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Re A Look At The Supreme Court Judge Canada Almost Got (Oct. 2): Professor Joel Bakan correctly identifies the flaw in the originalist theory endorsed by Federal Court of Appeal Justice Marc Nadon; the theory accepts that legislators make law, and judges must apply the law mechanically. But this is impossible, because choice is inevitable due to the inherent ambiguity of language.
In every case, a judge must choose which of several competing meanings to adopt. Put another way: In every case, a judge has discretion to exercise which will determine their final decision. This becomes a problem only if judges base their choices solely upon their own personal values instead of the values of the community.
Such arbitrary decision-making is unacceptable but may be avoided by requiring decision-makers to expressly reveal the values relied upon in reaching a decision. Over time, the community itself can oversee and police whether a judge is principled and disciplined in applying fundamental community values to arrive at a just decision.
The originalists, including Justice Nadon, would be more likely to escape restraint and present the greatest risk of arbitrariness, because they deny having any choice of values to make. The real basis of their decisions would therefore be concealed.
Leo Barry, Justice of the Court of Appeal of Newfoundland and Labrador (retired), St. John’s
A question of democracy
Re Johnson’s Brexit Approach Is ‘Absolutely Correct,’ Harper Tells U.K. Tories (Oct. 2): Stephen Harper has savaged the decision of the Supreme Court of the United Kingdom that Boris Johnson’s attempt to prorogue British Parliament is illegal. That Mr. Harper would do this is not surprising, since the decision is in effect a repudiation of his own two prorogations of Canadian Parliament. But he also seems to believe that Canada and Britain should be run as executive democracies, not parliamentary ones – a view that would be consistent with his positive outlook on other populist movements in countries such as the United States and Hungary.
As we head toward an election, it would be useful to know how much the present leaders of Canada’s political parties may agree with Mr. Harper. Their answers would speak to a critical question about the nature of Canadian government and their likely behaviour if they come to power.
Chris Levy, Professor of law (retired), University of Calgary
24-hour political people
Re No Proof FBI, RCMP Ordered Border Guards’ Examination Of Meng, Crown Says (Oct. 3): One solution for strained Canada-China relations would take all of 24 hours: Ease the security assigned to Meng Wanzhou; remove her GPS ankle bracelet; declare her a non-risk to escape; return her passport.
Within hours, I bet relations would be resolved. It seems, anyhow, that the United States has changed political focus to its own domestic quagmire.
Stanley Peltier, Edmonton
Should Macdonald stand?
Re Kingston’s History Lesson: How To Handle Legacy Of Canada’s First PM (Sept. 30): In Sir John A. Macdonald’s time, there was no outcry of racism against his categorization of Indigenous people as savages, nor his imposition of a Chinese head tax. Decades went by, and there was still no outcry of racism against Sir Robert Borden’s decision to refuse entry to a shipload of immigrants from Punjab, India, in 1914, nor Mackenzie King’s decision to forbid all Chinese immigration in 1923, refuse admission to a shipload of Jewish refugees in 1939 and place Japanese Canadians in internment camps in 1942. All these actions enjoyed widespread support.
If our leaders were racist, they were acting with the support of the vast majority of Canadians. Condemn them if you choose, but also condemn our citizen forebears.
David Beattie, Chelsea, Que.
The whole of Sir John A. Macdonald’s vast legacy lately feels far too centred on one issue: Indigenous people. But that issue, owing to long overdue oversight and address, has now seemingly morphed into the sole raison d'être of his entire political life.
The fact that residential schools were mismanaged, and Indigenous children grievously exploited by those given their subsequent charge, care and management, is not Macdonald’s fault, although it has become convenient to blame him. You don’t blame the architect and builder of a house for any abuse that takes place by subsequent tenants in that house.
Macdonald seems to be an easy target because he’s standing right there in bronze – as he should be. But he is not the right target. Systemic racism and exploitation by the teachers, caretakers and administrators of residential schools over the years are the real culprits.
W.E. Hildreth, Toronto
Re PM Macdonald: Loving It? (Letters, Oct. 1): Many letter writers believe that rethinking Sir John A. Macdonald’s legacy, far from being an effort to understand our roots as a nation and our relationship with Indigenous people, is actually a historically ignorant and revisionist act of cultural imperialism, in part because the actions of our forebears have no relationship to our current morality and thoughts.
And yet, today, I don’t exactly see settler Canada chafing under an Indigenous empire that has tried to systematically eradicate their culture for centuries. The majority of Canadians are not discriminated against like many Indigenous people still are today, in ways that seem eerily similar to some of the deprivations of the past.
As many Indigenous leaders have said, what if we stopped arguing about symbols and definitions, instead putting more tangible effort toward fixing continuing inequalities? What if that started with telling the truth?
Conrad Sichler, Hamilton
Academic health, mental health
Re University Of Toronto Installs Safety Barriers After Third Student Suicide In 18 Months (Sept. 30): Many students at the University of Toronto were surprised on Monday when they learned that a student had killed themselves on campus last Friday. Monday marked only the fifth week of classes for most programs. This news immediately brought to mind a series of faculty proclamations during my graduate orientation last month, which set my teeth on edge.
Multiple faculty members took turns explaining the challenges of graduate school: that this program was definitively hard, that we could expect to break down at least one time, that “if we think you’re doing okay, we’ll push you even harder" and “we know we’re asking too much, but it’s because we want you to succeed.” The following week during first classes, each professor took the obligatory moment to point out the link in the syllabus which directs students to mental-health services if they are in distress and to restate how important mental health is.
I wonder how faculty reconciles these two views. To advocate for both concepts with equal conviction seems both inappropriate and disrespectful to students. Educators want to push their charges to grow. But what if they push too far? What if they fundamentally exceed my cognitive, psychological and emotional limits – and I break?
In places of higher learning, workload no longer seems to function as faculty intends: as a mechanism to evaluate talent and skill. It’s clear to me that the lasting mental harm that can be caused by academic overwork should be a priority issue for all our colleges and universities.
Pavlina Faltynek, Toronto
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