‘Bad For Democracy’

“Nine people — unelected people — apparently have the power to determine “what’s best for Canadian society”. With no reference to “the law”.

“What high Canadian official do you suppose recently said the following words:

“My job is simply to listen to what the parties have to say, and to do my best to understand the position, the ramifications of deciding one way or the other, to think about what’s best for Canadian society on this particular problem that’s before us, and give it my best judgment … ”

“Important work indeed. Sounds like a legislator. Perhaps a member of Parliament, a cabinet member, maybe even the Prime Minister? 

“None of the above. It was in fact the Chief Justice of the Supreme Court of Canada, who modestly added:

“after listening to, also, my eight other colleagues.”

“But that’s it. Nine people — unelected people — apparently have the power to determine “what’s best for Canadian society”. With no reference to “the law”.

“And of course, that is simply a statement of fact. The Court can do anything it wants if it can find a branch on its “living tree” of the Constitution to hang its authority. The Court considers precedent, which is to say, its own past decisions. But it writes many judgments in a peculiarly elastic way.

“When decisions must be “purposive”, “contextual”, meet the “Oakes test” and fit a “large and liberal” view, you can find great future fun in new purposes and contexts.

“Worse, the Court is not above simply reversing its past judgments should they be inconvenient, as with several cases recently. Just-retired Justice Rothstein courageously had this to say in dissent: Courts

“… may not identify a desired result and then search for a novel legal interpretation to bring that result about.”

“But they do.

Supreme Court of Canada

This great lawmaking power — which most Canadians think is the sole prerogative of our elected Parliament — flows directly from the Court’s post-Charter position as sole arbiter of the constitution. The current {now previous} government claims to chafe under this yoke, and yet declines to make use of its countervailing power — the “notwithstanding” clause, by which the legislature can over-rule the court in many areas. Why is this? Because the government is (rightly) afraid of the Canadian people.

“The people {Some people} see the Court as their protection against a fearsome government. A shame, a failure of democracy, but true. The Chief Justice was called the effective “Leader of the Opposition” recently in this newspaper.

“But even the balancing “notwithstanding” power is not available to Parliament in some areas — especially ‘native law’. The Court here is truly and finally supreme — no appeal, no check and balance {And the Court is gradually extending the reach of so-called ‘Aboriginal Law’ to where the Court is making more and more of the country’s major economic decisions…}.

“‘Native law’ flows from two racist clauses in our constitution. The first, ‘S.91(24)’ of 1867, gave Ottawa exclusive {segregationist} power over “Indians and lands reserved for the Indians”. The intention was good {‘The road to hell is paved with good intentions’}.

“In 1867, natives were thought inferior, like women, Catholics, Chinese and Jews. But only natives were mentioned in the Constitution and 148 years later, all of the rest are fine.

This has led to the creation of two parallel societies in Canada, one of them based on inheritance and race, and then the rest of us.

“The 1982 amendments gave us ‘S.35’, which entrenched “existing” aboriginal and treaty rights. The framers thought the words entirely cosmetic. The Court has used them to deepen the gulf between the parallel societies.

“The intentions again are certainly good {? This naive conclusion completely ignores the massive profits for legal corporations that have been enabled by these court decisions made by lawyer-judges. To believe that these profits are just coincidental, one has to be a lawyer…}. The outcomes are not.

“This court power must be viewed in the light of another recent pronouncement by the Chief Justice, who described the history of ‘natives’ in Canada as “cultural genocide”. It is one thing when the head of a Commission says this. It is another when the head of the Supreme Court effectively admits the bias of guilt on cases of ‘aboriginal law’.

All Saints Residential School, Shingle Point, Yukon (1930)
All Saints Residential School, Shingle Point, Yukon (1930)

“Of this, an eminent aboriginal scholar wrote to me,

“use of the term ‘genocide,’ even if qualified as ‘cultural genocide’, is incendiary. I have visited Auschwitz and we have lost the possibility of rational discussion and debate if we equate residential schools to Auschwitz.”

Emaciated survivors after liberation, 1945. It is estimated that 1.1 million people died at Auschwitz during its nearly five years in operation.
Emaciated survivors after liberation, 1945. It is estimated that 1.1 million people died at Auschwitz during its nearly five years in operation.

“It matters not. The Supremes will continue to tend their “living tree” in Ottawa, doing much as they please. Most people will continue to trust them more than governments. But I say with no doubts that it is bad in a democracy when nine unelected people can make law.

“Judges should interpret law. When the law is unclear (as in the abstract principles of the Charter), they should consult the intent of the framers {The problem with that is that the lawyers who added ‘Section 35’ in 1982 claimed that they didn’t know what it meant – and yet, they added it anyway! Still, the Court should simply have implied that they were numbskulls and thrown it back in their political laps, with the strong suggestion that they define it. Instead, the Court happily took on a long-term, undemocratic political role…}. And they must protect minorities, a central role in a majoritarian democracy {But a role that can — and is — being overdone, to the point that in many cases, the majority have lost THEIR rights — ‘aboriginal law’ being a prime example.}.

“None of this justifies the untrammeled sense of power reflected in the opening quote, when the mask slipped for a moment from the pleasant face thereunder.

“Perhaps the time has been too long. The Chief Justice has been on the Court for over 25 years. A 15-year term limit might not be a bad idea. But of course, the Court might disallow that.”

–‘It is bad for democracy when nine unelected people can make law’,
Gordon Gibson, National Post, June 9, 2015 

FEATURE Image: ‘Veritas’ (‘Truth’) guards the entrance of the Supreme Court of Canada. The Peace tower is seen in the background. April 25, 2014 (THE CANADIAN PRESS – Adrian Wyld)

http://news.nationalpost.com/full-comment/gordon-gibson-it-is-bad-for-democracy-when-nine-unelected-people-can-make-law

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‘Chief Justice Beverley McLachlin has emasculated the high court of Parliament’

“I am afraid I must dissent from the ever-rising hallelujah chorus of adulation being orchestrated by and for the Chief Justice of Canada, Beverley McLachlin.

“I admired her lower court rulings in favour of free speech, and in the only case she helped adjudicate in which I was involved, she and her whole court supported my right to sue the authors of the infamous farrago of lies in the ‘Hollinger International’ special committee report for libel, in Canada…(I would have to be a recluse to be unaware of less condign positions the Chief Justice has advocated that concerned me, in her role as chair of the advisory board of the ‘Order of Canada’, but that is not germane here.)

“The comparative prominence of this chief justice arises from the operation of the ‘Charter of Rights and Freedoms’, created by former Prime Minister Pierre Trudeau and attached to the Canadian Constitution when it was patriated in 1982. I had always supported the whole idea of a Charter of Rights, not because I thought it would increase anyone’s rights or would add anything useful to the common law, but because it was Trudeau’s brilliant tactic for confusing the Quebec nationalists…he demanded entrenchment of the rights of individuals {actually, groups}, rather than governments.

Practically everyone, including me, saw that the judges of Canada would become an ant-hill of social tinkerers with unimaginable consequences, and most, including me, feared that the right of provinces and the federal government to invoke the ‘notwithstanding clause’ and vacate court rulings in their jurisdictions would create a very uneven legal patchwork for the country over time. The first fear has been realized, to the point that it is regrettable that the second has not. 

PowerCouple
Power Couple

“Beverley McLachlin has been a judge since just before the Charter was proclaimed, and became Chief Justice of Canada in 2000. The Supreme Court website carries her lecture of May 5, 2001, in which she exhorted the community of judges (her husband is the executive director of the ‘Canadian Superior Courts Judges’ Association’, which represents, educates and handles public relations for about a thousand judges), to step fully into their new role. In this seminal document, the chief justice said nothing but the truth in remarking that

the law-making role of the judge has dramatically expandedand now consisted ofinvading the domain of social policy, once perceived to be the exclusive right of Parliament and the legislatures”.

{This is the lawyer coup, orchestrated politically in 1982 by lawyer Prime Minister Pierre Trudeau, lawyer Alberta Premier Peter Lougheed, lawyer Ontario Premier Bill Davis, lawyer New Brunswick Premier Richard Hatfield, lawyer Manitoba Premier Sterling Lyon, lawyer Saskatchewan Premier Allan Blakeney, lawyer Nova Scotia Premier John Buchanan, and lawyer Attorney-Generals Jean Chretien {federal}, Saskatchewan’s Roy Romanow and Ontario’s Roy McMurtry.}

“She declared that the former task of a judge of determining the relative merits of the positions of litigants had been transformed by “the inability or unwillingness of legislative social bodies {populated mainly BY LAWYERS! How convenient…} to deal with pressing social issues” and that a judge’s role now was the imposition on any case of “the Charter issue … within it … which is polycentric”. She affirmed that “it is impossible to eliminate a judge’s personal views” and that the judge must “strive for objectivity. This requires an act of imagination.”

That is precisely what it does not require — it requires a Solomonic effort to apply existing law fairly and if the law is ambiguous, to project fairly from the statutes and precedents. Legislators deal “with pressing social issues” or they aren’t reelected.

“The chief justice cited approvingly the traditional image she believes judges enjoyed: the judge’s

“word is, literally and figuratively, the law, eternal, majestic”. 

{Lawyer} Judges were now emancipated from their previous duty to apply the law as written by the very {lawyer} legislators empowered by the electorate to make laws

Now, whatever the legislators did, judges were enabled and required to interpret the Charter as they wished and to decide if they judged the legislation adequate and acceptable. In doing so, judges should be guided by their own individual views, which would be laundered into objectivity by imagining how those views were best magnified by the Charter to apply to the issues before them. The result was still “the law, eternal, majestic.”

No one can say she did not warn us or that she has not followed through on what she urged. It was a matrix for a mighty usurpation of the authority of the legislator, and of the public, as Chief Justice McLachlin’s court has rushed to occupy the vast open prairies between what has been legislated and what remained within the public’s liberty to act freely. 

Mclachlin(600)

“She is a professional judge, spouse of the judges’ vocational shop steward, and she gave her war cry against the authority of Parliament and the provincial legislatures 14 years ago and no one noticed. Ironically, the…Prime Minister…has named most of the Supreme Court justices but quailed and waffled…as McLachlin has emasculated the high court of Parliament and led a coup d’etat.

“In her historic lecture of 2001, she cited an ‘Institute for Research in Public Policy’ poll, which found that 77% of Canadians were satisfied with the Supreme Court. Such a facile argument affronts the whole nature of an independent judiciary. These high court judges are appointed for service to age 75 precisely to immunize them from public opinion and enable them to make whatever decisions they collectively find appropriate, without a concern for public opinion. Their approval rating was so high because most people despise politicians, have bought the bromides about the rule of law and assume that the judges are competent because their decisions rarely get much attention, despite a good deal of judicial grandstanding to publicize them. Citizens have to believe that some part of government works or they would become quite demoralized.

“Even the chief justice shyly wondered in her manifesto of May 5, 2001, whether the courts, which have much smaller resources than legislatures,

“are the best institutions to decide complex social policy questions.”

Of course they are not, and neither Trudeau nor any other sane person ever suggested that they are, or have any authority to do anything of the kind. But undaunted by the looming negative answer to her own rhetorical question, the chief justice gamely took on the role of doing what the court is not qualified to do, in the name of “the law, majestic and eternal”. (No one who has had anything to do with our court system can easily escape the suspicion that many of our judges are “the zeitgeist in robes”, as my friend George Jonas put it, thriving on their sinecures. There isn’t much majesty about most of them.)

“There is no alternative to a reasonable version of the rule of law but as it has evolved, the law is often a proverbial ass and a spavined ass, and many judges, sadly, are decayed servitors, though probably more or less well-intentioned. The legal profession is a cartel that writes, enacts, argues and judges an ever larger and more onerous body of laws and regulations and sanctions, generating an increasing share of the GDP for their (poorly) self-governing profession, a vast business swaddled now in McLachlinese claptrap about being “majestic, eternal”. As the supreme champion of the exaltation of her profession and occupation, the chief justice has earned the gratitude of her confreres.

“But in order for a country to get the government it deserves, power must reside in the hands of those whom the people have elected. McLachlin’s effort to mould Trudeau’s anti-separatist wheeze into a blank cheque to rewrite Canada’s social policy is a scandal legitimized only by the lassitude of a prime minister who has terrorized the living Jehovah out of his own cabinet and caucus and muzzled Parliament, but has acquiesced in rule by a gonzo judiciary and an officious bureaucracy of what the Marquess of Salisbury called “imbecile punctilios”.

“The media don’t notice and the public don’t care, while the legislators have been inexplicably slow to vacate trespassing court decisions by invoking the ‘notwithstanding clause’ (apart, of course, from Quebec’s intermittent enthusiasm for suppressing the liberty of expression of its English-speaking people), freeing McLachlin to remake the country. No doubt many of her ground-breaking judgments have been beneficial, but that is not exactly the point. Nor is this the place for an analysis of her court’s many trail-blazing judgments, though I did comment here recently on the absurd decisions that her court can determine the conditions under which people may commit suicide, and that the right of association in the Charter entitles public service employees to strike.

“There is evidence that the chief justice has been drinking too much of her own bathwater, as in her provocative reference this week to Canada having committed “cultural genocide” against native people, and her ex cathedra complaints earlier this year about the proximity to her court of a monument to the victims of communism {Leftists don’t like to be reminded of such things…}.

“Canadians will be unpleasantly electrified eventually by this official roundel of abdications and arrogations, and will tire of the negligence and trespass of their public officials. The chief justice’s integrity is not at issue {Maybe not in your analysis}… But she is exercising an authority she does not legitimately possess. No one will be hanged to lamp posts, nor will cobblestones be thrown at the police (this is Canada); she will have earned her pension; but as a parliamentary democracy, we can do better than this {!}.”

–‘Chief Justice Beverley McLachlin has emasculated the high court of Parliament’,
Conrad Black, National Post, May 30, 2015

http://news.nationalpost.com/full-comment/conrad-black-chief-justice-beverley-mclachlin-has-emasculated-the-high-court-of-parliament

The Supreme Court of Canada justices -- the new power in the land (THE CANADIAN PRESS - Adrian Wyld)
The Supreme Court of Canada justices — the new power in the land (THE CANADIAN PRESS – Adrian Wyld)

“…It is hardly shocking to learn that these judges have private lives, back stories and political biases, of course: The presence of black {red} robes does not make anyone less of a human being. But the administration of justice at the highest levels should demand a certain detachment from politics and the culture wars

“Unlike the United States, Canada does not have a rigid system of separation of powers. But our Supreme Court is every bit as powerful as its American counterpart when it comes to interpreting constitutional questions. And in this country, too, problems can arise when Supreme Court Justices step out of their traditional roles as neutral and detached arbiters

“Judges — especially the ones who sit on the highest court — have extraordinary power in our society. The best way to ensure that their stature remains unsullied by needless controversy is to confine their public pronouncements, as much as possible, to the judgments they deliver in regard to the cases they hear in their courtrooms.”

–‘Beverley McLachlin, and judges everywhere, should let their judgments do the talking’,
Jonathan Kay, National Post, May 13, 2014 

http://news.nationalpost.com/full-comment/jonathan-kay-beverley-mclachlin-and-judges-everywhere-should-let-their-judgments-do-the-talking

Editorial Cartoon by Graeme MacKay, The Hamilton Spectator – Saturday April 16, 2016
Editorial Cartoon by Graeme MacKay, The Hamilton Spectator – Saturday April 16, 2016

“Before the enactment of the Constitution Act 1982, (the old ‘British North America Act’ as patriated and amended by the addition of the ‘Canadian Charter of Rights and Freedoms’) there was no such thing as “aboriginal law”, as there is now…

“Unfortunately for the best interests of Canada and all Canadians, including our Indian citizens… new and unprecedented legal barriers to Canadian economic progress and social unity have recently been created by our higher courts, which are already causing harmful economic effects and serious divisiveness between Indian and non-Indian Canadians. Legally, socially and politically, we’re going backwards

The {lawyer} politicians who, almost as an afterthought, added ‘section 35’ to the Constitution Act , thereby unwittingly {?} created the legal basis for highly activist courts — in the Indian rights litigation explosion that ensued after 1982 — to almost completely destroy the Crown sovereignty/legislative supremacy constitutional model that had enabled Canada, up until that time, as a relatively united country, to so thrive and prosper on all fronts — economic, social and political.

“Over the past twenty years, jurisprudence emanating from Canada’s higher courts has interpreted ‘section 35’ in such an ahistorical, overly-romantic, revisionist, activist way; has read into it so much that is not there and was never intended to be there; has created so many new rights for Indians that even they never knew they had or expected to be handed, that the ability of Canada’s federal and provincial governments — Canada’s Crowns — to solely embody ultimate political power and authority in the country and to legislate and govern in all Canadians best interests, has been seriously eroded.

“As well, Canada’s higher courts have stacked the deck in favour of the right and ability of these relatively tiny Indian bands, with virtually no checks on them, to pursue their own economic interests at the expense of our already stressed and pressed-upon government treasuries, of otherwise lawfully operating corporations, of non-Indian Canadians, and of the Canadian general welfare as a whole. The new constitutional model this new jurisprudence has created is one that has, as stated, created serious social divisions and economic perils in the country, which can only get worse as the consequences of it become clearer with time. 

UnlectedPower--'LetThemEatCake'(600)
Mac Baren

“The federal and provincial Crowns in Canada, as the result of these court decisions and, more shockingly, the inexplicably craven and anemic response to them by our politicians, senior bureaucrats and law enforcement officials, are becoming slowly but surely legally emasculated in the face of ever more aggressive, well-financed (often by the Crowns themselves) {!} and well-organized legal, economic and vigilante attacks (illegal roadblocks and occupations) being made by Indian band leaderships against their fellow Canadians.

Reconciliation”, the professed high value supposedly now governing relations between Indians and non-Indians in Canada, and a word one reads in all these recent court decisions — a word used by the courts in a very odd, unusual and counter-intuitive way but understood by ordinary Canadians only in its plain and ordinary meaning — is being more and more rendered impossible by these court decisions and the emergent effects of them.

“The Gambler’s inspiring grass-analogy vision, comparing us all to harmoniously intermingling grasses on one boundless plain (“…there is no difference…”) has been junked. The vision of Canada as a unified “community of destiny”…a vision long possessed by ordinary Canadians, has been replaced by our elites with a meaner, more pinched and prosaic vision of Canada as a mere race-based community of economic and legal stakeholders – indeed, separate communities of racial origin, or, as Amartya Sen describes it, a community characterized by “plural monoculturism”…”

–‘The Emasculation of Crown Sovereignty’,
Peter Best

http://www.nodifference.ca/essay/chap21
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“Activist judges on the Supreme Court of Canada are, as London Free Press columnist Rory Leishman writes,

“not loathe to commit major breaks with precedent for the purpose of changing the law to accord with their personal ideological preferences”.

“With this in mind, it’s unlikely that a future accusation of treason would last long enough to survive the claws of judicial activism in Canada. And if politicians and judges are unwilling to enact proper amounts of punishment for certain crimes, treasonous behaviour will most certainly not be properly punished, either.”

–‘Has treason run its course in Canada?’,
Michael Taube, C2C Journal, March 1, 2010

http://www.c2cjournal.ca/2010/03/has-treason-run-its-course-in-canada/

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See also:
Supreme Court Dividing Canadians’ (Metis/Non-Status) {April 14, 2016}:
https://endracebasedlaw.wordpress.com/2016/04/15/supreme-court-dividing-canadians/

‘Supremes Get it Wrong Again’ {November 21, 2015}:
https://endracebasedlaw.wordpress.com/2015/11/22/supremes-get-it-wrong-again/

‘Canadian Courts Making Things Worse’ (Expanding Land Claims/Yukon) {October 14, 2015}:
https://endracebasedlaw.wordpress.com/2015/10/14/canadian-courts-making-things-worse/

‘Taking The Economy To Court: B.C. Update’ {February 11, 2016}:
https://endracebasedlaw.wordpress.com/2016/02/11/taking-the-economy-to-court-b-c-update/

‘Deconstructing The Aboriginal Industry’ {June 2, 2016}:
https://endracebasedlaw.wordpress.com/2016/06/02/deconstructing-the-aboriginal-industry/
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