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13 years ago @ Macleans.ca - Why our highest court ... · 0 replies · +1 points

You speak of the "the democratically expressed will of the people". What is this supposed to mean? There are many different kinds of democracies. For example, the U.S. and Canada are different kinds of democracies. As far as I can determine all democracy means is - that people have the "right to vote". So, people have the "right to vote". That doesn't tell you anything about either the form of the democracy that people are voting for or how the winner is determined.

Different Forms of Democracy:

- U.S. - three levels for government (Supreme Court, Executive, Legislative)
- Canada - Parliament

and there are many other examples

How The Winner Is Determined

- majority (more than 50%)
- first past the post (largest number of votes)
- proportional, etc.

In Canada, one can win a "majority government" with less than 50% of the vote. Hard to see how that would reflect - to use your words - "the democratically expressed will of the people".

Next, we have the problem that democracy is not the only issue. Freedom is at least as important (and I would argue more important than democracy). Democracy (the making of laws) usually restricts (freedom). Constitutional restrictions are for the purpose of establishing the rules of democracy. In many countries, part of the rules of democracy, are that: The Democratic Process cannot restrict personal freedom in certain key areas. For example, you would not (I presume) think that the democratic will of the people could be used to legislate an official government religion.

Assuming freedom is a vital human interest, no form of democracy can be used to burden it in fundamental areas (examples include: freedom of expression, legal rights, right to vote, etc). The government itself enacts laws that burden freedom. Therefore, restrictions must be built in to the democratic process to ensure that government cannot burden freedom in fundamental areas. This is what a Charter of Rights is - i.e. protection from the government. Since governments cannot be trusted, it is important that the Courts exist in order to protect the people from their government.

Therefore, courts are necessary to ensure that governments "play fair" in the context of a democratic form of government. To put it another way: The Supreme Court of Canada is there to ensure that the government is in fact operating within the democratic process. The supreme court of Canada enhances democracy. It is does not detract from it.

You seem to be saying:

1. Democracy means that a government can do anything it wants.
2. Canada is a democracy.

Therefore, Canadian governments can do what they want.

No - governments cannot and should not be able to do anything it wants.

14 years ago @ Macleans.ca - Crossing the line · 2 replies · +1 points

I would add that the same principle applies to Blackberrys (and I don't mean importing fruits and vegetables). In the case of email, one is also giving customs access to emails FROM others (and thereby exposing their confidential information as well).

“Freedom has its costs”. There is always a tension between “Freedom” and “Security”. It is unfortunate that our legal system is evolving to the point where the “ends” always seems to justify the “means” – in my opinion this is wrong. An expectation of privacy is a vitally important societal value. (The United States Supreme Court relied on this value to justify its decision in the infamous Roe v. Wade case).

Freedom has a cost. The cost is that there will always be people who do not share your values and perspectives. Let’s remain free – the content of blackberrys and laptops should remain private.

14 years ago @ Macleans.ca - Judging Beverley · 0 replies · +1 points

See an interview with Justice Sotomayor at:

http://www.c-span.org/Watch/Media/2009/09/25/HP/R...

This is a great example of how the public can learn about their judges. It's hard to imagine this happening in Canada.

The contents of this interview are commented on in the following USA Today article.

http://www.usatoday.com/news/washington/judicial/...

John Richardson - Toronto, Ontario

14 years ago @ Macleans.ca - Judging Beverley · 0 replies · +1 points

For another interesting article which describes the relationship between "Who judges are and the kinds of decisions they make", see Kirk Makin's article in the July 21 Globe.

http://www.theglobeandmail.com/news/national/is-t...

This article describes a new book by Professor Songer called: "The Transformation of the Supreme Court of Canada".

The article includes the suggestion that:

"All of the judges indicated that they believed that their personal attitudinal preferences affected their votes and opinions at least some of the time," Prof. Songer wrote. "The evidence is strong that in a substantial number of politically significant cases, the justices' private political attitudes and preferences influence their decisions."

Prof. Songer also noted a "moderately strong relationship" between the federal party that appointed a judge and his or her policy preferences. "Notwithstanding disclaimers that judicial ideology is not actively considered in judicial selection," three of the judges actually confirmed their belief that this is so, he said."

It is clear that the appointment of judges must become more democratic!

John Richardson - Toronto, Canada

14 years ago @ Macleans.ca - Judging Beverley · 0 replies · +1 points

http://www.youtube.com/watch?v=GjiwI_S2qpc

An example from the Sonia Sotomayor hearings.

John Richardson - Toronto, Canada

14 years ago @ Macleans.ca - Judging Beverley · 0 replies · +1 points

Thanks for a very interesting article. It is nice to actually learn something about the judges who have such an influence on our lives. Your article is particularly timely, given the proceedings in the U.S. Senate about the nomination of Sonia Sotamayor to the U.S. supreme court.

Canadian Supreme Court judges (and the Chief Justice in particular) are the most powerful people in the country. They have greater longevity and influence than the Prime Ministers who appoint them. This is especially true since the enactment of the Charter of Rights (which gives the court the power to declare judges unconstitutional). Yet the appointment of judges is neither democratic nor transparent. The appointment of judges is still at the sole discretion of the Prime Minister. The recent appointment of Thomas Cromwell is an example of this failing. Canadians have a right to know who their Supreme Court judges are and have input into how they are appointed.

I was appalled by the Supreme Court's recent attempt to "hide" from Canadians. You described this in your article as follows:

"A recent incident demonstrates the attitude of our own Supreme Court. David Weiden is a professor of political science at Indiana University-Purdue University. In 2006, he published Sorcerers’ Apprentices, a book about law clerks at the U.S. Supreme Court. Weiden became interested in their Canadian counterparts, and was given a research grant by the Canadian government to study their “impact and influence.” He sent a survey to all former law clerks, hundreds of them, some having had the job 30 or 40 years ago.

Our Supreme Court was not amused. On June 3, Jill Copeland, the court’s executive legal officer, sent an email to former clerks. It accused Weiden of giving out “inaccurate information” about the court’s position on his survey, a serious charge against anyone, let alone a professor pursuing research. It also said participating in the survey would violate confidentiality obligations which “are not limited to information about cases, but also extend to internal processes of each justice’s chambers.” Weiden was baffled; this had not been an issue in the United States. Some former Canadian law clerks were puzzled by the sweeping prohibition; some resented it as overreaching."

The public has a right to know who their judges are and how they make decisions. In this respect the United States is an appropriate role model for Canada. Sonia Sotomayor has been nominated (not appointed) by President Obama for the Supreme Court of the United States. She is subject to Senate hearings (this is "democratic input"). There is a great deal of public information about her (this is "transparency"- do a google search). Her Senate confirmation hearings were on CNN all week.

This example of "democratic input" and "transparency" is something that should be a part of all democracies. The Thomas Cromwell appointment to the Supreme Court of Canada should have been carried out in this way.

Thanks again for a great article!

John Richardson - Toronto, Canada