Quote: Originally Posted by TenPenny
You're forgetting that the court merely applies the law as written. If the law is badly written, it's not the court's fault.
We wish that were true, but it's not quite. Chief Justice Antonio Lamer started the practice of "reading in"; where the law was unclear, he would read in what he thought it meant, or what the court wanted it to mean, rather than go to the trouble of sending it pack to parliament. That practice lead to "writing in" to the point that the Charter has lost most of its original intent.
Reading SCC rulings is pretty dry stuff, but studying some of them you cannot tell how they followed any rule of law whatsoever. Even when they make the right decisions they often cite the wrong reasons, even when the law was clearly on their side. Some of the toughest to get through were those of Claire L'Heureux-Dube and Bertha Wilson. Though Ms. L'heureux-Dube may be forgiven if the possibility exists that her judgments were translated from French, but both her's and Ms. Wilson's rulings were filled with obfuscations and made up words that didn't appear in any dictionary at the time. (It may seem unfair to single out these two, but they were the most accomodating to the feminist cause and found ways to usurp Section 15 of the Charter in order to make men less equal under the law).
The sad truth is that the judiciary bring their own set of morals and biases to the bench and too often it is the rule of the zeitgeist rather than the rule of law that wins the day. Though it can't be proven, because the court does not need to explain itself, but it seems that some cases are not granted leave to appeal because there would be no way of ruling against the case without putting justice in disrepute, and ruling in favour would upset the zeitgeist apple cart.
This isn't necessarily the fault of the SCC, but rather Parliament's deference to the SCC on thorny issues that may threaten re-election. Though democracy is full of evils, court made law is worse.