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Senior U.S., Canadian judges spar over judicial activism

KIRK MAKIN

From Saturday's Globe and Mail

Latest comment posted at 12:08 AM EDT 19/02/07

Courts should move with the times, Supreme Court's Binnie says at McGill ...Read the full article

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  1. mr motoc from Canada writes: Right-wing judges want to do the bidding of police and prosecutors, and to never ask any real questions; and to pretend that they "respect" so-called sissy-pants "rights" while they're at it. . . . . Yeah, that's pretty tough to figure out.
  2. Arzie Chant from Canada writes: Anyone who knows anything about the Canadian and American judicial systems knows that the Canadian system is vastly superior. It was established through democratic voting in a way that now ensures (so long as Harper doesn't get his way) that it remains impartial and independent from the other branches of government. Here is Canada we have protected rights of citizens from single parents to homosexuals.

    To that end, no one should listen to a clown like Scalia from the highly politicized, dysfunctional American system of "justice". Frankly, we should pity of American cousins for having to cope in a system where men like Scalia are not only capable of reaching the Supreme Court, but are deliberately and inappropriately placed there.
  3. Mahatma Gandhi from Calgary, Canada writes: Let us not forget Scalia's infamous role in the Supreme Court's coup in handing over the 2000 election to George Bush.
  4. paul gill from vancouver, Canada writes: Wow, Karol Karolak, you sure hit it on the head with your unassailable analysis. If judges would just apply laws that force women to breed, and make certain that laws eliminate the rights of gays and single people we would have utopia (along with laws to eliminate the "aging population", the "financing (of) retirement" and worst of all, "universal health care"). Unfortunately, judges have seen fit to interpret laws so as to allow people to be left alone, and to live their lives the way they see fit. Those damn judges!!!
  5. Peter Cromerovich from Erehwon, Canada writes: "Judge Scalia immediately turned it on his head, ridiculing those who believe that any convicted murderer might actually be innocent". Quite the learned political judge aren't you, Scalia; ever heard of David Milgaard? I think there's also been a few down your way that for some reason you hadn't got around to executing yet and who were found unquestionably innocent by virtue of DNA testing.
  6. JC perfide from Paris, France writes: French parliament is considering implementing a law on ‘the judge liability&8217; in case of misjudgement. For example, judges would be judicially responsible when DNA analysis contradicts the verdict.
  7. james cyr from Balmertown, Ontario, Canada writes: Judges are there to decide crimminal punishments for various crimes within the context of the law. Their decisions are based on evidence presented in court, and must take into account the context of the crime itself. Judges are not there to be social engineers. Lawyers versed in criminal law as well as other facets of the law are appointed judges based on their qualifications and history of objectivity. They are not there to make moral decisions, but legal ones.
  8. D. B. Cooper from Vancouver, Canada writes: Ah! how Scalia longs for the good old days "when America was a democracy": when Black people were slaves, the murder and dispossession of Indians was considered a positive moral good, women didn't have the right to vote, children were their parents' property and so could be treated in ways it was illegal to treat animals, reading the US Constitution aloud on the street was punished as "sedition," and all was right with the world - according to him. Actually the US didn't become anything approaching a democracy until minorities and women were given both the legal and factual right to vote - which is to say not before at least the mid to late 1960s. The irony is, that's exactly when Scalia thinks things started really going down hill. What a dirt-bag.
  9. D. B. Cooper from Vancouver, Canada writes: Another curious thing about Scalia (and the other "conservatives" on the US Supreme Court) is that they vote to overturn laws passed by the elected US Congress in a much greater percentage of cases than the court's "liberals." Who then are the real "activists?" Scalia and his ilk don't give a hoot about democracy, and unlike the court's centrists not even much about "strict construction." They just vote for what they like and what they want society to be like.
  10. Vern McPherson from Toronto, Canada writes: Karol Karolak from Canada writes: ...... Introduction of same sex marriage in the age of declining birthrate and scarcity of children in a real need of being adopted just compounded the problem

    I don't believe someone who can actually demonstrate command of the language enough to type on a keyboard could be this stupid. Same sex marriage compounds the low birthrate problem ? Are you nutz or did they just let you out for the weekend ?
  11. Jan Johnstone from Kincardine, Canada writes: No Vern, Karol wasn't let out for the weekend. It seems she gets all her righteous informaton from 'focus on the family website.' They provide her with her talking points.
  12. Moji Byrd from Canada writes: So if democracy rules, why is it that 75-80% of americans want out of iraq, but Bush and company tell them to go to hell as he is not done fighting his war for oil, ego and money...yep we live in a democratic society all right...it is no longer the government for the people, by the people, BUT if we are elected you will disagree with us, but we do not care as long as we move our own agenda along and make us and our friends wealthy with your money and screw with your freedoms...thanks
  13. Terry H from Moncton, Canada writes: james cyr from Balmertown, Ontario, Canada you hit the nail right on the head when you said "They are not there to make moral decisions, but legal ones." These appointed judges should not be allowed to tinker with the law or push forward their own views. They are there to look at evidence and decide (within the law) whether or not that person is guilty. Letting murderers off because the judge "didn't like the way the police did something, or the way DNA evidence is collected" is crap. DNA evidence should never be tossed out of court. It is the only true evidence we have. Our constitution is way too lenient allowing any nut case or lobby group or minority wag the dog by the tail. A law should be a law. Period. Let me get caught speeding with a cop and a radar gun and I will be found guilty. 100% sure. But let me murder 3 people, and if I had enough money for lawyers I could wiggle around in the technical crap for years and finally get off because some weinie judge thinks the evidence was gathered with a warrant that had a technical error.
  14. True North from Canada writes: Justice Scalia is a very frightening, right-wing judge who is committed to trying to keep the US in the 1950's.
  15. Orest Zarowsky from Toronto, Canada writes: From the article: "Judge Scalia immediately turned it on his head, ridiculing those who believe that any convicted murderer might actually be innocent. “I have been on the court for 20 years and I have not seen a case where I thought there was the slightest doubt about the person's innocence,” he said." Not that long ago, Illinois stopped all executions and took the death penealty off its books. The reason was that a review of all pending executions, using new evidence showed that something like 50% of the people on death row had been wrongly convicted and were actually innocent. There have been very many instances throughout the US of wrongful convictions, including cases of deliberate falsification of evidence. But people who think like Mr. Scalia, including those posters here who support him, refuse to acknowledge or address this trivial detail. The pundit above who spent so much energy whining about evidence being inadmissable due to "technicalities" might want to keep the power imbalance between the state and individual citizens in mind. Given the number of high-profile wrongful conviction cases here in Canada, and the many examples of police incompetence and negligence (can youy say Karla Homolka plea-bargain?) the requirements for the integrity of evidence are a minimum standard. It is useful to remember that niether of the police, Crown Prosecutors, nor Judges involved in even the worst cases of miscairrages of justice aren't normally charged or tried for their actions. In the very rare cases when charges are laid, the norm is no conviction. Funny how that works.
  16. John Silverman from Canada writes: Canada has a fabulous legal system, far superior to the US (though there's is ok too). I don't understand people who want to take away peoples freedoms by getting rid of parts of the charter, etc. Some of the people on here are ridiculous with their comments. You want to live in a police-state with no freedoms or protections of the individual? You're crazy.

    Like the post who complained about how certain evidence may be exlcuded if not collected properly. Well of course! You can't just have free-reign for people to do anything and let anything in. There is a FAIR process that must be followed. God forbid you or anyone you love should ever be arrested - perhaps when innocent - then I think you'll thank our fair and just system.
  17. Frosty The Snowman from Great America, United States writes: DB Cooper, your comments display a fantastic degree of simplemindedness, ignorance and stuperfying lack of knowledge about the United States Supreme Court...I was going to try and explain it to you here and now, but I can't be bothered.
    I wish these Globe forums could be a place where intelligent and educated persons of all political stripes could come together and have a rational discourse. Guess I'll go back to FreeReublic.com now.
  18. R. Hay from Canada writes: Of course, there have been wrongful convictions in murder cases. This story should give a boost to the progressives (Liberals) in Canada. But nobody is listening. And Justice Binnie is right to defend the 'living tree' analogy.Societies evolve. Some devolve and not just in fiction like The Stepford Wives or The Handmaid's Tale.
  19. Karol Karolak from Canada writes: Orest Zarowsky from Toronto, Canada writes: It is useful to remember that niether of the police, Crown Prosecutors, nor Judges involved in even the worst cases of miscairrages of justice aren't normally charged or tried for their actions. In the very rare cases when charges are laid, the norm is no conviction. Funny how that works.
    Posted 17/02/07 at 9:12 AM EST | Alert an Editor | Link to Comment

    Law Society of Upper Canada and Ontario Court of Appeals both share same building in downtown Toronto;
    Osgoode Hall,
    130 Queen Street West,
    Toronto Ontario,
    M5H 2N6

    Funny how that works.
  20. Brian Dell from Edmonton, Canada writes: "There is a FAIR process that must be followed." So fairness has nothing to do with the truth? What is so unfair about an accused having the right to take an action against the police separately, before a police conduct review board? This was the situation under common law (before the Charter). Why does a 100% guilty criminal have to simply be effectively acquited by throwing out the evidence? When that criminal turns around and assaults one of your loved ones perhaps you will moderate your perspective. What I find most surprising is the condemnation of Harper for simply giving victims a voice: http://www.theglobeandmail.com/servlet/story/RTGAM.20070217.wxjudges17/BNStory/Front/home "God forbid you or anyone you love should ever be arrested". If I commit a brutal crime and the evidence proves it, yet I demand not a mere review of police conduct but a full and outright acquital because the cops happened to collect that evidence without a warrant, then I will certainly be a hypocrite, yes. Likewise, if I claim I am biologically inclined towards bigamy such that I should have my right to multiple person marriages recognized by the govt, but I lose the democratic battle, I would be a hypocrite if I then went to the courts and got my "rights" through the back door.
  21. Geoffrey Diss from Berlin, Germany writes: Karol Karolak writes: "Introduction of same sex marriage in the age of HIV/AIDS epidemic lack of cure and fatal outcome of that disease was simply criminal as it legalized spread of that deadly disease."

    I would have thought the relationship between sexually transmitted diseases and marriage worked the OTHER WAY AROUND, Karol. Or do you suppose that the prohibition of heterosexual marriage would curb STDs, as well?

    Your "logic" kind of makes me want to vomit.
  22. Orest Zarowsky from Toronto, Canada writes: Karol Karolak from Canada writes: (in response to part of my post) "Law Society of Upper Canada and Ontario Court of Appeals both share same building in downtown Toronto; Osgoode Hall, 130 Queen Street West, Toronto Ontario, M5H 2N6 Funny how that works." And your point is? All you have done is support my main point. So, Karol, explain to me and the rest of us how you: A) justify and excuse this sort of gross abuse of power and authority and negligence and incompetence; B) what steps, procedures and methods you propose to minimize these abuses and performance failures; C) what are your proposals to make these abusers accountable? We await your input impatiently. One more detail Karol. Based on your last name, and use of the language, I expect that you are from the same part of the world as my parents were - specifically Eastern Europe. I am the first-generation child of immigrants, you sound like an immigrant. Many of my relatives died fighting both the Soviets and the NAZIs. The fact that you are most likely an immigrant from part of the world that suffered under a really brutal dictatorship, but demonstrably support the sort of approach and attitude that the rulers there had, suggests that you were one of the oppressors. And that you resent the hell out of the mess that a real democracy is. Life is so much simpler under a dictatorship - everyone knows their place, the boat isn't rocked and the ruling group is very well off, while the proles suffer. You really should review the comment Winston Churchill made about democracy - not just the immediate content, but its rammifications.
  23. Geoffrey Diss from Berlin, Germany writes: Karol Karolak writes: "Introduction of same sex marriage in the age of HIV/AIDS epidemic lack of cure and fatal outcome of that disease was simply criminal as it legalized spread of that deadly disease."

    I would have thought that the relationship between sexually transmitted diseases and marriage worked the OTHER WAY AROUND, Karol. Or would you say that prohibiting heterosexual marriage would curb STDs, as well? Didn't think so.

    Your "logic" kind of makes me want to throw up.
  24. Al Suba from Trenton, Canada writes: So, why is it that Canada has Judge Binnie and America has Judge Scalia's? Because the Americans had first choice again, dammit!!!
  25. Derek Lefebvre from Vancouver, Canada writes: John Silverman: No those people do not want to live in a police state but they do want to live back in the 50's where straight white Christian men had all the power and the 'norms' reflected their way of thinking.
    Imagine expecting police and judges to do their due dilligence when requesting, filling in and granting a warrant. Negating this we open the door to flimsy excuses for investigations, corruption by police and a massive distrust of the system. Even in such an environment we have now we still see abuses by those with power and allowing greater leeway would only increase this.
    Everyone wants to blame the judges for allowing technicalities to let criminals go free but when in reality it is shoddy investigations and lack of following the rules by police that allow them to get off but no one wants to blame them b/c they are "doing their job". Given the seriousness of the crimes one would expect an incredible amount of care would be given to do everything correctly and 'by the book' but that isn't always the case sadly enough. People want to say 'what about the victims' well then ask the ones who screwed it up in the first place and not those that are following the rule of law.

    As for DNA being so wonderful...you can plant items that investigators get DNA from so it isn't the purest form of evidence....
  26. Brian Dell from Edmonton, Canada writes: Orest Zarowsky, what does opposition to the Charter have to do with the "NAZIs"? We didn't have a Charter in the 70s so were we all "NAZIs"? You call for democracy yet the Charter is by its very definition anti-democratic! Without the Charter, democratically elected Parliamentarians would not having their legislation reversed by unelected judges. You don't see any irony in appealing to democracy in a thread about the Charter?
  27. Michael Bowen from Halifax, Canada writes: My question is, "How will the changes being implemented by Stephen Harper for choosing judges (i.e., the ability to appoint a "majority" of appointees, a pass/fail system rather than a ranking system to choose from) increase the possibility of individuals like Judge Scalia being appointed to our Supreme Court?". My sneaking suspicion is that it incredibly increases the odds. How many of us (as in, what proportion of Canadians) want that?
  28. The Centrist from Canada writes: Ahh the neocons. This is what the far right Conservatives led by Harper bring to Canada-arguements from the US. What an absolute and total moral outrage!
  29. W M from Canada writes: I am opposed both to Harper's politicization of the process and the kind of arrogant activism that Judge Binnie represents. As far as I am concerned the problem with both the Harper / Bush camps and the Binnie camp is that they both represent an overabundance of hubris. “I say that judges are as much a part of society as anyone else, and they can recognize a dead letter when they see one,” Judge Binnie said. Well said, Mr. Binnie. You are AS MUCH a part of society as everyone else, NOT MORE. I have absolutely no doubt that if a Prime Minister who was upset with the difficulties of working through the democratic process to get want they want, decided to circumvent it to do so, Mr. Binnie would be the first to strike down laws, so created; yet his own hubris blinds him to the fact that he is justifying exactly that. If the framers of the constitution set up an amending process that made it hard to change, I am absolutely certain that they did not do so, because they wanted an arrogant supreme court to grant itself the power to take the law into its own hands. Courts are supposed to rule on laws, not make them. All democratic constitutions separate the making of laws from ruling on laws to create checks and balances. No matter how benign they believe their intent to be, if the courts continue to cross that line, by straying into the realm of framing laws and not simply ruling on them, they are going down a very dangerous path, indeed. And mine is the opinion of someone who wouldn't vote for Harper, if he was the last choice left, and doesn't support Harper's extremely politicized approach to dealing with the problem.
  30. W M from Canada writes: Binnie shows his hubris and utter contempt for mere mortals in dismissing the concerns of Barry Strayer. He might have well have said that anyone who was helping to write the Charter, who did not anticipate that power would corrupt the likes of Mr. Binnie was living in a fool's paradise. And perhaps they were, but that doesn't make Binnie's attitude any less corrupt. Quote from article follows:

    Judge Binnie also took a backhand swipe at former Federal Court judge Barry Strayer, who said earlier in the conference that, when he helped frame the Charter as a senior Justice Department bureaucrat, nobody anticipated how far the Supreme Court would one day go in assessing the wisdom of laws.

    Judge Binnie said that if the drafters had actually intended for the courts to tinker only around the edges with procedural aspects of laws, rather than their pith and substance, “then you should have said so... .&8221;

    &8220;This more or less disposes of judge Barry Strayer's complaint...,&8221; Judge Binnie added.
  31. Karol Karolak from Canada writes: Geoffrey Diss from Berlin, Germany writes: Karol Karolak writes: "Introduction of same sex marriage in the age of HIV/AIDS epidemic lack of cure and fatal outcome of that disease was simply criminal as it legalized spread of that deadly disease."

    I would have thought that the relationship between sexually transmitted diseases and marriage worked the OTHER WAY AROUND, Karol. Or would you say that prohibiting heterosexual marriage would curb STDs, as well? Didn't think so.

    Your "logic" kind of makes me want to throw up.
    Posted 17/02/07 at 10:42 AM EST | Alert an Editor | Link to Comment

    Geoffrey Diss, not that long ago sodomy was an illegal act in Canada just because majority of population found it revolting. In the age of AIDS/HIV sodomy is not only revolting but it is also very risky as it is most common way that AIDS/HIV is spread. Legalizing same sex marriage makes sodomy legally acceptable and is encouraging such behaviour therefore facilitates spread of AIDS/HIV.

    If my "logic" kind of makes you want to throw up just eat some pudding. If you insist on using your colon for sexual purposes and your throat for emptying your digestive tract pudding might be a solution as it tastes more less this same coming in and going out.
  32. Little Dickie from Port Dover,ON, Canada writes: "And Judge Scalia immediately turned it on his head, ridiculing those who believe that any convicted murderer might actually be innocent.

    “I have been on the court for 20 years and I have not seen a case where I thought there was the slightest doubt about the person's innocence,” he said."

    Right now I am down in Bay County Florida and they had a murder trial this week, It took about a week to pick the jury, In one day for the trail, including of one and a half hour for the jury deliberation...found the man...guilty as charged. The next day, (Friday) the jury voted for the death sentance 11 to 1. State of Florida against Robert Bailey.

    That's the Florida way, slap, bam, thank you ma'm. Keeps the courts moving, juries don't miss too much time off work. Judge can still get his game in (TIC) .....The file is closed.
  33. The Centrist from Canada writes: I am in favour of abortion on demand, sex, gay marriage, and anything that is fun and doesn't harm others. Good gosh, this is the 21st century. What people do in the privacy of their own homes is none of my business. I would NEVER want to impose my SOCIAL mores on others. And what does HIV/AIDS have to do with it? Does that mean we should STOP talking with people just because we might spread the flu to them?
  34. Peter Cox from Toronto, Canada writes: Arzie Chant: Anyone who knows anything about the Canadian and American judicial systems knows that the Canadian system is vastly superior. What utter nonsense. The only person who has the power to appoint judges to the Canadian Supreme Court is the Prime Minister. The Canadian PM could appoint a chimpanzee to our court and no one can stop him! I would suggest that this makes our court very politicized! In the USA, the system is far superior where the President does NOT appoint judges to their Supreme Court; he/she can only nominate candidates! Yes, in the USA at the state level judges can be elected but at the Federal Level they are appointed! The system in the USA is far superior to ours in Canada.
  35. John Smith from Montreal, Canada writes: Brian Dell said:"You call for democracy yet the Charter is by its very definition anti-democratic! Without the Charter, democratically elected Parliamentarians would not having their legislation reversed by unelected judges. You don't see any irony in appealing to democracy in a thread about the Charter?"

    This is how a constitution works: it prevent a political party to radically change laws (knowing that they can't be kicked out of power for at least 4 years). Also, the Charter was approved by the government and accepted by the provinces (except Quebec, but that's another story). As such it is exactly what it is: a democratically approved document that must be followed. Current government and those that have yet to be elected need to deal with the previous decisions and can rule with no greater power than the mandate they got (ie. they won an election and that's all). If they are not happy with the Charter or want a greater "mandate" to pass their agenda, then they can put forward a constitutional amendment to change something in the Constitution which in turn will require the approval of a majority of provinces (I will spare you the details). But yes, the Charter is democratic, and if the elected official feel that the judges have handed down a wrong decision, they can use the notwithstanding clause (but in every SCC decision, the government must have privately accepted that they were wrong because so far this clause has never been used).
  36. Brian Dell from Edmonton, Canada writes: W M, if you don't "support Harper's extremely politicized approach to dealing with the problem" then how to you propose to solve the problem? It is all fine and well to criticize Harper for trying to introduce more transparency (e.g. have the most recent SCC appointee appear before Parliament) and introduce more diversity to the panels that recommend judicial appointments (see the link to the other G&M story I provided earlier in this thread). But I don't see you coming up with alternatives.

    Also, how do you come up with a "Bush camp" here as being opposed to the "Binnie camp"? Bush's appointment of Harriet Miers was directly analogous to Chretien's appointement of Binnie; that is, unqualified and based on personal connections. It was the transparency of the US process that forced Bush to back down. In Canada, a PM's judicial appointments are, and have been, unreviewable and unstoppable. How is it possible for Bush to be an ADVOCATE of the US appointment process when that process BLOCKED what Bush wanted to do?
  37. hugh machugh from Canada writes: Justice Scalia is of course, like most people, often correct but sometimes incorrect. It is worthy to note his comment about the "living tree" concept of a Charter of Rights which encourages judges to make anti-democratic decisions that extend "rights" to questionable groups such as bigamists and pederasts. These comments draw the same-sex marriage legislation of Canada into the discussion. The Canadian Supreme Court dithered in its attention to the definition of the word "marriage". It passed the buck on to others, and refrained from conclusively defining the word "marriage", even though it is absolute that the Canadian Constitution uses the word "marriage" in the heterosexual context. As a result, the Liberal government, through a non-free vote in Parliament, managed to produce a same-sex marriage bill. A further result is that the same-sex marriage legislation now legitimizes the male homosexual "gay lifestyle" sexual culture which widely includes anal intercourse, as part of the institution of marriage. The Canadian Medical Association, Home Medical Guide, 2001, has stated that "anal penetration" can be "particularly hazardous" to the human body because the tissue of the lower intestinal tract is "easily damaged". In addition, medical experts have commented on the negative aspects of this act in the media (for example, Chronicle Herald, Halifax, Sept 13/06 p. B5). In view of these factors, and in that the married heterosexual community overwhelmingly disassociates itself from this act, it would appear that the "gay lifestyle" community's "right" to be included in the traditional marriage institution is highly questionable. Perhaps the word "union" should replace the word "marriage" for the gay community? Are these some of the things that Justice Scalia may be hinting at?
  38. W M from Canada writes: To all the people arguing about specific rulings, please remember that we are talking about a process, rather than the political leanings of specific rulings. If the precedent of judges straying over the line to lawmaking is allowed go unchallenged, there is nothing to say that the judges of a right wing temperament (particularly those appointed by the new Harper process) might not take equal advantage of the powers being invented for itself by the current court. Rather than arguing about the pros and cons of specific rulings, try considering how you would feel if right wing judges eventually take control and start ruling against your preferences. REMEMBER, constitutions are about processes and powers, they cannot dictate the attitudes of the people who will one day use the powers.

    If you are still having trouble with, consider the fact that the same people who might welcome a dictatorship of the godlike Mr. Binnie would be appalled, if Stephen Harper were to inherit those powers. I.e., don't just argue; think about what you are really arguing about. This IS NOT about gay rights, etc., it IS about judicial powers.
  39. R. P. McMurphy from Brampton, Canada writes: I agree to a degree with Scalia - that there is nothing special about Judges that permits them to engage in free-wheeling 'social engineering'; although I do not adopt his 'originalist' approach to Constitutional interpretation. That being said, the Supreme Court of Canada exceeded its bounds when it began to define analogous 'human rights' out of whole cloth, and thereafter move to protect them. That is for the Parliament, not the unelected courts to do.
    There is no doubt that the selection process for unelected Judges with life-long tenure is far more open and transparent in the US than in Canada. Political favoritism is discovered through confirmation hearings there; it is a closeted secret in Canada. There are many Judges who are appointed not because of their legal acumen but because of their political contacts - and Justice Binnie is just one of them.
    Moving back to the living tree issue for a moment, the problem is that the development of the tree is dependent upon the makeup of the Supreme Court of Canada. Where you have Judges who do not feel confined by anything other than their own sense of moral relativism as to what is 'right', then, in the absence of defined paramaters provided by the constitutional document, democracy does suffer as the Judges make more and more of the moral decisions the Parliament should make. The 'discovery' and 'protection' of heretofore unrecognized 'human rights' by an unelected body may may for a more rights driven society, but it does not make it a democratic one. Further, there are different types of rights to consider here. Postive and neagtive rights. The rights of an individual to be left alone by the State - to practice, for example, homosexuality in his or her home; in contrasts to positive rights where the party argues the State and all individual MUST recognize and support their 'right', at their costs - the payment of same sex benefits. Parliament should decide issues of the public purse, not the Courts.
  40. Karol Karolak from Canada writes: Dr. Winston O'Boogie from Liverpool, Canada writes: Karol Karolak forgets to add that the single largest factor in the decline of violent crime over the past 30 years was due to the legalization (and increased accessibility) of abortion. Posted 17/02/07 at 9:57 AM EST | Alert an Editor | Link to Comment Dear Dr. Winston O'Boogie from Liverpool I understand that you took the bait the hook and the sinker offered to you by Dr. Henry Morgentaler. http://communications.uwo.ca/western_news/feature.html?listing_id=18648 You would do quite well to study psychiatry and Dr. Morgentaler's biography. Ideology and practice as invented and implemented by a survivor of Nazi Concentration Camp does not make for a good social policy. Dr. Henry Morgentaler according to some people is the most prolific murderer of modern times, on this account he certainly outdid “Angel of Death” Dr. Joseph Mengele of Auschwitz. This argument about availability of abortion and decline in crime rate is unsupportable by any available evidence as there are way too many other factors. One could advance the claim that redistribution of wealth thru taxation system and raise of middle class was the most decisive factor in decline of crime rate over last 30 years. That claim can as easily be as well supported as Dr. Morgentaler’s manufacturing of reasoning to support his practice, I have no personal stake in supporting such claims and my explanation does not involve such extreme measures as killing. Dr. Morgentaler’s claims should be tested by examining societies that did not legalize abortion but underwent similar economic transformations to see if it has any merit. To me personally it is horrifying that survivor of Nazi atrocities would adopt and endorse philosophy very similar to the one that lead to his own suffering, Dr. Morgentaler’s philosophy to kill all potential criminals before they are born and crate concentration camps is faulty if not totally paranoid.
  41. Black Listed Guy from Canada writes: This is about the tenth time I tried to post this. I hope it works this time.

    Some people here have stated that "[Judges] are not there to make moral decisions, but legal ones."
    Yes, that is true, but it's also true that governments are not there to make moral decisions (e.g. "The state has no place in the bedrooms of the nation"). It is the judges role to quash governments' attempts to dictate morals.

    Judge Scalia said, "What democracy means is that the majority rules,"
    This is wrong. Democracy does not transcend the rights of the citizen for whom it is supposed to serve. Our Charter of Rights is to protect us from majority (mob) rule.
  42. W M from Canada writes: To Brian Dell, since you ask, I think that the problem is A) the court is too politicized (not just too far to the 'left') and B) that it has overstepped its powers. Problme 'A' can't be fixed by replaced 'left' leaning judges with equally politicized 'right' leaning judges. Therefore, my preference would be to work toward a constitutional ammendment that more clearly limits the scope of the court. That will require patience, but is also far more likely to produce the result I desire. Harper's approaches tend to be short sighted. Let's take his "let's elect the senate today" idea. The senate has enormous powers that it tends to use sparingly for fear of being disbanded altogether. If elected, we would be fools not to expect the senate to follow the lead of the courts and use every power at its disposal. And, once you give them the power, what are the chances that the regions that have an inordinate number of senators will ever agree to a sensible distribution of seats or sensible limits on powers (FYI, Alberta is underrepresented at present). Note, for example, that all equalization in Canada currently comes from two provinces, with about 50% of the population and less than 30% of the senate seats. In a 'Triple E' senate, that would drop to less than 20% of the seats and the equalization-receiving provinces would have over 80% of the seats. The four Atlantic provinces plus the territories currently have about 6-7% of the population and over 30% of the senate seats and this could grow to 40% to 50% of the seats in a truly 'Triple E' senate. Does that make sense to you? And yet, that is precisely what Harper is pushing. The point I am making is that identifying important issues is the easy part. The truly critical part is coming up with solutions that make things better, rather than worse. That requires a clear head, whereas Harper's appears to be far too clouded by anger over past slights, partisanship and ideology to achieve that.
  43. Geoffrey Diss from Berlin, Germany writes: Karol, thanks for the advice about the pudding. I won't venture to imagine that you speak from experience as to the matter of how it all tastes. Personally, I prefer large carrots and cucumbers. Fewer calories and more bang for your buck!

    But getting back to your argument that legalizing "sodomy" - by which I assume you mean anal sex, homosexual or heterosexual - and same-sex marriage furthers the spread of HIV/AIDS, it seems to me that HIV/AIDS has spread and is spreading far more rampantly in jurisdictions where "sodomy" is still illegal and same sex marriage is unthinkable. Indeed, if you look at the countries that have more liberal laws on sexuality, you find that they are also the ones who have brought HIV/AIDS, both among homosexuals and heterosexuals, under control the best. It seems to me that when societies condemn and demonize people for their God-given sexual orientation and behaviour (and here I am, of course, only referring to consensual sex between adults), the likelihood that those people will behave self-destructively and irresponsibly only increases.

    Respect people and demand their equal status before the law. Judge people by their public deeds, not their private, consensual kicks. Gay people want to lead healthy, productive lives as much as anyone else. Our Charter of Rights and Freedoms is there to try to ensure that they and other minorities have the same chances to do so as much as anyone else - Harper judicial appointees notwithstanding.
  44. Gail Thomas from Waterdown, Canada writes: I am not surprised by the US bashing, but I wish liberalism would decry the use of lowlife language like calling a US Supreme Court judge a "dirt bag". When people use profanity, it just shows they haven't anything more intellectually challenging to say.
  45. John Smith from Canada writes: Judge Scalia is of the position that moral judgements are not the purvue of judges, yet the way we define democracy, and the way we define moral judgements, both require a degree of moral judgement themselves. By not overtly recognising this Scalia is either hiding truth to bolster a position, or unaware of the contradiction. Either way, he undermines his own credibility. In blunt terms, he is either a liar or a cheat, both of which are moral positions which have no place in the judiciary.
  46. Jessica B from Fredericton, Canada writes: Karol Karolak- Your reasons for our decline in birthrate are simplistic.
    I believe our declining birth rate is due to the increased level of education in our country.
    Canada is receiving praise for it's level of education. Most university students do not graduate from university until early to mid twenties.
    Educated people establish a solid career to maintain a steady income level to support a family - which could take several years.
    Be proud that Canadian youth are not steering themselves toward crashing manufacturing markets and dead end jobs. Education has now become a life long pursuit.
    If your moral concerns for Canadians were genuine then you would educate yourself with more than one source of information. The information you are spouting is archaic.
    Perhaps if you fought for better child care and part time work for parents your efforts might encourage a population growth.
  47. Elmo Harris from Niagara, Canada writes: Vern McPherson from Toronto, it is my belief that Karol Karolak is both nuts and has been somehow obtained access to a computer and the internet. He has nothing to say, is usually off topic, and fills this forum with nonesense. I am saying this without malice. It is best to just skip over his nonsense because he will just waste your time.
  48. Derek Lefebvre from Vancouver, Canada writes: Hugh - So how does the medical issue affect Lesbian couples (they are also 'gay'). The focus on male homosexuality as a condemnation of all gays is even weaker than trying to defend yourself by stating that anal sex can be harmful to ones health = no "marriage".
    That being said one can argue since men who are not circumsized shouldn't be "married" as they it is less healthy than being circumsized (cleanliness, disease).
    utterly ridulous notion I agree but then again so is your arguement
  49. S Muhlberger from North Bay, Canada writes: If Scalia really believes that no convicted murderer could possibly be innocent, he should be impeached for being unable or unwilling to sift and evaluate evidence dispassionately.

    If he doesn't believe it but said it to pander to some constituency, he should be impeached.
  50. The Observer from Canada writes: I am personally opposed to the "living tree" model of a charter because what it does in in fact negate the very reason that we have such documents. These rights are supposed to be unalterable, and reading in new rights is very dangerous. The idea that rights should evolve with the changing values of society creates the very conditions that will, if the right circumstances arise, destroy the very freedoms that we cherish. In that respect the U.S. constitution is by far superior than Canada's. Take for example if the "norms" of society drastically change, by whatever reason the new powers that be decide that it is now necessary to radically alter the interpretation of the Charter because the current set of "rights" is now out of style, there will be precedent set for them to do so. At this time, the changes in the interpretation of the Charter are rather benign, but say in the future certain groups, who have now grown substantially in size and have representation in the Supreme Court, decide that it is unconstitutional that they are denied the right to exercise their traditional ways. Suppose these traditional way infringe on the rights of others, but as the Charter is a "living tree" these rights may no longer be as important to the judges at this future time. Who then will protect this group in the future? The very reason for a Charter is to protect members of society from the whims the current political zeitgeist. Therefore the "living tree" model of a Charter would seem a little less desirable would it not?
  51. W M from Canada writes: Can anybody tell me how to RELIABLY insert breaks between paragraphs? I always try by using the return key. However, sometimes the post appears as it was when I sent it; but most of the time the breaks disappear and the post appears as an incredibly long paragraph. Whether my breaks stay or get deleted, seems to be somewhat random. Any suggestions?
  52. William Davies from Vancouver, Canada writes: In a democracy it is a judges duty to interpret
  53. Dr. Winston O'Boogie from Liverpool, Canada writes: Karol Karolak: how presumptuous & how incorrect you are. You are quite the spin-doctor aren’t you? Like your posts and your responses to Geoffrey Diss, you have nothing factual or relevant to say. Why do I even respond? Because it’s fun to counter your trash-talk.

    Now: Why would you assume my point has anything at all to do w/ Morgentaler? Statistical evidence has been put forth by economists Levitt & Dubner to support my point. What facts or statistics have you to suggest otherwise? (And a blog from some pundit won’t cut it).
  54. W M from Canada writes: Dear Observer - that is an excellent observation!
  55. The Emperor's Paparazzi from Canada writes:
    Observer, are the "rights" under the Charter really changing, or are those rights being applied to our laws one at a time as cases emerge?
  56. William Davies from Vancouver, Canada writes: Look up krytocracy. They are blocking my post
  57. Karol Karolak from Canada writes: Geoffrey Diss from Berlin, Germany writes: Karol, thanks for the advice about the pudding. I won't venture to imagine that you speak from experience as to the matter of how it all tastes. Personally, I prefer large carrots and cucumbers. Fewer calories and more bang for your buck!But getting back to your argument that legalizing "sodomy" - by which I assume you mean anal sex, homosexual or heterosexual - and same-sex marriage furthers the spread of HIV/AIDS, ........

    Posted 17/02/07 at 12:24 PM EST | Alert an Editor | Link to Comment

    Geoffrey Diss as far as pudding goes, I just repeated an advise given to me by an old sailor when I have suffered from sea sickness. When it comes to carrots and cucumbers you have fooled me when you wrote this thing about throwing up. Look man, if you have mastered art of using your digestive tract running backwards by ingesting carrots and cucumbers thru your colon than please do not give me this bull about my logic causing you to throw up and just state that you felt like time your has come to empty your digestive tract.
  58. Dr. Winston O'Boogie from Liverpool, Canada writes: To The Observer: And does “The Right to bare Arms” also make the US Constitution superior? Your argument is the same argument the NRA makes. Maybe back then, the right to bare arms was meaningful, but what good has it done for the US lately?
  59. D C from Canada writes: The "constitution" came to Canada in a wave of nationalism and optimism that seems to infect everything the Baby Boomer touches upon in society. WHat a fascinating era it was. The FLQ had been beaten to the ground. War in Vietnam over. Boomers were settling down to a lifetime of dreams of Woodstock and looking ahead to their RRSP growth. But no one then or now thought to very much about why or how the incredibly smart people would want to change the system of government of Canada. Now, we can see that the "social management" which is the hallmark of the left, the Liberal and the socialist the world over has been cemented in place. A republic has been born , superimposed on our monarchial parliamentary democracy, where Parliament was once supreme... we now have a Supreme Court .
    Well look. Good on you ! Good luck with that! Butu in your Scalia arguments and all, has anyone recognized that the American COnstitution, America being an actual Republic --- the way changes are wrought is through AMENDMENTS ? Like the 1st Amendment ? The 14th Amendment ? Amendments , Ladies and Gentlemen are wrought by the elected houses of the US Republic ! Not Judged ! "splain to me how Canaduh do dat ? mmmm ? Cat gotcher tongue ?
  60. William Davies from Vancouver, Canada writes: In a democracy it is the judges duty to interpret and apply the law. It is the elected officials the legislative body's role to make the laws. Activist judges usurp the role of the elected official and instead of a democracy you now have a krytocracy.
  61. William Davies from Vancouver, Canada writes: Krytocracy where judgements are arrvived at by the personal opinions of the judge.
  62. R. Hay from Canada writes: D C talks about the 'social management' of the Liberals. That is proof enough for me that left and right will never find common ground. The ideological differences will leave each side forever accusing the other of social manipulation. The right is perfectly capable of social manipulation. But never mind, the real manipulation is coming from the corporations. How that will affect our laws, I don't know. And to Observer: to take your argument to its furthest possible extent- society could change so much that not a trace of it would be reflected in the laws. Civilizations are living trees and everything dies, so I consider the Charter as a temporary measure on the road to . . . ?
  63. D C from Canada writes: Mmmm . Bare arms. Personally I would prefer to bear arms, as it is a little cold today to bare them . But then again I am not a product of lib/left permissive system of schooling where we push everyone through regardless of their class and status thus ensuring only a very few, those who went to Ashbury or Bishop's or Lakefield College Schools will ever be in the rarefied circles of the krytocracy.
    Constitutionalists want us all to be equal...equally poor and equally bereft of book learnin'
  64. N__ Liberale from Burlington, Canada writes: Karol Karolak -- I am disgusted with you, I can only hope that you are NOT an immigrant, because if you are, you are a disgrace to the immigrant culture....This country was and is designed to accept all people, regardless of race, relgion or sexual orientation...If people like you are uncomfortable with that, then I would suggest moving down South to Oklahoma, I think you will find their laws and judges more to your liking....By the way, HIV is now predominantly spread by heterosexuals, and not by sodomy....Please take a basic class on how the disease spreads, and what you will see is that the people highest at risk are those with a lot of partners...Therefore, by allowing same-sex marriage we take one more portion of the population out of the multiple partners equation...It's simple mathematics, but clearly any idea that requires an IQ above ten is clearly out of your range.....
  65. von foopendorf from Canada writes: i agree with the democractic view. judges have no authority to undemocratcially force their views on moral issues upon the citizenry. we are to decide such matters, not judicial oligarchs. they need to have their powers curttailed and to be reprimanded. their roles should not have changed since before the 82 charter came into effect. as a citizen i demand democracy take priority over minority rights.
  66. N__ Liberale from Burlington, Canada writes: Yes D C - Thats right, get rid of the charter which makes us all equal...Then only the White Anglo-Saxon Protestants (WASP's) will have power and book learnin'.....Perfect, a country filled with rabid right-wind=gers, how delightful (insert sarcasm here)
  67. N__ Liberale from Burlington, Canada writes: von foopendorf - Which minority rights would you like to strip away...I hope that you are a White, Christian right-winger, because if you aren't I feel sorry for you....We are all minorities in some way or another
  68. William Davies from Vancouver, Canada writes: USA, Canada, Europe, Russia etc. which has the best system, time will tell. What is important is that the people get to elect the officials who make the laws, not a privileged few appointees.
  69. Karol Karolak from Canada writes: Elmo Harris from Niagara, Canada writes: Vern McPherson from Toronto, it is my belief that Karol Karolak is both nuts and has been somehow obtained access to a computer and the internet. He has nothing to say, is usually off topic, and fills this forum with nonesense. I am saying this without malice. It is best to just skip over his nonsense because he will just waste your time.
    Posted 17/02/07 at 12:34 PM EST | Alert an Editor | Link to Comment

    Elmo Harris please follow your own advise instead of wasting your precious time and your superior intelect in trying to argue with me as you did for so long last night, I am glad to read that your Narcissistic Rage Attack did not last thru the night.

    Cheers,
  70. D C from Canada writes: Hey N__ Liberale from Burlington, the dumbing down of the citizenry isn't my fault. But the privileged , be they WASPs or not, will still be the ones who have been accorded a better than average education, and by law of natural selection that will be people with money to guarantee they get the best education for sons and daughters.
    equal=equally poor.
    Remember the WASP believe in Equal Opportunity !! The Lib/Socialist , framers of the Charter, believe in Equal OUTCOMES ! and that can't be good for anyone.
    The salvation of this land lies in a healthy middle class. You and yours Mr. N - j'accuse of trying to destroy the middle class for 40 years now.
    The French Revolution and the 1930's Germany shared the same intent - destruction of the Middle Class. Careful what you wish for then.
  71. Dr. Winston O'Boogie from Liverpool, Canada writes: And D C: how about the right to bear breasts?
  72. Karol Karolak from Canada writes: N_ Liberale from Burlington, Canada writes: Karol Karolak -- I am disgusted with you, I can only hope that you are NOT an immigrant, because if you are, you are a disgrace to the immigrant culture....This country was and is designed to accept all people, regardless of race, relgion or sexual orientation...If people like you are uncomfortable with that, then I would suggest moving down South to Oklahoma, I think you will find their laws and judges more to your liking....

    N    _ Liberale from Burlington I am disgusted with you, I can only hope that you are NOT an immigrant, because if you are, you are a disgrace to the immigrant culture....This country was and is designed to accept all people; terrorists, peophiles, criminals, sexual deviants, HIV/AIDS carriers, regardless of race, relgion, sexual orientation or criminal record....If people like you are uncomfortable with that, then I would suggest moving down South to Oklahoma, I think you will find their laws and judges more to your liking.
  73. D C from Canada writes: hey Dr. Winston O'Boogie from Liverpool --- there are good breasts...there are bad breasts . I am sure that somewhere in the Charter the breasts are all equal, and therefore free to be equally bared ! But I have seen 60 year old Scandahoovians topless on a Cannes beach, and like Seinfeld says "there's good naked and there's bad naked".

    There's an intersting point - if you can bare 'em , does the Charter say anything about my right not to be offended by what impinges upon my visual receptors ? Mmm?

    If you burn your bra, are you in violation of Kyoto ?
  74. Dr. Winston O'Boogie from Liverpool, Canada writes: D C We have a constitutional right to “Not be Offended” now? The laws regarding obscenity are pretty vague…. I wonder if that’s also on the PM’s plate?
  75. David Pounder from Lethbridge, Canada writes: My opinion is that Judge Scalia errs when he claims, "What democracy means is that the majority rules." That is not democracy; it is the tyranny of the majority. As has been said in the G & M before, the measure of a democracy is not whether it succumbs to the will of the majority, but by how well it protects its minorities.