Role of the Supreme Court of Canada

[FiveParadox]

You have contempt for people who have a different view from you...

I certainly hope he doesn’t have contempt for me, his picnic wouldn’t be anywhere near as much fun!

 

[CDNBear]

The only organisation during the past few years to damage the fundamental principles of justice has been the Conservative Party of Canada, and the evidence of that is clear. The changes to the appointments process as pushed for by The Right Honourable Stephen Harper P.C., M.P. (Calgary Southwest), the Prime Minister of Canada, tarnish these principles—having a candidate respond to questions by members of the elected House of Commons makes no sense. The purpose of that hearing was exclusively for the Conservative Party to probe to see whether the candidate was agreeable to the conservative cause. The Conservative Party has openly declared the Supreme Court to be an obstacle to conservative governance, so at least its assault against judicial independence makes sense.

:roll:

I think that would be fabulous, it would be a very engaging discussion.

Funny you didn't think so the first time round. I'm outta here for the night. I'll get right on that tomorrow.

The Supreme Court (at least under the leadership of The Right Honourable Beverley McLachlin P.C., the Chief Justice of the Supreme Court of Canada, as that is as far back as my memory goes) has never issued a decision based in anything less than a concrete foundation of law and constitutional principles. You can throw any decision you wish out here, I would love to go through the texts of the decision to demonstrate to you exactly how the Supreme Court’s decision is just and appropriate. The professionalism and non-partisanship of our Supreme Court, through its decisions, is documented public record.

:lol:

That’s the point of my side of this argument—it isn’t the Supreme Court’s job to represent the people of Canada.

The laws of the land should reflect the people. The people being the ultimate leaders of the nation.

That is exclusively a function of the Senate of Canada and the House of Commons (that is, the representation of Canadians). The role of the Supreme Court (as I see it) has nothing to do with democracy, and everything to do with ensuring adherence, in law, to the Canadian constitution. It would completely defeat the purpose of a judicial system for a court to make decisions based on what any group of people want a decision to be.

According only to you nannystaters.

The prime minister, with just the above tactic, has taken the cake on that category single-handedly.

:roll:

I completely agree—one of the worst decisions that we could make as a country, on the sphere of judicial administration, would be to have our honourable justices elected. The judicial system used by the United States seems to be a “kangaroo court” system of sorts, where the bench is more worried about perception than it is the proper and impartial interpretation of the law. The example that you cited, with regard to the election of The Honorable George W. Bush, 43rd President of the United States, is the perfect deterrent.

I sighted that?

Must have dropped the wrong link somewhere.

 

[FiveParadox]

Sorry CDNBear, the citation was SirJoseph’s.

 

[CDNBear]

Sorry CDNBear, the citation was SirJoseph’s.

NP 5P. You had me scratchin my noddle though, lol.

 

[SirJosephPorter]

If the laws of the land are written properly, there is no 'interpretation' needed.

Here I disagree with you, TenPenny. Interpretation will be needed even if Parliament writes the law properly. After all, properly according to whom? It may be written properly according to one lawyer, another may be able to find a loophole in it.

I must have been away - when did these two events take place?

They could take place. That is why we need the Supreme Court, its essential (and perhaps the most important) function is to see if a law is in accordance with the Charter, the constitution. If a lunatic right wing government tried to pass such laws, we can be confident that Supreme Court will strike them down.

When it comes to protecting fundamental right, human rights, eternal vigilance is called for. Simply saying that it has not happened before (banning abortion, criminalizing homosexuality etc.) and so it will never happen in the future is a copout, it does not mean that it cannot happen in the future.

 

[gerryh]

NP 5P. You had me scratchin my noddle though, lol.

and this is different how?

 

[CDNBear]

Here I disagree with you, TenPenny. Interpretation will be needed even if Parliament writes the law properly. After all, properly according to whom? It may be written properly according to one lawyer, another may be able to find a loophole in it.

And here is where I will inadvertently agree with you. Because this is the issue I have with the SCoC. We as Canadians are living by these lawyers interpretations.

They could take place. That is why we need the Supreme Court, its essential (and perhaps the most important) function is to see if a law is in accordance with the Charter, the constitution. If a lunatic right wing government tried to pass such laws, we can be confident that Supreme Court will strike them down.

Even if it's detrimental to the good of the public.

When it comes to protecting fundamental right, human rights, eternal vigilance is called for.

I agree, which is why I wouldn't trust the SCoC to do it for us.

Simply saying that it has not happened before (banning abortion, criminalizing homosexuality etc.) and so it will never happen in the future is a copout, it does not mean that it cannot happen in the future.

You bring up maybe's, I'll give you definites. They allowed kids to carry concealed weapons in Kebec.

 

[CDNBear]

and this is different how?

Because usually I'm scratchin my nuts.

D'uh...8O

 

[darkbeaver]

FP, I think the proper job of Supreme Court includes both. It has to interpret the laws passed by the Parliament and also rule whether the laws passed by the Parliament are constitutional.

There was also a spark of conversation on the topic of elected justices, versus unelected ones—I hope that we can also touch on that subject here.

Definitely appointed, not elected. If they are elected, no way will they interpret the constitution dispassionately, fairly. When they know that have to win next election, each and every decision they hand down will be designed so that the reelection became easier.

If they are elected, they will be politicians first, jurists second, as is the case with US Supreme Court. Though the justices there are not elected, they Supreme Court justices in USA are Republicans or Democrats first, they pretty much stay loyal to their political party (the most egregious example of it was when they awarded the presidency to Bush in 2000, with five Republicans voting for Bush and four democrats voting for Gore).

I wouldn’t want to see our judiciary corrupted like that. The system we currently have is working pretty well, leave it alone. If it ain’t broke, don’t fix it.

Could you briefly explain the gulf that exists between the USAs and Canadas systems?

 

[SirJosephPorter]

Could you briefly explain the gulf that exists between the USAs and Canadas systems?

Certainly. Superficially the two systems look similar, with nine justices, and a mandate to interpret the constitution and to decide if a law violates the constitution.

But in practice they are totally different. In Canada, the Canadian Law Society (or whatever the body that represents the lawyers is called) submits a list of three (I think) names to the PM. The three names are from mainstream of lawyers, not from either of the fringes. PM appoints one of these names to the Supreme Court. In addition he of course has to maintain the regional balance on the Supreme Court.

But this makes sure that lawyers from Canadian mainstream are appointed to the Supreme Court, it keeps out the kooks, extremes of both right and left. To Harper’s credit, he has continued with the same method of appointing justices.

In USA, a Supreme Court nomination is usually considered an opportunity to appease the party base. That was one of the reasons why Obama chose a Hispanic woman, in that he got two for one (a Hispanic and a woman).

Similarly, Republican presidents try to appease the far right base and so end up appointing the extreme right wing lawyers to the Supreme court. Justices such as Clarence Thomas, Scalia belong to the far right; they are definitely not from the mainstream of the society. Thus when Supreme Court stuck down the Texas Sodomy law, Thomas voted to let Texas keep the law, which locked up homosexuals of ten years. Such a thing cannot happen in Canada.

Since presidents must appease the base, in USA Supreme Court justices tend to be politicians first, and jurists second. Supreme Court used to be held in high regard in USA (same as Canadian Supreme Court is held in high regard in Canada). Much of that respect disappeared after the 2000 fiasco, the blatant politicking by the Supreme Court.

This is where tradition comes in, one of the very few things USA does by tradition. By tradition, a Supreme Court justice must be a politician first, a jurist second.

 

[darkbeaver]

Thankyou, yes I am aware of the political aspect of the American jurist. Yes blatant act 2000. We are better off in that respect then I guess."must appease the base" with the gift of a justice for them, yes I'v read about that too. I don't think we do have the same problems that way. Electing them would be crazy.

 

[Colpy]

The Court should be able to strike down laws that contravene the Constitution.
The Justices of the Court should be appointed........but they should also have to be vetted by Parliament in Committee.

The Court should never be able to dictate on cases outside the country, such as in the recent attempts to force the repatriation of Khadr, or to force the gov't to intervene in American capital crimes cases.

The Court can be wrong, as it is when they order the gov't to refuse to extradite criminals that may suffer Capital punishment.

I am a Constitutionalist, I believe in written supreme law that dictates the essential being of the state.....but our courts can, and do, over-reach.

Then they should be ignored.

 

[darkbeaver]

Ignore the supreme court? That's bad, you will go to jail or house arrest if you're lucky.

 

[Niflmir]

I am thinking you mean to say,

The Court can be wrong, as it is when they order the gov't to extradite criminals that may suffer Capital punishment.

no? The following might help you understand why the courts claim to have jurisdiction to do so.

As of March 2004, the Canadian government knew that Mr. Khadr was being tortured.

Ultimately it boils down to a consideration of simple fairness, common sense and the interest that the courts have that justice be done.

Currently, there is a trend in law to constrain the conduct of Canadian citizens abroad following Canadian law. The first use of this trend that I saw was the laws to convict sex offenders when they return to Canada for committing pedophilia abroad, typically in countries where it is not illegal. If the jurisdiction exists to convict said offenders, than the jurisdiction exists to constrain the actions of consular officials. In the interest of justice, this is the stance that the courts have taken.

The general principle established by Khadr 2008 is that the Charter applies to constrain the conduct of Canadian authorities when they participate in a foreign legal process that is contrary to Canada’s international human rights obligations (see also R. v. Hape, 2007 SCC 26 (CanLII), 2007 SCC 26, [2007] 2 S.C.R. 292).

It is strange to me that the Harper government doesn't want to deal with this. After all, it was a Liberal government which was complicit in torture in the first place.

 

[Colpy]

Niflmir;1136997]

The following might help you understand why the courts claim to have jurisdiction to do so.

As of March 2004, the Canadian government knew that Mr. Khadr was being tortured.

I have already said that I have reluctantly reached the conclusion that Canada should seek Khadr's release.

Sleep deprivation is not torture.

Water boarding most definitely IS torture.

If he were tortured, I would support DEMANDING his release.



Currently, there is a trend in law to constrain the conduct of Canadian citizens abroad following Canadian law. The first use of this trend that I saw was the laws to convict sex offenders when they return to Canada for committing pedophilia abroad, typically in countries where it is not illegal. If the jurisdiction exists to convict said offenders, than the jurisdiction exists to constrain the actions of consular officials. In the interest of justice, this is the stance that the courts have taken.

The two are completely different. Consular officials are acting as representatives of the Canadian gov't, If they are complicit in torture, I would be overjoyed to see them charged and convicted.

I don't like supra-national law,

International law is a joke, especially on the subject of human rights.

 

[CDNBear]

OK, 5P...

Here's case 1...

Supreme Court rules kirpans okay in school - The Globe and Mail

The Supreme Court makes the ceremonial dagger, the Kirpan, legal for children to wear to school.

My sons, certified 'Injuns' can not, not even for exhibition purposes bring their Tomahawk pipes to school. Not only where they told that it was a weapon, but that it was a tobacco related item and therefore impermissible.

Then we have this...

Kirpan used to threaten someone in a schoolyard | CJAD

Exactly why they should have been banned.

It matters not that it is considered a religious ceremonial item. It is a weapon, period. And in contravention to the CCoC, it is a concealed weapon.

Religion, should not take precedence over public safety. Especially when children are concerned.

This is the very essence of the problem with the Supreme Court and the Charter. It is being used to erode our laws.

 

[Colpy]

OK, 5P...

Here's case 1...

Supreme Court rules kirpans okay in school - The Globe and Mail

The Supreme Court makes the ceremonial dagger, the Kirpan, legal for children to wear to school.

My sons, certified 'Injuns' can not, not even for exhibition purposes bring their Tomahawk pipes to school. Not only where they told that it was a weapon, but that it was a tobacco related item and therefore impermissible.

Then we have this...

Kirpan used to threaten someone in a schoolyard | CJAD

Exactly why they should have been banned.

It matters not that it is considered a religious ceremonial item. It is a weapon, period. And in contravention to the CCoC, it is a concealed weapon.

Religion, should not take precedence over public safety. Especially when children are concerned.

This is the very essence of the problem with the Supreme Court and the Charter. It is being used to erode our laws.

I myself am not only the high priest, but the messiah of the Order of the Holy Hi Power. It is our sincere belief that if one goes an hour without being in possession of a fully loaded operational Browning (praised be his name) P-35 Hi Power, they go straight to hell. (either in the traditional 9mm or the New Testament .40 caliber, as we are a tolerant, multicultural people) We swear an oath (EXACTLY as the sikhs do) never to go unarmed.....in our case without our pistols.

I fully intend to take this matter to the highest court in the land.

Being a middle-aged, male, Canadian-born white guy, How far do you think I'll get????

 

[FiveParadox]

The decision was correct—the kirpan is a religious symbol, required to be carried by orthodox Sikhs. The decision was in keeping with s. 2(a) of the Canadian Charter of Rights and Freedoms. Obviously, in such cases where the Criminal Code of Canada is inconsistent with s. 2(a), the Code does not apply, and the Supreme Court ruled as such per Canadian law. Once again, it appears that your problem here is not with the Supreme Court, but with Canadian law—I’ve noticed that a lot of people have trouble separating the two. You should be lobbying the Government to invoke the notwithstanding clause, not lobbying against the Supreme Court for doing exactly what it was supposed to do.

 

[Colpy]

The decision was correct—the kirpan is a religious symbol, required to be carried by orthodox Sikhs. The decision was in keeping with s. 2(a) of the Canadian Charter of Rights and Freedoms. Obviously, in such cases where the Criminal Code of Canada is inconsistent with s. 2(a), the Code does not apply, and the Supreme Court ruled as such per Canadian law. Once again, it appears that your problem here is not with the Supreme Court, but with Canadian law—I’ve noticed that a lot of people have trouble separating the two. You should be lobbying the Government to invoke the notwithstanding clause, not lobbying against the Supreme Court for doing exactly what it was supposed to do.

Baloney.

The kirpan is a weapon, carried by religious Sjkhs because, and ONLY because, they have taken an oath never to go unarmed.

Myself, I have no problem with that.....as soon as I am allowed my ancient constitutional right (unrecognized) to carry arms.......as in the Browning mentioned sarcastically below.

Logically, I have a much better case than a Sikh.

The Bill of Rights of 1689...part of Canadian Constitutional Law; "That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law...... "

Funny, I can't walk the streets with weapons suitable for my defense....and I don't see Sikhs mentioned above.........

 

[gerryh]

The Supreme Court made it quite clear HOW the Kirpan must be worn...sealed and concealed.

If all you can do is come up with one isolated instance of a 13 year old doing what shouldnot be done with his kirpan, then I would say you don`t have a case against Baptised Sihks wearing the Kirpan.

Your other aurgument concerning your children, is a non starter. At no time has an "Indian Tomahawk pipe" been "requirered" to be worn or carried at all times by Indian "tradition" or "relgion".

Your arguments are weak at best.