to authority and the famous Canadian politeness are not appropriate in this context.

Q: You can watch Supreme Court of Canada arguments on television or online. In the U.S., cameras are banned from the courtroom. But you write the judges should be more transparent, they should even go on Facebook.

A: The point I’m trying to make is that very traditional ways of communication are not adequate in the new age. It’s not enough to archive video of arguments before the court. For one thing, they are deathly dull.

Q: You are opposed to judges sitting until age 75, the current mandatory retirement age. Why?

A: A judge can sit there for 20 or 25 years, which makes it difficult to refresh the personnel on the court and to have fresh new ideas and to reflect a rapidly changing demography. I’d like a 15-year non-renewable term.

Q: You write that judges on the top court should be required to be bilingual. Why?

A: This is an unpopular view, but I think this is a bilingual country and it’s more than just symbolism to have judges of the highest court proficient in both official languages. A number of francophone lawyers who have argued before the Supreme Court can point to examples of how their arguments were not understood fully or inadequately translated. They believe this put them at a disadvantage.

Q: What questions would you ask a judicial nominee?

A: I don’t think you could ask a question like: if abortion came before the Supreme Court again, how would you decide the case? But I think it’s fine to ask questions designed to elicit his world view, his view of how the country should be organized, his legal record, judgments given in his judicial career to date. In the U.S., senators ask anything they want. Broad questioning can sometimes be awkward and embarrassing. But that’s not the end of the world. It is often said that if judges were publicly questioned, many people would not allow their names to be put forward. I say, bunk. If they are not prepared to answer questions, maybe they shouldn’t be Supreme Court judges. Is it demeaning to their dignity? Rubbish.


 

Partisan judges, how the Supreme Court runs our lives—and why it should be an election issue

  1. Given that the current Supreme Justice McLaughlin once stated she had the powers of "god" to make the laws, one should heed the warning.

    We have enough activist judges already. And remember, a Judge is simply a lawyer with political connections. (and a sizeable donation to the Liberal Party will greatly improve your chances of being elected…at least for Quebec Liberals)

  2. Given that the current Supreme Justice McLaughlin once stated she had the powers of "god" to make the laws, one should heed the warning.

    We have enough activist judges already. And remember, a Judge is simply a lawyer with political connections. (and a sizeable donation to the Liberal Party will greatly improve your chances of being elected…at least for Quebec Liberals)

    • That sure sounds like it was taken out of context, of she is a megalomaniac. I'm leaning former.

    • Funny, Cons have questioned the validity of the Charter of Rights and Freedoms because they claimed it did not defer to "God", as our previously enshrined constitution was (God, King, Governor General, etc.) Then the Supreme Court went out of its way to reply to these fools that indeed, the preamble of the 1982 Charter of Rights and Freedoms defers to God.

    • "….. chances of being elected…at least for Quebec Liberals)."

      Not just Quebec.

      "And the courts? Let's just review, shall we?

      89% of all political donations made by federal judicial appointees in Ontario since 1993 went to the Liberal Party of Canada. 92% of all political donations by federal judicial appointees in Quebec went to the Liberal Party of Canada.

      More than 60% of all federal judicial appointees in Ontario, Quebec, Alberta, Saskatchewan and Manitoba since 2000 donated exclusively to the Liberal Party of Canada in the three to five years before their appointment. Notice a pattern?

      (UPDATE: "Would you be surprised to find that almost all federal judges appointed from Saskatchewan are Liberal Party donors?" Andrew Coyne blog Jan 2006

  3. The vast majority of Canadians are not bilingual. There is no advantage or need in most of Canada to speak or read French. In Quebec, learned people both speak and read English as well as French, not because Canada requires them to but because English is the dominate language of North America and the world. We don't have two equal groups that are either bilingual or English on one side and French on the other. We have 3/4 who are unilingual English and 1/4 who are bilingual from Qubec.

    Requiring SCC justices to be bilingual means that they would mostly be appointed from Quebec which makes up only 22% of our population. The language spoken is much less important to me than getting the best qualified minds on the Supreme Court.

    The tail should not wag the dog.

  4. The vast majority of Canadians are not bilingual. There is no advantage or need in most of Canada to speak or read French. In Quebec, learned people both speak and read English as well as French, not because Canada requires them to but because English is the dominate language of North America and the world. We don't have two equal groups that are either bilingual or English on one side and French on the other. We have 3/4 who are unilingual English and 1/4 who are bilingual from Qubec.

    Requiring SCC justices to be bilingual means that they would mostly be appointed from Quebec which makes up only 22% of our population. The language spoken is much less important to me than getting the best qualified minds on the Supreme Court.

    The tail should not wag the dog.

    • If you're smart enough for the SCC, learning french – even legal technicalities – should be possible. Just start early in your career.

      • Why should they have to? And if they don't, they are excluded? Not a great idea.

        • Because the English and French versions of our laws have equal validity but sometimes mildly different linguistic interpretations?

      • Many intelligent people have better things to do with their valuable time than waste it trying to learn a language that isn't relevant outside of Quebec.

        I am sure that the people in Quebec love their language and if I lived in Quebec, I too would have to learn it, however, in the rest of Canada, the USA and the majority of the Internet/World think English works just fine.

        It is a myth that Canada has two equal languages. That is simply not true. Quebec has only 22% of the population and French isn't relevant in our modern world. I have sympathy for all the young people in Quebec who haven't bothered to learn English. It was their choice and now they will have to suffer the consequences.

        • Laides and gentleman, another excellent reason for English/frnech judges!

    • I'm from BC, my friends and family don't speak a word of French, but I made the effort and can speak French conversationally. It's not that hard to learn. I daresay the ability to learn a second language is a fair measure of competence.

    • If the judge can't understand french and he or she had to deal with a french lawyer then that lawyer could argue that the judge didn't fully understand. If that happens, everything gets bogged down in procedure.

      It's pretty simple really. It's has nothing to do with democracy and everything to do with fairness.

  5. Neither securities regulators or Quebec separation are Charter issues.

    and in the end, the court is just interpreting legislation the government itself has passed. The government generally has the final word on what its policy will be.

  6. Neither securities regulators or Quebec separation are Charter issues.

    and in the end, the court is just interpreting legislation the government itself has passed. The government generally has the final word on what its policy will be.

    • The security regulation is an issue regarding provincial, and federal jurisdiction – therefore a charter issue. This is exactly the kind of thing that the SC should be sorting out.

      As far as the 'final word' – that rests with the court. By 'interpreting' legislation, they have 'read in' a lot. Unless the government throws out the law that was used to by the courts to 'interpret' or 'read in' certain aspects of the law – it stands.

      • I agree with the substance of your second point but it supports my conclusion rather than yours.

        And questions of jurisdiction aren't Charter issues, although they ARE constitutional.

      • It's not a charter issue, it's a consitutional issue.

        • you right – constitutional issue. nothing to do with charter. my bad.

          Still keeps it in the SC side of the court.

          • All legal matters are potentially SC matters.

    • Not Charter issues, but Constitutional issues.

  7. If you're smart enough for the SCC, learning french – even legal technicalities – should be possible. Just start early in your career.

  8. Furthermore, the court is not a political institution, so much as a government institution which sometimes deals with policy (rather than political) aspects of legal issues.

  9. Furthermore, the court is not a political institution, so much as a government institution which sometimes deals with policy (rather than political) aspects of legal issues.

    • Read the article – the judges are political. They influence every case that comes before them.

      Government institutions just follow the rules, unless they make the rules.

      • I have read the article. I do not feel it is correct on these points.

        • then do some reading on constitutional law in Canada. then you might 'feel' differently.

          • i am conversant in the area.

  10. That sure sounds like it was taken out of context, of she is a megalomaniac. I'm leaning former.

  11. Interesting interview, but nothing new here – within a few years of the enactment of the Charter, it was clear that the SCC and other appellate courts were eagerly embracing it as a tool to reshape Canadian society to fit their own biased notions of what that society should look like. That this jurisprudential march toward a brave new world has slackened in recent years has more to do with the difficulty of maintaining the frenzied pace to "read in" exotic new rights in the first decade or so after the Charter than any discernable shift in the political philosophy since Harper commenced to make appointments to the bench.

    I am cautiously optimistic, however, that the high water mark of judicial activism has been reached and that a decade or so of conservative rule will bring a more neutral balance to the appellate courts. I also hope that, especially if he gets a majority, Harper will show some leadership in reigning in the appellate courts by, for example, invoking the notwithstanding clause to trump the more radical attempts by the courts to try to exert their own world views in matters that are more appropriately left to the political branch.

  12. Interesting interview, but nothing new here – within a few years of the enactment of the Charter, it was clear that the SCC and other appellate courts were eagerly embracing it as a tool to reshape Canadian society to fit their own biased notions of what that society should look like. That this jurisprudential march toward a brave new world has slackened in recent years has more to do with the difficulty of maintaining the frenzied pace to "read in" exotic new rights in the first decade or so after the Charter than any discernable shift in the political philosophy since Harper commenced to make appointments to the bench.

    I am cautiously optimistic, however, that the high water mark of judicial activism has been reached and that a decade or so of conservative rule will bring a more neutral balance to the appellate courts. I also hope that, especially if he gets a majority, Harper will show some leadership in reigning in the appellate courts by, for example, invoking the notwithstanding clause to trump the more radical attempts by the courts to try to exert their own world views in matters that are more appropriately left to the political branch.

  13. Does anyone else think it is significant that they actually have a different system of law in Quebec? English Canada's laws have a common law foundation, Quebec has a civil code foundation. They are fundamentally incompatiible. I think you could make a reasonable argument that the decay and corruption we are beginning to see manifest itself in our nation, post 1982, is very similar to the "European disease" of cronyism and favorite picking by bureaucrats on steroids. The nature of the legal system, whereby you need "approval" to market products or services inevitably leads to a more corrupt system than the common law, free markt alternative. Perhaps it also goes a long way to explaining the over representation of lawyers from Quebec dominating the PM position as well..

  14. Does anyone else think it is significant that they actually have a different system of law in Quebec? English Canada's laws have a common law foundation, Quebec has a civil code foundation. They are fundamentally incompatiible. I think you could make a reasonable argument that the decay and corruption we are beginning to see manifest itself in our nation, post 1982, is very similar to the "European disease" of cronyism and favorite picking by bureaucrats on steroids. The nature of the legal system, whereby you need "approval" to market products or services inevitably leads to a more corrupt system than the common law, free markt alternative. Perhaps it also goes a long way to explaining the over representation of lawyers from Quebec dominating the PM position as well..

      • Having taken the shellacking at Macleans over your "Quebec is most corrupt piece", which US state do you think has the most "institutional corruption" (with apologies to Illinois which is making a spirited run for the crown)? Perhaps you may think I'm being picky, but the Uniform Commercial Code (referenced in the noted paragon of legal commentary Slate) is a law of commerce (as its name implies) it is maritime law with lipstick and broader jurisdiction. The common law is the law of citizens in honor (ie not in financial distress).

        For the record, a jury seated under common law has the legal capacity to judge both fact and law and one of that same jury's rights is nullification of stupid intrusive laws. I'd wager not one Canadian in !0,000 is aware of this. (cont)

        • The real difference in practise though is in civil code "white lists" determine what can or cannot be sold. It is getting on the allowed list (controled by bureaucrats) that is root of corruption (see E.U.). In common law we have "black lists", with legal remedies if banning is deemed too harsh by any parties and process to determine what is banned and why.

          Which system would you argue has produced better results?

          In closing, I find it interesting you'd find the time (and the link) during the campaign…total ad revenue from Quebec down a tad?

  15. Perhaps the charter should have been called the Canadian Charter of Rights and Aspirations. I say this because the freedoms in section 2 are far from inviolate given section 1*

    *1. 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.

  16. Perhaps the charter should have been called the Canadian Charter of Rights and Aspirations. I say this because the freedoms in section 2 are far from inviolate given section 1*

    *1. 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.

    • No rights are absolute. For example, if Charter rights were inviolable, we wouldn't incarcerate criminals (s.7. right to liberty). It's the same principle that limits your freedom of speech to prevent you from falsely crying fire in a crowded theatre. The Court approached this in 1986 by creating a four-step test (see R. v. Oakes) that establishes the requirements that must be met before a government–notice the onus of justifying the violation is on the limiting party–can limit rights.

      • Fair enough, but that means that the use of the term rights was ill-advised as well. If it isn't a isn't absolute then shouldn't it be treated under normal statutory law?

        Question: When is a right not a right?
        Answer: When it isn't.

        Well, thanks for that. It is all clear now.

        • nope because the constitutionality of a law doesn't make it absolute, it makes it above statutory law. where the charter conflicts with ordinary law the charter will prevail (an important disticntion from the federal BILL of rights of decades past). If all constitutional statementswere absolute the division of powers in s. 91 would mean we would have ground to a halt as a country years ago!

          • Again, if a right is not absolute, why bother framing it as a right in the first place? I am well aware that constitutional statements can overrule statutory law. It just doesn't make sense. Why even bother talking about freedoms in the document? Freedoms are clearly no match for rights, even if the rights are not absolute in the eyes of the law. Why even bother having most of the stuff that is in there CCRF covered as a right anyways? If we as a society want these things, what is wrong with using normal statutory law to achieve them?

          • The short answers are that a) there is no legal or practical impediment to guaranteeing rights up to a certain point rather than making them "absolute" (a distinction which may not even be practicable) and b) it would be absurd otherwise.

            when it signed the charter, parliament was well aware that the nature of the legal rights created by the Charter would be defined and fleshed out by the courts, and that the legal aspects of policy making would be subject to new restrictions created by the law and determined by the court (this is what often gets mistaken for "a politicized judiciary" or some such).

          • You are saying it would be absurd otherwise. I am saying it is already absurd. It isn't a charter of rights (fuget 'bout the freedoms), it is a guarantee of judicial backstopping based upon an accidental sampling of the mores of one party and time that has been frozen away from a reasonable means of revision.

          • If it helps, you can think of the right as absolute and the extent of the right as subject to some limitations.

            But I think your problem may simply be one of definition. A right doesn't have to be "absolute" as you say, in law or the real world. To honest, I'm not even sure why you think you have apoint.

          • You don't seem to have much ability to grasp a criticism at the meta level, so it isn't surprising that you fail to grasp my point.

            But, I thank you for your determined trying. Cheers.

          • The idea that a right must be absolute is simply a baseless statement you appear to have latched on to without explanation or reason. It's not meta so much as unjustified.

          • Before getting side tracked into a farcical and tediously obvious exchange on the non-absolute nature of rights, which I had clearly acknowledged in my first post, I was merely commenting that the so called freedoms are totally misnamed. You either did not read that post, didn't care, or didn't understand. What ever. They aren't freedoms but permissions. You seem to be focused on administering a strictly mechanistic correction as if I mis-understood the legal use of the word "rights". I did not misunderstand, I was exploring the non-legal social implications. As you suggest you do grasp such matters, I will, despite no evidence in support, grant that you do. No need to thank me.

            I suppose I bear the blame for allowing it to happen when I took up Dave Z's "Rights are not absolute" gambit.

          • Have fun playing with words then, but you should realize that is all you are doing!

          • I will and I will rest easy knowing you are at hand should I ever have need of a pointless sidetrack (a diversion not without it's pleasures) again.

          • Yes the charter does guarantee us rights, but what it does symatounasly is ensure that by protecting one individual rights it doesn't violate another's. So if we take a look at section 7 it says:
            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.

            That's one of your rights and it is absolute but in how its written it makes clear that if you in any way violate that same right of another, you forfiet that right. Aka I have the right to be free but if I break into some one's house and break their right to security the courts may take away my right of liberty as I have proven myself quite willing to violate the rights of others. The charter is absolutely fascinating and if you're a nerd like me you should definetly take a gander at it, but its all there fully explained by the best legal minds of 1980s.

          • I will freely admit that I am undereducated about the CCRF. I would hope to remedy this ignorance, but this list is long and life is busy and short. Meh. Thanks for posting.

  17. Why should they have to? And if they don't, they are excluded? Not a great idea.

  18. The security regulation is an issue regarding provincial, and federal jurisdiction – therefore a charter issue. This is exactly the kind of thing that the SC should be sorting out.

    As far as the 'final word' – that rests with the court. By 'interpreting' legislation, they have 'read in' a lot. Unless the government throws out the law that was used to by the courts to 'interpret' or 'read in' certain aspects of the law – it stands.

  19. Read the article – the judges are political. They influence every case that comes before them.

    Government institutions just follow the rules, unless they make the rules.

  20. Agree the country has gone Charter mad, but the lawyers are luv'n it – cha-ching. A good summary re Khadr from Centre for Constitutional Studies.

    "The Khadr decision sheds little light on underlying questions about the separation of powers, particularly the line between Charter rights and government policy under the Crown prerogative.

    Fears of a possible “constitutional crisis” may sound exaggerated, but they make sense in this context. The risk is that in a separation-of-powers showdown, a government could simply ignore a court order it considered wrong in principle or totally impractical. Canada's “remarkable history of compliance with court decisions” would be jeopardized; the rule of law would be cast in doubt. For this reason, recent cases like Khadr and Abdelrazik can be analyzed simplistically in terms of “Who backed down?” If the court had made a clear-cut order and the government had disregarded it, something like a constitutional crisis could have been the result."
    http://www.law.ualberta.ca/centres/ccs/issues/Kha

  21. Agree the country has gone Charter mad, but the lawyers are luv'n it – cha-ching. A good summary re Khadr from Centre for Constitutional Studies.

    "The Khadr decision sheds little light on underlying questions about the separation of powers, particularly the line between Charter rights and government policy under the Crown prerogative.

    Fears of a possible “constitutional crisis” may sound exaggerated, but they make sense in this context. The risk is that in a separation-of-powers showdown, a government could simply ignore a court order it considered wrong in principle or totally impractical. Canada%E2%80%99s “remarkable history of compliance with court decisions” would be jeopardized; the rule of law would be cast in doubt. For this reason, recent cases like Khadr and Abdelrazik can be analyzed simplistically in terms of “Who backed down?” If the court had made a clear-cut order and the government had disregarded it, something like a constitutional crisis could have been the result."
    http://www.law.ualberta.ca/centres/ccs/issues/Kha

  22. Agree the country has gone Charter mad, but the lawyers are luv'n it – cha-ching. A good summary re Khadr from Centre for Constitutional Studies.

    "The Khadr decision sheds little light on underlying questions about the separation of powers, particularly the line between Charter rights and government policy under the Crown prerogative.

    Fears of a possible “constitutional crisis” may sound exaggerated, but they make sense in this context. The risk is that in a separation-of-powers showdown, a government could simply ignore a court order it considered wrong in principle or totally impractical. Canada's “remarkable history of compliance with court decisions” would be jeopardized; the rule of law would be cast in doubt. For this reason, recent cases like Khadr and Abdelrazik can be analyzed simplistically in terms of “Who backed down?” If the court had made a clear-cut order and the government had disregarded it, something like a constitutional crisis could have been the result."
    http://www.law.ualberta.ca/centres/ccs/issues/Kha

    • I'm not sure you understand the implications of waht you have quoted.

  23. I'm from BC, my friends and family don't speak a word of French, but I made the effort and can speak French conversationally. It's not that hard to learn. I daresay the ability to learn a second language is a fair measure of competence.

  24. I agree with the substance of your second point but it supports my conclusion rather than yours.

    And questions of jurisdiction aren't Charter issues, although they ARE constitutional.

  25. I have read the article. I do not feel it is correct on these points.

  26. I'm not sure you understand the implications of waht you have quoted.

  27. If the judge can't understand french and he or she had to deal with a french lawyer then that lawyer could argue that the judge didn't fully understand. If that happens, everything gets bogged down in procedure.

    It's pretty simple really. It's has nothing to do with democracy and everything to do with fairness.

  28. It's not a charter issue, it's a consitutional issue.

  29. However, if Harper plans to appoint supreme court judges specifically so that certain legal precedents will be overturned, he owes it to Canada to make this clear. Most PMs have been exemplary on appointing supreme court justices on merit, it is a shame Harper is the first PM who gives me doubts.

  30. However, if Harper plans to appoint supreme court judges specifically so that certain legal precedents will be overturned, he owes it to Canada to make this clear. Most PMs have been exemplary on appointing supreme court justices on merit, it is a shame Harper is the first PM who gives me doubts.

    • In terms of judicial appointments, Harper is the first PM I DON'T have doubts about (although I acknowledge the worst appointees, IMHO, were by Mulroney).

      • then your doubts are fanciful and groundless, I assure you.

  31. I don't understand why he feels that the Supreme Court didn't need to get involved in the Khadr case. If the government is going against the charter, wouldn't it make sense for the court to rule on it?

    Either the government is or isn't violating the rights of the individuals. The government thought they were in the right and wanted to get the advice of the court, seems perfectly fine to me.

  32. I don't understand why he feels that the Supreme Court didn't need to get involved in the Khadr case. If the government is going against the charter, wouldn't it make sense for the court to rule on it?

    Either the government is or isn't violating the rights of the individuals. The government thought they were in the right and wanted to get the advice of the court, seems perfectly fine to me.

    • True, but reverse it. It was Khadr who went to the court because he felt the government was trampling his rights. It WAS, but the top court found that the remedy Khadr needed was not available.

  33. True, but reverse it. It was Khadr who went to the court because he felt the government was trampling his rights. It WAS, but the top court found that the remedy Khadr needed was not available.

  34. Because the English and French versions of our laws have equal validity but sometimes mildly different linguistic interpretations?

  35. In terms of judicial appointments, Harper is the first PM I DON'T have doubts about (although I acknowledge the worst appointees, IMHO, were by Mulroney).

  36. then your doubts are fanciful and groundless, I assure you.

  37. Personally I'm offended by the very idea that a brilliant unilingual candidate, whether English or French, would be excluded on the basis of not speaking both official languages.

    We made Canada bilingual in the name of unifying the "two solitudes" and yet the majority of members from those so-called solitudes are now uneligble to be a part of most aspects of their own government?

    I don't buy this "problems with translation" argument either.

    Are you telling me that the translators, people who generally spend their entire lives training in these languages, more so than 99% of everyone else, are somehow LESS qualified to make the translation than candidates for the supreme court, who are hopefully more versed in LAW than language?

    That's the most ridiculous thing I've ever heard, and will make the selection group for the supreme court so short as to be practically meaningless.

    I'm generally in favour of some degree of political correctness, but this approaches insanity.

  38. Personally I'm offended by the very idea that a brilliant unilingual candidate, whether English or French, would be excluded on the basis of not speaking both official languages.

    We made Canada bilingual in the name of unifying the "two solitudes" and yet the majority of members from those so-called solitudes are now uneligble to be a part of most aspects of their own government?

    I don't buy this "problems with translation" argument either.

    Are you telling me that the translators, people who generally spend their entire lives training in these languages, more so than 99% of everyone else, are somehow LESS qualified to make the translation than candidates for the supreme court, who are hopefully more versed in LAW than language?

    That's the most ridiculous thing I've ever heard, and will make the selection group for the supreme court so short as to be practically meaningless.

    I'm generally in favour of some degree of political correctness, but this approaches insanity.

    • The problems with translators in a legal setting are many and varied and have been addressed often in the courts. While not insurmountable, they definitely give one pause.

      • Well I certainly don't want to sound like I don't appreciate the difficulties of translating legal speak in general, so cheers on your sense of caution.

        It just seems to me that such issues are not significantly reduced by this so-called solution.

        In fact I don't really think they're reduced at all, as having a linguistic expert as part of the process of ensuring that legal arguments are understood in two languages seems to me to increase the likelihood of coming to an understanding.

        The fact that this "solution" also limits many great legal minds from applying for the position is the coup de grace for the whole notion as far as I'm concerned.

  39. then do some reading on constitutional law in Canada. then you might 'feel' differently.

  40. you right – constitutional issue. nothing to do with charter. my bad.

    Still keeps it in the SC side of the court.

  41. i am conversant in the area.

  42. The problems with translators in a legal setting are many and varied and have been addressed often in the courts. While not insurmountable, they definitely give one pause.

  43. All legal matters are potentially SC matters.

  44. Funny, Cons have questioned the validity of the Charter of Rights and Freedoms because they claimed it did not defer to "God", as our previously enshrined constitution was (God, King, Governor General, etc.) Then the Supreme Court went out of its way to reply to these fools that indeed, the preamble of the 1982 Charter of Rights and Freedoms defers to God.

  45. "….. chances of being elected…at least for Quebec Liberals)."

    Not just Quebec.

    "And the courts? Let's just review, shall we?

    89% of all political donations made by federal judicial appointees in Ontario since 1993 went to the Liberal Party of Canada. 92% of all political donations by federal judicial appointees in Quebec went to the Liberal Party of Canada.

    More than 60% of all federal judicial appointees in Ontario, Quebec, Alberta, Saskatchewan and Manitoba since 2000 donated exclusively to the Liberal Party of Canada in the three to five years before their appointment. Notice a pattern?

    (UPDATE: "Would you be surprised to find that almost all federal judges appointed from Saskatchewan are Liberal Party donors?" Andrew Coyne blog Jan 2006

  46. No rights are absolute. For example, if Charter rights were inviolable, we wouldn't incarcerate criminals (s.7. right to liberty). It's the same principle that limits your freedom of speech to prevent you from falsely crying fire in a crowded theatre. The Court approached this in 1986 by creating a four-step test (see R. v. Oakes) that establishes the requirements that must be met before a government–notice the onus of justifying the violation is on the limiting party–can limit rights.

  47. And they chose what they will hear based on partisan lines, wont listen to a challenge to the charter violations of the firearms laws, but bend on other more liberal issues.

  48. And they chose what they will hear based on partisan lines, wont listen to a challenge to the charter violations of the firearms laws, but bend on other more liberal issues.

    • they tend not to listen to arguments with no legal merit, rather than arguments which don't agree with their party politics. Really, we've been very free from left/right splits on the court, there have just been legal differences of opinion.

    • Which Charter section do the firearms laws contravene, and how?

      • Section 2(b): Right To Freedom Of Expression
        Section 7: Right To Liberty
        Section 7: Right to Security Of The Person
        Section 7: Right To Procedural Fairness
        Section 8: Right Against Unreasonable Search Or Seizure
        Section 8: Search and Seizure – Relating To Right To Privacy
        Section 11: Right To Presumption Of Innocence
        Section 9: Right Against Arbitrary Detention
        Section 10(b): Right To Counsel
        Section 26: Right To Bear Arms
        Section 26: Right To Property
        Section 15: Equality Rights
        Section 27: Multicultural Rights

        Do a searach on HOW THE FIREARMS ACT (BILL-68) VIOLATES THE CHARTER OF RIGHTS AND FREEDOMS
        Dont think I am allowed links. Mike T may want to read this as well.

  49. Many intelligent people have better things to do with their valuable time than waste it trying to learn a language that isn't relevant outside of Quebec.

    I am sure that the people in Quebec love their language and if I lived in Quebec, I too would have to learn it, however, in the rest of Canada, the USA and the majority of the Internet/World think English works just fine.

    It is a myth that Canada has two equal languages. That is simply not true. Quebec has only 22% of the population and French isn't relevant in our modern world. I have sympathy for all the young people in Quebec who haven't bothered to learn English. It was their choice and now they will have to suffer the consequences.

  50. Fair enough, but that means that the use of the term rights was ill-advised as well. If it isn't a isn't absolute then shouldn't it be treated under normal statutory law?

    Question: When is a right not a right?
    Answer: When it isn't.

    Well, thanks for that. It is all clear now.

  51. Laides and gentleman, another excellent reason for English/frnech judges!

  52. nope because the constitutionality of a law doesn't make it absolute, it makes it above statutory law. where the charter conflicts with ordinary law the charter will prevail (an important disticntion from the federal BILL of rights of decades past). If all constitutional statementswere absolute the division of powers in s. 91 would mean we would have ground to a halt as a country years ago!

  53. they tend not to listen to arguments with no legal merit, rather than arguments which don't agree with their party politics. Really, we've been very free from left/right splits on the court, there have just been legal differences of opinion.

  54. Again, if a right is not absolute, why bother framing it as a right in the first place? I am well aware that constitutional statements can overrule statutory law. It just doesn't make sense. Why even bother talking about freedoms in the document? Freedoms are clearly no match for rights, even if the rights are not absolute in the eyes of the law. Why even bother having most of the stuff that is in there CCRF covered as a right anyways? If we as a society want these things, what is wrong with using normal statutory law to achieve them?

  55. The short answers are that a) there is no legal or practical impediment to guaranteeing rights up to a certain point rather than making them "absolute" (a distinction which may not even be practicable) and b) it would be absurd otherwise.

    when it signed the charter, parliament was well aware that the nature of the legal rights created by the Charter would be defined and fleshed out by the courts, and that the legal aspects of policy making would be subject to new restrictions created by the law and determined by the court (this is what often gets mistaken for "a politicized judiciary" or some such).

  56. You are saying it would be absurd otherwise. I am saying it is already absurd. It isn't a charter of rights (fuget 'bout the freedoms), it is a guarantee of judicial backstopping based upon an accidental sampling of the mores of one party and time that has been frozen away from a reasonable means of revision.

  57. Well I certainly don't want to sound like I don't appreciate the difficulties of translating legal speak in general, so cheers on your sense of caution.

    It just seems to me that such issues are not significantly reduced by this so-called solution.

    In fact I don't really think they're reduced at all, as having a linguistic expert as part of the process of ensuring that legal arguments are understood in two languages seems to me to increase the likelihood of coming to an understanding.

    The fact that this "solution" also limits many great legal minds from applying for the position is the coup de grace for the whole notion as far as I'm concerned.

  58. Very intelligent comment Mike.

    If you have a point to make, spit it out. Why waste everyone's time with nonsense?

  59. If it helps, you can think of the right as absolute and the extent of the right as subject to some limitations.

    But I think your problem may simply be one of definition. A right doesn't have to be "absolute" as you say, in law or the real world. To honest, I'm not even sure why you think you have apoint.

  60. In fact I don't really think they're reduced at all, as having a linguistic expert as part of the process of ensuring that legal arguments are understood in two languages seems to me to increase the likelihood of coming to an understanding.

    ***

    And it best when the understanding is there because the trier of fact and law is the person who understands what's being said.

  61. You don't seem to have much ability to grasp a criticism at the meta level, so it isn't surprising that you fail to grasp my point.

    But, I thank you for your determined trying. Cheers.

  62. National questions should be decided by the people , not politicians nor judges. Time for referendums.

  63. National questions should be decided by the people , not politicians nor judges. Time for referendums.

  64. The SCC hears appeals from all provinces, whose appellate courts, one can assume, are roughly equally prolific in rendering decisions appealable to the SCC or for which SCC leave is sought. That should mean around 10 percent of SCC appeals derive from Quebec. Even if you adjust the figure on the basis that provincial population impacts on the number of SCC appeals and that "french" appeals (i.e. appeals whereby the hearing in the first instance was conducted in french) sometimes derive from provinces other than Quebec, I am confident no more than 15 – 20% of SCC appeals are "french" appeals.

    Of these 15 – 20%, the majority would be criminal law appeals for which leave to appeal is not required. I suggest that the "lost in translation" problem that is put forward as the primary basis for fully-bilingual SCC appointments is far less likely to occur in criminal law appeals, which don't tend to involve the need for a judge to compare english and french versions of statutory instruments.

    That leaves less than 10% (and probably significantly less than 10%) of SCC appeals that are "french" appeals where there may be a need to compare english/french versions of statutory instruments and, ergo, a potential "lost in translation" issue. Furthermore, and on the assumption SCC justices appointed from Quebec will be fluent in french), these "french" appeals will undoubtedly be heard by a quorum of justices that include several who are fluent in french.

    The point of this post is to attempt to put the "lost in translation" problem in perspective. I highly doubt the fact that the current composition of the SCC includes justices who are not fluent in both languages is relevant in more than one or two appeals a year and, even then, is only relevant at all to the extent one accepts that, despite the high degree of excellence of the SCC's translators, something relevant might still be "lost in translation".

    My personal view is a far greater issue than the "lost in translation" issue is the fact that NO justices are capable of having sufficient background and experience in all areas of law – criminal, corporate/commercial, taxation, intellectual property, family, etc etc etc – to be able to authoritatively rule on the incredible variety of cases that come before them.

  65. The SCC hears appeals from all provinces, whose appellate courts, one can assume, are roughly equally prolific in rendering decisions appealable to the SCC or for which SCC leave is sought. That should mean around 10 percent of SCC appeals derive from Quebec. Even if you adjust the figure on the basis that provincial population impacts on the number of SCC appeals and that "french" appeals (i.e. appeals whereby the hearing in the first instance was conducted in french) sometimes derive from provinces other than Quebec, I am confident no more than 15 – 20% of SCC appeals are "french" appeals.

    Of these 15 – 20%, the majority would be criminal law appeals for which leave to appeal is not required. I suggest that the "lost in translation" problem that is put forward as the primary basis for fully-bilingual SCC appointments is far less likely to occur in criminal law appeals, which don't tend to involve the need for a judge to compare english and french versions of statutory instruments.

    That leaves less than 10% (and probably significantly less than 10%) of SCC appeals that are "french" appeals where there may be a need to compare english/french versions of statutory instruments and, ergo, a potential "lost in translation" issue. Furthermore, and on the assumption SCC justices appointed from Quebec will be fluent in french), these "french" appeals will undoubtedly be heard by a quorum of justices that include several who are fluent in french.

    The point of this post is to attempt to put the "lost in translation" problem in perspective. I highly doubt the fact that the current composition of the SCC includes justices who are not fluent in both languages is relevant in more than one or two appeals a year and, even then, is only relevant at all to the extent one accepts that, despite the high degree of excellence of the SCC's translators, something relevant might still be "lost in translation".

    My personal view is a far greater issue than the "lost in translation" issue is the fact that NO justices are capable of having sufficient background and experience in all areas of law – criminal, corporate/commercial, taxation, intellectual property, family, etc etc etc – to be able to authoritatively rule on the incredible variety of cases that come before them.

    • 'Re: "My personal view is a far greater… etc."

      Which is why there is more than one justice sitting on the bench. Phil_King's argument also frames the language issue as if the justices have no recourse to transcripts and or additional translation clarification after the fact. Or, that they hear the case and render immediate judgement. Judgments take a long time to be handed down as the mater is reviewed. You would think that anybody qualified for the SCC would be deeply familiar with these and a myriad of other hermeneutic (non-biblical!!) issues.

    • On top of that any civil case coming out Quebec would be handled by the three mandatory Justices who hail from that province as the Quebec civil code is drasticly different from the other provinces. Which is also why there are three Quebec Justices seats reserved in the first place. So if we do assume most french cases are coming out of Quebec, and we assume most Quebec Justices are bilingual (which seems fair considering the nature of the province would be reflected in her courts) that should cut the amount of cases running the very small chance of "lost in translation" right down.

  66. The idea that a right must be absolute is simply a baseless statement you appear to have latched on to without explanation or reason. It's not meta so much as unjustified.

  67. Wait, when did the SCC okay same-sex marriage? I mean, in the reference on the subject, it said that same-sex marriage would be okay if that's what Parliament wanted, but I'd thought that that was a pretty uncontroversial view.

  68. Wait, when did the SCC okay same-sex marriage? I mean, in the reference on the subject, it said that same-sex marriage would be okay if that's what Parliament wanted, but I'd thought that that was a pretty uncontroversial view.

  69. Which Charter section do the firearms laws contravene, and how?

  70. source please

  71. Before getting side tracked into a farcical and tediously obvious exchange on the non-absolute nature of rights, which I had clearly acknowledged in my first post, I was merely commenting that the so called freedoms are totally misnamed. You either did not read that post, didn't care, or didn't understand. What ever. They aren't freedoms but permissions. You seem to be focused on administering a strictly mechanistic correction as if I mis-understood the legal use of the word "rights". I did not misunderstand, I was exploring the non-legal social implications. As you suggest you do grasp such matters, I will, despite no evidence in support, grant that you do. No need to thank me.

    I suppose I bear the blame for allowing it to happen when I took up Dave Z's "Rights are not absolute" gambit.

  72. The legal profession is incestuous. The Law Societies have a lot to say about who becomes a judge and the Legal Profession is self-regulating… BUT… nobody regulates the Law Societies. Between the seams of codes of conduct and winks and nods is a no man's land of arbitrary power.

  73. On the bilingual issue, cases brought before the Supreme Court are required to include their full legal arguments in both French and English. The hearings themselves are only a few hours long and are by far not the largest factor in a Judge's decision making process. And just to add a heaping pile of over kill to it the court has some of the best translators on staff that can translate for the judges when needed in hearing or out. Generally speaking one case can take many months to deliberate on in which the law and legal precedence are gone over with a fine comb. More than enough time to quibble over small grammatical niceties. We are a bilingual nation, we are also a relatively partisan nation, but that doesn't stop the fact that only one thing should be a requirement for a Supreme Court Justice: Being one of the best legal minds in this country. The rest is just window dressing for our political parties.

  74. In an ideal world perhaps, but do we really want to narrow the field of potential candidates so severely?

    We could possibly be ruling out some of our greatest legal minds, for the sake of a principle that seems to inherently lead to more exclusion than inclusion.

    And for what precisely? Political correctness?

    I would prefer to see a truly representative SCC, in which we have judges from throughout our society representing the diverse nature of our collective culture.

    That's not what this legislation achieves. In fact, it does the complete opposite.

  75. If we elect judges they will cast their judgments not legal grounds but on the political, what's most likely to get them re-elected. Which is fine when were talking about law makers with which such concerns hopefully makes them follow the will of their constituents. But with judges they can't let opinions of any time get into the picture it has to completly be what does the law say, what past cases can better cast a light on what the law says and what are the future legal consequences of a judgment one way or the other. In america their judges up to a point are elected and there are rampant cases of judges ignoring legal precedence for what is going to get them back into the court room. Yet even in such a system it is understood that your higher judges who spend most of their time the constition can't be biased by looking to be elected at the end of their term.

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