Why our highest court seems afraid to take on the Harper government - Macleans.ca

Why our highest court seems afraid to take on the Harper government

Legal expert Philip Slayton on the Supreme wimps


Tom Hanson/CP

For a moment last January, the Supreme Court of Canada was flexing its muscles. In its decision Canada (Prime Minister) v. Khadr, it seemed ready to rein in the federal government in a serious way. The court came within a hair’s breadth of telling the Prime Minister to seek Omar Khadr’s repatriation from the United States, because his Charter rights had been breached by Canadian officials.

The Khadr case echoed a similar but more dramatic faceoff between executive and judiciary in the United States. In his January state of the union address, President Barack Obama criticized the U.S. Supreme Court decision in Citizens United v. Federal Election Commission with five of the judges sitting there while he did so (“not true,” mouthed Justice Samuel Alito, as the President spoke). The Citizens United case held that the First Amendment protects the corporate funding of political broadcasts. The New York Times has called the President and U.S. Chief Justice John Roberts “intellectual gladiators in a great struggle over the role of government in American society.”

There has been speculation in legal circles that the Khadr decision was a harbinger of similar things to come in Canada—that Prime Minister Stephen Harper and Chief Justice Beverley McLachlin may be destined to become intellectual gladiators, like Obama and Roberts.

The Khadr case gave heart to those who think the Harper government is autocratic and constitutionally insensitive, and want to see the judiciary offset the power of the executive branch. But then, in June, hopes were dashed by another Supreme Court decision. In Ontario v. Criminal Lawyers’ Association, the Supreme Court passed on a new opportunity to poke a righteous finger in the government’s despotic eye. The issue in the Criminal Lawyers case was whether the Charter of Rights and Freedoms obliges the government to disclose documents pretty much on demand—a question with some serious political currency these days. It doesn’t, said the court. Then again, said the court, timorous and vacillating, maybe it does, sometimes.

The flaccid decision severely troubled those who thought a new constitutional order was emerging. It aggravated freedom of information wonks, who had been looking forward to poring through government archives. It distressed those who expect clear and forceful decisions from our highest court.

The events leading to this disappointing decision began in 1983, when Domenic Racco, a flamboyant underworld figure, was murdered in a Mob hit at a railway spur near Hamilton.

After a lot of delays and bungling by investigators and lawyers, two men went to trial for the crime in 1997. The judge, appalled by the behaviour of the police and Crown attorney in the case, stayed the proceedings. “I have found many instances of abusive conduct by state officials,” he said, “involving deliberate non-disclosure, deliberate editing of useful information, negligent breach of the duty to maintain original evidence, improper cross-examination and jury addresses?.?.?.?” The Ontario Provincial Police investigated the judge’s allegations. In a secret report, the OPP found no police misconduct.

Incensed, the Criminal Lawyers’ Association of Ontario asked to see the report under the Ontario Freedom of Information and Protection of Privacy Act. The provincial government refused, relying on provisions in the statute that give it discretion to deny disclosure of law enforcement and solicitor-client records. These provisions are not subject to the statute’s “public interest override,” which requires disclosure if there is a compelling public interest. The lawyers argued that this override exemption violated the freedom of expression guaranteed by the Charter, and went to court.

The case made the usual stately progression through the justice system, finally reaching the Supreme Court in December 2008. There was a whiff of excitement in the air. Would the Supreme Court proclaim a general right of access to government information? What made the case even more interesting was that the court itself seemed to be having trouble with it. Months and months went by without a decision, and there were rumours of internal soul-searching and strong disagreements.

Then, in June, came a damp squib. A unanimous seven-justice panel found for the government of Ontario. The judgment, given by Chief Justice McLachlin and Justice Rosalie Abella, said the Charter does not guarantee access to all documents in government hands.

Open government, it says, “requires that the citizenry be granted access to government records when it is necessary to meaningful public debate on the conduct of government institutions.” But, in a poorly conceived analysis, the court defined “meaningful public debate” in a narrow and technical way.

What happened was doubly strange, given what our constitutional kissing cousins have been up to. It is not just the U.S. judiciary that has been testing the executive branch. Ever since the European Convention on Human Rights was incorporated into British law in 1998, British judges have become what one commentator has called “a political class of activists.” The replacement last year of the judicial committee of the House of Lords by the new Supreme Court for the United Kingdom, as the final court of appeal for the U.K., has further encouraged what is now a wholly separate judiciary to take on the British executive branch.

Tom Bingham was lord chief justice of England from 1996 to 2000. He recently published an acclaimed book called The Rule of Law. Bingham observes that if judges can hold a statute to be invalid because it is contrary to a higher, fundamental law, then “the rule of law and parliamentary sovereignty are not, as one might have hoped, a happily married couple but are actual or potential antagonists.”

Canadian judges have been holding statutes invalid when they run contrary to a higher law since the Charter became part of our Constitution. In Canada, the rule of law and parliamentary sovereignty can be antagonists. When that happens, it is up to the judges to make sure that the rule of law wins the struggle.


Why our highest court seems afraid to take on the Harper government

  1. Im all in favour of the rule of law. In fact, I believe in many instances, most notably in Caledonia, Ontario, the rule of law has been forgotten in favour of political correctness and expediency to disastrous consequences.

    But when one speaks about judicial activism, and the ability of judges to rule that certain laws are unconstitutional for Charter reasons, the "rule of law" sadly becomes a euphemism for what the (invariably progressive, leftwing) judge thinks. The Oakes test in Canada is a good example. Depending on one's political leanings, the Oakes test will produce completely opposite results. It's just a legal veneer on a judge effectively overruling the will of the elected government.

    I much prefer democracy to rule by judicial elite.

    A good example is the recent california ruling re: prop 8. I agree with the ruling's substance, but I find it disgusting and unbelievably undemocratic that a single judge's vote was enough to overturn the democratically expressed will of the people.

    • Rule of law is not an alternative to democracy but an integral part of it. the supreme law of the land is the constitution and the charter of rights. Parliement is subject to its provisions and any law it tries to pass which conflict with it are invalid. This supreme law can be changed as there is an amendement process contained within the constitution. It however requires a greater exercise of democracy requiring approval by not only the federal parliament but also by a defined majority of the provinces.

      • Rule of law is an integral part of democracy. Government by judges is the exact opposite of democracy. Dont pretend to be pro-democracy when you're willing to overturn the democratic will of the people when it doesnt suit your agenda.

        • What if a majority of the people are willing to dispense with the rule of law?

          • then I recommend that you move to a civilized country. regardless, you cant rule without the consent of the people – you can for a while, like in the various "people's republics" around the world but eventually the people catch up to you.

          • What if a minority refuse to accept the rule of law and consistently engineer work-arounds to twist the common good to their private privalige and gain, all the while crying fowl; demanding special status and compensation?

          • Seems to me that happened in Germany in 1933. Don't be silly..

    • Democracy unrestrained is dangerous and harmful. What if you lived in a country where the majority voted to force conversion of everyone to Islam, or Christianity, or Hinduism, etc.? What if they voted to imprison anyone who criticizes the government?

      In short: everyone likes democracy when it agrees with them, and hates it when it doesn't. We need courts to determine when democracy (or democratically elected representatives) go afoul of the larger principals of our society – minority rights, rule of law, etc.

      What do we even have judges for, if not to rule on what is legal and what is not? Our Supreme Court is seen by much of the rest of the world as one of the finest; as an example to be emulated. The Prop 8 ruling is undemocratic, and rightfully so. When a majority vote to take away the rights of a minority, rights which everyone else enjoys, I sure hope that the courts will step in and strike it down!

      • Well dont pretend to be democratic or to support democracy then. It's rule by the elite and not democracy. Because clearly, you think the people are too dumb to make their own decision as to how they wished to be governed the "smart" people get to tell them what to do. That's a valid position, but it's not a democratic position.

        Also, you have too much confidence in the wisdom of judges. The prop 8 judge got it right, but that doesnt mean that judges always will get it right. And then, what are we going to do, since the people have been stripped of their power?

        • Well, don't pretend to be "all in favour of the rule of law" then. You claim your problem is with activist judges, but it appears you are more concerned with judges that put the law before public opinion. So you subordinate the rule of law to the rule of the mob, which is indeed very democratic, but not reflective of the democracy we have, and good thing too.

          There's also nothing fundamentally undemocratic about the use of judges to interpret the law, even when they may temporarily impose the will of the majority – after all, there is peaceful recourse just as you suggest for replacing elected representatives. In this case, rather than replacing the judiciary, one replaces the law. If the people are in favour of a particular interpretation, they can always have a law – or constitutional amendment – passed to support their position explicitly.

          • You're almost correct but you're confusing a few things. When judges apply the law as they are intended, this is the rule of law proper, and im completely in favour of it. When judges make law or repeal laws which they dont like based on some half-baked legal reasoning which is only a front for a political preference, this is not the 'rule of law', this is government by judges and a violation of separation of powers.

            And of course judges should interpret the law – that is their function. I make a distinction between interpreting a piece of legislation and interpreting the constitution to give the judge license to impose, from the bench, the judge's preferred legislation (which is what is happening in the US and Canada).

          • (and of course I meant "oppose", not "impose", oops)

            Well, alfanerd, I believe the distinction you make comes down to "I would interpret things differently" – which is all fine and dandy, but I'm not sure it's such a high road to take. I suspect we're actually on the same side for much of this – I too oppose interpretations that go far beyond what, in my simple view, fits the letter of the law. I just don't think I'm particularly qualified to claim that my view happens to be more correct – it's just the one I prefer. Of course, I'd also have to point out that your "invariably progressive, leftwing" swipe in your original post ignores, for example, the US Supreme Court's broad interpretations, both recent and ancient, that extend individual rights to collectives, in the form of corporations as "persons". Not at all left-wing, but it's easier to argue if you ignore contrary evidence!

            Naturally, part of a Supreme Court judge's role is to interpret the constitution, and yes, to strike down legislation that is contrary to that interpretation. Without this role, the constitution is just a wish list or a happy statement of principles with no force, as opposed to the brake on legislative authority it is intended to be. Note again that it still provides recourse for that legislative authority to be supreme – it just requires more effort, which is why the constitution is a "brake", not a "trump". Any government backed by the will of the people can change the constitution, or the charter… but they really do need clear popular support. It does seem bizarre to claim, as you seem to in my hazy view, that judges can interpret laws but not the charter or constitution.

      • We do not live in an unrestained democracy. So, your first point must be dismissed as fear mongering.
        We have inherited a tradition, that through blood, sweat, and tears, has one for the common man, in potential at least, the chance to substantively participate in the shaping of government policy. It is this method of government that is up for discussion at the moment. As no government in founded in the Westminister system is attempting or has ever attempted to legislate the hypotheticals you suggest, they can safely be dismissed as irrelevant.
        I will give you a partial point for your everybody likes democracy thesis. Unfortunately you fail to grasp that it is the minority position within our culture that has sought work-arounds and exceptions and special rights against what no majority of Canadians would accept without considerable subterfuge.
        We do indeed have judges to rule on what is legal. We also have the HoC to democratically legislate what is legal, which the courts would, ideally, then use as their guidance for enacting justice.

        • Our ancestors, mostly, thought it better to have a democratic process to determine the law. The Crown was hopelessly incapable as an institution in this regard. I do not know why you would disregard this hard won experience.
          Perhaps Olaf can correct me if I am wrong, but I do not think that rulings in the US legal system count as precedence in Canada, so I do not see why the Prop 8 ruling is relevant to Canada, unless it be to further your fear mongering.

    • Wasn't the judge upholding the constitution? "Because California has no interest in discriminating against gay men and lesbians and because Proposition 8 prevents California from fulfilling its constitutional obligations to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional."

  2. Technical point: the "executive" of Canada is not the Prime Minister or the PMO. Both are still part of the legislative branch The executive in Canada includes the Queen, Governor General, and the Privy Council.

    As far as activist courts goes, I believe that the court should be able to strike down laws that are in conflict with laws of higher authority–eg. the Constitution and the Charter must supercede other laws, even laws passed democratically by the government, since ultimately Constitution is the laws that govern government itself. I am much more dubious about the courts requiring government to make new laws, or reading new rights into the Charter/Constitution that are not already made explicit.

    • Well, if what you say is the case, the constitution, as it is so construed in Canada, must be considered as a new expression of the Will of the Crown, ie: HRH E II.

      Well, duh, you say, all acts of government are.

      Prior to the Constitution Act of 1982, the Crown assented to whatever the HOC voted in favour of… a quasi-democratic process. That is no longer the case. The CA of '82 now affords the Crown a work-around of the will of the HOC/PM administered, by proxy, through the courts. A fiction has been foisted upon us. Yes, the Crown will give it's assent to the HOC, but now it does not have to just bite it's tongue as it can defeat a given act through the courts. Else stated, the crown now has a veto over the HOC. This is a return to direct rule by the sovereign. Well, if not direct, then very close to direct.

      Remember, the Crown, in days of yore, won to itself friends and allies throught the granting of rights.

      Thanks for that, Pierre.

      • The court is not the executive branch, and so your thesis is flawed.

        In theory, it is Parliament's responsibility to ensure that the legislation it passes is allowable under the Constitution and Charter. In practice, this may not always be the case – often not through any deliberate attempt to circumvent them, but simply because they either misinterpreted or overlooked a relevant part of the Constitution or Charter – o, as is more often the case, failed to foresee specific instances out of the ordinary which would result in the application of the law causing a breach. It is then the role of the court to overturn the law, or to interpret it in a way that brings it into alignment with the Constitution / Charter. The reinterpretation – or "reading in" – should only be done in limited circumstances where the intent of Pariament can be determined from sources such as Hansard and applied in a manner consistent with the Constitution / Charter.

  3. I'm not sure such sweeping generalizations should be drawn from two cases on broadly different subject matter. And antagonizing the Harper government (or any other government) isn't really the chief issue, so much as interpreting the law of the dominion. If that requires resolving a conflict between two laws or actionable occurences, it's not necessarily picking a fight with the prime minister.

  4. "The Khadr case gave heart to those who think the Harper government is autocratic and constitutionally insensitive, and want to see the judiciary offset the power of the executive branch."

    Here, let me fix that for you:

    "The Khadr case gave heart to those quantifiably insane people who think the MINORITY Harper government (which has to deal with an unelected Liberal senate with veto power and has never used the notwithstanding clause) is autocratic and constitutionally insensitive, and want to see the unelected activist ideological judiciary featuring judges appointed by gender and language quotas instead of merit run this country instead of the peoples' democratically elected representatives."

    Seriously guys, grab a new narrative, this isn't even challenging.

    • Nicely said

  5. It bears pointing out that the analogy to the UK is inapt, because they can't strike down a law. They can only interpreted in a way they deem consistent with the Human Rights Act (which Parliament can then correct them on), or issue a declaration of incompatibility (which Parliament can ignore). It's a lot easier to take a excessively antagonistic stance when you're not the one holding the bag at the end of the day.

  6. In my opinion, Slayton is advocating for precisely the role that the Supreme Court shouldn't be playing in our democracy. The Court's job is not to support political agendas and act as an official opposition to the current government – it's to determine according to a thoughtful legal analysis when a right has been unjustifiably infringed and determine an appropriate remedy.

    This rather flippant screed can be boiled down to "I don't like what the government is doing, and the Supreme Court should do something about that", which is not really an argument at all but a whine.

    • We all understand you must be really upset with Slayton… it is one thing to put forward a weakly constructed argument as he has done, but to attempt to take over your shtick is unconscionable!

      • but to attempt to take over your shtick is unconscionable

        That's weird, I don't recall him putting on a ruthless and unceasing display of awesome

        • lol… neither do I.

    • Yes, and it's a rather dangerous whine, because when the courts become politicized, then they become corrupted, and then there is nowhere to turn to shield oneself from the government.

  7. This kid was taken prisoner and held for year for war crimes, mean while Bush and Chenny are still at large. This does not speak well of our system of law.

    What a disgrace to Harper for letting this go on this long.

    I feel for the family of the dead solder and for this young man having spent his youth in a prison that can't even be called a prison of war camp, it's a gulog!

    • Um Garry, Chretien was in charge when poor little Khar was sent to Gitmo.
      It was under the Chretien govt that the alleged torture took place, Bill Graham said, nothing to see here folks.

      The Chretien govt was also at the wheel when Maher Arar and Bill Sampson were alledly tortured…

      • That's right, but the Harper bashers seems to disconnect these facts from the argument.Again its a mess crested by liberals that conservatives must clean up.

        • Either that, or Harper is being given enough leash to be a boggy man to set the mass a'fearing and a'trembling into the protective arms of the benificent crown.

          Is it still a coup when the actual titular head of a government (as opposed to the quasi-democratically elected leader) takes up again the reigns so long ago rested from their Royal grip?

        • SHOULD clean up, but sadly haven't. Just because the mess started with Chretien doesn't mean he can pass the blame indefinitely. Harper & Co have been in power for years now and still fail to act. I can understand they don't like what Khadr has been accused of, but that's no reason not to step up and take ownership of the problem, rather than leaving it to the American injustice system.

          • To be sure, it is an over-used crutch, but they are in a minority position.

  8. Wait.. did I miss a page or something? It's titled "Why our highest court seems afraid to take on the Harper government," and I'm still waiting on any information why that is. I'm a little better informed on when it started.. but no attempt at a reason was given.

    • Punctuation is apparently optional in writing headlines. It should be read…. Why, (look at that), our highest court seems afraid to take on the Harper government.

      • And why should a court take on the government? They are there to rule on the law. Does anyone know when the Kahdr family (apparaently in leaugue with Al Queda) came to Canada. I am not impressed with these people coming here as refugees or whatever, improperly screened, pr improperly acted upon if they were and found lacking. As a minor, at the time it seems to me that the issue is not that he was a Canadian citizen (Ha!) but that he was a child in family that shouldn't be here, Oh I know, he is a Canadian Citizen blah blah blah. Do Canadian Citizen families routinely go back to where they came from and whip up a little action- like the Kahdrs, like the Sikhs that downed the Air India plane. It'is sort of like the pope blessing the crowd and thereby removing a mass of sin. Save me! The case has more grounds under the child soldier declaration, I think.

  9. What an oddly angry little thesis – "if I am unhappy with the policy choices of politicians then there is something wrong with those politicians, and if Supreme Court judges don't also attack those politicians exactly as I would then there is something wrong with the judges, too". This is the first time I've ever heard someone bash the Conservative government and in the same article also praise the politicization of the U.S. supreme court as a role model for Canadian courts. Perhaps Canadian judges are a little more finely attuned to the various creaking frailties of Canadian federalism than is the author.

  10. Those days are gone. The rule of the people is what matters not the courts. Here is where all you Libs are just plain out of step with the rest of Canada.

    • If that is the case then you're out of step with the rest of the western world.

    • WOW – there's a scary thought! Guess you are pro Black Bloc, too…

  11. The last two lines: “In Canada, when parliamentary rights…. to see that the rule of law wins.”

    He isn't even trying to hide his allegiance or his desire to see such apparently noxious notions as the people of Canada having any say in how the affairs of government are conducted, completely quashed. The new game is to apply to the Crown for a grant of rights that will afford protection against the tyrannic majority.

    How mistaken I have been in thinking that the HoC was the means by which the law is established. No, my betters from the specially protected classes will tell me what is right and will allow the likes of me to put legislation through only after a thorough judicial review has granted imprimatur.

  12. When Harper's right he's right, the Court is smart enough to realize that.

    • You seem to be confused re the difference between "right" and "legal" – though Harper himself is not above breaking his own laws if they get in his way.

  13. I was not giving you travel advice, I was succinctly pointing out that if a majority of the people in your country favour dispensing with the rule of law, you have way bigger problems than activist judges or populist politicians, which was after all your original question based on a ridiculous and implausible scenario.

    Your entire post is a strawman: you point to problems with democracy, and I dont disagree with you on those. But you dont show how judicial activism fixes any of those problems. I would submit that judicial activism creates greater problems. To quote your most famous (and most illustrious) countryman, "democracy is the worst form of government, except for all the others".

    The will of the people is indeed a very abstract concept.

    But the most salient point about democracy, is that a government can get tossed out peacefully. This does not guarantee that a democratic government will be correct every time or even reflect the will of the people every time, but it means that if enough people have had enough of a particular government, that government is gone. The importance of this can not be overstated.

    Not so with 'judicial rule'. You cant remove judges and their decisions can only be overturned if a similar case comes along and is presided over by a bench with a different ideological bent.

    Also, if we are indeed a free people, we should be free to be wrong about certain things. In time, the people will recognize that they are wrong and bad policies will be overturned. Not so with 'judicial rule'.

    You may choose not to see it, so as to better pretend to not be anti-democratic as you promote the very antithesis of democracy, but when judges can make policy decisions which are counter to the democratically expressed will of the people, there is most certainly a dichotomy.

    I for one would prefer a wrong policy decision to be made using the proper process (i.e., democratic) then a correct decision imposed by the elite on the people.

    • Here's the thing: If a law, regardless of whether it is popular or not, is on its face in breach of the Constitution or Charter, then it is the responsibility of the court to strike it down. If there is a way to achieve the intent of the legislation without violating the Constitution or Charter, it is then up to the elected members of government to make the changes necessary to bring that law into line. One of the reasons we DON'T have elected judges in Canada is to ensure that they have the ability to act on a careful and reasoned interpretation of the law without having to worry about the popularity of the outcome. The American judicial system, from where I sit, seems to be in a much greater mess than ours – and I think a good part of the reason for the mess south of the border can be directly tied to the fact that many judges are elected officials who keep one eye on the polls when making their decisions.

  14. Laws will always have some residual categories where there are matters of interpretation or where existing law is outdated and ineffectual. It is not clear to me that judges make sense as the natural arbiters of such instances. That sounds a lot more like the job of parliament to me (although the courts can play an important role in highlighting issues in need of attention). That is not to say that the courts have zero room for interpretation or change. I think gay marriage, for instance, is a case where public policy ran counter to the charter.

    Judges are not experts in public policy, not accountable, and while not explicitly partisan are appointed by those who are. This can have problems – it can result in laws that are ineffectual or harmful to the public interest and it can result in elite-driven social change. I posit that positive social change is more likely to take root, and more likely to produce beneficial outcomes when it comes from the people or their representatives (although Canadians do have a relatively high tolerance for elite-driven change). They are hardly natural candidates for taking up this kind of residual decision-making role. Those on the left should take heed of this as much as right wingers – long periods of Conservative rule can produce an ideologically slanted court just as much as long periods of Liberal rule. Even if that isn't the state of affairs federally, it certainly is in many provinces .

  15. I, for one, am grateful that our court hasn’t taken upon itself the role of that American Supreme Court has taken in the United states. I believe in democracy. I believe we elect a government for a period of time. If that government is not responsive to its citizenry, we go to the polls, and select another one. This is the essence of democracy. We elect a government to make laws on our behalf.

    We do not elect the Supreme Court. They are not representatives of the public and they should not make laws on our behalf. I am fearful of a powerful judisicary that answers to no one but themselves.

    If citizens dont feel that Harper’s government is transparent or open to their needs/wishes, then an election will come around and they can select a new government to better represent them.

  16. This article screams clearly of the far-left leanings of Canadia's elitist media. For all its warts I'll take crummy elected officials over political appointees on the bench anytime. The 'justice' system in this country has proven itself time and again to be far more incompetent than government. My gawd, can't believe I said that, but it is true. Trudeau's charter allows zealots on the bench to force their screwed up version of reality on others. No political appointee should be allowed to make any life altering decisions except against convicted criminals. Period.

    • Interesting that someone with Judge in his name doesn't seem to understand how law-based societies function!

  17. When the judges uphold the Charter over the parliament, they are acting to uphold the greater democracy over the lesser.

    This conclusion follows only if what the judges are upholding is "the Charter" as democratically designed, as opposed to some version of the Charter that no one in 1982 would have fathomed.

    • Have you not heard of the reports that justices, world-wide, are developing the power to "see-into" the minds of constitution framers and thereb discern what was intended?

      • I don't think they even try to do that in Canada anymore. Only the originalists do in the States, and I think they're a dying breed. Here, we have an 'organic' instrument that is to be conceived of as a 'living tree' capable of growth in all sorts of crazy directions quite haphazardly and unexpectedly according to a 'large and liberal' interpretation. In other words, the Courts could care less what our democratically elected representatives meant or intended.

        • I think Olaf is right, hell, I know. The court was stacked with far- lefts the. I don't even think Trudeau wanted anything much but equity between the French and English communities, It was lawyers that grabbed the ring in respect to the unsuspected. Who knew how deeply the MLAs and MPs knew what they were about then? Now that is iirelevant. Ther was a haze of good feeling and hope Trudeau had brought back the constitution. I think everybody forgets the first lines of the Charter ". . . . guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrable justified in a in a free and democratic society." The problem seems to me that the politicians didn't realize how much really had to be redone and the lawyers and judges ran away with it. They let the chickens out of the house and found there was no henyard. They should have built one first.

    • Two things:

      1. If they can't write what they mean, are we to be blamed for it?
      2. The Charter can still be changed. If that is not done, then it stands to reason that how it is, including all judicially rendered interpretations, is considered acceptable to the democracy that controls it.

      • 1. But you were saying that it has stellar democratic credentials, assumedly, because it reflected the will of Parliament, the provinces, etc., right? So if it has been interpreted in a way that doesn't reflect that will, than I'm not sure you can lean on the 'ultra-democratic' crutch.
        2. We all know how outrageously difficult it is to amend the constitution. And if something isn't in any way practical, I don't think it's a convincing counter argument. 'Don't complain that you're thirsty, because there's a lake on the other side of Mount Everest, so if you really wanted water, you could just climb over the mountain'.

        • 1. You're right, I shouldn't have engaged you in this way on this argument. After all, you haven't shown any type of evidence that it's being misinterpreted, so I could just be helping build your straw man.

          2. So you're saying it's harder to amend than it was to create?

  18. The Rule of Law in Canada has become a sham, there is no Equal justice for All, nor are there any Rights that are enforced to the average Canadian, just look at all the Multi-national corporations doing business here that are allowed to violate our Charter of Rights, all with the permissions of our Local, Provincial and Federal Governments, it is time Canadians took back our country and imprison every last one of those who have taken part in the dissolving of our Rights & Freedoms. All the new prisons in Canada, would then be money well spent.

  19. Why be so picky about the written word? Figure out what the intent of the law is supposed to be, and apply that. Seems a reasonable solution to me!

  20. Our Supreme Court will side with the crown more often than not. Even though they are supposed to give the benefit of the doubt and the broadest interpretation to the common person.

    Another unfortunate trend I am seeing in the high court is toward not following its own judgments. The concept of "stare decisis" is becoming a thing of the past and two identical cases are having different outcomes. It appears stopping an SUV for no reason then searching it and finding $6 million in cocaine is a serious breach of the charter, yet stopping a man on the street and searching his knapsack is not.

    As for Mr Khadr, The court has said his rights under s. 7 of the Charter have been violated and yet in R. v Heywood. the court stated that the only time that it can be justified to violate s. 7 is in a time of war or civil strife. Since a state of war exists in Canada and Mr Khadr decided to join our enemy how is his s.7 rights violated?

    The purpose of having a Constitution and Charter of Rights is to act as a road map for legislators and shield to we little people. The Charter is supposed to be limits on Parliament not the other way round. There exists in Canada a pernicious belief that it is the Government or the Courts that grant us Rights. We are born with rights and some are inalienable.

    There has been a thoughtful post on this board as to whether Parliament or the Courts should be in charge of the Laws I would leave them with this quote and these words

    "Canada has inherited a Westminster-style Parliamentary government. In theory such a government is omnipotent. Hence the old saying “No man's property or liberty is safe so long as Parliament is in session.” It is said that such a parliament can turn a man into a woman. "

    The truth is as the maxim goes, Equality before the law is paramount and mandatory. no one is exempt from the law. Without the Law, Parliament is omnipotent Now what's that old saying about power and absolute power?

  21. The issue is explained ("How far can the judiciary go, with or without a charter/bill of rights? Here's your update.") But the article is a jumble of nonsense unimproved by multiple adjectives. Writer is not a lawyer and has no access to one, or the editors cut the story back so severely it makes no legal sense. How does the first paragraph (hair's breadth on Khadr) link to the second paragraph on the U.S. case other than that there has been tension between the legislative and judicial branches of government (true since Marbury v. Madison, for example, and true in Canada long before Canadian S, 96 judges had a Charter of Rights to work with — and therefore not news). Even if mere tension between the two branches is enough, can you still stretch the issue to Britain? The article glosses over something which needs at least three separate columns to deal with.