Finally people are wakinmg up to a court out of control...

[Obvious Li]

what i have been shouting from the rooftops for 20 years.......



the Supreme Court of Canada.



Some would say, "No, no – it is the Harper government, with its concealment of basic issues in omnibus budget bills, its muzzling of committees and public servants, and its concentration of power in the PMO." And there is a point there, as with all recent governments. The difference between the government and the Supreme Court, however, is that we can get rid of governments every few years, if so inclined. Whatever threat they might pose is a controllable one.



But the court? Doesn't it simply interpret the law? Would that such were true. Lately it has turned to the making of law, a task to which it is neither mandated nor suited. The judges can do this through their control over the Constitution and its exact meaning. This power was awarded in the 1982 Trudeauvian amendments, the court replacing Parliament as the highest authority in the land.



The Constitution has long been considered a "living tree" to be read in the context of developing realities. The phrase was coined by British jurist Lord Sankey in 1929, when our final legal decisions came from England. Well and good. The crucial question, then, is: Who is the gardener?



Until 1982, the "tree" was pruned by an elected Parliament. Ever since, the shears (and fertilizer and grafting) have been wielded by the unelected Supreme Court of Canada.



Three recent decisions will serve to illustrate the ensuing power grab. These are the striking of the Criminal Code ban against euthanasia, the refusal of the Supremes to accept the appointment of Justice Marc Nadon of Quebec to their own ranks, and a finding regarding the right of RCMP members to unionize. The issues vary widely, but the common thread is the accretion of power to the court.



In the assisted-suicide matter, the judges simply overturned their own judgment of 1993 in the Rodriguez case. Like many, I do not differ with the result. But I offer it as an example of what they can do. They decided that, "the law relating to the principles of overbreadth and gross disproportionality had materially advanced" since then.



Two questions, then. First, who changed that law? Why, none other than the judges. They make it up continually. Second, what body should have grasped whatever changes had occurred? Why, Parliament, of course. That Parliament shows cowardly and pusillanimous tendencies is no reason for the court to do the MPs' proper work. But the Supremes do it because they can.



In the matter of Justice Nadon, nominated by the Prime Minster, it looked to many observers as if the current judges just didn't want this fellow in their midst. Six to one said his appointment would not be lawful based upon a tortuous reading of Sections 5 and 6 of the Supreme Court Act. (Supreme Court Justice Michael Moldaver wrote a better-argued dissent.)



But what is really important in this decision passed virtually without notice. The court slyly constitutionalized itself in ruling that the 1982 amendments protected the "essential features" of the court, though nowhere is this said in the amendments nor is the Supreme Court Act mentioned in the schedule of protected laws.



The import of this? Parliament can't get at them. Suppose there was an idea for term limits on Supreme Court judges, which would be a very good one. They could now simply say, sorry, can't do it, and no one could argue because – and I repeat this – they are the law.



Finally to Mounted Police Association v. Canada. The court stretched the "freedom of association" part of the Charter beyond limits in constitutionalizing adversarial labour relations, thereby reversing its own precedent of only four years earlier. Supreme Court of Canada Justice Marshall Rothstein wrote a courageous dissent, describing how such decisions have the power to "freeze matters in time and restrict Parliament's ability to change course" for future realities. The court must be "especially cautious when dealing with questions of socioeconomic policy."



And, most damning, courts "may not identify a desired result and then search for a novel legal interpretation to bring that result about." I cannot think of a better summary charge.



All is not lost. Since no one, including this court, is infallible, there remains the "notwithstanding" clause, by which elected legislatures can overrule the appointed court in many instances. They should routinely do exactly that when the actions of this court so require. It hasn't happened yet. Summon up courage, please.



ggibson@bc-home.com

[Anonymous]

what i have been shouting from the rooftops for 20 years.......



the Supreme Court of Canada.



Some would say, "No, no – it is the Harper government, with its concealment of basic issues in omnibus budget bills, its muzzling of committees and public servants, and its concentration of power in the PMO." And there is a point there, as with all recent governments. The difference between the government and the Supreme Court, however, is that we can get rid of governments every few years, if so inclined. Whatever threat they might pose is a controllable one.



But the court? Doesn't it simply interpret the law? Would that such were true. Lately it has turned to the making of law, a task to which it is neither mandated nor suited. The judges can do this through their control over the Constitution and its exact meaning. This power was awarded in the 1982 Trudeauvian amendments, the court replacing Parliament as the highest authority in the land.



The Constitution has long been considered a "living tree" to be read in the context of developing realities. The phrase was coined by British jurist Lord Sankey in 1929, when our final legal decisions came from England. Well and good. The crucial question, then, is: Who is the gardener?



Until 1982, the "tree" was pruned by an elected Parliament. Ever since, the shears (and fertilizer and grafting) have been wielded by the unelected Supreme Court of Canada.



Three recent decisions will serve to illustrate the ensuing power grab. These are the striking of the Criminal Code ban against euthanasia, the refusal of the Supremes to accept the appointment of Justice Marc Nadon of Quebec to their own ranks, and a finding regarding the right of RCMP members to unionize. The issues vary widely, but the common thread is the accretion of power to the court.



In the assisted-suicide matter, the judges simply overturned their own judgment of 1993 in the Rodriguez case. Like many, I do not differ with the result. But I offer it as an example of what they can do. They decided that, "the law relating to the principles of overbreadth and gross disproportionality had materially advanced" since then.



Two questions, then. First, who changed that law? Why, none other than the judges. They make it up continually. Second, what body should have grasped whatever changes had occurred? Why, Parliament, of course. That Parliament shows cowardly and pusillanimous tendencies is no reason for the court to do the MPs' proper work. But the Supremes do it because they can.



In the matter of Justice Nadon, nominated by the Prime Minster, it looked to many observers as if the current judges just didn't want this fellow in their midst. Six to one said his appointment would not be lawful based upon a tortuous reading of Sections 5 and 6 of the Supreme Court Act. (Supreme Court Justice Michael Moldaver wrote a better-argued dissent.)



But what is really important in this decision passed virtually without notice. The court slyly constitutionalized itself in ruling that the 1982 amendments protected the "essential features" of the court, though nowhere is this said in the amendments nor is the Supreme Court Act mentioned in the schedule of protected laws.



The import of this? Parliament can't get at them. Suppose there was an idea for term limits on Supreme Court judges, which would be a very good one. They could now simply say, sorry, can't do it, and no one could argue because – and I repeat this – they are the law.



Finally to Mounted Police Association v. Canada. The court stretched the "freedom of association" part of the Charter beyond limits in constitutionalizing adversarial labour relations, thereby reversing its own precedent of only four years earlier. Supreme Court of Canada Justice Marshall Rothstein wrote a courageous dissent, describing how such decisions have the power to "freeze matters in time and restrict Parliament's ability to change course" for future realities. The court must be "especially cautious when dealing with questions of socioeconomic policy."



And, most damning, courts "may not identify a desired result and then search for a novel legal interpretation to bring that result about." I cannot think of a better summary charge.



All is not lost. Since no one, including this court, is infallible, there remains the "notwithstanding" clause, by which elected legislatures can overrule the appointed court in many instances. They should routinely do exactly that when the actions of this court so require. It hasn't happened yet. Summon up courage, please.



ggibson@bc-home.com

As much as I dislike the way we hand out the vote to people that should never have had it, I still would prefer our elected leaders deciding important issues rather than an activist court.

[Obvious Li]

brilliant article......



Even the Supreme Court's friends are starting to get nervous at the gay abandon with which our highest court sweeps aside the annoying resistance of mere elected governments to its increasingly imperious will.



But the real long-term damage being done isn't in this or that decision over the right to strike, assisted suicide, national securities regulators, Senate reform or who is entitled to sit on the court.



From an economic point of view, the real damage that is being done is in the insidious corruption of purpose of the law, the legal profession and the courts.



It is a commonplace that one of the greatest destroyers of growth and prosperity is uncertainty. Not all uncertainty can be eliminated, and indeed it is the risk of loss that entrepreneurs take in investing in the face of uncertainty that justifies their claim on any profit.



In a market economy, you cannot get rid of the fickleness of consumer taste, the risk of currency movements and interest rate hikes, the unpredictability of the weather and technological breakthroughs, the perfidy and wiliness of competitors and employees, and the instability of commodity prices.



But societies that can reduce uncertainty enjoy a leg up in the prosperity stakes compared to their riskier peers. If your schools graduate students who are reliably literate and numerate, your central bank maintains the value of your currency, the tax and regulatory regime is stable and predictable, and the police and the courts keep your property safe from fraud and theft, strong institutions are helping to squeeze uncertainty out of the world in which your business operates.



This brings us back to the law. One of the most basic purposes of the law is to help introduce certainty in human relations. One great blessing of the most stable and transparent legal regimes is not that you can get your dispute quickly before a judge. It is that the clarity of the law and the consistency with which it is applied means that the vast majority of disputes are never taken to court because the outcome can be confidently predicted in advance. Why spend time money and energy on a case you cannot win?



A robust legal regime that reliably settles disputes according to established principles and is therefore deeply respectful of precedent, contract and private property confers a huge advantage on the society in which it operates.



Before the Charter of Rights, judges in our legal tradition were therefore a profoundly conservative force in the very best sense of that word. They were not on the bench to indulge their social theories or ride their favourite hobby horses. They were there to state what the law was in any particular case, not to make the law – a job reserved for lawmakers. And being bound by precedent and subject to accountability via the appeal process helped ensure that judges spoke for the law, not their political and social beliefs.



The Charter did not set out to undo this enormously beneficial arrangement. It was intended merely to make our rights into a privileged form of law that overrode other kinds of law. The intention was a noble one. But the worm in the heart of the Charter apple has been the dawning realization in the minds of lawyers, law professors and judges that they have unaccountable control over a document that trumps all other law.



The temptation to throw judicial caution to the wind is both powerful and insidious. You can import your personal beliefs into the law merely by reinterpreting a word here, a concept there. The right of association becomes a right to strike. The right to life becomes the right to doctor-assisted death.



They don't even hide their imperialist ambitions behind the Charter justification any more. Like Russia's slow-motion invasion of Ukraine, each breach in the wall of judicial self-restraint emboldens the court to expand its empire such as inventing new good-faith obligations in well-established and well-functioning contract law. The law schools that produce our legal minds have gone from bastions of small-c conservatism focused on certainty-enhancing torts and contracts and wills to the vanguard of social engineering where the disaffected and the unscrupulously ambitious vie to produce new strategies for turning the law into an instrument of social change.



The cost to the rest of us isn't just the annoyance of unaccountable judges foisting their view on us. It is the corruption of the law, transforming it from a bulwark of certainty in an uncertain world into a new source of instability and risk. The cultural rot in the legal and judicial world will take a generation of patient and determined effort across a broad front to fix. Best get to work.



Brian Lee Crowley (twitter.com/brianleecrowley) is the managing director of the Macdonald-Laurier Institute, an independent non-partisan public policy think tank in Ottawa: http://www.macdonaldlaurier">www.macdonaldlaurier

[Anonymous]

brilliant article......



Even the Supreme Court's friends are starting to get nervous at the gay abandon with which our highest court sweeps aside the annoying resistance of mere elected governments to its increasingly imperious will.



But the real long-term damage being done isn't in this or that decision over the right to strike, assisted suicide, national securities regulators, Senate reform or who is entitled to sit on the court.



From an economic point of view, the real damage that is being done is in the insidious corruption of purpose of the law, the legal profession and the courts.



It is a commonplace that one of the greatest destroyers of growth and prosperity is uncertainty. Not all uncertainty can be eliminated, and indeed it is the risk of loss that entrepreneurs take in investing in the face of uncertainty that justifies their claim on any profit.



In a market economy, you cannot get rid of the fickleness of consumer taste, the risk of currency movements and interest rate hikes, the unpredictability of the weather and technological breakthroughs, the perfidy and wiliness of competitors and employees, and the instability of commodity prices.



But societies that can reduce uncertainty enjoy a leg up in the prosperity stakes compared to their riskier peers. If your schools graduate students who are reliably literate and numerate, your central bank maintains the value of your currency, the tax and regulatory regime is stable and predictable, and the police and the courts keep your property safe from fraud and theft, strong institutions are helping to squeeze uncertainty out of the world in which your business operates.



This brings us back to the law. One of the most basic purposes of the law is to help introduce certainty in human relations. One great blessing of the most stable and transparent legal regimes is not that you can get your dispute quickly before a judge. It is that the clarity of the law and the consistency with which it is applied means that the vast majority of disputes are never taken to court because the outcome can be confidently predicted in advance. Why spend time money and energy on a case you cannot win?



A robust legal regime that reliably settles disputes according to established principles and is therefore deeply respectful of precedent, contract and private property confers a huge advantage on the society in which it operates.



Before the Charter of Rights, judges in our legal tradition were therefore a profoundly conservative force in the very best sense of that word. They were not on the bench to indulge their social theories or ride their favourite hobby horses. They were there to state what the law was in any particular case, not to make the law – a job reserved for lawmakers. And being bound by precedent and subject to accountability via the appeal process helped ensure that judges spoke for the law, not their political and social beliefs.



The Charter did not set out to undo this enormously beneficial arrangement. It was intended merely to make our rights into a privileged form of law that overrode other kinds of law. The intention was a noble one. But the worm in the heart of the Charter apple has been the dawning realization in the minds of lawyers, law professors and judges that they have unaccountable control over a document that trumps all other law.



The temptation to throw judicial caution to the wind is both powerful and insidious. You can import your personal beliefs into the law merely by reinterpreting a word here, a concept there. The right of association becomes a right to strike. The right to life becomes the right to doctor-assisted death.



They don't even hide their imperialist ambitions behind the Charter justification any more. Like Russia's slow-motion invasion of Ukraine, each breach in the wall of judicial self-restraint emboldens the court to expand its empire such as inventing new good-faith obligations in well-established and well-functioning contract law. The law schools that produce our legal minds have gone from bastions of small-c conservatism focused on certainty-enhancing torts and contracts and wills to the vanguard of social engineering where the disaffected and the unscrupulously ambitious vie to produce new strategies for turning the law into an instrument of social change.



The cost to the rest of us isn't just the annoyance of unaccountable judges foisting their view on us. It is the corruption of the law, transforming it from a bulwark of certainty in an uncertain world into a new source of instability and risk. The cultural rot in the legal and judicial world will take a generation of patient and determined effort across a broad front to fix. Best get to work.



Brian Lee Crowley (twitter.com/brianleecrowley) is the managing director of the Macdonald-Laurier Institute, an independent non-partisan public policy think tank in Ottawa: http://www.macdonaldlaurier">http://www.macdonaldlaurier

Thank you for posting this article Obvious Li..



This is not something I give any thought to, but I know many others do.

[Romero]

brilliant article......



[size=150]Supreme Court harming economy by fostering uncertainty[/size]

This "brilliant" article doesn't even give a single example of how the Supreme Court could be harming the economy. "Uncertainty"? That's it? What uncertainty? I haven't seen any companies base their business decisions on what the Supreme Court does. The last recession certainly wasn't caused by the Supreme Court!



Can anybody name any Supreme Court decision that has caused uncertainty or harmed the economy?



"Before the Charter of Rights"... ah, so this it what this is really all about. Some people despise our treasured Charter of Rights. Some people don't want all Canadians to have guaranteed rights and freedoms.



"Like Russia's slow-motion invasion of Ukraine"... ha ha, what? Really? Our Charter of Rights and Supreme Court are like the conflict in Ukraine? Where are all the gun battles, tanks and deaths?



Such senseless fear mongering, all for the purpose of taking away rights and freedoms of Canadians deemed to be lesser citizens. No, you are not better and more deserving than your fellow Canadians!

[Anonymous]

This will have an impact on our economy.

On June 26, 2014 the Supreme Court of Canada awarded title to a piece of the B.C. Interior roughly the size of Prince Edward Island to the 3,000-member T'silhqot'in First Nation. The land-claim entitlement criteria set out in the 37-page decision, written by Chief Justice Beverley McLachlin, exceeded the worst-case scenario of both governments and industry.



Under previous legal rulings, the "basis of occupation" to be used in establishing aboriginal title was limited to the immediate environs around settlements. The Supreme Court has vastly expanded that, saying: "[A]boriginal title ... extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty" (that is, the mid-1800s). The court justifies this extreme interpretation by stating "... what is required is a culturally sensitive approach to sufficiency of occupation based on the dual perspectives of the Aboriginal group in question ... and the common-law notion of possession as a basis for title."



The court has, in effect, established a separate legal structure for aboriginals and non-aboriginals that has implications far beyond land entitlements.



Having established the broad criteria for transforming land claims into formal title, the court defines its nature and limitations, saying: "[A]boriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders." The lone exception is when, after consulting and attempting to accommodate, proceeding without consent is backed by "a compelling and substantial objective." In addressing the question of what might qualify as such an objective, the court refers to the 1991 Delgamuukw decision, citing "the development of agriculture, forestry, mining and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations in support of those aims ..." Because natural gas and oil pipelines are transportation infrastructure, this section may prove crucial to both the LNG projects and the proposed Northern Gateway oil project.



In British Columbia, much of the province is subject to claims by hundreds of aboriginal groups. Consternation about the impact of the top court's ruling on resource development projects was captured by Black Press columnist Tom Fletcher, who asked, "Will British Columbia exist as we know it by the end of this century?"



In a July 6 Saskatoon Star Phoenix column, aboriginal writer Doug Cuthand urges governments to negotiate resource agreements with First Nations "while they still can." But even highly motivated government efforts to do so are unlikely to stop many First Nations from filing for court-ordered aboriginal titles. Unfortunately, the Supreme Court decision encourages such precipitous legal actions: "Prior to establishment of title, the Crown is required to consult in good faith with any Aboriginal groups asserting title to the land ... The level of consultation and accommodation required varies with the strength of the Aboriginal group's claim to the land ..." And how would the "strength" of such claims be determined outisde the courts?



As if the resulting uncertainty isn't enough to deter investment in B.C.'s resource-dependent economy, the decision also states, "If the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title..."



The word "consent" appears many times in the judgment, but nowhere does it set out what constitutes consent. Is consent of the chief or band council sufficient? Is the consent of collective band members required? And how many aboriginals living off-reserve might return to become part of that collective? The answers to such questions might have to be settled by the courts, possibly undermining projects that could help First Nations lift themselves out of poverty.



When the Constitution was brought home from Britain in 1982, the sentence, "Existing treaty and aboriginal rights are hereby recognized and affirmed" was added. Three decades and many court cases later, interpretation of those 10 words has become a recipe for investment-killing litigation. A windfall for lawyers, but economic poison for the country.

http://www.theglobeandmail.com/report-on-business/industry-news/energy-and-resources/supreme-courts-land-claims-ruling-harms-canadas-business-environment/article19581315/">http://www.theglobeandmail.com/report-o ... e19581315/">http://www.theglobeandmail.com/report-on-business/industry-news/energy-and-resources/supreme-courts-land-claims-ruling-harms-canadas-business-environment/article19581315/