My Country For A Chainsaw

Sounds like our version of the "living constitution" argument in the U.S., which in effect claims that the constitution means whatever they want it to mean at the time.

Of course liberal meddlers like McLachlin will interperet EVERYTHING to justify their personal agenda.

Time for these clowns in robes to be sent to the corner....

Since Judges have traditionally been appointed for life in order to allow them to rise above the bias of the partisan fray, and today we find that these same appointed Judges are in fact biased as well as partisan; the time has now come that SCC judges should stand for election as all biased partisans involved in the political process should and also have set terms which require them to stand for re-election on their records in order to sit for further terms.

If it's a tree, he's the bucktoothed porcupine living in it's rotted out stinking core.

Clearcut, scarify and replant.

The Notwithstanding Clause is looking better and better every day.

Don't need elections for judges. Just need some . . . inexplainable accidents like they have in Chicago. "Nice little court you've got here. Be a shame if something happened to it".

Fascinating. I took the standard constitutional law course in law school and this is what I "knew" until this very moment: In 1867, the British parliament passed the British North America Act which said of a prospective senator that "he" had to be a British subject and "he" had to be 35 years old, etc. This was before any Interpretation Act that declared that a reference to "he" meant "he or she" (that came in the 1880s in Canada I think). So the Supreme Court of Canada was correct when it decided, 9-0, that a senator had to be a man. And the Privy Council overruled the SCC when it decided that "he" should be read as "he or she" because of the living tree concept and contrary to ordinary principles of legislative interpretation. Because this was the law when the constitution was patriated and the Charter added, the "living tree" concept is essentially baked in to our constitution, and it is impossible to raise arguments about original intent, as is done south of the border. It now seems what I and most every lawyer in Canada knows is just not so.

Dear David .... Canadian Public Education ... nuff said?

As an educated man do you not think it behooves all of us to improve our knowledge beyonf the pablum that is offered in our institutions?

beyonf .... beyond ... small keyboard, fat fingers.

The iconic image of justice is lady justice - blindfolded holding a set of scales in one hand.

In her other hand she is NOT Holding a pen.

Judges should adjudicate - not legislate or edit. Laws should exist that make it possible to impeach and remove judges who do the latter.

Liberal activist judges tend to believe that they can do pretty much anything. I hope PMSH gets to appoint many more conservative judges to the SCOC.

Lefties do not understand the concept of "natural limits".

Reading a small booklet on Canadian constitutional law is about as interesting as watching paint dry but I did find the 60 colors analogy interesting (pg.18 on the NP link http://constitutionday.ca/persons/).

When following arguments or arguing with progressives (but not always progressives) they often use this 60 colors technique - trying to subtlety blend one slightly different shade of reasoning into another until white becomes black. At the end, if you insist that black is still black and white is still white they get pretty upset that you cannot understand their brilliance. I assume susceptibility to the sophistication and nuance of this argument style is also how we get some pretty odd decisions in the courts.

@LC Bennett
The liberal argument is there is no difference between black and white, because you cannot tell where white ends and black begins. Thus there's no such thing as a liar, pervert, or thief.

Posted by oldfart:
"The liberal argument is there is no difference between black and white, because you cannot tell where white ends and black begins. Thus there's no such thing as a liar, pervert, or thief."

Then there are only liberals?

@TheTooner
Liberals don't argue that one. They agree that there are liberals and others, who are of no account, unless the degenerate swine win elections.

44guy, just because you discovered Canadian history yesterday doesn't mean you're ahead of other people who've known for decades.

Fiddler: that is not exactly the case. The term for it is stare decisis and it is referenced much more in the discussion in US law and what it means is that rulings have been made on an issue before do have weight but they can be reversed and the strength of stars decisis increases as more and more rulings over time agree with a previous ruling or rulings. In the US the infamous dread Scott decision was overturned - it had not been firmly anchored in state decisis. The same is very likely to happen with justice Roberts unprecedented ruling regarding the commerce clause.

So, no your argument "It just takes one judge to establish a precedent and forever after that's the law. " is false.

"Fiddler: that is not exactly the case."

In addition to Tulks comments I'll note that much of "common law" is the result of a 1000 years or so of precedence. And until recently much of that was solid law that legislation was not all powerful to defeat.

i.e. You could legislate that there was something called hate speech , but the legal precedence of Freedom of speech would cause judges to look at this "novel" concept of "hate speech" with great suspicion. Of course, of late Judges seem to have forgotten common law and worship at the alter of legislative and constitutional law.

And we are poorer for it.

"Living tree", "penumbras and emanations", "pith and substance", all excuses for judges to do whatever the F--- they want with whatever case is before them.

Corruption, basically. Special Deal justice. And we have the gall to say the Americans are corrupt.

Special circle of Hell reserved for these guys, no doubt.

David, 2:02: It's a bit scary that you'd be taught such rubbish in law school. Well, actually, what's scary is that you were taught it and just believed it, and never read the case to see for yourself.

It had nothing to do with pronouns or the Interpetation Act. It had to do with the phrase "qualified persons". When the BNA Act was passed, only a taxpayer could vote, only a voter was qualified to hold public office, only the owner of a minimum amount of property could be a senator, and only a male could own property or be liable for taxes. (By no means all men did; "qualifed persons" did not mean "men", it meant a certain limited class of men.) By the time the Edwards case arose, anyone could own property, and anyone could vote and hold public office. The Supreme Court said that "qualified persons" could only mean exactly what it meant when the Act was passed, and that's plainly wrong. The Privy Council ruled that the phrase had to mean what it meant according to the law at the time it was read, and thus had to include women, who could and did have all the qualifications.

"Precedent" and "stare decisis" mean that once a point of law is determined, it is to be applied that way consistently in the future. Say they pass a law, "no bringing guns into a bar". In the first week of application, a guy brings a shotgun into a bar and is caught and charged. If that first guy is convicted on the basis that "guns" includes a shotgun, then everybody in the future who brings a shotgun into the bar has to regarded as guilty. If the first guy walks on the basis that "guns" when properly read in context doesn't include a shotgun, then no one can be arrested, charged or convicted for bringing a shotgun into a bar.

From the linked article: "And here is the Court’s assertion that it can periodically expand Charter rights, in ways never anticipated by Pierre Trudeau and the other authors of the Charter: 'One day s. 7 [of the Charter] may be interpreted to include positive obligations. To evoke Lord Sankey’s celebrated phrase, the Canadian Charter must be viewed as ‘a living tree capable of growth and expansion within its natural limits.’ It would be a mistake to regard s. 7 as frozen….'"

s.7 of the Charter already includes positive obligations, as of the Insite ruling last year, perhaps the most irrational decision the Court ever spewed forth. One now has the "right" to medical help, at taxpayer expense, while shooting up heroin. The government should have invoked the "notwithstanding clause" immediately.

Ill give you the oil with gas for free.
If not for PET with his socialist Constitution created by & for bureaucratic lunacy. With Judicial infallibility. I weep, when I think what Canada could have been.

And now you're just being childish, fiddle. Justice requires that people who commit no crime be not charged or punished. If it's legal to take a shotgun into the bar, then you can't arrest someone for doing it, no matter how badly you dislike him. If it's illegal, you can't let him get away with, no matter how much you like him. And somebody has to tell you what's legal, and that means they use words.

So fiddle now thinks he can interpret a law that he hasn't read; indeed, one that hasn't actually been written. And do it better than a judge could read a real law. It isn't hard to use the word "gun" in a sentence in a way which could not refer to a shotgun. If a law did that, and a judge nonetheless applied it to a shotgun, the judge would be wrong.

The example you give is nowhere near the topic. "Reading in" terms to a law is not reading the law; it's breaking the law. The gay marriage decisions have no value as precedent because they're plainly and demonstrably wrong. If any judge chooses to follow them, it's because he wants to, not because he has to.