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| quote: | Originally posted by MarkT
"pull decisions out of their asses" is a bit much...
don't they uphold unwritten constitutional norms all the time? No where in the Charter are gay rights explicitly mentioned...but judges have repeatedly extended that provision which provides for equality under the law to prevent discrimination on the basis of sexual orientation. |
Wow, how did I know you'd bring up gay rights?
Simply because the result of the Supreme Court's "decision" was good (or should I say, good in your eyes) does not mean that the decision-making process was legitimate. Major societal reforms throughout history have ALWAYS taken place in the legislature, not the courts. Judges have repeatedly ILLEGALLY extended that provision, regardless of how favourable you deem the decisions to be.
| quote: | | Hostile public opinion should rarely, if ever, be relevant in a legal matter, IMHO. I find it dangerous to subject the law to the moral flavour of the month. |
And do the judges not have a moral "flavour of the month?" What makes their moral fiber superior to anybody else's in the country?
| quote: | | Look at the swinger's club decision..."public opinion" would likely deem such a place to be distasteful, immoral, etc. and few would shead a tear if the judge forced it to close...hell, if put to a majority vote, they would likely be made illegal, just as would every strip club, after hours club (that's right EDM fans) and many other establishments that fall outside of what the average person "likes". We live in a rather selfish society where many, if not most, people don't really care much about that which doesn't affect or outright benefit themselves. Relying on public opinion or this "majority rules" bullshit that Harper seems to favour for every rights issue is not my idea of justice or fairness. I shudder to think what would have happened if every minority rights case in history was put to a "free vote" in parliament or decided in the sphere of public opinion. |
Majority of people supported the swinger's club decision as well as many other "establishments that fall outside of what the average person likes". You're confusing public opinion with that of special interest groups (including right-wing groups, of course).
| quote: | | As for her second statement...it's *written into the Charter itself* that it's text is not exhaustive, no? In the section dealing with equality under the law, it's explicitly written "in particular" in reference to the list of criteria upon which discrimination is prohibited. As mentioned, sexual orientation is not recited, but courts have repeatedly seen fit to extend Charter rights where it is concerned, as a reasonable extention of the spirit of that Charter provision). This occured not because some forward thinking gov't or compassionate society proactively enacted a law prohibting discrimination, but because someone or some marginalized group had to challenge the status quo *through the courts*, where some judge(s) in turn forced the gov't to formally address the issue by amending the law, enacting new law, or at least setting a court precedent to address future cases. |
Again, societal reforms have always been done by the legislature and that is the way it should be. It is not up to the courts to listen to special interest groups and decide these matters. A Supreme Court judge's sole sources should be the constitution and legal precedent.
The Constitutional documents acknowledge that they are not complete but that the appropriate mechanism for dealing with gray areas is either (a) a constitutional amendment or (b) the notwithstanding clause. Judges making up the law on the spot is NOT a valid path through the gray areas.
| quote: | | Would you disagree that the fathers of Confederation and the draftees of the Declaration of Independence in the U.S. could not possibly have possessed the foresight to account for every possible future application of the document they were drafting? Of course not...and an ever-changing Parliament, representing fickle public opinion can't be solely relied upon to address this obvious limitation. |
They addressed this limitation with the amendment process and the notwithstanding clause. If neither the elected government nor a majority of the people can agree that a change should be made, what right do judges have (who are supposed to YIELD to the constitution, not rewrite it) to take matters into their own hands? Again, who says that the opinion of 9 unelected judges is any more valid than this "ever-changing parliament" or "fickle public opinion?" You're advocating oligarchy and almost fascism - that neither the people nor their elected representatives truly know what's best for society, and the only people who do are an elite group of high-ranking judges and the minority groups they listen to.
| quote: | | I agree that it does not follow that judges ought to be the sole determinents of filling in those gaps of the law...but to deny them the power to extend and apply it is to deny them any power at all to decide novel cases. Our legal system would grind to a halt and Parliament would have to sit 24/7 to get thorugh a *fraction* of the required amending legislation, no? Maybe I place too much faith in our judges...but I think that many people place far too little. |
It's got nothing to do with faith or lack thereof. Judges are there to interpret the constitution, not rewrite it. It's that simple. The power of judges is to strike down laws that are not in accordance with the written constitution, and this is indeed an important power that they should not be denied; however, it should not be confused with striking down laws that are not in accordance with their own personal opinions, which is what we've been seeing in recent years.
| quote: | | As for your earlier point that the on personal morality of a PM is not really an issue in the day to day running of the gov't...I disagree. To suggest it is not is to imply that the PM is 100% objective on all issues and that it doesn't matter, from a character standpoint, who we elect as PM because it won't factor into how they do their job. |
I can't believe you say this after your post about the judges! Which is it, Mark - do personal opinions influence the outcome or don't they? Harper's vote is just one vote among hundreds. A judge's vote is one vote among nine.
| quote: | | One question...how can one defend Harper stating that "many Canadians were disappointed with...(the court's decision)"? SO WHAT? Many were probably happy with it too. Many more probably didn't care. WTF is he trying to say? That he even made that type of comment irks me. He appears to either be catering to public opinion on a legal matter and that is inappropriate, IMHO, or it was simply HE that wasn't happy with it. |
His point, and the point of many others (including myself) was that the outcome itself wasn't the important thing. The important thing was that it should have been left to a free vote or at the VERY least left to Parliament - not plowed through by unaccountable judges.
| quote: | For all these people here who *claim* to have a laissez-faire attitude...and who *claim* to want the gov't to stay out of people's lives...you appear to be arguing for the exact opposite by taking power away from liberal (small "l" judges) and putting it into the hands of politicians, no? Who do you think is going to strike down the inevitable "you can't smoke in your own home" law that gets passed by gov't, due to public pressure? that's right...those awful liberal judges who "pull decisions out of their asses"  |
We don't advocate taking any power whatsoever away from judges. We only advocate reminding them how much power they actually have by virtue of parliamentary judicial review. If the government attempts to enact a law that is actually not in accordance with a certain section of the constitution, then by all means, it should be struck down by the judges. That is their role - to interpret the constitution, not rewrite it. However, if judges start blowing smoke out of their asses (as they have been) then society at large needs some sort of recourse.
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