CBC had obtained the the first “gotcha” in the War on Harper.
A Saskatchewan Conservative MP, Maurice Vellacourt, had criticized the Chief Justice of the Supreme Court. The Judge, Beverley McLachlin, had fired back.
It was all “quite extraordinary” given the Prime Minister’s desire to keep his caucus in check, said McNeil Sunday night.
Less extraordinary was the fact the CBC, in its rush to smear a Conservative MP and the Prime Minister, had missed the real story.
The Supreme Court spokesman had either lied or been misled by the Chief Justice when responding to Vellacourt.
And The Black Rod has the proof.
To the CBC — Gotcha.
The rest at the Black Rod
More – to assist those who are having trouble comprehending the implications of McLachlin’s speech, I direct you to a column by Ted Byfield, published this February; Vellacott is not the first, nor is he the only person to raise this issue of the self-elevation of judges who believe themselves endowed with supernatural understandings of law that eclipse mere words written in a Constitution.
When a person is appointed to the bench, explained our chief justice, he or she acquires a unique wisdom and knowledge conferring an ability to determine with certainty how Canadians must live.
Thus the judge must not feel bound by the precise words of the Charter.
Even in the face of a hostile public opinion, the judge must establish “norms” which are “essential to the nation’s history, identity, values, and legal system.”
The judge is able to discern these “norms,” she continued, and confer on them the force of law where necessary.
Only judges know how to accurately interpret these unwritten concepts,
REALity said it begged to differ.
“Judges in Canada are appointed because they or their law firms have paid large sums of money to the party in power, or have personally worked diligently for the party in power,” said the magazine.
The intriguing, in fact dangerous possibility, however, is Chief Justice McLachlin actually believes this stuff.
Perhaps she sincerely thinks when a lawyer is appointed to the bench, a new insight — what Christians call “grace”– somehow descends upon the appointee.
This person is no longer just a lawyer who backed the right party.
He is now a seer, an oracle, a clairvoyant with new powers and insights into the soul of the nation.
I find it interesting that the leftie commentors here are the most supportive of McLaghlin’s creative approach to the Canadian constitution.
I would find it even more interesting to observe their reaction if McLaghlin were a socially conservative judge whose “unwritten norms” included expanding Charter rights to the fetus.
From The Time Capsule – an exerpt from a 1976 Globe & Mail article reveals that Rosalie Abella (appointed to the Supreme Court in 2004) had no objection to describing judges as “playing God”.
New Kid, I agree with you on almost everything. However, I think talking to trolls can be useful: People, who have the FACTS, can refute the trolls’ idiocy. And, such facts not only expose the lies of the trolls, but inform the good guys, who aren’t always aware of those facts.
So, two birds with one stone: EXPOSE the trolls for the dolts they are and EDUCATE the anti-trolls. Not a bad combination, I’d say!
Hey kc!
Monster may be a bit much. Not by much, though.
And, doesn’t any male think that Carol MacNeil (not McNeil, Kate MacMillan!!) is a babe?
Andy, Carol MacNeil’s looks are only exceeded by her journalistic abilities. In other words, no, I don’t think she’s a babe.
Andy – You got to get out more.
I took a quick read of McLachlin’s paper on ‘Unwritten Constitutional Principles’. It’s a long, rambling argument, filled with semantic ambiguity and contradictions.
The conclusion is basic: that there ARE fundamental principles to which the judiciary is privy and that these axioms override the legislative decisions of the people.
She posits an ‘inherent limit in the capacity of Parliament to enact enforceable laws” (p 2). The problem is, that McLachlin places these limits in ‘natural law’ rather than in a constitution.
Her ‘natural law’ is based around human rights. This ‘humanity’ is commendable, but, she doesn’t provide any limit to the activities of the judiciary – though she limits the legislature. She states “working out truly fundamental rights and duties is ultimately an inescapable judicial responsibility (quote; 3). Not a legislative.
That is, she gives to the judiciary, a Special Role. The Judiciary is the discoverer, the articulator, the holder, of ‘human rights’. Very noble indeed. And – given this definition of the judiciary, its decisions -whether actually based around rights or not – ‘trump written laws’ (3)
The source of these ‘unwritten constitutional principles’ is murky. The key point is, that they are the property of the judiciary. Not the legislature.
She moves into a kind of mythic, mystical source, p 4, where she presupposes ‘some kind of natural order’ – which order supercedes legislation. Who is best suited to articulate these natural moral principles? Only the judiciary.
Then, she moves into an astonishingly superficial view of democracy – defining it, as a minimum, of ‘allow citizens to vote for those who rule them.’ (7). What a statement. No mention of a constitution, of due process, of accountability. Just ‘vote for those who rule’. Does our legislature rule us?
Then – her only references to a ‘good society’ are that the society must “not kill any (or many) of their citizens’ (7)…and should not torture their citizens, not discriminate by gender, race or religion, “not kill them indirectly by famine, medical neglect and degradation of the env’t” (7)
No mention of the economy, of just and due process of law, etc, etc.
She continues on, and on…about ‘certain fundamental norms no nation should transgress’. But – these ought to be in the constitution. There is no reason for judicial activism – as she openly supports.
She puts the judiciary above the legislative and executive branches..and openly declares her support for judges using ‘unwritten constitutional norms’.
Sorry -lady – but, if it’s unwritten, then, it isn’t part of a constitution. Nor is it a norm.
She states that ‘the law may include principles that Parliament has not made” (12)..and refers to her belief that judges should make these laws.
the source? She provides three sources of these ‘unwritten laws’ – and all three contradict the notion of being ‘unwritten’. She denigrates the text – saying “in the US, the constitutional texts have achieved mythical status …(15)..but, she wants to go beyond any text.
She repeatedly asserts that she wants to articulate ‘unwritten texts’..and this posits that there is, somewhere, some unarticulated wisdom..lying in wait..to be discovered by and only by, the judiciary. Her sources are :customary usage, inferences from written constitutional principles and the norms set our or implied in international legal instruments” (18)
Note carefully – usage is not written; inferences are subjective and personal and not written; implied norms are subjective and not written.
Essentially – she is positing that she will find these ‘natural laws’…by ‘inference’, by her own interpretation. That’s not discovery. That’s authoring. She is authoring laws.
She tries to state that the unwritten principles ‘are not the arbitrary or subjective view of this judge or that’. But – that’s a hollow statement. Of course they are.
She refers to the criticism of judicialactivitism..but, suggests the concerns are ‘false’ (24)..”judges must be able to do justice’. That’s reassuring. She redefines activism as ‘justice’.
A very disturbing speech.
And what is more disturbing, is the violence against Harper, against the Conservatives, by the MSM. Daily, hourly, the MSM is mounting an enormous campaign against him. Today – it’s all about ‘insulting our judges’. And, ‘insulting Ontario’.
Yesterday it was about ‘insulting Ontario’ and insulting aboriginals.
The day before – it was Kyoto and…
The MSM is demanding that Vellacott resign as chair of some committee (why?)…
But- Vellacott was right. McLachlin’s speech is setting up the judiciary as an activist elite group, with no constraints and an allegiance only to their own view of ‘natural law’.
ET:
Nice post, the facts are clear enough that the Government should stand up for a member who makes this point. It’s not wrong, unless it inhibits your ultimate strategies with regard to the 5 points and a later majority government. Unless Vellacott cleared his statements with the PMO’s office like they’re supposed to, he should be defended. If he didn’t then PMSH once again is required to hang an outspoken MP out to dry, otherwise the fringe will come out of the woodwork, I have to say a tight balancing act!!!
Sheesh, what’s next: Carol Off is a babe? Rex Murphy is a stud muffin?
Mark – My guess is that Harper isn’t yet ready to take on the supreme court, with its Liberal activists. He’s already got the Senate and its normally somnabulant and ‘gone-fishing’ Senators, awake, and gearing up to Fight Harper and Save Canada.
The Liberals will use every dirty tactic they can find, to regain power. Remember those obnoxious ads (guns. in our cities. we aren’t making this up)….Just think of the fodder they’d create with a scenario that Harper is Out To Destroy All That We Hold Dear to Canada: Our Senate; Our Judges. Our blah, blah blah…Look what they did with the four soldiers and the Peace Tower – informing the public that lowering the flag was ‘tradition’..when it was a violation of tradition by Chretien, for political bash-American purposes.-
Harper is changing things, ..comme un bricoleur’.. bit, by bit, by bit…piecemeal. It’s like someone standing at the side of the rug..and inch by inch..slipping it out of the room. The Liberals, the MSM and NDP are going insane. They’re grabbing at anything to stand upright. Each day, it’s something new.
It would be amusing (Mr. Bean could do it best..or John Cleese).. But, each day, it’s a new ‘violation of Canadian norms’
: right now, it’s Kyoto (which we all hold dear – especially Paul Martin’s use of it to bash the USA..which is better than Canada at reducing pollution). And, it’s aboriginals (god, what a convenient set)..and..childcare. Bennett’s classic comment: that parents create criminals, and–. The way to prevent criminals in Canada, is ‘universal daycare’.
Now- if a conservative had said that – the MSM would be screaming. But, Bennett said it – and the MSM merely asked her: ‘Did you really really say that? And she said ‘No- the ignorant population misinterpreted me (I guess they had parental upbringing rather than daycare).. And, the MSM dropped it. After all – the agenda is to Get Harper, to continue the election for the Liberals by other means.
MM:
When you get to a certain age, you’ll find a redeeming quality in any women younger than you ;P
Whether or not Vellacott was making a valid point, and it was the cover story of the WS this issue, he never should have expressed his opinion so off the cuff to a CBC reporter.
If Vellacott had been paying any attention during the election he would have noticed the press absolutely hammer Mr. Harper over similar comments (it was the beginning of the MSM trying to limit Harper to a minority, raising the abortion spectre being part two).
If Mr. Harper’s much milder comments caused such a stir, Mr. Vellacott had to have known, in spite of being at Civitas with conservatives ideas free-flowing all night, that his comments would have been sensational to say the least.
ET:
You are a quick poster. I’m picturing grade 9 keyboarding. Man, I can barely keep up. Re: bit by bit(Mr. Bean hands down : the bathing suit episode): Iknow PMSH has to be careful. Bottom line the MSM has to be called on it’s lies. As much as bloggers can do I’m glad. But the MSM needs a head butt.!!! the CPC should kick some unimformed @@s!
MolarMauler:
Got it in one. I’m indebted.
Mr. Vellacott needs to be fired as chairman of the Aboriginal Affairs committee. First of all this sensitive committee should not be chaired by a man who agreed with police that aboriginals should be taken to the country in 40 below weather and left to walk home. Whether some may think it is justified this is not what one human does to another. However, Vellacott needs to be fired because he strayed from the party line. He of all people knows the media will use this type of comment against him and the government. The media is not our friends. I don’t care what her Highness the Chief Justice said. Do you think Canadians will pay attention to what she said in that silly speech? It’s all about perceptions people, nothing else. The media has been waiting with bated breath and Vellacott has opened the door. It doesn’t matter how right he is.
If these slime win in any manner we may as well go back to plan A.
VIVA LA LIBERTA ALBERTA!!!!
it must be late the bats are out.
CBCpravda back on track for its raison d’etre.
they have been waiting and whining for some kind of error. gives them a chance to put Billy (thekidlover)Graham back in front.
For me, the real issue is that the people are the boss. We tell our MPs what to do, and then they pass legislation. Legislation becomes law by democratic process, then is stricken down by an unelected judge and the will of the people is twarted. We can vote out a crappy MP, but what about a piss poor judge, or a lazy and incompetent senator?
I’d like some democracy please. With sugar on top?
BTW: Mr. Bean, by a mile and a half!
Maurice Vellacott is a monster. Period.
Posted by: KC at May 8, 2006 09:50 PM
Are you inferring that?
I’m hereby declaring that the Chief Justice of the Supreme Court has christened herself as a philosopher queen… and whatsoever shall she utter shall henceforth be taken as gospel and must never, never be questioned in any way, shape nor form…
The Chief Justice is suffering a mental disorder, clearly. Absolute power has caused for her delusions of grandeur. She believes she possesses a supernatural, divine intelligence and sight… she believes she’s omniscient… so like a GOD.
It’s so comical, yet so frightening and so dangerous at the same time.
Canadians should be very concerned.
Concerned about the ability of the SCOC to administer “justice”.
What is justice? Is it whatever the judges themselves want to declare it to be, regardless of anything at all? Why do they get to decide? What makes these individuals so bloody special? They’re, after all, mere mortals like you and me.
Something is wrong. Frighteningly wrong.
We’re no longer a constitutional democracy. We’re a dictatorship by judiciary.
It is possible, too, to have dictatorship by democracy. A majority could opt for restrictions on free speech, or for persecutory policies towards certain minorities.
A certain level of judicial remove from pandering and mob-rule is not a bad thing. What I have found disturbing as usual is the sideways use of weak pretexts to attack those who aren’t GTA Liberals on Italian-framed self-absorbed rages. ET’s second last paragraph in her 10:29 post points to the pointed thing going on. “Insulting” to be sure. Sherlock.
lookout wrote (May 8, 10:02 p.m.): “I think talking to trolls can be useful”:
Well, yes, if you don’t address them directly. You can educate without entering the mud pit with them.
Like small, nasty, and incorrigible children looking for attention, sometimes the best policy is to simply ignore them. Otherwise they get the satisfaction of having pushed your buttons and watching a bunch of us go a little ballistic.
Also, Kate’s instructions are “Don’t feed the trolls”!!
The most comical dispaly in this alleged gaffe comes from the judiciary ( who seem to have no problem expressing political opinions for the CBC) when they scold an elected law maker for even attempting to breech the fraudulent facade of judicial impartiality.
queen Abella the first and Queen Bev the questionable are prime examples of the ridiculously intrusive roll the courts play in the lives of Canadians….we may be able to make the senate accountable but nothing short of parliamentary judicial review committee accountability will put agenda-driven Jurocrats back in Pandora’s box.
“Carol MacNeil’s looks are only exceeded by her journalistic abilities.”
since she works for the CBC as well, does that mean she is lined up for the next GG role ??
She meets the job req’s.
the next GG whilst having to be a journalist will also need to be gay or disabled or aboriginal or a declared atheist. The list of qualifications of non-WASPish characteristics is growing shorter with every appointment.
EBD said “It is possible, too, to have dictatorship by democracy. A majority could opt for restrictions on free speech, or for persecutory policies towards certain minorities.”
No, EBD. Dictatorship and democracy are by definition mutually exclusive. They’re direct opposites, contradictions.
Besides, the few or the one can also discriminate against minorities.
Further, what’s worse, “tyranny of the few or the one” or “tyranny of the majority”?
I choose the latter. Granted, democracy isn’t perfect in its outcomes, but ultimately it proves the best, most preferable mode of governance.
No system is perfect, but anyone who prefers to have the few or the one dictate to the many according to whatsoever he/she/they deem is no democrat. He/she may actually prefer the dictatorship because the particular dictatorship consistently rules in one’s favor and in line with one’s preferences. That describes the liberal-left, which opposes democracy. They scream, “You’d put that to a vote? You’re a horrible monster! How could you put it to a vote?!” ‘Nuff said.
The majority choose democracy. And they’re right.
after all the bleeting in the last election about “we’re not making this up”,
kinda funny to see how the chief justice can now “make it up”
power, absolute power, then judgedom.
I’m starting to really like the look of the Australian Constitution… can we borrow it?
The MSM and Liberal (same thing really) attacks on Harper continue. McLachlin actually made a public, written (!) rebuke of Vellacott, in today’s Toronto Star.
But- note what McLachlin writes:
“If a law is not clear, it’s ambiguous, judges are required to interpret it, and they’re required to make choices but those choices are always made in accordance with legal precedents and with the laws laid down by Parliament and the legislatures,” said her spokesperson Nancy Brooks.
Hey, hey, hey. She’s referring to WRITTEN Texts that are ‘not clear, that are ambiguous’..
But- her speech in December of 2005, the one with the title of “Unwritten Constitutional Principles” is not about written texts. It’s about..again…’unwritten texts’. (How can a ‘text’ be ‘unwritten’? If something is unwritten, it’s..heck…it’s not a text, it’s unwritten…it’s ‘all in the air’..it doesn’t exist as a coherent entity..
Note also what she says – that these INTERPRETATIONS must be constrained by the laws laid down by Parliament and the legislatures”. She’s putting parliament and the legislatures ABOVE the judiciary. But that speech, that 30 page speech…put the judiciary above the legislature. So?
She’s not referring, in her quote of today, to that ‘natural law’…that unwritten ‘wisdom, truth, purity whatever’..that, as unwritten, is not accessible to the literate and is accessible only, only – to the judiciary. But her 30 page speech is all about that unwritten whatever, and the rights of the judiciary, the duty of the judiciary – to access it. And how this unwritten wisdom is ABOVE legislated laws.
Again, here are some quotes from that paper written by McLachlin:
“there exist fundamental norms of justice so basic that they form part of the legal structure of governance and must be upheld by the courts, whether or not they find expression in constitutional texts” 2
‘do judges have the right to invoke fundamental norms to trump written laws’? 3 (she answers yes)…these ‘deep rights’ may not be in written form..
‘upholding fundamental norms, even those that haven’t been written down, is an inherent and legitimate aspect of the judges role” 4 (she thinks so)
‘unwritten constitutional principles can be seen as a modern reincarnation of the ancient doctrines of natural law” (5)
‘the debate is not about whether judges should ever use unwritten contitutional norms to invalidate laws..but rather about what norms may justify such action’ 12.
NOTE WHAT SHE SAYS – she writes that these ‘unwritten laws’ exist. HOW????? How can something that is unwritten – exist? She calls them ‘constitutional norms’. Does that legal sounding name, positing authority, actually make that unwritten text…transform into writing?
And- she says that it INVALIDATES LAWS.
So- her speech of Dec 2005 – is asserting that these unwritten ‘laws’..TRUMP legislated laws. But her letter in today’s Toronto Star is denying this.
BUT SHE WROTE THE SPEECH!
She continues against ‘the theory that sees Parliament as the source of all law and the idea that the law may include principles that Parliament has not made” 12. She believes that Parliament is NOT the source of all law, and believes in ‘natural law’…which includes those ‘principles’ that parl’t hasn’t made.
She continues: – “the conundrum between justice as an expression of Parliamentary will and justice as an expression of fundamental principles, sometimes unarticulated’ 13.
Her letter in the Star asserts that the laws are made by parliamentary will. Her speech of Dec/05 asserts that judiciary discovery of natural laws trump parliamentary will. She says this.
“How to identify these fundamental unwritten principles that are capable of trumping laws and executive action” 14.
She spends several pages denigrating written law..and moves into promoting unwritten law…and ‘identifying those unwritten constitutional principles that can prevail over laws and executive action” 18.
here we go again – those unwritten ‘constitutional principles’ (what makes them constituitonal principles except by her own naming them as such?)..and they prevail over laws and executive action.
When she comes to the question, that by this action of ‘articulating unwritten laws’ (what makes them law if they are unwritten????)..she is aware that “they may be accused of usurping the functions of Parliament; of making the law rather than interpreting and applying it; in short, of judicial activism” 23
What’s her answer to this charge?
“the conundrum is a false one; that judges must be able to do justice’.
She doesn’t answer it; she slithers out. She insists on the judiciary writing the law; she bases the source of these new laws on some kind of deep hidden existential reality – called ‘unwritten laws’, or ‘unwritten constitutional principles’.
And she says these unwritten laws are NOT made by the parl’t, by the legislature; they are made by the judiciary. And, they trump the legislated laws.
It’s all there. Read her text.
And note how she’s denying what she wrote in that speech – in the Toronto Star letter.
Like the witch doctor who can read the great spirit that lives in the volcano.
This selfproclaiming liberal shaman can decern the “natural law”.
Right – the judiciary, alone, can ‘discover’ these unwritten truths. And these unwritten ‘constitutional principles’ TRUMP and override the legislature and the executive. She says this – repeatedly.
By calling something..a constitutional principle..does that MAKE it actually, a constitutional principle? The people haven’t made it so; they haven’t written it into their constitution. But, a single activist ‘judge’ ‘finds’ this ‘unwritten’ text (how can you find a text that is unwritten; don’t you actually make it up??)…and calls it a ‘constitutional principle’.
And – this naming …makes it a ‘constitutional principle’. Not the people. But, this single individual.
If that isn’t judicial activism, if that doesn’t violate legislature, if that doesn’t nullify the will of the people…and insert ultimate, unaccountable authoritarianism..then no theocratic dictator could do better than this.
This is why I prefer a Republic.
Democracy can mean tyranny by the majority.
The “right” to a good government may just be a Liberal concept,(i.e. a myth or a delusion) with little hope for enacting said “good government” without a good system of checks and balances and some faith in that system.
For instance, some voters in the USA are trying to get rid of the Electoral College.
The Electoral College ensures that Presidential candidates MUST pay close attention to small states like South Dakota AND voter rich states like New York.
Without it, NYC and LA will probably run Washington (sort of like Toronto and Montreal run Ottawa).
The BC Liberals and NDP are pushing hard to legislate “representative voting” that they believe will give them an advantage in Victoria that the present “first past the post” system “checks”.
This isn’t judicial activism.
It’s judicial supremacy.
Remember Preston Manning when he couldn’t control all the “tell it like it is” comments from his own MP’s. The Reformers looked like a bunch of intolerant bigots.
Harper’s attempt to stifle such “tell it like it is” commentary by ruling his party autocraticly is falling apart. The conservatives are starting to look like a bunch of intolerant bigots again.
The liberals don’t have to do anything but sit back and watch the Conservatives self-destruct.
Back to this again..thanks to the persistence of the SC justices in asserting their assumed self-importance. And the typical incompetence of the CBC and other MSM.
Lets hope that this political football gets a swift and powerfull punt from Harper. I believe that the majority of Canadians are fed up with these unelected political appointees conducting their social engineering projects from their positions.
Nobody ever gave these people unlimited powers. They are entitled to excercize judicial independence in interpreting laws NOT in creating laws. It is high time to jerk the reigns on them and we need to be able to remove judges who exceed their authority.
Questioning the words of a judge makes one an “intolerant bigot”?
Please, do explain.
RE: “The liberals don’t have to do anything but sit back and watch the Conservatives self-destruct.”
The Conservatives don’t have to do anything but sit back and watch while the left wingers continue to call people who disagree with them intolerant bigots. -sarc-
The ‘progressive’ religion of the left now has it’s Moses coming down from the mount. The question is, how many times is she going to come down?
“The liberals don’t have to do anything but sit back and watch the Conservatives self-destruct.”
Funny, it’s the liberals who have self-destructed and continue their spiral into the Bob Rae abyss. But how do you argue that point with a moron?
A lot of very insightfull posts here. Unfortunately the majority of the public will only see the MSM smear and will look no further than the superficial slant that has been put forth as fact.
Vellacott’s unfortunate paraphrasing coupled with his religous background and defense of the Saskatoon police officers charged in dropping natives off in the outskirts of town is just the thing the secular left has been waiting for to attack the scary CPC’s hidden agenda.
A political perfect storm with all the required elements. The three R’s of liberal journalism. The religous right, redneck and racist.
The fact that he has pointed out the truth in that Justice Mc Lachlin seems to believe that the robes of the SCoC instill some type of mystical omniscience is completely lost in the spin. As Kate rightly pointed out Judicial Supremacy.
Carol MacNeil and her smarmy partner Evan Solomen are the poster pair for all that is wrong with CBC’s particular brand of “journalism”.
Their Sunday Report program could serve as the core of some right leaning journalism professor’s (if there is such a thing) course on objectivity.
The saddest part of all this is that we are required to pay 1 billion a year for this garbage.
Nice.
Syncro
when the words of a judge are above questioning, where are we?
uff it’s a slippery slope to that authoritarinism hell.
I’m a plumber, on my invoice for services the amount that reads “$100.00” it really means “$200.” ok? $100. on your visa, and $100. cash, it’s an unwritten code, but you’ll get used to it… just call me on sunday night for all your furnace needs.
and that canadian electrical code? well it’s just a guideline, it isn’t like real law or anything.
sarcasim off.
nice to be able to just pull law out of your ass when you need to.
thanks ET for putting it all together.
how come no one is going on and on about the following quote from her speech:
“Interpreting and applying constitutional principles, written and unwritten, requires that the judge hold uncompromisingly to his or her judicial conscience…But judicial conscience is not to be confused with personal conscience. Judicial conscience is founded on the judge’s sworn commitment to uphold the rule of law. It is informed not be the judge’s personal views, nor the judge’s views as to what policy is best. It is informed by the law, in all its complex majesty…”
and sometimes she goes by intuition…
In the article from the 1976 Globe and Mail, I’d be interested to know if Judge Rosalie Abella said this, or if she “said this”.
it’s like playing God. Only there’s no one to tell you if you’re right or wrong. OR,
“it’s like playing God. Only there’s no one to tell you if you’re right or wrong”.
thoth – the reason why no-one is commenting on that particular passage is because it is meaningless. (apart from the fact that you’ve left out a few key phrases’ p 28
This section has merged fact with fiction in such a way that the reader is prevented from recognizing both that there IS a difference and that there OUGHT TO BE a difference. In logical terms, it’s called the merger of ‘is’ and ‘ought’. Can you imagine – a judge has made such a profound error in logic????
1. Because a judge presumes that there ought to be a particular ‘constitutional principle’ but that it is ‘unwritten’, does not mean that there IS such a principle. Get it?
2. What is an ‘unwritten constitutional principle’? How can something that does not exist, be asserted to exist? It either exists or it does not. Another profound error in logic – the violation of ‘Exclusion’. A thing either IS or IS NOT. Period. But, McLachlin is asserting that something that does not exist, does exist. She calls it ‘unwritten’.
3. She also says that “those unwritten constitutional principles..prevail over laws and executive action’ p.18
Don’t forget this. She repeats and repeats this assertion – that the unwritten should prevail over the legislative and executive bodies.
4. You left out the source of these ‘written and unwritten laws’…”informed by past usage, written constitutional norms and interpretive principles to which the nation has attorned” 28.
Hmmm. Where are these ‘unwritten constitutional principles” found??? Again- something that is unwritten DOES NOT EXIST. Well, she provides three sources for judicial decisions. Past usage (which would be documented); written constitutional norms (which would be written)..and..’interpretive principles’. What the heck is an interpretive principle??? ..to which the nation has attorned…and what does that mean???
She asserts that the judge has a sworn commitment to uphold the rule of law. BUT, again and again and again in those 30 pages, she asserts the right and duty of the judiciary to come up with ‘unwritten constitutional principles’…that supercede the written laws, the legislature and the executive.
Do you know what that means? It means that the judiciary can MAKE NEW LAWS.. That means that the judiciary is not ‘upholding the rule of law’. It’s making law…
And, she ends that such an act is ‘informed not by the judge’s personal views, nor the judge’s views as to what policy is best. It is informed by the law, in all its complex majesty, as manifested in the three sources I’ve suggested” 28.
you left out that last bit..the three sources.
But check out those three sources.
Two are written: past usage and written norms.
And one – the UNWRITTEN Constitutional Principles (the title of her speech)..is NOT WRITTEN. How do unwritten principles emerge? By, she says, the judiciary. They use ‘interpretive principles’. What the heck is an interpretive principle..other than ‘the judge’s views as to what policy is best”???
As Kate says – that’s judicial supremacy.
Latest at voy
CBC: Gotcha re Maurice Vellacott
Chief Justice Beverley McLachlin …. MUST RESIGN
http://www.voy.com/178771/
Warnin’: cuss’n’ ‘n’ swearin’ but fun.
(Boycott Bourque)
I will point ET to the “reasonable person” assumption in tort law. There are lots of things in the law that are not based upon things actually written, and we depend on judges to make decisions about every day.
Or shall we take every discretionary ability away from judges?
What would be the point of having judges in the first place?
And who would protect the minority from the tyranny of the majority?
Representational democracies are imperfect systems, be they republics or constitutional monarchies, or some other form. But it still helps to have a little bit of balance in the system, a judiciary to keep an eye on the legislature. I will grant that there are abuses and the court is rather stacked with Liberal lackies, but Harper now has his chance to start stacking the court as he sees fit.
Syncro (1:45 p.m.): ‘couldn’t agree with you more on the travesty of the Canadian taxpayer having to foot the bill for MacNeil and Evan Baby et al on the CBC.
Why not write them and tell them how you feel–and send a copy to Bev Oda, Minister of Heritage?
I’m writing this blog AND I’m sending my concerns to politicians and media hacks (I figure they need to hear what jerks they are, with proof provided).
Vellacott, Gibson and Byfield are absolutely correct. The SCOC views themselves as the Orachles of Delphi–and make just about as much sense.
The power of these 9 appointed lawyers is frightening. We are not a democracy–we are a kleptocracy–our country has been stlen by the supremes.
thoth:
I would ask: if a judge has absolute power, then in addition to, as you assume she would, “protecting the minority”, wouldn’t you agree that said judge could also choose to oppress the minority? And should a judge oppress a minority, if we’re forbidden via cultural imperative to question a judge’s rulings and if it’s impossible to remove said judge, then is it really a wise thing for there to be absolute power as is currently assumed by judges?
And, remembering that judges are human and can indeed have a hidden agenda and could actually be malicious, evil people, just as could anyone else, why must we necessarily assume that all judges must be given the benefit of the doubt 100% and never be questioned?
I suspect that the left wants to tell everyone to trust judges as most judges in recent memory have made leftist-friendly rulings and have accelerated the social-reengineering goals of the so-called “progressive” leftist political elites who appointed them.
If judges had been sticking strictly to written legislation and interpreting such legislation strictly based upon the Charter as it is actually written, then I suspect the left would be quite a bit less happy, as they wouldn’t be getting the radical sociocultural reengineering that they want, just for themselves, to hell with others and their Charter-guaranteed rights. Many Canadians now suspect that the judiciary has been hijacked by the left, via leftist politicians carefully choosing appointees to benches based upon the leftist social agendas of the appointees. Of course it is possible. How do we know for sure that this hasn’t happened? From the rulings over the years that have nothing to do with legislation nor with the Charter and from the words of Abella and McLachlin, we do indeed have reason to suspect that it has happened.
I, for one, am immensely uncomfortable having just a minuscule number of absolutely powerful elites deeming absolutely anything they wish over all citizens. It is not consistent with freedom, democracy and the rule of law to allow such unchecked, unaccountable power of the few or the one to rule over the citizenry.
Therefore, I reject all leftist arguments in favor of judicial supremacy.
The best way to have a society is to have democracy.
Nothing is better than a system of freedom, democracy and the rule of law. Nothing can come close.
Thanks, Canadian Sentinel – you’ve said it perfectly.
I agree that judicial supremacy, which is de facto what McLachlin is promoting – is the opposite of democracy. I’ve already referred to the speeches of Justice Scalia, who speaks openly against judicial activism.
‘thoth’ – the ‘reasonable person’ argument can’t be used to support a NEW law; it can only be used to support an interpretation of an existing law as applied to a novel situation. What McLachlin is talking about is not interpretation of existing laws; she’s talking about ‘discovering’ absolutely new laws – those ‘unwritten constitutional principles’ as she calls them…that trump the old laws, the legislature and the executive.
Judges are there to reference a CASE, which is an individual situation to a GENERAL, ie, a LAW, and interpret the correlation between the case and the law.
They are NOT supposed to write laws; they are supposed to correlate, to reference..a particular case…to a general law. The legislature is supposed to write laws.
But McLachlin is not talking about this! She’s talking about actually writing new laws!
Your minority/majority has no relevance in this discussion – other than its use as an emotional tactic. Canadian Sentinel’s post explains the irrelevance of the argument of minority/majority.
A small group of unelected, unaccountable people have no right to create new laws. Period.
And Harper can’t change the nature of the court; there will probably be no new appointments required for years.
Canadian Sentinel-
The only thing I’d disagree with is that the Left ony wants everyone to trust “their” judges, the appointment process in the U.S. has demonstrated how quickly the Left will turn on a judge that they feel doesn’t share their views.
However for the judges that share convictions with the Left we’re supposed to shut up and allow their omniscience to guide us. Their vast wisdom is so great that they’re beyond criticism, it’s almost heretical to even discuss possible failings as they’re almost… godlike.
ET writes: “A small group of unelected, unaccountable people have no right to create new laws. Period.”
Correct. This is a main point of the debate. Canada was NOT founded on any constitutional declaration that the judiciary is to make laws. Our constitution is very clear that only the democratically elected representatives of the people are to make laws.
The Chief Justice’s arguments, pretentious and haughty though they are, are irrelevant. Only our constitution matters, not the philosophy of the elites who want something other than what the constitution allows.
How dare the elites subvert the constitution of our federation? How dare the elites overrule the democratically elected representatives of the people?
Mr. Vellacott was not wrong. He was right.
It’s clear from these comments that there is not a single person here who has read the entirety of McLachlin’s speech and that there is not a single person here who understands that the Canadian Constitution has always had unwritten principles behind it. This is grade ten history class, people.
Furthermore, the Black Rod is a dishonest liar. He quotes out of context and in one instance even changes a quotation. He deliberately leaves out the conclusion and the part where she states “Judicial conscience is not to be confused with personal conscience. It is informed not by the judge’s personal views, nor the judge’s views as to what policy is best.” And the part where she says “While they may interpret their written constitutions, courts are never free to ignore them.”