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Mariner
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Presented without comment except for added emphasis. Unfortunately, I can't find the original transcript online, so this will have to do.

quote:
Janice Tibbetts, The Ottawa Citizen
Published: Monday, December 05, 2005
Judges should feel "emboldened" to trump the written word of the constitution when protecting fundamental, unwritten principles and rights, says Canada's chief justice.

Beverley McLachlin, in a speech delivered in New Zealand, took on critics who say judges have no business going beyond the strict letter of the constitution to strike down laws and enforce rights.

"The rule of law requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws or hostile public opinion," said a prepared text of the lecture Chief Justice McLachlin gave to law students at Victoria University of Wellington late last week.

"There is certainly no guarantee or presumption that a given list of constitutional principles is complete, even assuming the good faith intention of the drafters to provide such a catalogue."

Chief Justice McLachlin set out a blueprint for when judges must rely on unwritten principles, which she defined as "norms that are essential to a nation's history, identity, values, and legal system."

Even in countries that have written bills of rights enshrined in their constitutions, like Canada's Charter of Rights and Freedoms, Chief Justice McLachlin said unwritten principles have a role for several reasons.

Societal values change over time and the constitution document can be incomplete or open to interpretation.

"I believe that judges have the duty to insist that legislative and executive branches of government conform to certain, established and fundamental norms, even in times of trouble," she said. Even countries without constitutionalized bills of rights, such as New Zealand, find ways to ensure fundamental justice based on unwritten norms of fairness, she said.

She noted critics have advocated reining in the use of unwritten constitutional principles on the grounds that it amounts to "judicial imperialism" or even the personal views of an individual judge.

In 1998, the Supreme Court of Canada broke new ground by invoking unwritten constitutional principles in a historic opinion on whether Quebec could unilaterally secede from Canada, she said. The Canadian Constitution is silent on whether a government can secede. So the unanimous court invoked the unwritten principles of federalism, democracy, the rule of law and respect for minorities to arrive at its opinion that Quebecers can leave if they really want to, but only after a clear majority say so in a referendum with a clear question.

In 2001, the Ontario Court of Appeal again relied on unwritten constitutional principles of protecting minorities in a ruling that found it unconstitutional to reduce services at Ottawa's only French hospital, the Montfort.

Chief Justice McLachlin listed several unwritten constitutional norms that have evolved into entrenched rights over time, such as the right to not be punished without a trial, to retain counsel, and enjoy the presumption of innocence.

In another ruling that has been described as one of the Supreme Court's boldest, the judges used unwritten constitutional principles in 1997 to order provincial governments to set up independent commissions to set judges' salaries.

Critics complained the court entered new territory by telling legislatures the process they were to use in doing their jobs.

The Ottawa Citizen

I know everyone's not a big fan of Scalia-type strict constitutionalism, but isn't this going a bit too far? How is she defining these norms if they're A) not in the Constitution, B) not accepted by the majority of the people, or C) not able to be passed by democratically-elected folk. How can she say that the judicial branch has the role to say what these unmentioned rights are when (if? I don't know Canada's constitutional setup...) there are methods intact for adding more rights? How can she tell the legislature how to do their jobs, particularly when she tells them how judges should be paid??? Is this not scary to people?

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John L
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It is the way in which "Social Justice" is slipped into the equation. Unfortunately, this only leads to the eventual removal of "individual rights", making way for "group rights".

If questioned further, I would presume that this very justice would also declare that the Canadian Constitution was a "living" doccument as well.

I would hate to play poker with someone who was playing with "living" rules, wouldn't you?

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Lewkowski
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Bold Power grab. If this was America I would say the judge is acting in a treasonous nature by undermining the constitution. As soon as you go beyond the pale like this, you need to be impeached.
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canadian
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In Canada, we say he's behaving Canadian. Everything is up for discussion. Let's keep in mind that he has his colleagues to convince....the Canadian Supreme court makes as many gaffes as any other Judicial body, but it's not as bad as it could be. Nor is the American SC. SC's are genrally composed of fairly sober minded individuals. One can play politics all day long, but you don't get first rate morons on the Highest Bench.

I think by making these statements, he has just shot himself in the foot and damaged his credibilty.

[ December 13, 2005, 04:23 AM: Message edited by: canadian ]

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Gaoics79
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quote:
In Canada, we say he's behaving Canadian. Everything is up for discussion. Let's keep in mind that he has his colleagues to convince....the Canadian Supreme court makes as many gaffes as any other Judicial body, but it's not as bad as it could be. Nor is the American SC. SC's are genrally composed of fairly sober minded individuals. One can play politics all day long, but you don't get first rate morons on the Highest Bench.

I think by making these statements, he has just shot himself in the foot and damaged his credibilty.

Beverly McLauchlin's a woman [Smile]

And yes, she does believe in the "living tree" doctrine, which has more or less become a staple of Canadian Constitutional law. What her whole speech amounts to, I hate to say, is "judges should do what they think is right". Unfortunately, what a judge personally thinks is right doesn't always match up with what the public and elected officials think is right.

McLauchlin is a good judge, and I've always liked her rulings. But her position on this point is, frankly, indefensible. It's just one big euphemism for judges setting themselves up as unelected legislators, which is NOT their role, even in Canada.

As for first rate morons, maybe not, but we did get L'Heureux Dube. I'll take the moron any day over the radical feminist.

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Gaoics79
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Just to elaborate further on why I think McLauchlin's ideas amount to letting judges do whatever they want:

She says judges should base their rulings on "norms that are essential to a nation's history, identity, values, and legal system." Well marriage between a man and a woman was a norm more or less essential to all of those things. Historically, culturally, legally, it was certainly one of those norms. Yet the Ontario Court of Appeal turned this upside down, because it preferred another "norm", one called "equality".

This is what you get when you tell judges to rule according to airy fairy "norms" and "values" and unwritten "principles". You get judges who pick the value that THEY prefer, and apply those values to their liking. You get a judicial dictatorship. See how you'd like McLauchlin's glorious principle if a religious fundamentalist judge got appointed, and started applying the wrong "principles". Sure, Canadians would be in an uproar if, say, they brought back the ban on Sunday shopping because it's the sabbath. But hey, Christian values are essential to our nation's history, culture, and legal system! Even in the face of "hostile public opinion" judges have a duty to apply these unwritten "values" [Smile]

When it comes to judicial activism, Liberals just don't get it. They have been blinded by the fact that the activists have largely been on their side, so they make dismissive arguments like "it's only activist if you disagree with the decision". Part of me hopes the pendulum swings the other direction, and you get a few hardcore religious fundamentalists on the bench. It's what you defenders of "living trees" and "fundamental values" deserve.

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John L
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Everybody here is quite wise on the subject. But my statement about "Social Justice" is also relevent here. It has to do with a system that allows for a small minority to change things on a whim. And it has to do with the most cherished liberty that is the basis for western civilization: the sanctity of private property.

This is how the first steps toward tyranny begin.


Note what the late Balent Vazsenyi has to say about this.
--------------
Four Points of the Compass: Restoring America's Sense of Direction

Balint Vazsonyi

"Social justice" is not a basis for stable society because, unlike the law, it is what anyone says it is on any given day. We need only to move back a few years, or travel a few thousand miles, to find an entirely different definition of "social justice." It is an empty slogan, to be filled by power-hungry political activists so as to enlist the participation of well-intentioned people.

The rule of law and a world according to "Social Justice" are mutually exclusive. One cannot have it both ways.

"Thou shall know the tree by its fruit." The rule of law gave birth to individual rights --- in other words, rights vested solely in individuals. Only individuals are capable of having rights, just as only individuals can be free. We say a society is free if the individuals who make up that society are free. For individuals to be free, they must have certain unalienable rights, and additional rights upon which they had agreed with one another.

Social justice has spawned an aberration called group rights. Group rights are the negation of individual rights. Group rights say in effect, "you cannot and do not have rights as an individual --- only as the member of a certain group." The Constitution knows nothing about groups. Groups have no standing in the eyes of the law. And, since their so-called rights are invariably created and conferred by persons of temporary authority, they are "subject to change without notice," as the saying goes, just like the definition of social justice itself.

Individual rights and group rights are mutually exclusive. Once again: one cannot have it both ways.

Among our individual rights, the right to acquire and hold property has a special place. That right protects the weak against the strong, it balances inborn gifts with the fruits of sheer diligence and industry. John Locke, Thomas Jefferson, and James Madison held that civilized society is predicated upon the sanctity of private property, and that to guarantee it is government's primary function. Without absolute property there is no incentive, no security, no liberty. The freedom to enter into contract, the freedom to keep what is yours, the freedom to dispose of what is yours underlies all our liberties.

Neither the search for "social justice" nor so-called group rights recognize, or respect, private property. They look upon individuals as faceless members of a multitude who, together, create a certain quantity of goods. These goods belong to what they call "The Community." Then certain "wise" people decide who needs what and distribute --- actually redistribute --- the goods. These wise people came up with the word entitlement. Entitlements are based neither on law nor on accomplishment.

Entitlements are based on membership in a certain group, and we have seen that groups themselves are designated by persons of temporary authority, rather than by the law.

The right to property and entitlements through redistribution are mutually exclusive. For the third time, one cannot have it both ways.

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Omega M.
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"Uphold[ing] unwritten constitutional norms, even in the face of clearly enacted laws or hostile public opinion" could be okay if you mean figuring out the intent of an ambiguous constitutional phrase such as "equal protection." Perhaps there are some actual phrases in the Canadian constitution that appear to give provinces the right to secede if looked at in the right way? I don't see how "federalism" and "respect for minorities" do that, though.
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canadian
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quote:
Originally posted by jasonr:
[QB] [QUOTE] In Canada, we say he's behaving Canadian. Everything is up for discussion. Let's keep in mind that he has his colleagues to convince....the Canadian Supreme court makes as many gaffes as any other Judicial body, but it's not as bad as it could be. Nor is the American SC. SC's are genrally composed of fairly sober minded individuals. One can play politics all day long, but you don't get first rate morons on the Highest Bench.

I think by making these statements, he has just shot himself in the foot and damaged his credibilty.

Beverly McLauchlin's a woman [Smile]

lol!

[Roll Eyes]

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Adjudicator
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As jasonr has pointed out, the trouble with setting up a system of judicial activism is that someday that dog is quite likely to turn around and bite your favorite pet political position squarely on the ***. The whole point of constitutions is that they make it difficult to take away a given set of rights. They make it difficult to chang ethe fundmanetal basis of law for a country. This is a very good thing. If there is overwhelming support for a change then it can be enacted, otherwise it is best to leave well enough alone.

I'm afraid that the sentiments expressed by this judge are all too common among judges in general, to the detriment of the entire judicial system.

[ December 13, 2005, 02:32 PM: Message edited by: Adjudicator ]

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javelin
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I'd say that "he sentiments expressed by this judge are perceived to be all too common among judges in general, to the detriment of the entire judicial system."

This freaks us out precisely because we've been afraid of it being true.

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flydye45
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quote:
Chief Justice McLachlin set out a blueprint for when judges must rely on unwritten principles, which she defined as "norms that are essential to a nation's history, identity, values, and legal system."

If indeed they are norms then why aren't they laws? She seems to want to avoid that messy little stage caused legislation, to often because these "societal norms of identity and value" aren't, in fact, society wide values at all.

Like I've said about SSM. Put it to a vote. What are you afriad of, if it's something "everyone" agrees on?

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Adjudicator
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quote:
This freaks us out precisely because we've been afraid of it being true.
Exactly. To hear a judge proclaim this is to confirm that for at least one judge this is precisely how they view their position.
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javelin
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quote:
Originally posted by Adjudicator:
quote:
This freaks us out precisely because we've been afraid of it being true.
Exactly. To hear a judge proclaim this is to confirm that for at least one judge this is precisely how they view their position.
Thank god she ain't an american.
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Pete at Home
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quote:
Originally posted by canadian:
In Canada, we say he's behaving Canadian. Everything is up for discussion.

Really? How are the fatwas of your Supreme court up to discussion? Who can override them?
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Pete at Home
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quote:
Originally posted by javelin:
quote:
Originally posted by Adjudicator:
quote:
This freaks us out precisely because we've been afraid of it being true.
Exactly. To hear a judge proclaim this is to confirm that for at least one judge this is precisely how they view their position.
Thank god she ain't an american.
Hold that thanks. She's just saying explicitly what at least 3 members of the Supreme Court have been saying implicitly for years.
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Adjudicator
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quote:
Hold that thanks. She's just saying explicitly what at least 3 members of the Supreme Court have been saying implicitly for years.
Exactly. And that message is that the supreme court has the final word, completely independent of legislature, constitution or any other control. I am glad to see that the pesky issue of a balance of powers has finally been dealt with.
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canadian
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Meh. If people really don't like a new law, then the Government can always step in and repeal it, no?
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Pete at Home
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quote:
Originally posted by canadian:
Meh. If people really don't like a new law, then the Government can always step in and repeal it, no?

And according to miz Bev, the courts can just "interpret" that repeal right out of existence, neh?
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javelin
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quote:
Hold that thanks. She's just saying explicitly what at least 3 members of the Supreme Court have been saying implicitly for years.
I'll put sarcasm tags in next time.
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Gaoics79
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quote:
Really? How are the fatwas of your Supreme court up to discussion? Who can override them?
Well, at least in Canada we have the Section 33 override. (a.k.a. notwithstanding clause) It grants the federal or provincial parliaments the right to invalidate the Charter of Rights and Freedoms, at least for one specific purpose, in one specific case at a time. In effect, it gives the parliaments the extraordinary power to tell the courts to **** themselves, if the need should arise.

As far as I know, it was only used once, by Quebec in 1988 to preserve its language signage laws after they were overturned by the Supreme Court. It's really nuclear option, something virtually useless, because of the political ramifications. Even Alberta, the most conservative province in the country was too chicken to use it to stop the SSM legislation.

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flydye45
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If it takes the nuclear option of Section 33 or a new Constitutional amendment (which can be "interpreted" in any way the Court rules) is that a fair balance of powers?
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Pete at Home
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What are the political ramifications, and what would happen to Alberta if they used it to toss out SSM? What happened to Quebec for using it?
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Gaoics79
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quote:
If it takes the nuclear option of Section 33 or a new Constitutional amendment (which can be "interpreted" in any way the Court rules) is that a fair balance of powers?
No, it really isn't. The really ironic thing about the override was that it was used by Quebec, not to protect its legitimate lawmaking powers from an activist court, but to protect an egregious law that violated fundamental rights and freedoms protected by the constitution. In case anyone is interested, the law in question proposed to prohibit public signs in any language but french. It doesn't take an activist court dream up a freedom of expression argument about that [Smile]
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Gaoics79
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quote:
What are the political ramifications, and what would happen to Alberta if they used it to toss out SSM? What happened to Quebec for using it?
In answer to the first question, I think there was an issue as far as the appropriateness of the override in the first place. I don't recall the precise legal argument, but it was debatable whether or not the override could technically apply at all. I believe it had something to do with the way jurisdiction over marriage is split between the feds and the provinces. Not to mention the logistical and political nightmare of having one province refuse to respect marriages solemnized in another province. What would happen if Alberta gays went and got married in other provinces and then returned to get them upheld? I hate constitutional law (for obvious reasons) so you'll forgive my fuzziness.

As for the Quebec thing, I know you're definitely allowed to have non-French signs currently, so they must have modified the law. It is, however, still technically the law in Quebec that English signs in public have to be 1/2 the size of their French equivalents. I don't think this law is being enforced now that the Pequists are out of power, but the last time they were around, (back in the early 2000's) they had the language police going around issuing fines for minor infractions. It really pissed people off. Some inspectors got run out of towns by mobs of angry merchants [Smile]

[ December 13, 2005, 10:43 PM: Message edited by: jasonr ]

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