03.21.2014 09:20 AM

R. v. Judge-made law


The Supremes just handed Stephen Harper a winning theme for his base. Get ready to hear a lot about “judge-made law” and “unelected judges” in the coming months.

And my view: the Supreme Court should not ever be deciding who sits on the Supreme Court. If that isn’t a conflict of interest, I don’t know what is.



  1. steve says:

    This is going to hit the babysitting industry hard. They were hoping Vic though of light qualifications would be appointed. Vic with time on his hands is not a good thing.

  2. DJ says:

    The issue will be whether Harper is big enough to accept this decision or will he be stubborn and continue to play games with the appointment process. His other appointments have been fine. The Nadon appointment was a clear attempt to appoint someone conservative minded. Harper botched the job big time. He will wear this.

    • Swervin' Merv says:

      Harper might try to spin this judicial slap for his now shrunken base (shrunken not just because of the cold winter), but it won’t help him regain traction on the hundred other matters on which he has screwed up, including Senate reform and most recently the backroom unveiling of the new Finance Minister.

      Shifting to Manitoba, Harper loyalist Vic Toews was just appointed an “unelected judge,” and will soon be engaging in “judge-made law”–hopefully never on the Supreme Court!

    • smelter rat says:

      The lone dissenting judge was a Harper appointee, fww.

      • DJ says:

        3 in the majority were appoints by Harper. He can hardly rail against him.

        • James R. Halifax says:

          A couple of former Supreme court justices saw it Harper’s way, as did one current Supreme.

          The current Supreme court was wrong….all there is to it. Remember, these are just folks with a law degree…and they can make mistakes.

          I think the real reason they refused Nadon, was specifically to make Harper look bad. It wasn’t an argument based on law, it was an argument that used the law; twisting it to allow for this decision. Harper should appoint NADON to a superior court in Quebec, and then a day later…to the Supreme Court.

          The argument about changing the constitution is invalid. The Surpreme’s have “read in” a lot of things that were not in the constitution. This crop of Judges was just ticked that a “non-Judge” (ie. Harper) had the temerity to step on what they assumed was their divine right to decide how the country is governed. News flash to the Surpreme court judges…..you are all just ambulance chasers with a better job. That’s it.

          Keep it up……and folks will start assuming what many of us already know. “You aren’t smart enough to tell us how to live”….

  3. GPAlta says:

    I think this is a case of the court being the only body that could protect Canada from having constitutional amendments buried in budget bills. It is a tragedy that our PM doesn’t have the decency to respect the constitution or its amending formula, but if he won’t then the court must. The Governor General has already failed to protect Canadian democracy in the prorogation incident, so we can’t claim any protection from abuse of power by the PM there.

    • GPAlta says:

      This is a case of “judge-saved law” versus “lies-made-law”, in my opinion.

      • Terry Quinn says:

        Agreed. Harper clearly violated the constitution and if anyone is going to set it straight it has to be the SCC. I don’t know who WK thinks could resolve that issue of an illegal appointment made by a majority government.

  4. Carol Parker says:

    Bev Oda’a orange juice? Jim Flaherty’s make-up? Senate expense scandal? Bingogate? Rob Ford Debacle? Small, small potatoes.

    There is story breaking, the mother of all scandals. It deeply implicates provincial and federal NDPers, Liberals, a string of Vancouver mayors, “progressives,” social democrats, all of the “Left.” By the time Canada Revenue and the RCMP are through, these political movements will be charred, burned-out wrecks.




  5. PP says:

    Judge made law and unelected judges? Even Harper would not be so stupid as to try this again. See where it got him with the unelected Senators? Harper, our so called brilliant tactician, found out what our mothers had taught us would happen when you point a finger at others. The proof is in his tanking polls, no not those Forum ones, but the other more believable ones.

    The SC would not have been put into this unenviable position had Harper not tried to game our Constitution. But since when has it stopped him? Our Governor General is no longer regarded by many as non partisan because Harper apparently appointed him after he had seemingly pleased Harper with the way he had crippled the public inquiry into the Mulroney airbus affair.

  6. rww says:

    But then how would you deal with unconstitutional appointments to the Court.

  7. Brammer says:

    I understood the ruling to be based on the constituion, the upholding of which is a good thing, no?

    • james Smith says:

      I take Mr K’s point about Judges Judging the Judges but I think your Point Triumphs – in my non legal noodle. Mr T had a good comment today ie: the present PM failed by putting the Court in this position.
      The whole thing smells bad, & I think everyone in the elevator is going to look into the corner where they will see the present PM, & there isn’t a dog named Duffy to blame this one on.

  8. Kelly says:

    I think Warren’s trying to make the point that many within Harper’s base don’t much care for our current constitution and lean more toward a common law/precedent parliament is supreme sort of position and today’s ruling smacks of “elites” (in fancy robes, no less) deciding who gets to join the club rather than elected representatives. That is potent because to a large extent club-related grievance is what animates that base. They feel hard done by — all them new immigrants with funny names complaining and getting special treatment, Quebec”spending my money”, that sort of thing. It’s a chunk of the population that feels they are losing control of things, chaos is ensuing and they must do whatever it takes to get back control and discipline the ungrateful brats. Stacking the court was supposed to help with that. So now they’re really going to be mad.

  9. Ryan Spinney says:

    If Harper had done his job properly they would never have been in a position of having to make the decision, this is Harper’s fault.

  10. Mary says:

    So who should interpret the Supreme Court Act? David Johnson? Queen Elizabeth? They’d just rubber stamp the PMs decision.

    • Windsurfer says:

      Warren is simply oratorical, standing in the dock, fulminating on obscure points of law.

      The point (or one of the points raised here) is that people are now reading the entirety of omnibus bills.


      (a) if majority governments are going to float them, then
      (b) we’re going to read them, and
      (c) the junk is going to hit the light of day

      This is a non-legal opinion.

  11. Bruce A says:

    The base can whine and fatten the ConJobs war chest all they want. How much money have the Cons spend on Action Plan adverts; various court challenges, especially with the natives; political donations that are tax deductions, not to mention other things. Why do they need 240 pages to implement the ‘Unfair Elections Act’ using closure, no doubt, when we haven’t gotten to the bottom of the Senate scandal and Robocalls. I say bring it on, unless Harpo decides to challenge their right to make any rulings. Somebody has to take a stand against wasting money and the courts time. Follow the darn Constitution. That’s what’s it for. To think he’s going to the Ukraine to support ‘democracy’ which has become a loose term the world over.

    Further, where’s the outrage from Conservatives about wasting money or is that something they’ve been granted a Constitutional exemption from? I say thank you, Mr. Rocco Galati.


  12. Matt says:

    Couple questions:

    1) Doesn’t a committee of MP’s put a list of people together and the PM picks one from that list?

    2) Reading the article, there seems to be an issue of him not being a current member of the Quebec Bar. What if he were to rejoin the Quebec Bar? Would or can Harper put his name forward again?

  13. Owen Kelly says:

    Warren, re your opinion on the Supreme Court decision……that is why you are a spin doctor and they are Supreme Court justices!!!

  14. e.a.f. says:

    If not for these Supreme Court decisions we would have a much greater mess on our hands here in Canada than we already do. Thank you to Rocco Gilati for taking the case forward. The decisions say oil can just can’t do what ever he wants to this country. He may have a majority in Parliament, but there are still rules in our democracy, while we still have it.

  15. Ty says:

    Who should have decided it, then? Privy Council?

  16. crf says:

    This isn’t Judge made law. It’s the court orating back to government the very plain language of our highest law, our constitution. Governments don’t get to decide willy-nilly which parts of the constitution they follow, even the silly bits.

    At any rate, as a very technical matter, many commentators think Nadon could spend one day as a lawyer in Quebec, have Harper renominate him, and the court would not have had a problem accepting him back.

  17. Gayle says:

    While I agree Harper will try to use this to raise money and get elected, I disagree that this is judge made law. Our constitution gives the courts the authority and responsibility to interpret our legislation and our constitution. The SCC has the ultimate authority. If government did not like it, the feds and 9/10 provinces should not have agreed to it. But they did, and this is what we have. The SCC did NOT decide who should sit in that court. They simply decided this man legally could not.

    There is nothing legally preventing Harper from appointing some right wing practicing lawyer from Quebec. Nothing legally prevents him from appointing Toews. Nothing legally prevents him from appointing 6/9 judges from lawyers in Alberta. Although those appointments would go against convention, they would not violate the law and the SCC would not set them aside.

  18. Derek Pearce says:

    Haven’t read any above comments yet but two things: the reformatories have been raging about unelected judges for 25 years and though it plays well to their hardcore base, it’s not a vote grabber among the wider electorate. 2) this case furthermore isn’t about letting some sick pedophile out on parole or letting murderer serve two years less a day, so is elite bafflegab to the average voter, so see part 1.

    • Derek Pearce says:

      The more I think about this, the more I wonder if Harper secretly thought he had a 50/50 or less chance of succeeding in this, knowing that if he failed, the base would be roused. After all, everything, *evvverrrryyyythigggng* he does is all politics all the time. Also makes me think he’s worried about locking down the base because he sees JT as a genuine threat.

      Furthermore, I say to CPC partisans, be thankful the court is willing to uphold the Constitution, because to use one example, what if a future Liberal government tried to tack a side-bill onto a future budget that unilaterally said “all resource revenue will now accrue to the Feds not the Provinces”? (Political suicide yes, but) it’s in the Constitution that they couldnt’ do that, and it’s the SC’s job to uphold that.

  19. Kre8tv says:

    I think you’re missing the bigger point here, Warren. The SCC decision has less to do with deciding who sits on the Supreme Court as it does with the shitty underhanded way that PMO tried to ramrod their appointment through. Changing the rules when the rules don’t suit, and doing so through an omnibus bill is NO way to amend sections on the Constitution. Bitching about activist judges will only play to their base.

  20. Marc-Andre Chiasson says:

    Warren, this decision may possibly be used to rev up the HarperCon base but I doubt if there’s anything that could be said or done anyway that would dilute the mindset of those folks. However, in my opinion, one thing that today’s ruling has done is to hand the federalists in Quebec a very strong argument that Canadian institutions such as the SCC can, should and will respect the particular legal rights that that province enjoys and which are enshrined in the Constitution…and which cannot be changed without a constitutional amendment approved by Parliament and all ten provinces. As someone on Radio-Canada said this afternoon, Mme Marois must now be extremely disappointed because had the decision gone the other way, she would have shrieked from the rooftops that the ROC is once again bullying them and that they can’t trust Canadian institutions to treat them fairly and equitably.

  21. Ottlib says:

    Ya, so this will be the Conservative Base’s reason-to-be-angry du jour. Tomorrow it will be something else.

    Professional and non-professional commentators will examine the entrails and pronounce what we should all think about the decision.

    Everybody else, meh.

  22. Judge made law? Au contraire. Remember David Schmidt? He who sued the Government he worked for for drafting faulty laws that are non-constitutional? The narrative that you propose, ‘Judge made law’, and ‘Liberal Activist Judges’ making law, is a deliberate construct. I don’t know what else you call it when a series of laws are drafted and passed that are 95% certain to fail in a court challenge. When those laws are all commonly themed as over the top law ‘n order measures. This challenge is simply round two for this particular issue. Personally, I think this is actually bad news for the Conservatives. Their manipulation was implemented back when normal people generally believed what they said. Now that Harpers credibility has been torpedoed, it looks like what it is, a deliberate attempt to fabricate an issue, and attack our Justice system in the name of ‘democracy’. Now they have created a stinking mess, and deserve to have their noses rubbed in it.
    Here is one article on Schmidts law suit:


  23. Derek Pearce says:

    After reading reader comments under Blatchford’s latest NP piece re this, it appears this was nothing more than Harper’s run-of-the-mill base-pumping cynicism. People there are ranting about the elite judges using (lol) “the Charter” to thwart Harper. They don’t have a clue that the Charter is only a part of our Constitution and that it has nothing to do with the ruling just made. Classic bait-and-switch.

  24. Jon Evan says:

    I agree with WK. It was all to do with the interpretation of one word “among” as to whether it had a temporal meaning! The dissenting judge’s argument is equally valid. The opposing supremes in my opinion made a new law: new appointees MUST in addition currently be members of the bar. That IS a rewriting of the constitution: n’est-ce pas ?

  25. JH says:

    “And my view: the Supreme Court should not ever be deciding who sits on the Supreme Court. If that isn’t a conflict of interest, I don’t know what is.”

    Nailed it!

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