Harper v. The Judges

The biggest issues facing the country are being tackled not by Parliament, but in court

Harper v. The Judges

Sean Kilpatrick/CP

Prime Minister Stephen Harper called it “essential.” The judge called it “fundamentally unfair, outrageous, abhorrent and intolerable.” They were both speaking about mandatory minimum jail times for gun-related crimes—Harper when touting the law requiring them, and Justice Anne Molloy of the Ontario Superior Court when she struck it down by uttering the fateful word: unconstitutional.

Harper’s mandatory minimum sentences, presented as evidence of his toughness on crime, are under judicial fire. In February, a man faced three years in jail under the 2008 law, for momentarily posing with his cousin’s illegal gun for a Facebook picture. Justice Molloy called the legislated punishment of automatic jail time “cruel” and “disproportionate.” In July, another accused faced three years for offering to sell a gun he didn’t even possess. In that case Justice Paul Bellefontaine of the Ontario Court of Justice refused to apply the sanction prescribed by law, citing Molloy’s reasoning. Many expect one of these decisions to wind its way up to the Supreme Court, where the Harper government’s crime law will officially go on trial.

The NDP enjoys the title of official Opposition in a time of majority government, but it would seem the Conservatives’ real opponents wear robes and issue decrees. In addition to the rulings on mandatory minimum sentences, judges have delivered the Tories a series of stinging defeats of late. And it’s becoming apparent that in the next few years some of the country’s biggest and most consequential debates, around issues as diverse as euthanasia, refugee detention and brothels, will be fought not in Parliament, but in the courts.

The judicial rebukes have spanned social, economic and foreign policy. Last year, the Supreme Court decided that addicts could inject heroin in a Vancouver clinic, notwithstanding Conservative attempts to shut it down. Earlier this year, the government’s goal to create a national securities regulator floundered after yet another supreme smackdown. And if the Harper government opts to bring Omar Khadr home from Guantánamo Bay, it will be because the highest court said in 2010 his rights had been violated.

For conservatives, the string of defeats provide more fodder for their argument that judicial activists are legislating from the bench through expansive interpretations of the Charter of Rights and Freedoms. “Does the Charter encourage and empower the courts to be activist? I think the answer is, yes it does,” says Preston Manning, former head of the Reform party. “The bigger question is whether judicial activism using the Charter is out of sync with society.” Manning says that the election of a Conservative majority government means Canadians generally share its values. “When the court goes against those, the court is not only going against the government, but also going against values that are alive and well in society.”

Perhaps no current Conservative minister has been more outspoken in his criticism of the courts than Immigration Minister Jason Kenney, who has met resistance to his immigration reforms, which aim in part to speed up refugee claims. Last year he questioned the judgment of federal judges who had stood in the way of a pair of deportation orders. The Canadian Bar Association (CBA) called Kenney’s public and detailed criticism—Kenney preferred the term “dialogue with the judiciary”—a threat to judicial independence and “an affront to our democracy and freedoms.” The Supreme Court’s Chief Justice Beverly McLachlin took the unusual step of thanking the CBA for its “powerful” response to a minister who resented “judges [who] were insufficiently solicitous to government policy.”

This is, of course, far from the first government to see its legislation struck down by the courts. In the 1930s it was progressive legislation from the Conservative government of R.B. Bennett, including federal unemployment benefits, a minimum wage and maximum work weeks, that was deemed unconstitutional. (A 1939 Senate report decried the courts for their “repeal by judicial legislation.”) But it’s also true the Charter expanded the power of the courts, and gave conservatives more reason to complain. In 2002, Ian Brodie, who would later become Harper’s first chief of staff, published a book called Friends of the Court. “The [Supreme] Court is well on the road to establishing itself as a legislative, rather than a judicial, institution,” he wrote. He called its post-Charter activist record “unprecedented in scope” and characterized the court-challenges program, which provided public money to support cases against the government, as evidence of the “state at war with itself.”

Conservatives have since mounted their response. During Harper’s first year as Prime Minister, the government, citing the same concerns expressed by Brodie, abolished the court-challenges program, though some funding was later restored for claims relating to minority language rights. Harper has also appointed 439 judges to Canada’s senior courts. Yet neither of these steps has inoculated the government from judicial objections to its policies. For one thing, Liberals under Chrétien and Martin appointed far more judges during their reign. More importantly, judges tend to defy partisan characterization.

Some also argue that activist groups on the left have done a better job at swaying the courts in their favour. Professor Chris Manfredi of McGill University notes that the progressive record of courts in the Charter era is partly the result of the efforts of organizations, like the Women’s Legal Education and Action Fund. Not only can such third parties influence judges through arguments they make, but they can also shepherd cases through the court system to promote their agendas. “The Supreme Court is a political institution, subject to the same kind of strategic pressures from outside groups as other political institutions,” Manfredi says. “For the first 20 or so years after 1982, those groups were mostly on the liberal part of the political spectrum.”

But increasingly, conservative activists are also pursuing a more bottom-up strategy to influence court decisions. Groups like the Canadian Constitution Foundation (CCF), launched in 2002, and the Justice Centre for Constitutional Freedoms (JCCF), founded last year, have pursued a libertarian agenda in courtrooms. For example, the CCF and JCCF have worked to find litigants and launch cases to extend the delivery of private health care. The CCF raises more than $1 million a year. It is a charity, but it pursues politics by another name. Its former president, who now heads the JCCF, ran unsuccessfully for the Wildrose party in the most recent Alberta election.

The stakes are set to rise as the government finds itself fighting a number of high-profile battles in the courts, including decisions about how we die and whether we can pay for sex. In June, the B.C. Supreme Court granted Gloria Taylor, who is suffering from the degenerative Lou Gehrig’s disease, the right to a doctor-assisted suicide. Taylor remains the only Canadian with the right to ask another person to take her life, for now. The court said the current law banning the practice should not apply to patients with serious illness or disability who are experiencing intolerable suffering, provided that the patient’s decision is not coerced and the patient is free of clinical depression. The government has appealed the ruling and asked the B.C. Court of Appeals to suspend Taylor’s right to die in the meantime, which last week the court refused to do.

In another ruling that angered conservatives, earlier this year the Ontario Court of Appeal concluded that prostitutes could operate indoors and hire bodyguards. The case is now heading to the Supreme Court in the next year, where the court will decide whether Canadians can buy sex in the privacy of a brothel.

Meanwhile the Conservatives new immigration law was only just passed in June, but observers already expect legal opposition to some of its provisions, especially its policy of six-month-long detention for some refugees. Professor Audrey Macklin of the University of Toronto calls the law “flagrantly unconstitutional” in light of previous decisions on security certificates, and expects it to be overturned. Even on the labour front, the government faces challenges to back-to-work legislation it passed to prevent strikes by workers at Canada Post, Air Canada and CP Rail. Air Canada’s pilots have filed suit in Ontario’s Superior Court and claim the Charter grants them a right to strike.

In each case, issues that might otherwise be debated in Parliament have wound up in the courts—partly because opposition parties lack any power to challenge the government themselves.

Still, if the courts are to be considered the government’s unofficial opposition, the contest will be rather lopsided. Kent Roach, a law professor at the University of Toronto, says the courts may occasionally invalidate laws, but they remain relatively weak opponents. The Charter only covers the most extreme cases, and the courts can only strike laws down, not propose new ones. Besides, successful challenges cost a fortune and take years. “If someone said, ‘Don’t worry, we can shut down the parliamentary opposition because the courts are there,’ ” Roach says, “that would be a big mistake.”

The courts, no matter how “activist,” are destined to play catch-up. Insofar as they oppose government policies, they do so slowly and selectively. In a race, judges are, at best, formidable turtles.

 




Browse

Harper v. The Judges

  1. ” … judges tend to defy partisan characterization”? You know not of what you speak. The vast majority of federally-appointed judges are or can be persuaded to rule in favour of the party that appointed them. Please to consider Justice Charles T. Hackland … and every politically related decision of Federal Court …

    The truth is there, though no one, including Maclean’s dares look.

    • I am not sure this is accurate…. There have been a string of unanimous decisions on government policy over the passed couple of years by the Supreme court that were supported by Judges that were sent to the supreme Court by the current government.

    • So you’re suggesting that any time a judge makes a ruling that does not agree with the CPC, it’s politically motivated?

      Given how many different judges are involved, how they span from BC to Ontario, which seems more likely. A shadowy cabal/conspiracy of judges across the country to overturn CPC policy, or the CPC just being unable to make good policy?

      • not when he rules against the CPC, but when he urules against the law.

        • How, exactly, does a judge rule against the law?

    • An important issue in making such an analysis is whether the government has the inclination & competence to define a law that is likely to withstand a court challenge given current interpretations.

      The current government has a propensity to bring forward laws that it knows are likely to fail such a test. They do this in part for short-term partisan political gain, but also in the hope that political pressure will shift judicial interpretations over the longer term.

      • I suspect that you are right – but the mark of a good judge is that they wouldn’t be swayed by the political pressure, leaving that aspect for parliament, who ultimately has the last say on what the law will be.

  2. The “extreme cases” bit is worth noting, but the biggest damper on courts determining important issues (so-called “judicial activism”) is that a lot of political issues simply don’t have a legal dimension the courts can legitimiately rule on. You can have the dumbest policy in the world (hello, ending mandatory long form census!), but if it doesn’t violate the law the courts can’t help you. That’s not to say that legal decisions don’t sometimes have policy aspects and always have, but they aren’t all powerful in scope.

  3. Apparently we need to start counting Preston Manning among the people who don’t understand the difference between “generality” and “plurality”.

    If you’re looking at “generally”, Canadians voted for options more progressive than this CPC majority government. They just couldn’t agree on how much more progressive.

    This suggests that the courts activities are still in line with the thoughts of Canadians.. in general.

    • Not only that but Manning seems to suffer from selective political amnesia [SPA] – like so many politicians.I’m pretty sure he was out front grumbling about “liberal” values being shoved down his throat during the Chretien years, yet somehow it’s okey doky now we have a Conservative majority govt – now its just the general will of the majority, so no problem.
      More worrying is the fact that he seems to not regard the charter or judges as being there for us if we should get a majority NDP government. I wonder just how consistent his general will of the people shtick would be if the NDP were running roughshod over values he holds dear?
      When are Conservatives like Manning going to realize the charter is a peoples charter, there as a hedge against populism regardless of its political stripe? But like most politicians Manning seems to want things his way in the final analysis.

    • Manning has always understood that a functioning democracy needs balance.
      Years of liberal values have infiltrated the justice system to the point where the criminals have nothing to fear.
      A little dose of reality for the Judges will be like a breath of fresh air.
      Sit back and enjoy.

      • And yet crime has steadily declined for the past few decades… sorry, didn’t mean to bring facts into this.

        • And 70% of crimes go unreported… Stas Can 2011… sorry, didn’t mean to bring facts into this.

          • If that stat is consistent over time, then what I said is just as true.

            Also, the fact that 70% of crimes go unreported (if that is indeed a fact, and I have some serious doubts as to how anyone could establish it with any accuracy) may be largely irrelevant if the majority of that 70% are minor offences, i.e. dealing or buying small amounts of pot, etc.

            If harsher sentences for serious crimes worked significantly as a determent, I’d be for it (again, for the worst crimes). But there is absolutely no evidence that it works. The only thing they seem to do with any reliability is make perpetually scared conservatives feel a bit safer.

            I mean, for crying out loud, we live in one of the safest countries in the world! If you want to make it safer, then you should be advocating for poverty reduction and better social programs. You know, the things that are actually shown to reduce crime.

          • heck to get up to 70% I imagine things like jaywalking would have to be included.

  4. “When the court goes against those, the court is not only going against the government, but also going against values that are alive and well in society.”
    Get over yourself. 60% of Canadians voted for parties with very strong ideological distinctions from yours fella.

    • Get over it guys—You lost the last 3 Elections.
      It`s Change Time.
      Just sit back and enjoy.

      • True Rory! The real question is were these elections won legally….
        Enjoy the change? like paying $100,000.00 a year to lock up someone for smoking a joint? Like allowing the USA government to make arrests on Canadian soil?
        Wow, ain’t we got fun!

      • Never will. Whine,whine,whiine

  5. The mandatory minimum sentence for a first offence under s.
    95 of the Criminal Code of Canada, if prosecuted by indictment, is imprisonment
    for 3 years.

    In creating the hybrid offence with no minimum sentence on
    summary conviction, Parliament recognized that there will be circumstances in
    which possession of a loaded prohibited weapon will not require any term of
    imprisonment, and indeed could result in an absolute or conditional discharge.

    In R. v. Smicke, the Ontario Crown decided to proceed by
    indictment.

    This article fails to mention that Leroy Smicke did not
    admit having possession of the gun and therefore did not get the benefit of
    that mitigating factor.

    Quite frankly, it is not up to Justice Molloy (or any other
    judge) to decide what is reasonable and to declare Mr. Smickle and other people
    like him victims of constitutional error. Reasonable people can disagree on a
    number of things. American judges could probably have given Mr. Smickle a much
    harsher sentence. On the other hand, European judges could have let him go. It
    is up to our Canadian Parliament to decide what is a reasonable sentence.

    S. 95 (2)(a) (i) is consistent with the Charter of Rights
    and Freedoms and I am sure that the Ontario Court of Appeal and/or the Supreme
    Court of Canada will reaffirm this.

    Justice Molloy’s reputation will be tarnished, however.

    • Actually it is completely within the judges purview to call the mandatory jail time “cruel” and “disproportionate” if you consider the whole context, that MMs take discretion out of the hands of judges – those most competent to judge the severity and appropriate length of sentence given the variety of cases that come before them and their qualifications for the job – iows it is ludicrous to give out the same sentence to a first time shop lifter as a repeat B&E artist. There is no reason this principle should not apply in such a case as this, there being no evidence Smicke was doing anything more reprehensible than being a moronic exhibitionist. Judges are best placed to make these decisions with appropriate oversight from Parliament.

      • Well in this specific case justice Molloy stated that the
        imposition of the 3-year sentence mandated by the Criminal Code would
        constitute cruel and unusual punishment. In her view, Mr. Smickle deserved 1
        year, not 3 (i.e. she still sent him to jail). This judge opined that Mr.
        Smickle should go to jail, but she failed to clarify how many years would be a
        reasonable time.

        Would 2 year be reasonable, for example? Would 1, 5 years be
        reasonable? It is really not up to Justice Molloy to decide this. She got her
        guidance from the Canadian Parliament. Her job is to apply the law, not to
        create it.

        3 years is a harsh penalty, I agree. But it is neither
        unreasonable nor cruel.

        Reasonable people can disagree on many things, including the
        type and length of sentence for Mr. Smickle. But it is really up to our Parliament to decide what is “reasonable”, not up to Justice Molloy.

        I am sure the Ontario Court of Appeal and/or the Supreme
        Court of Canada will rule that section 95 of the Criminal Code is constitutional.

        • I hardly think a justice of Molloy’s standing is just stating her opinion out of context of the law, constitution/ charter, not to mention common law precedence. She must be aware that MMs are likely to come before the SCoC at some point. Your assertion that she is making law is just that – your opinion, as is your view that 3 years for a public display of macho idiocy is an appropriate sentence.
          She may well receive her guidance from Parliament but you somehow forgot the charter. Again she is not creating law but merely referencing the charter[ presumably...admittedly not in anyway my area of expertise].
          Judges are not mere sock puppets for idealogical majority governments or Parliaments – 1982 changed everything.

      • The inability of Judges and those leftists like yourself who apologize for their pro-criminal decisions has made it necessary to take some discretion out of their hands.
        They will still have the discretion to increase the sentence—they are after all mandatory minimums.

        • Anyone who throws around the terms judges,leftists and pro-criminal decisions willy nilly isn’t qualified to participate in a serious discussion about the criminal justice system.

          • Any foolish leftist like yourself that allows your partisan blinders to prevent you from seeing the serious reform (Balancing ) needed in the justice system doesn`t need to be heard.

          • Yawn!

  6. ” the courts can only strike laws down, not propose new ones.”

    Hah! The court creates new laws every time it pulls new “rights” out of its ass. We now have a right not to just kill ourselves, as we have had for some time, but the “right” to have someone else kill us. We have the “right” to inject lethally addictive drugs in a government run shooting gallery under the guise of health care. We have the “right” to illegally enter Canada and engage free healthcare and welfare. Well, we don’t have that because most of us are merely citizens, we have to pay healthcare premiums. Ahh, glorious freedom!

    • you are a right wing extremest/fascist, it’s time you realize that. I may be a lefty at heart but your not even sitting at the same table anymore. it’s time you realized that.

  7. Maybe someone should ask the expert opinion of the families of those killed and injured by the shooter in the recent Eaton Center shootings in Toronto.
    The accused in that crime was before a court 3 months earlier on loaded gun related crimes. The gutless Assistant Prosecutor dropped the charges.
    A Mandatory Minimum would relieve gutless Judges and Prosecutors of having to make the right decision.

    • Last time I checked murder all ready had mandatory minimum sentencing prior to the Harper Government.

      • Had the accused murderer in that crime been automatically sentenced 3 months earlier for gun related offences then he would have needed some magic bullets to zoom from Kingston to Toronto in order to hurt people.

        A little less of your leftist partisanship and a little more common sense would serve innocent victims of crime better.

        • By your logic, if pre-suspicion and unproven hypothesis is enough to warrant arrest and incarceration maybe you should be imprisoned for a few years yourself just to teach you a lesson and for the public good of course. Be a hero and save your would be victims.

          • Minority report is here with Rory in the tank telling us the future.

        • so let’s use some. What happens when he’s been released from jail? We’ve just spent thousands as taxpayers to house, feed, educate, clothe, entertain, and provide care for him and his buddies. You think he’s going to walk out of jail and into a white-collar corporate job? Bet he can’t even get hired at McDonald’s.

          No, manditory minimum sentences do not work. They force us to waste money warehousing degenerates until they can offend again. We need to allow judges the ability to examine on a case by case basis. So the people who belong in jail get there, and those who don’t aren’t thrown under the bus.

          Maybe some crimes merit more time served than others. Maybe there are circumstances surrounding a particular crime that make it more, or less, severe. Maybe even the most disgusting criminal desrves their day in court.

          • You seem to think that having a white-collar job for this accused will somehow help him see the light.
            Well, he had a job with the City of Toronto working with young children and that did not stop him from carrying around loaded hand guns and eventually using one of them to shoot up the Eaton Center , wounding some young children.
            Now if he only had a job that would give him some self-worth—-you guys are a bunch of fools and the likes of the accused are grateful for your foolishness.

        • Why not take it a step further. Why not lock up people before they even think of committing a more serious offense – better yet scrap presumption of innocence, that oughta fix em!

        • So he should have been sentenced for something that the Crown thought would not result in a conviction? I always thought a plea or a finding of guilty was required before one was sentenced.
          I do not think you have any idea of how a criminal justice system should work in a Western Democracy.

          • Hey Hairball.
            Try to get it through your head that the criminal justice system is not working in this country.
            Apologists like yourself have allowed a system where the criminal walks into the court knowing that if his lawyer can`t find an angle to get him off, the Prosecutor may not want to do the work for a conviction, or, if he does, the judge will give him Time Served.

          • And idiots like you think it can all be fixed by removing discretion from the courts, locking up anyone who’s charged with anything more serious than repeat jay walking and sweeping the whole mess under the carpet for future generations to fix – as is currently happening in the US.

          • Hey twit:
            Sit back and enjoy the changes.

          • Rory — Are you capable of saying anything else? Got an intelligent point to add to the discussion? Or is it all, “Hur hur sit back hur hur!”?

          • I made several intelligent points—some of them may have bothered your sensibilities.
            But, understand this—there needs to be some changes made in the justice industry—and it is happening—so enjoy.

          • Try and get it into your head.
            The system has developed in an adversarial manner so that the defence should actually try and defend and the prosecution should prosecute the cases where there is evidence that they have a case.
            Slapping folks around with a phone directory until they confess has gone the way of the thumbscrews.
            People like me think you should not be found guilty unless the authorities can prove you are guilty beyond a reasonable doubt. If standing up for a requirement for a trial and the presentation of evidence means I’m an apologist then mea culpa. I would even insist that those standards be applied in your case should you ever get charged.
            Oh and how is time served not a sentence? If someone is gaoled for 6 months awaiting trial and is then found guilty of an offence that is punishable by 6 months, then they have served their sentence. If they are found not guilty, what then? Do they get that 6 months back?

          • “No, no!’ said the Queen. ‘Sentence first – verdict afterwards.’
            ‘Stuff and nonsense!’ said Alice loudly. ‘The idea of having the sentence first!’
            ‘Hold your tongue!’ said the Queen, turning purple.
            ‘I won’t!’ said Alice.’Off with her head!’ the Queen shouted at the top of her voice”

          • Nice try, but he won’t get it. I’ve seen smarter turnips.

        • You might want to learn something about how our justice system works. The trial comes BEFORE the sentencing. You have to be found guilty in order to be sentenced.

    • “A Mandatory Minimum would relieve gutless Judges and Prosecutors of having to make the right decision.”

      No it wont. It’ll lead to more plea bargaining being accepted by harassed prosecutors who lack the resources already to deal with case loads. It might well lead to more people walking away than happened before MMs.
      It ‘s even been pointed out that in some cases the new MMs are actually lower than sentences already on the books for some crimes.
      This is what happens when you attack a complicated problem from a purely idealogical pov – you just create more complicated messes to be fixed at some point or other.

    • So we should now put people in jail just for being in court and not found guilty of anything?

      • The rush by leftists like yourself to defend the gutless decisions of the courts that drop gun charges against an individual who had loaded illegal guns in his possession tells us all we need to know about the need for serious reform in the justice system.
        Fortunately we finally have a government that has the mandate to achieve some balance in our court system.

        • *sigh* go back to your bridge, wouldja?

          • Whatsamatter wuss—-can`t handle the truth.

          • Dunno. Present some for a change and we’ll see.

        • i trust the judgment of the Crown prosecutor far more than your absurd fantasies.

          • that’s not justice then. that’s a blind pick of the litter. but if you want that kind of justice you can go to North Korea if you wish. they’d be glade to treat you that way.

        • A mandatory minimum sentence will do nothing to improve the odds that a prosecutor will prosecute. It does not remove prosecutorial discretion [go get a dictionary or google the term].

    • If there is not sufficient evidence to prosecute, a mandatory minimum will not change that. The prosecutor looks at whether there is enough evidence to proceed. How could a mandatory minimum sentence change the evidence???

  8. Interesting article…

    The author cites cases where Stephen Harper’s conservative government “lost” and states that courts continue ruling against the government on important issues (i.e. they act as an official opposition).

    It is not always true.

    Take, mandatory minimum penalties, for example.

    -Mandatory Minimum penalties-

    I am sure that s. 95(2)(a) (i) of the Criminal Code of Canada as well as mandatory minimum penalties introduced by the Harper government will remain constitutional.

    R. v. Smicke and R v. Lewis (2 Ontario cases) have been appealed.

    The mandatory minimum sentence for a first offence under s. 95 of the Criminal Code of Canada (“possession of prohibited firearm”), if prosecuted by indictment, is imprisonment for 3 years.

    In creating the hybrid offence with no minimum sentence on summary conviction, Parliament recognized that there will be circumstances in which possession of a loaded prohibited weapon will not require any term of imprisonment, and indeed could result in an absolute or conditional discharge.

    In R. v. Smicke, for example, the Ontario Crown decided to proceed by indictment.

    Why? Well…this article fails to mention that Leroy Smicke did not admit having possession of the gun and therefore did not get the benefit of that mitigating factor (hence the indictment).

    Quite frankly, courts should not ignore the wish of our Parliament and decide what a reasonable sentence is. It is obvious that reasonable people can disagree on a number of things. American judges could probably have given Mr. Smickle a much harsher sentence. On the other hand, European judges could have let him go. It is up to our Canadian Parliament to decide what a reasonable sentence is. If Canadians disagree with this, they will vote for another government.

    S. 95 (2)(a) (i) is consistent with the Charter of Rights and Freedoms and I am sure that the Ontario Court of Appeal and/or the Supreme Court of Canada will reaffirm this.

    -Injection Sites-

    The Supreme Court of Canada has actually reaffirmed that the impugned provisions of the CDSA are, in pith and substance, valid exercises of the federal power. The Court further opined that provincial programs designed to advance the public interest are not, by virtue of their interest status, exempt from the operation of criminal laws. Decisions about what treatment may be offered in provincial health facilities do not constitute a protected core of the provincial power over health care and are not, therefore, immune from federal interference.

    Nevertheless, it is true that the Minister’s decision must conform to the Charter. The SCC simply stated that the Minister’s failure to grant a s.56 exemption to Insite engaged the claimant’s s. 7 rights and contravened to principles of fundamental justice.

    -National Securities Regulator-

    The SCC opined that while the economic importance and pervasive character of the securities market may, in principle, support the federal intervention that is qualitatively different from what provinces can do, they do not justify a wholesale takeover of the regulation of the securities industry.

    The Court stated, however, that a scheme recognizing the essentially provincial nature of securities regulation while allowing Parliament to deal with genuinely national concerns remains available and is supported by Canadian constitutional principles.

    -Prostitution-

    Although the Court of Appeal of Ontario stated that the blanket prohibition on common bawdy-houses for the purpose of prostitution was overbroad and grossly disproportionate to its legislative objective, it suspended the declaration of invalidity for 12 months. The prohibition on living on the avails of prostitution was not found to be arbitrary. However, it was declared to be overbroad and grossly disproportionate. As a result, words of limitation were read-in so that the prohibition applied only to those who lived on the avails of prostitution (this is consistent with this conservative government’s position). The Court of Appeal agreed with the conservative government that communication for the purpose of prostitution should remain illegal.

    -Assisted suicide-

    This conservative government has already appealed Madame Justice Smith’s Carter decision. It would be interesting to see what the B.C. Court of Appeal and/or the Supreme Court of Canada will have to say about this…

  9. The whole point of documents like The Charter and the American Bill of Rights is to protect people from the tyranny of the majority. Judges aren’t meant to represent the wishes of the majority of society, they’re meant to interpret law. We happen to live in a country that believes that the tyranny of the majority can be a very bad thing.

    Some people like to wrap themselves in the banner of democracy, claiming that it is an unassailable virtue. It’s amazing how quickly they change their tune when someone turns that principal against them.

    A few examples: A pro-vegetarian party is elected with a majority of seats, and just for fun, lets say a majority of the popular vote, too. Should they be able to legislate a ban on meat in Canada? What about a Catholic party mandating that everyone has to convert? What about an Islamic one?

    That’s right, it sounds stupid and unfair when it’s your rights being trampled, doesn’t it? Well guess what? The Charter and the judiciary are there to protect us from situations like that.

    In other words, the Charter and judiciary are there to protect us from the defects of democracy. You should be thankful to live in a country with those kinds of protections.

    • Strangely enough, I am not sure our constitution would prevent a ban on meat (except if you ate it for religious purposes and couldn’t substitute anything else). Judges can alleviate some of the ills of government policy – but only the ones they have the legal authority to do so!

      • I eat meat like a religion.

      • Ha, true enough. But it should still prove the point to meat eaters that the will of the majority isn’t necessarily a good in and of itself. Majorities have supported some pretty awful things.

  10. 308 elected MP’s and 2,400 appointed for life judiciary in Canada who runs Canada dummies?

  11. This is an interesting take on the state of federal politics – I’ve long been of the opinion that in the absence of checks and balances within parliament (and especially concentration of authority in the hands of the PMO), the courts and provinces would become the de facto opposition. A powerful and legitimate senate (which does not necessarily entail elections) could largely remove the need for activist Judicial review by increasing the opportunities for opposition within parliament.

    • This situation is even more extreme, since we currently have a Prime Minister who has abused parliament and parliamentary procedure to an unprecedented level, limiting input, curtailing debate, and ignoring the wishes of the majority of Canadians on any number of issues.

  12. I agree with the judges on these issues. Alas, not all judges are wise all the time–esp. for the last 30 years, they tended to side against workers’ human rights, IMHO. However, on these issues, I’m pleased to see they are right on. Many people who commit crimes have mental issues, are poor (which leads to the former, in some cases) and/or addicted which could be part of it all. Although I’d love to see mandatory sentences for crimes like rape and murder, I’d sooner see rapists/sadists/violent people identified earlier on and treated, if possible, in a secure mental facility for the criminally insane– for life, if necessary. Jail as a punishment should be for those miscreants who have a working brain and should know better. As for the writer’s claim that judges are going against the majority, that’s wrong. Most of the people (68%)did NOT vote for Harper, but he still gets to whip the rest of us with his pro-global- feudalistic plans. This makes a mockery of our country’s claims to democracy. One wonders who he answers to. It sure isn’t God, but it might be the Rothchildren or Koch Bros.

  13. Ahhhh, the cult of Trudopia… formerly, Canada. Where appointed, unelected judges interpret Trudeaus flawed Charter so as to dictate law and social policy as laid out by a Nazi loving PM of the last century. Real countries must have a good laugh at the judicial governance of the Trudopian State. Good times.

    • No it’s called pissed of citizens of a corrupt Harper government. and election fraud isn’t a joke!

  14. The question remains, who ENFORCES those Court orders against the government?

  15. Preston Manning’s insinuation that the majority of Canadians share the govt’s values is laughable. Of the 60% of the population that bothered to vote, only 40% voted for the Cons, certainly not a clear mandate and certainly not a sharing of values.

  16. Harper: “It is unacceptable that a group of judges puts aside the will of the majority of Canadians…., I mean the will of the majority of MPs representing the will of the majority of Canadians…., I mean a majority of MPs representing an overwhelming majority of Albertans and supported by a clear majority of democratically elected Senators, I mean… eh… you know… forget what I just said… we’ll just do it American-style and pack the Supreme Court with friendly judges… is the mike still on…?”

Sign in to comment.