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Tuesday, May 09, 2006
Demystifying the Supreme Court
You won't likely be hearing much from Maurice Vellacott for awhile. The outspoken Sask. MP has had to apologize for apparently misquoting the Chief Justice of the Supreme Court, Beverley McLachlin. We know how Stephen Harper feels about his MPs shooting from the hip, so you can be sure Maurice will be spending at least several months in the caucus brig before he's allowed out again.
According to a discussion on CTV's Mike Duffy Live yesterday (I can't find it on the web yet), Vellacott may have been recalling McLachlin's interview with the Western Standard a couple of issues back when he claimed that she said that judges assume "some mystical kind of power" when they get to the Supreme Court. "They take on almost those God-like powers. She said that herself," said Vellacott.
Incorrect. McLachlin didn't say that she had mystical, God-like powers. (He might have been confusing her with Mahmoud Ahmadinejad.) But she has repeatedly said things that most Canadians would be shocked to hear, I think. From our April 24 interview:
"The Constitution is first and foremost and fundamental . . . But in interpreting the constitutional provisions, from time to time the court can have and must have recourse to unwritten values."
And, discussing the court's consideration of the secession reference question:
"There's nothing in the Constitution about the right to secede . . .[So] one of the things we said is you have to look at the values on which the country is predicated--values like democratic rights, federalism, protection of minorities, and so on. And these inform the Constitution as you have it . . ."
We also reported on a speech that Justice McLachlin gave in New Zeland a few months ago in which she argued:
"there exists 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." And: "The legitimacy of the modern democratic state arguably depends on its adhesion to fundamental norms that transcend the law and executive action." And that these unwritten laws are found in three places: "customary usage; inferences from written constitutional principles; and the norms set out or implied in international" treaties. "This is not law-making in the legislative sense, but legitimate judicial work."
No, Beverely McLachlin did not suggest that her powers were at all mystical. She did, however, suggest that they were ultra-constitutional: that judges had the ability to conjure up charter rights that did not exist before, based on their own idea of what constitutes "Canadian values." Powerful stuff, yes. Magic? About as much as you'd find in a David Blaine stunt.
Vellacott's misremembering of the interview is forgiveable, but I worry that this will only make it harder for anyone to make legitimate criticisms of what I think a lot of us would agree is an abuse of power being perpetrated by the highest court in this land. To be fair, it's not all on him. Harper took some heat during the election campaign when he suggested (gasp) that those Supreme Court justices appointed by Liberals might actually be Liberals. Before that, it was Randy White's "to heck with the Courts" comment to a film crew that surfaced during the 2004 election that is blamed, in part, for sinking the Tories.
For what it's worth, you can read my thoughts here about why the court is so clearly overstepping its bounds, and why the justices are actually being disingenous when they claim that it's up to them to figure out what the charter's framers really meant. (Put briefly: Many of our framers are still alive and they're actually telling you that you're reading the charter incorrectly. Please, take their word for it.)
Whenever there's a new Supreme Court justice appointed in the U.S., the Democrats say he's too conservative. The Republicans, too liberal. But on both sides of the house, there's a mutual acknowledgement that judges have biases that inform how they make their decisions. It's an admission of reality, and one that reminds Americans to be extremely careful about how they stack their court. The harder it is for Canadians to talk openly about the flaws in our own high court, the more unassailable and therefore more powerful the justices become. Stephen Harper can discipline Maurice Vellacott if he really wants, but he should be careful that by doing so, he doesn't also silence this important discussion entirely.
(Update: Garth Turner weighs in with this similar take: "If an MP . . . is not elected to come to this town and talk plainly about how we are governed, then what the hell is he here for? Canadians expect us to be legislators, not apologists. If the courts (unelected) or the PMO (also unelected) try to steal too much power, then who else is there to speak out?")
Posted by Kevin Libin on May 9, 2006 | Permalink
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"The Constitution is first and foremost and fundamental . . . But in interpreting the constitutional provisions, from time to time the court can have and must have recourse to unwritten values."
Shocking !!!! particularly when some of the first words in our constitution are -
"...into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom: "
Of course we all know that the British Constitution is one of the greatest documents ever written by mankind and they would never resort to "customary usage; inferences from written constitutional principles; and the norms set out or implied in international treaties. " across the pond.
Posted by: Nbob | 2006-05-09 3:11:24 PM
btw Kevin I seem to have lost my copy of the UK Constitution- you wouldn't happen to have an extra copy you could email me would you ?
Posted by: Nbob | 2006-05-09 3:15:49 PM
Of course you must be joking, Nbob. Obviously you know that Britain actually has no such document, in the modern sense, or a bill of rights. All the minority protections in that country have been created democratically (which, given that the UK has often been on the global forefront of such protections, puts lie to the claim that it's charter rights and the courts that keep us safe). All "constitutional" measures in that country are simply Parliamentary laws and are in constant flux. If there's one basic principle in the UK that approaches "entrenchment," it's that Parliament enjoys total sovereignty.
In fact, A.V. Dicey and Eugene Forsey both affirmed that the Canadian constitution inherited from Britain relied on both that sovereignty and the rule of law. In other words, whatever Parliament passes, is law, and whatever that law is, no other body can ignore or overrule.
So, you really think that's what McLachlin's referring to when she says judges should look to ultra-constitutional sources for their guidance?
If so, great. I'm her newest, biggest fan.
Posted by: Kevin Libin | 2006-05-09 3:43:13 PM
The fact is the judiciary are out of control. They "read in" words not written in the Constitution. Example:"Sexual orientation" was NEVER in the Charter. So called "same-sex marriage" is another piece of nonsense declared as a given by judges in Ontario. It was NEVER in the Charter. Criminals are "morally worthy" to vote according to our non-elected lawyers oops I mean judges sitting on the Supreme Court bench. Orgies are okay as well according to our "learned" judicial jackasses. I believe,if Stephen Harper had any backbone he would use the Not-withstanding clause to bring these judicial twits to heel. But unfortunately he seems to be becomng politically correct. Three cheers for Maurice Vellacott at least he has the courage to speak out which is sadly lacking in his leader.
Posted by: Stephen Gray | 2006-05-09 5:50:44 PM
Mr. Vellacott has it right with one minor quibble:
CJ thinks she has goddess-like powers not god-like powers.
No apology necessary; stand firm, Mr. Vellacott. Speak more.
Down with CJ's goddess-like powers.
Resign CJ.
Posted by: maz2 | 2006-05-09 6:21:20 PM
The history of British constitutionalism is a history of power shifts among the monarchy, the judiciary and Parliament. It is a tradition of long-developed compromises that form "unwritten rules" and principles. These have been incorpoarted into Canadian constitution through the BNA Act and the Constitution Act, which expressly incorporates the "Rule of Law." Much is written on the rule of law and how it limits what kinds of laws Parliament may pass, prohibiting, for example, retroactive criminal laws in most situations. Oliver Wendell Holmes is the still the best source on the nature of law (The Path of the Law), and Chief Justice McLachlin is an admirer of Holmes. She is no wingnut here. One might take issue with the outcome of various decision, but the approach is generally sound and the Chief Justice has been one of the more restrained justices on that court over the past 15 or so years. Indeed, a clever reader will note that she has steered the court away from the notorious Anns approach, which had been having the effect of expanding the sphere of tort liability uncontrollably. She also reintroduced the critical distinction between nonfeasnace and malfeasance.
I have no problem with MPs attacking the courts. It is certainly consistent with the tradition of British constitutionalism.
Posted by: murray | 2006-05-09 6:48:13 PM
I second you mazz. I'm on the same side as Mr. Vellacott and I think most tax paying law abiding Canadians agree with him; not the prima dona, Paris Hilton wanna be.
Posted by: jema54j | 2006-05-09 8:28:33 PM
Now the Canadian Bar Association (CBA) is calling for Maurice Vellacott's resignation. Here is their press release and url Stephen Gray.
http://www.cba.org/cba/News/2006_Releases/2006-05-09_vellacott.aspx
CBA.ORG
CBA Calls for Resignation of Maurice Vellacott as Chair of Aboriginal Affairs Committee Following Remarks About Chief Justice
For Immediate Release
May 9, 2006
OTTAWA – The Canadian Bar Association is asking the Prime Minister to insist that MP Maurice Vellacott resign immediately as Chair of the Aboriginal Affairs Committee. The call follows Mr. Vellacott’s remarks about the Chief Justice of Canada, which undermine public confidence in the justice system.
“When a member of the government misrepresents the views of the country’s top judge and damages the reputation of the Supreme Court of Canada, he must be held fully accountable,” says CBA President Brian A. Tabor, Q.C. of Halifax in a letter to Prime Minister Stephen Harper. “It’s simply not good enough to say that the remarks reflect Mr. Vellacott’s personal opinion.”
The CBA is asking the Prime Minister to call for Mr. Vellacott’s resignation as chair of the Aboriginal Affairs Committee. “His statements irreparably harm his ability to play a leadership role on any matter related to the administration of justice,” says Mr. Tabor.
“These comments have inflicted serious damage on the institution of the Supreme Court of Canada and the reputation of our Chief Justice,” says the letter. They bring the administration of justice into disrepute and seriously threaten judicial independence.
“It is incumbent on you to take steps now to repair the damage Mr. Vellacott has caused,” concludes the letter.
– 30 –
CONTACT: Hannah Bernstein, Canadian Bar Association, Tel: (613) 237-2925, ext. 146; E-mail: [email protected].
Posted by: Stephen Gray | 2006-05-09 8:38:03 PM
Perfect example of why I am hesitant to encourage my son to pursue law as a career. Surely he can find something that requires a little more intelligence and will make better use of his excellent education.
Posted by: lwestin | 2006-05-09 9:51:59 PM
Let me demystify the various demystifications which have been presented here today.
The only possible legitimate purpose of something like a Supreme Court is to prevent or redress *actual harm* which has been done or which is about to be done to someone by someone else. "Actual harm" means that someone actually had their life, their freedom or their property infringed, or is in clear danger of such. Everything in which a Supreme Court gets involved which is not a case of actual harm, is not only a waste of everyone's time and money (which causes actual harm to taxpayers), but is an invitation to people who have not been harmed to use the court to cause actual harm to someone else.
I'm going to invent a new legal term, which is evidently a very novel concept in Canada. It's called the Actual Harm Test, or AHT.
Nearly every instance of what many Canadians believe to be a "Canadian value" fails the AHT, abysmally. Medicare fails the AHT because the supposition that poor people could come to harm because of the lack of unlimited, free medical care was vague, not justified with any kind of evidence that a serious court would ever consider, and in any case had to do with an indefinite and undefined potential harm and not actual harm. Note that in order to prevent potential harm to poor people, the government and its Supreme Court have committed actual harm both to taxpayers and to the poor people themselves, by instituting a wasteful and corrupt social welfare program.
Secession fails the AHT, because the entire issue is nothing but a tissue of vague suppositions about possible, potential, unquantifiable and undefinable harm which may or may not occur to vaguely defined groups of people if national legislatures and border checkpoints are established in this location or that location.
Mr. Vellacott's interview fails the AHT. Nothing and no one are harmed by his statements, except possibly the tender egoes of a handful of government judges. Notice in the letter to Harper by the CBA President, he doesn't state which remarks by Vellacott he deems to be misrepresentative or in what ways they were misrepresentative, and his description of the harm caused by those (unspecified) remarks by Vellacott is vague and rather hysterical.
The only way to relieve yourself from having to worry about the biases of judges, is to remove from them the power to use their biases to cause actual harm to you, on issues which fail the AHT.
Posted by: Justzumgai | 2006-05-09 9:59:21 PM
Vellacott made a mistake in trusting Duffy,a renowned gossip and manipulator. CTV"s Oliver, Duffy and Taber are waging war on Harper's government who wisely refuses to cater to them. Their opinions mean nothing to millions of Canadian voters, and Duffy in particular should be complelled to register as a Liberal Party Lobbyist. PM Harper's handling of the Ottawa based Media is refreshing. In other words he has elimited the "E" in Egos - Cheers!
Posted by: Jack Macleod | 2006-05-10 5:14:44 AM
I found it funny that the CBA letter describes Vellacott's message as "[undermining] public confidence in the justice system." Not only are they trying to shoot the messenger, how much public confidence in the justice system truely exists. I also like Justzumgai's Actual Harm Test.
John M Reynolds
Posted by: jmrSudbury | 2006-05-10 8:42:17 AM
karol:
Wow! That's quite a theory.
Posted by: Set you free | 2006-05-10 10:59:24 AM
Yeah, but what does the chief justice wear under her robes?
Posted by: Set you free | 2006-05-10 1:05:43 PM
Kevin-
My point was that the British constitution, in the end, is the result of judge made law. That's exactly how Dicey liked it and it's consistent with his third principle of the ROL - that no law should be above the courts. And what are those things that guide the British courts in making those judge made laws? Having recourse to unwritten values is a large part of it. That's exactly how Dicey liked it because he thought written constitutions ( laws above the courts ) would engender an overly legalistic society.
So here you have the CJ giving a speech in a country that doesn't have a written constitution but, like the UK, is toying with the idea of getting one and she essentially warns them - don't forget about the third principle of the ROL. If you constrain courts to remain with in the exact walls of the document without regard to unwritten fundamental norms of justice etc. then things are going to get pretty legalistic for you. It takes a pretty feeble mind to turn that into a claim by the CJ that she has god like powers or can " conjure up " charter rights.
I think if Dicey was around today he would agree with the CJ in drawing a distinction between "law making in the legislative sense" and " legitimate judicial work " ( i.e. judge made law ). That's part of how the mechanism of checks and balances works in the UK and Canada.
Of course, as you correctly point out, Dicey's concept of the ROL takes place in a system where the legislature retains supremacy. That's important because it prevents legalism and safe guards democracy by keeping the ultimate say in the hands of the voters.
Nobody in England gets there kickers in a knot when the House of Lords looks to customary usage, international treaties and other unwritten values (e.g. the common law) to rule that admission of evidence gained through torture is illegal. Looking to those things is exactly what they are expected to do - that form of judge made law is " legitimate judicial work".
Now, in the UK, Parliament has three choices: (a) ignore the Lords, which is in their power, and either gain or loose votes next election. (b) attempt to amend the legislation to conform to the Lords ruling and either win or loose votes (c) repeal the legislation and either win or loose votes. When Parliament chooses (a) (b) or (c) they do so by looking to the will of the people (if they hope to remain the gov't) and that is how democracy is served by the legislative law/ judge made law dichotomy.
In Canada the mechanism is a little different but the end result is the same. Here the courts can strike down a law but the legislatures still have three choices (a) do nothing - let the courts ruling stand and win or loose votes (b) attempt to amend the legislation to conform to the ruling and either win or loose votes (c) invoke "notwithstanding" and win or loose votes.
On the other hand, if you live in the US - and particularly if you're an " originalist " - you would have a legitimate beef with the CJ or anyone else who advocated a british judge-made law method of constitutional interpretation. There is no real mechanism to put constitutional pronouncements ultimately back in the hands of the people down south. If the courts strike down a law it's pretty much down for the count. If the courts strike down a law based on "judge made law" then they have intruded into the realm of " law making in the legislative sense" because they literally make the law. The only real way the people can respond is to become mired in legalism and attempt to pass a constitutional amendment.
You're too dim to realize that the CJ's comments actually help your cause. You're tact right now is to demonize them so as to lessen the phobia the public has about s. 33 - e.g. "judges are playing god/crazy/making up the law to suit their own agenda so we have no choice but to invoke s. 33 ". That's not going to work because most Canadians respect judges.
On the other hand if you're honest and say " there's law in the legislative made sense and there's law in the judge made sense and where there is a conflict one of the LEGITIMATE choices we have to safe guard democracy is "notwithstanding". If we follow some unwritten taboo about not using s. 33 we are not following the Principles of the British constitution that are called for in our own constitution and, by default, have adopted the American system. "
Posted by: Nbob | 2006-05-10 6:50:00 PM
All Federal or Provincial Superior Court appointments in Canada are Political Decisions, made in the PMO sometimes with input from Bar Associations but not always. The concept of legislation to legalize connubial sodomy (same sex marriage) was generated by lesbian lawyers in the Federal Justice Ministry, who convinced Martin and Cotler to take the legislation forward
this is well known in the Liberal Party, and confirmed by journalist Douglas Fisher in the Ottawa Sun some months ago. The direct result was the appointment of Rosali Abella and friends to the SCCC. The decline in the Justice Criminal Court System can be traced directly to this. The
high and violent crime rates in GTA and Ontario are the fault of Chretien, Martin and McGuinty and Crowns who are out of control, plus an undisciplined Criminal Court Process.
Posted by: Jack Macleod | 2006-05-11 5:32:06 AM
There is a serious misperception here about what it meansfor a court to draw on "unwritten" constitutional rules, norms or principles. The court does not invent these out of whole cloth. As Holmes observed, the life of law is experience, not logic. So, for example, Iacobucci in the derivative use immunity caes, traces a long tradition against self-crimination in common law decisions, considers what values have superceded it and which have been subordinated to it, and then seeks to make sense of the Charter language against that backdrop. The "unwritten" rules, principles and norms are implicit in over a century of tested and accepted jurisprudence. This is how Common Law works and is why Common Law has been so much more effective than Civil LAw. (Read de Soto's books or Bernstein's Birth of Prosperity on the significance of common law.) Common law is much more responsive to local custom, community ethos and commercial reality, which has resulted in greater economic and political liberty in common law jurisdictions. If anyone should complain, it should be that the SCC has been moving away from common law toward more civilian reliance on written codes. Be careful what you wish for.
Posted by: murray | 2006-05-11 7:58:37 AM
ebt is right. Lady who lived with me at one time was a professor at Dalhousie U - I attended many functions at the Faculty Club when the Law School academic elite would go off on wild esoteric ego driven impressions of "The Law" to impress fellow unworldly Academics. For an interesting perspective of the administration of the Criminal Code in Toronto The Good, read Peter Worthington in 11 May edition of the Toronto Sun. The CCC RSC is substantive criminal law which could if properly enforced and administered clean up the nasty streets of GTA forever.
Posted by: Jack Macleod | 2006-05-11 2:39:46 PM
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