02.01.2015 02:02 PM

Let slip the dogs of constitutional challenge

36 Comments

  1. Hugh Whalen says:

    We are fast approaching the US where all significant political issues become judicial issues.

    Even when I support the outcome I am increasingly uncomfortable with the extent to which this is happening.

    The first and most important question regarding any decision is not whether it is right or wrong. It is – who decides? Obviously, the legislature, the electorate, and the courts decide different things. Power over many of our most important issues – euthanasia, who makes end of life decisions, government responses to terrorism, etc are effectively being transferred to the judiciary.

    Law degrees and robes do not confer wisdom. And while I understand that votes don’t confer wisdom either, at least politicians are answerable to the electorate. The SCC is answerable to no one. And, no, they are not answerable to the constitution since they decide what the constitution means.

    I believe the balance has swung too far.

    • .. ‘politicians are answerable to the electorate’ .. that stopped me in my tracks..

      I am in serious disbelief currently.. as the current Harper Government remains in power
      despite failure, fraud, secrecy, obstruction, litigation.. even stupidity..
      almost all of which have nothing to do with campaign or election promises ..
      or the dreams needs or wishes of Canadians of any age, or the voting electorate
      but are relative to the personal ideology of a single person, PM Harper
      who really has never held a real job.. other than political animal .. oh.. ‘politician’

      • Hugh Whalen says:

        The fact that you don’t like the result doesn’t mean that democracy doesn’t exist or that the electorate doesn’t decide.

        You don’t like the answer the electorate gave. Fine. But they decide, not “the salamander”, however much that distresses you.

        • MgS says:

          Fraud, in particular repeated electoral fraud, undermines the principles of “the electorate decides”.

          Democracy may well exist, but it has been perverted by this government.

    • Gayle says:

      The SCC is, indeed, answerable to the constitution. They cannot say we do not have the right to freedom of religion when it is in the constitution. Furthermore, the constitution can be changed by politicians, who are answerable to the electorate. The fact that it is difficult to change is a good thing. It means the vast majority of the electorate must want the change before it can happen. Furthermore, if Harper’s legislation is as popular as he thinks it will be, then he can invoke the notwithstanding clause and ignore the constitutional rights of those affected by it.

      In any event, I suspect that if the government of the day were to pass legislation banning your right to free speech, or compelling all religious orders to disband, or compelling all citizens to submit to strip searches at the whim of the police, you would be pretty happy with the constitutional protections we have. They exist to protect all of us. The majority of Canadians do not get to determine what rights are held by the minority.

      • smelter rat says:

        Exactly.

      • Hugh Whalen says:

        When the SCC or other court “reads in” rights in the constitution are they “answerable to the Constitution”?

        My comment that “the balance has swung too far” cannot be reasonably be construed to mean they have no role. You are a pyromaniac in a field of staw men.

        • Gayle says:

          I am not sure what you are responding to, since your comment bears little relation to mine. The court does not have the power to expand rights. They have the duty and obligation to interpret the constitution. That authority was given to them by politicians and the electorate.

          What about the notwithstanding clause? What about constitutional amendments?

  2. Ronald O'Dowd says:

    Warren,

    I don’t know about the rest of them in cabinet but surely Harper has it in mind that the law must pass constitutional muster.

    I doubt we will see a rush to naked improvisation, or worse yet, parts of it being taken off the shelf even though they may not necessarily survive a high court review.

    • Terence Quinn says:

      Ronald, from what we have seen in past SCC decisions about Harper laws that don’t pass the constitutional smell test it would appear he is trying to change the constitution w/o going to the people.

  3. Ronald O'Dowd says:

    Warren,

    I’ll bet you that the average Canadian will nod and say, yeah, we need this legislation.
    This time Harper, unlike Chrétien in 2001, is playing for keeps.

    Canadians had better be damned sure about the necessity of such legislation because unlike 2001, the only sunset clause is on the option of sunset itself. In plain English, there is no going back if this law proceeds forward as currently constituted.

  4. MississaugaPeter says:

    I remember as a young child, in grade 6, in the mid 1970’s, after becoming a proud Canadian citizen, while visiting my grandparents in a communist country behind the Iron Curtain, what everyone told me and my sister.

    That was: Don’t say anything about the government to anyone. There are spies everywhere. If you do, we or family members would most surely go to jail. The belief was that every piece of mail was read before it reached its destination and every phone call was listened to.

    Fear of the government and the secret police and no freedom of speech were the hallmarks of life citizens of the communist countries at that time endured. I sort of get that feeling when I do business in China, when I must always provide my passport (and everyone else needs to provide their citizen card) when purchasing a railway ticket or renting a room in a hotel.

    The truth is, for valid (terrorist) or invalid reasons, we are less free today than we were as I was growing up in free Canada. The NSA and CSIS record all my Internet movements and all phone conversations are listened to in the name of protecting the state.

    The movement towards this did not start after 9/11, thus those who claim terrorism has brought this to us are wrong.

    While very few knew about it in the early in the 1980’s, the NSA was powerful even then. It could read a newspaper a topless women was reading on the roof of a building in Moscow and it recorded any phone conversation worldwide when one of the key words was mentioned. The power it has today to blackmail and control is astronomical.

    • Steve T says:

      The key difference between the Iron Curtain countries (and China) and Canada is that there is due process of law in Canada for those accused of potentially illegal activities. It is popular to snicker and mock that statement, but it is true. So, while the government may be able to spy on you, what are they going to do with that information?

      Conspiracy theories aside – are we really worried that we will be visited by Soviet-style jack-booted thugs in the middle of the night, to lock us up because we criticized the government in an email? Quite frankly, I think we need to put our paranoia of theoretical threats aside, and focus on the real threats such as ISIS and other terror groups. If reading people’s emails or reviewing our social network comments may help catch these subhuman scumbags, then that seems a reasonable trade-off.

      We can’t keep living in a Pollyanna-esque fantasy land, where keeping nice thoughts and trying to “understand” the terrorists will solve all the world’s ills. ISIS and others have proven they have no interest in chit-chatting with us, or viewing the world through an ethical lens. They are currently laughing their collective asses off, as we twist ourselves in knots about these benign privacy issues.

    • edward nuff says:

      1. Who would care what the topless woman was reading. Yes, I’m a male pig.
      2. If what you say is true, why can’t they find the bad guys who run Isis in this age of drones?

    • socks clinton says:

      If the NSA was as powerful back in the 1980s they would have later red flagged at least one of the nineteen 9/11 hijackers before they boarded the planes.

    • Terence Quinn says:

      If the current terror legislation is allowed to stand CSIS would have powers to violate your privacy without oversight from anyone. That makes it a bad as the system in the old Soviet bloc countries. It leaves room for lots of nasty stuff the way its currently written. With harper’s reputation for lying and cheating one can only imagine what he is capable of if this law is allowed to stand as is. The law itself may have some good points but I think the bad ones outweigh the good here.

      • Steve T says:

        Please cite some specific “nasty stuff” that might occur, which is worse than the “nasty stuff” being perpetrated by ISIS et al.

  5. Joe says:

    Does two wrongs ever make a right? I have no idea what is being proposed by the government however if it is like a lot of ‘security’ legislation I suspect it will be bad. That being said I’m not a fan of the Charter either. I always thought the Charter was a very thinly disguised attempt to protect the government from the people.

    At the time of its enactment a professor of mine, who ran several times unsuccessfully, for the Liberals explained that the Parliament was the Supreme Court of the land because it and it alone reflected the will of the people. He held that if parliament made a mistake in the legislation it enacted then it was incumbent upon subsequent parliaments to repair the damage not an non-elected, non-accountable panel of judges whose expertise is law not governing . I think that professor was a very wise man.

    • Brammer says:

      False. The people elect MPs who are beholden to a party. The party MPs are then beholden to the party leader who essentially has dictatorial power. Surround this all by arbitrary parliamentary rules, procedures and traditions that are subject to interpretation and abuse (of which we have already seen several cases), and you have something far from a body equivalent to the supreme court.

      If Parliament was allowed to trample over the SCC, the damage you refer to would never be repaired. The constitution and SCC serve a vital purpose as proven time and time again.

  6. smelter rat says:

    It’s becoming very apparent that Harper is completely insane.

  7. Doconnor says:

    Can you give an example where judicial intervention caused a problem in Canada?

  8. Kev says:

    Constitutional challenge?

    So… the issue might be resolved 10 years after Harper is gone from 24 Sussex?

  9. Al in Cranbrook says:

    If I might draw a parallel of sorts: Just read a well researched article about bear attacks, something that, while relatively rare, can suddenly become all too real and deadly in a heartbeat. It laid out five rules, if not to avoid, then how to deal with it, the first of which is pertinent: Do NOT believe it will never happen to you!

    There is not a single person, certainly not on this forum, who does not understand that age of the computer and the Internet has changed everything, and continues to alter reality at an exponential rate. And virtually every person has adapted in one form or another, to one extent or another.

    To suggest that policing and the justice system nevertheless must somehow remain unchanged, and work within the parameters of decades old methodology and rules, at the same time is, frankly, just plain stupid.

    I’ve read more conspiracy theory books than I care to think about. Here’s the thing about that: I can’t think of a single of them that has ever been proven or played itself out.

    Democracy and our freedoms we take so much for granted are great things. But if we allow ourselves to become so docile, placated, apathetic, ambivalent, and/or naïve that we allow our enemies to use the those very same attributes to destroy us, then we have nobody to blame but ourselves. Only a fool this day would believe that is not exactly what they are doing…all the while laughing all the way to the bank.

    Yes, discretion is the order of the day, and it’s a fine line to walk…right up until the moment a bomb goes off in a bus load of people in front of one’s workplace, or a soldier is beheaded on a public street, or an armed gang launches an attack in a public center, as has happened in other cities throughout western civilization. At that moment it no longer is a theoretical or philosophical topic of conjecture, but instead hard, cold reality…most particularly for those directly involved. Then people want answers, especially from their security forces and their government, as to how such a thing could happen, and how planning for such could go undetected…and they generally won’t take no shit for an answer.

    The potentials for such events on a scale none of us even want to imagine are almost inconceivable, certainly to the naïve and apathetic.

    The reality is that much, if not the greater majority, of the work done by our security forces to pre-empt such events never sees the light of day in the public domain. And I greatly suspect that, were those who nonchalantly pooh-pooh terrorism as some sort of bane normal to only far off places, fully informed of what is exposed…but more critically to the point…only hinted of behind the scenes each and every day at CSIS and the RCMP, attitudes would quickly become more enlightened.

    Historically, the quickest way to end up in a police state is inevitably the collapse of law and order, too often wrought by a lack of confidence by the citizenry in their security forces, justice systems and government.

    Believe me, given the amount of traffic on the Internet, our intelligence services have a lot more pressing stuff on their minds and stacked on their plates than the benign email content of 99.99% of Canadians.

    • davie says:

      The way that the data mining works is not so much to get after the 99.99% Canadians, but to target particular individuals or groups. I will call it ‘Cranbrook Al Gambit.’
      The way that this works is that an NDP party is in government , and our secret police have piles of data on piles of Canadians, all gathered together by the anonymous gnomes in the new billion dollar secret police building in Ottawa…and in their cloud.

      So the NDP cabinet is incensed at the incisive criticism from a fellow in Cranbrook. The PMO want the fellow taken down. Or, they need a ‘terror threat patsy.’ They order the gnomes to find out all they can on the fellow in Cranbrook, and try to build a case that the fellow is connected’ to militants of some kind somewhere. If they can do that, then they can slime the fellow in the media and run him through a trial and convict them.

      If they do not have much of a case, they can still slime them in the media, keep evidence secret under this and earlier legislation, keep fellow, or patsy, in court and jail forever unless he confesses to something, and put him out of operation that way.

      The idea of this special legislation is to throw out a millennia and more of the putting together of our justice system, and allow power to nail people and groups secretly and with impunity

      A few of suspect that this has already been happening under earlier similar legislation.

      • Al in Cranbrook says:

        Echelon, a joint project involving the US, Britain, Canada, Australia and New Zealand, has been in business for a number of decades. God only knows how many members of organized crime, terrorist organizations and rouge dictatorships have had their asses handed to them to one extent or another as a result. Or the thousands, if not millions, of lives that have been spared due to effective intelligence gathering that pre-empted their plots and/or facilitated their demises.

        And without initiating another futile debate on gun control, it nevertheless is, for lack of a better word, ironic that so many of the same people who fret Big Brother casting an eye towards Internet traffic in order to weed out plotters of evil deeds, in the next breath advocate for citizen disarmament, and thereby castrating the ability of peoples to protect their democracy and freedoms from afore mentioned Big Brother.

        All that said…

        Legislation such as this is almost entirely formulated upon the advice through extensive consultation garnered from all relevant aspects of the security and justice systems. Or IOW, those charged with keeping our streets and neighborhoods safe, who themselves by virtue of their station achieved have no political axes to grind.

        While I appreciate the need for curbs on power, I am acutely aware that there are two sides to the matter.

      • Al in Cranbrook says:

        Echelon, a joint project involving the US, Britain, Canada, Australia and New Zealand, has been in business for a number of decades. God only knows how many members of organized crime, terrorist organizations and rouge dictatorships have had their asses handed to them to one extent or another as a result. Or the thousands, if not millions, of lives that have been spared due to effective intelligence gathering that pre-empted their plots and/or facilitated their demises.

        That said…

        Legislation such as this is almost entirely formulated upon the advice through extensive consultation garnered from all relevant aspects of the security and justice systems. Or IOW, those charged with keeping our streets and neighborhoods safe, who themselves by virtue of their station achieved have no political axes to grind. While I appreciate the need for curbs on power, I am acutely aware that there are two sides to the matter.

        • Doconnor says:

          “Legislation such as this is almost entirely formulated upon the advice through extensive consultation garnered from all relevant aspects of the security and justice systems.”

          That’s what I’m afraid of. What about the consultations with civil rights group?

          “those charged with keeping our streets and neighborhoods safe, who themselves by virtue of their station achieved have no political axes to grind.”

          Wait, what?

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