SCC and Trinity Western University

[FJAG]

I've never been comfortable with the idea of the politicization of the judiciary, (Left or Right), which is what we seem to get from having political parties and their funders get involved in the process. To me it seems to go totally against the idea of a truly independent judiciary, since their appointments are so clearly done to further the agenda of the party with the power to appoint.

I have a hard time seeing what it is in politicians that makes them capable of divining if a judge is any good or not, as opposed to just being "reliable and useful"

I can't say that electing them is any better: IMHO that's just another form of politicization. I once heard a judge in the US comment that to pass a particular judgement would be "suicide for my political career". What is the functional difference between that and judges being swayed by popular opinion, rather than by the rule and spirit of the law?

Do I know how to replace political appointment of judges? No, not just at the moment, I don't. But it seems to me that there must be a better, less partisan way to do it.

I agree that electing judges is just another way of having mob rule.

Our processes are better in that judges, once appointed, have tenure of office for life and are no longer beholding to anyone for their job (barring misconduct complaints and hearings)

There is no question that the various existing processes bend appointment in favour of an individual whose broad political leanings are in line with that of the appointing party. Initial vetting and shortlisting is much more nonpartisan, however, and therefore candidates brought before the politicians for selection are at least qualified and considered capable of doing the job.

We do have one major advantage. Our constitution and human rights legislation are more expansive and malleable which allows legal principles to grow and expand to match society's growth both in the way that legislatures deal with it as well as the judges. What's more, if legislatures are adamant that judges are being too proactive, they can also use the "Notwithstanding" clause. In the US the trait of the "originalism" hamstrings the Constitution to interpretations that do not take changes in society into account.

:cheers:

 

[Colin Parkinson]

I can bet all those people who are pro-abortion and think things should be science based, might get a little uncomfortable with apply science to the determination of the beginning of life. https://www.sciencedaily.com/releases/2018/07/180712141653.htm?utm_source=dlvr.it&utm_medium=facebook

 

[Brad Sallows]

The purpose of a constitution is to fence in government, preferably with no recourse but amendment.  I prefer things to be stated in terms like "Congress shall make no law...", with no weasel clauses ("notwithstanding", "reasonable limits").

 

[pbi]

I can bet all those people who are pro-abortion and think things should be science based, might get a little uncomfortable with apply science to the determination of the beginning of life. https://www.sciencedaily.com/releases/2018/07/180712141653.htm?utm_source=dlvr.it&utm_medium=facebook

But what if you're pro-science but anti-abortion? You know, one of those inconvenient people who don't fit stereotypes?

If you're referring to this paragraph:

The beginning of life

Furthermore, the knowledge from this paper might impact legislation. In some countries, the law states that human life begins -- and is thus protected -- when the maternal and paternal nuclei fuse after fertilisation. If it turns out that the dual spindle process works the same in humans, this definition is not fully accurate, as the union in one nucleus happens slightly later, after the first cell division.

what that seems to say (as far as I can tell), is that full conception occurs later than what some pro-life laws assume.

 

[YZT580]

Fertilisation, including that first cell division, occurs within a day and a half of impregnation.  So the only questionable 'abortion' effected would be the morning after pill.  (http://www.embryology.ch/anglais/dbefruchtung/zygote03.html  The mitotic spindle divides the chromosomes that have just been brought together into the two first cells of the embryo. This proceeding towards the two-cell stage occurs on average between 22 and 26 hours after fertilization.) 

 

[Brad Sallows]

I'd characterize the problem as one of deciding when person-hood is granted, not when life begins.

 

[pbi]

I'd characterize the problem as one of deciding when person-hood is granted, not when life begins.

That is a good and important question. I used to be 100% pro-abortion, no questions. Now, I'm not so sure any more. To me, I guess the issue is for the mother (or mother and father) to ask themselves if they can live with the knowledge of ending a life.I don't agree with forcing women to have children against their will, but I don't believe that abortion should be the go-to for contraception. Rape, incest, or medical issues: I get that. But is abortion really needed as a form of contraception anymore, with all the options out there?

 

[Altair]

That is a good and important question. I used to be 100% pro-abortion, no questions. Now, I'm not so sure any more. To me, I guess the issue is for the mother (or mother and father) to ask themselves if they can live with the knowledge of ending a life.I don't agree with forcing women to have children against their will, but I don't believe that abortion should be the go-to for contraception. Rape, incest, or medical issues: I get that. But is abortion really needed as a form of contraception anymore, with all the options out there?

medical issues is what gets me.

After a perfectly healthy pregnancy my wife developed preeclampsia and other complications during labour,  and suffered a lot of blood loss and was hospitalized for a week.

The act of giving birth can always go sideways,  and there are always going to be risks involved

I am leery of forcing a woman to go through the stresses of childbirth and labour against their will

 

[Kirkhill]

Fjag

You may have a less contentious response if you stopped equating the demos and the mob.

Personally my solution to the appointment of judges is to have them created by various mobs of various cultures.  I am not opposed to an Islamic JP steeped in Sharia law if he or she recognizes that the law being adjudicated is parliament's law.

I am not impressed by all law being adjudicated by the mob of lawyers.

;D

 

[Colin Parkinson]

medical issues is what gets me.

After a perfectly healthy pregnancy my wife developed preeclampsia and other complications during labour,  and suffered a lot of blood loss and was hospitalized for a week.

The act of giving birth can always go sideways,  and there are always going to be risks involved

I am leery of forcing a woman to go through the stresses of childbirth and labour against their will

I suspect most Canadians would accept abortion up to about the 1st trimester, a smaller portion to the 2nd trimester. A video of an abortion in the third trimester would convince the majority not to support it. With only a doctors advice saying that the life of the mother is at stake. If life is deemed to begin earlier than current laws allow, both the mother and father would be on the hook to provide care and support earlier on as well.

 

[FJAG]

Fjag

You may have a less contentious response if you stopped equating the demos and the mob.

Personally my solution to the appointment of judges is to have them created by various mobs of various cultures.  I am not opposed to an Islamic JP steeped in Sharia law if he or she recognizes that the law being adjudicated is parliament's law.

I am not impressed by all law being adjudicated by the mob of lawyers.

;D

The concept of Tyranny of the majority has been well understood ever since democracies became fashionable and particularly in the early years of the US Republic.

While James Madison referred to the same idea as "the violence of majority faction" in The Federalist Papers, for example Federalist 10, the phrase "tyranny of the majority" was used by John Adams in 1788.[8] It was also used by Edmund Burke in Reflections on the Revolution in France (1790), where he said that "The tyranny of a multitude is a multiplied tyranny." It was further popularised by John Stuart Mill in On Liberty (1859). The Federalist Papers and the phrase (in translation) is used at least once in the first sequel to Human, All Too Human (1879).[9] Ayn Rand wrote that individual rights are not subject to a public vote, and that the political function of rights is precisely to protect minorities from oppression by majorities and "the smallest minority on earth is the individual".[10]

https://en.wikipedia.org/wiki/Tyranny_of_the_majority

Democracy is nothing more than mob rule, where 51% of the people may take away the rights of the other 49%. Attributed to Thomas Jefferson

Law is not adjudicated in this country by a mob of lawyers but by way of the Rule of Law which is established by democratically elected legislatures, limited by an overarching constitution and Code of Human Rights, which is presented and argued by lawyers before an independent and impartial judiciary. That works for me.

The problem with an unfettered electorate is that it only works for you as an individual so long as you are a member of the majority and as long as the majority reflects your personal beliefs. Think back in history for examples where minorities were oppressed and exterminated by democratically elected governments (Germany, Italy and any number of Islamic republics) and then consider that in California in 2008 the majority of the electorate by way of two referendums legislated for humane treatment rights to chickens (Prop 2) and at the same time directed a constitutional amendment to make gay and lesbian marriage illegal (Prop 8 and thereby overruling a California Supreme Court ruling which had made it legal)

https://en.wikipedia.org/wiki/California_Proposition_2_(2008)

https://en.wikipedia.org/wiki/California_Proposition_8_(2008)

I'm simply not impressed by unfettered democracies, even ones where I'm a member of the majority cultural group.  I'm not sure that a Constitution is the answer in every case either. See for example Iran's who's article 1 states:

Article 1: The government of Iran is an Islamic Republic, which the nation of Iran based on its long-held belief in the rule of the truth and the justice of the Qu’ran, and after its victorious Islamic revolution, under the leadership of marja’-e taqlīd the exalted Grand Ayatollah Imam Khomeini, has established. The measure was ratified by the 98.2 percent affirmative vote of all the eligible voters in a referendum that was held on the 10th and the 11th of Farvardīn in the year 1358 of the solar Islamic calendar, agnate to the first and the second of jumādī al-awlā’ in the year 1399 of the lunar Islamic calendar.

I've grown quite fond of our system. It's got some warts on it but all in all I think it beats out most everything else out there. But then I was a lawyer. ;D

:cheers:

 

[pbi]

Fjag

...I am not impressed by all law being adjudicated by the mob of lawyers...

;D

But who else is better than a person who has been schooled in the law and its underpinnings, practices it regularly and has a strong working understanding of how it has been historically applied? By way of analogy, do you want complex engineering decisions, or medical decisions, made by people who have no background in those fields? Do you want your house wired by a plumber?

I have never fully agreed with the JP system, having known a couple of JPs who I would have thought were not well-suited to the job at all. I understand that JPs will not handle serious cases, but I still find it odd. I would be even less inclined to support a Sharia JP, with no grounding in English Common law (even to the limited extent that a JP might have).

The laws which lawyers and judges study and adjudicate are created and passed into force by politicians, (whether or not they really understand what impact a given law will have a few years down range). The setting of general policy direction, or the response to public feelings, are rightly in the purview of politicians. But that, I think, is where it stops.

Other than that, I prefer to leave the adjudication of the law to people who know what they're talking about.

 

[Kirkhill]

I take the point on tyranny of the majority.

And you are free to argue the benefits of alternative systems.... But in the interests of clarity would it not be better to refer to the alternatives as something other than democracy?

And wrt the JP  system my understanding was that they were lay arbitrators with more in common with members of a jury than with judges.

Do all arbitrators have to be judges?  Or even lawyers?  Or do they just need to enjoy the respect of all parties?

 

[Brad Sallows]

People making judgements must know the rules, and know them well.  Contract law and related mediation and arbitration are just about the last place I welcome talented amateurs.  What vexes me, and degrades the legal profession, are fanciful theories created to bypass unambiguous statements in plain English, usually involving "shall" or "shall not".  Close second: passages inserted to provide potential loopholes through "shall" or "shall not".

>See for example Iran's who's article 1 states:

Citing a particularly egregious example doesn't particularly challenge the value of a constitution among people who are disposed to respect a constitution.

A quotation attributed to John Adams: "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."

It should be obvious that everything in law depends on the culture it serves.  A people could have the most carefully crafted coherent body of law ever known, adjudicated by a multitude of polymaths with photographic memory, and would still not have much law if they chose to ignore and work around it.

We (western cultures in general) are on pretty good ground culturally.  Where I see the weak link is in the sub-strata who are well into or above the fourth level in Maslow's hierarchy, and can't wholly internalize their personal quest - they are a meddlesome, self-righteous bunch.

 

[FJAG]

I take the point on tyranny of the majority.

And you are free to argue the benefits of alternative systems.... But in the interests of clarity would it not be better to refer to the alternatives as something other than democracy?

And wrt the JP  system my understanding was that they were lay arbitrators with more in common with members of a jury than with judges.

Do all arbitrators have to be judges?  Or even lawyers?  Or do they just need to enjoy the respect of all parties?

Just to address the Justice of the Peace issue (I think the vast bulk of us here support the democratic system and constitutions although we may argue the finer points) JP's vary widely (and wildly) by jurisdiction.

https://en.wikipedia.org/wiki/Justice_of_the_peace

Arbitration also varies depending on the jurisdiction and the subject matter.

https://en.wikipedia.org/wiki/Arbitration

At the heart of any judicial or quasi-judicial system is that it is a form of dispute resolution. Disputes are either ones between the citizen and the state (which deal with such matters as crimes or regulatory infractions) or ones between citizens (including corporations) and other citizens.

In either field the continuum of disputes varies from low levels (e.g. low sums of money or punishments involved) to high level (e.g. gigantic sums of money or prison or death penalties)

The British model justice system (like ours and the US's) is one where it is assumed that there are at least two different interests involved and that the best way to resolve the issue is to allow each side of the dispute to argue their case in front of an impartial decision maker. We call this an "adversarial" system. Generally the decision maker allows the opposing parties to call the relevant evidence and make their arguments and then makes a decision based on the facts and law presented (The other major system is the "inquisitorial" system - such as in Europe's civil law countries - where judges plays a much more active role in questioning witnesses and controlling police investigations)

All of that is to say that in our system there is scope for a wide variety of forums and procedures from the very simple, where legal training is not essential, to the very complex, where either legal training or a high level of subject matter expertise is called for if not essential (as an example commercial arbitration is done outside of the state court systems using both subject matter experts and/or retired judges).

North American lawyers are trained in the operation of the adversarial system as well as the law and as such they are more suitable than the average lay person to be advocates and decision makers in disputes. That said there are very many capable lay people who can operate as decision makers in the appropriate forum. What is very important IMHO is that such forums must be governed by rules and procedures and be accountable for their decisions through some form of appeal process. (as a worst case example are the numerous tribal/village councils in Pakistan and India who try serious a wide variety of disputes and who have made such ludicrous decisions as where the punishment for a man raping a women is to allow the the rape victim's male relatives to rape the rapist's sister http://www.latimes.com/world/la-fg-pakistan-revenge-rape-20170727-story.html)

:cheers:

 

[Kirkhill]

Thanks for the education FJAG

in essence the interested parties have the right to pick their preferred horse for their perceived course and have the right of appeal if the don't like the way the arbitration was handled.

I too like that system.

My concern is rooted at a higher level that puts judges over parliamentarians

In our constitutional monarchy where the monarch is constrained by parliamentarians elected as representatves parliament has been sovereign since 1689.

it is a comfortable system but it may not be democracy.

 

[FJAG]

Thanks for the education FJAG

in essence the interested parties have the right to pick their preferred horse for their perceived course and have the right of appeal if the don't like the way the arbitration was handled.

I too like that system.

My concern is rooted at a higher level that puts judges over parliamentarians

In our constitutional monarchy where the monarch is constrained by parliamentarians elected as representatves parliament has been sovereign since 1689.

it is a comfortable system but it may not be democracy.

But Chris

In virtually every case where the judges' "overrule" the legislature it is done on the basis of the interpretation of the constitution (generally the Charter of Rights and Freedoms) which was also written and passed by the legislature(s). If the legislature(s) feel strongly that the judges improperly interpreted the legislation or the constitution then they have the right to reenact the legislation and fixing the impugned provision (which they do quite often, or passing it using the "notwithstanding" provision.

We've had a period where numerous legislative provisions have been challenged successfully in the courts but IMHO much of that is as a result of the various departments (mostly the Department of Justice) writing legislation (principally the Criminal Code) that ran on the edge of the constitutional rights given our citizens (and much of that due to the former Justice Minister Vic Toews - it takes time for these things to work their way through the courts)

In essence one has to recognize that our system of government is a constitutional monarchy whereby the sovereign rules the country through three essential pillars - the executive, the legislative and the judiciary - each with it's own constitutional powers. Practically speaking the country is run by the executive as authorized or limited by the legislature (through legislation) and with disputes between citizens and between citizens and the crown adjudicated by the judiciary.

Again, IMHO, I think that the legislature(s) is(are) supreme as it(they) can make constitutional amendments or use the "notwithstanding" clause if it feels strongly enough that it has the population's support on an issue to subsequently face the electorate on it. So far they haven't done that when "overruled" by the courts.

:cheers:

 

[Kirkhill]

How frequently does parliament have to invoke the "notwithstanding clause" before it becomes null and void because of lack of use - effectively handing supremacy to the courts who will be deciding on if the use of the clause is valid?

Just curious.  :cheers:

 

[Oldgateboatdriver]

Chris:
No part of the Constitution can become "null and void" without an actual amendment of the constitution. Some, such as Article 19, can become "spent" because their purpose has run out (it's the article that called for the calling of the Parliament - the first time - to occur no later than 6 months after the Union). But they cannot become null and void.

Similarly, other than interpretation of its meaning, the SCC does not have the power to modify the constitution. This, BTW is no different than the role of the British Supreme Court, or the Judiciary Committee of the House of Lords before it: They are bound by the constitution, but can "overrule" (or rather "strike") the laws enacted by the various legislatures that are contrary to the said constitution - and only those that they find contrary to the constitution. Without such - supported - finding of being against the constitution, they can only give effect to the enacted laws. That is because the supremacy of Parliament (acting within the constitution - even in England) IS a fundamental rule of the constitution.

This said, and because the SCC understands and applies the rule of Parliamentary Supremacy, the use or non-use of the notwithstanding clause cannot be overcome by the SCC specifically because it is there to circumvent certain parts of the constitution for the benefit of expanded Parliamentary supremacy, with the understanding that the legislature that would employ such clause would be answerable to the people of Canada (come election time) for its use.

It is important to note, Chris, that the notwithstanding clause of the Constitution ( clause little understood by most Canadian) only permits to enact laws that would be contrary to Sections 2 and then 7 to 15* inclusively of the portion of the Constitution called the Charter of Rights. No other part of the Constitution can be overridden using that clause. This is an important nuance, especially here in Quebec, because many people think it can apply to any constitutional rule and, for instance, could be used to reinforce the Language Act here in Qc. Language rights in Canada are protected under section 16 of the Charter of rights - and therefore not subject to the notwithstanding clause.

BTW - little known fact - If ever a Canadian government ever found that a Supreme Court had overstepped its bounds in the application of the Constitution in manner that is unconscionable or clearly biased and partisan, they would have an interesting little recourse: Abolish the Supreme Court. Unlike the USA, our Constitution does not provide for the existence of a Supreme Court. Section 101 of the 1867 Act only indicates that Parliament "may"  "provide from time to time" for the constitution of such Court. The Supreme Court in Canada exists as result of an ordinary Act of Parliament, which can be abrogated just as easily.  ;D

*: These sections comprise the protection of fundamental freedoms, such as conscience, expression, peaceful assembly and association, the Legal rights, such as life, liberty and security, unreasonable searches, no arbitrary detention, rights upon arrest, rights once charged, no cruel punishment, no self-incrimination and availability of interpreter at the crowns expense, and then the rights to non-discrimination.
 

 

[Kirkhill]

OGBD, thanks to both you and FJAG for the continuing education.  No sarcasm intended.

So, perhaps, my issue is coming down to the lack of "debate" between parliament and the courts?  Is it in the interests of politicians to defer to the courts?  Or is it a lack of political will?  Or a fear of the public consequences of contradicting the court?

Myself, I am a strong believer in healthy debate and pragmatic accommodation, as some will have no doubt noted.  In that spirit I would much sooner that parliament made it ordinary practice to challenge the courts and not give the impression of acceding to holy writ.