Zipperfish Zipperfish:
DrCaleb DrCaleb:
Freakinoldguy Freakinoldguy:
I won't speak for others but, I'm getting tired of overzealous unelected Judges making decisions based on their own interpretations of the Charter and taking away the legal right of Gov't Parliament to make and enact laws or treaties without their approval.
You do know that Government is divided in 3 branches specifically for this reason, right? The Legislative Branch makes the law, the Judicial Branch interprets that law. It's in their employment contract.
Also, the government can change the Constitution if it so chooses. It ain't easy but it can be done. They can also invoke the notwithstanding clause (although that is temporary relief).
Which is what I said. It's the only mechanism to keep the Supreme Court from completely usurping Parliaments power. But given that any gov'ts who've actually used the "Not Withstanding Clause" in the past have been vigorously vilified and attacked by a segment of Canadian society makes it's use all that much more unlikely. A fact which is what the SCoC counts on to ensure it's opinions and rulings end up being the final law of the land.
Remember this:
$1:
The reality in Canada is that our constitution confers certain powers on unelected bodies, notably the Courts. To start from the assumption that any exercise of governance power other than by elected officials is illegitimate, is to ignore the reality of our democracy, as defined by our Constitution.
What is the role of the Courts? At its most basic, it is to decide legal disputes that citizens and the government ask them to decide. In deciding these disputes, the Courts discharge a number of functions essential to democratic governance. First, they define the precise contours of the division of legislative powers between the federal and provincial governments. Second, they rule on legislation alleged to be unconstitutional for violation of the Charter, and in doing so define the scope of constitutional rights and freedoms. Third, the courts exercise de facto supervision over the hosts of administrative tribunals created by Parliament and the Legislatures.
What then of the accusation that courts have gone beyond their proper role? The charge is made that activist judges – politicians cloaked in judicial robes – have gone beyond impartial judging to advocate for special causes and achieve particular political goals, and that this is undemocratic.
If it is true that judges are acting in this way, then they are indeed going beyond the role allotted to them by the Constitution. The judicial role is to resolve disputes and decide legal questions which others bring before the courts. It is not for judges to set the agendas for social change, or to impose their personal views on society. The role of judges is to support the rule of law, not the rule of judicial whim. Judges are human beings; but they must strive to judge impartially after considering the facts, the law and the submissions of parties on all sides of the question. In our constitutional framework, the role of the politician and the role of the judge are very different. The political role is to initiate the debate and to vote according to judgment on what is best for the country. The judicial role, by contrast is to resolve legal disputes formulated by others, impartially on the basis of the facts and the law.
What then of the accusation that courts have gone beyond their proper role? The charge is made that activist judges – politicians cloaked in judicial robes – have gone beyond impartial judging to advocate for special causes and achieve particular political goals, and that this is undemocratic.
If it is true that judges are acting in this way, then they are indeed going beyond the role allotted to them by the Constitution. The judicial role is to resolve disputes and decide legal questions which others bring before the courts. It is not for judges to set the agendas for social change, or to impose their personal views on society. The role of judges is to support the rule of law, not the rule of judicial whim. Judges are human beings; but they must strive to judge impartially after considering the facts, the law and the submissions of parties on all sides of the question. In our constitutional framework, the role of the politician and the role of the judge are very different. The political role is to initiate the debate and to vote according to judgment on what is best for the country. The judicial role, by contrast is to resolve legal disputes formulated by others, impartially on the basis of the facts and the law.
But is the charge true? Have judges become political actors? Are they encroaching on terrain that is not theirs under our Constitution? In my opinion, the answer is no.
Second, the charge of judicial activism may be understood as saying that judges are pursuing a particular political agenda, that they are allowing their political views to determine the outcome of cases before them. Very often, on this version, judges are seen as activist when one disagrees with their conclusions. Behind this criticism lies the assumption that the parameters of constitutional adjudication are so indeterminate that judges can bend them at will in the service of their own political objectives.
This version of the charge is also problematic, in my view. It is a serious matter to suggest that any branch of government is deliberately acting in a manner that is inconsistent with its constitutional role. Such a suggestion inevitably breeds cynicism, and undermines public confidence in all of our institutions of governance. It should not be made without convincing evidence of its truth. The evidence that judges in Canada pursue private political agendas is lacking. Judges are conscious of their special but limited role. Their judgements are replete with the need to defer to Parliament and the legislation on complex social issues.
Should judges err and impose their personal views instead of the law, they are likely to be overturned on appeal. They may also be subject to internal censure. A visit to any to the thousands of courtrooms in this country – from the local magistrate courts to the Supreme Court of Canada – is unlikely to discover judges acting like politicians. Rather, it will find them discussing the facts of the case and how the law applies to them. This is not some form of role play. It is the morality of their role. An objective review of the thousands of judicial decisions reported each year reveals that judicial concern is focussed not on plans to change society, but on interpreting and applying the law in a way that reflects legislative purpose.
https://www.scc-csc.ca/judges-juges/spe ... sable=trueAnd yet, the opposite appears to be happening with the Courts in Canada. Do we need a Supreme Court and other courts of law? The answer is unequivocally yes but should these courts be handed the keys to the kingdom the answer is an unequivocal no.
So what's the solution. And the only real answer is, like you said, Constitutional change limiting the role of the SCoC and other lesser courts when it comes to ruling on the Parliamentary roles like foreign treaties, the granting of Charter Rights to non Canadians outside of the country who should not be covered under Canadian Law.
But, given how difficult it is to change the Constitution and the reluctance of any gov't to use the notwithstanding clause we're going to see alot more of these supposedly non activist judges making rulings based on their own preferences and beliefs that will slowly take the power from the people and their elected representatives turning Canada into an oligarchy.
CKA Uber 
CKA Moderator 
