Monday, June 13, 2016

Trudeau Needs a Justice Minister Who Understands the Law of Canada

When justice minister Jody runs afoul of the legal mind of Joe Arvay. That's one thing. Regrettable, sure, but hey, it's Jody. When she refutes the wisdom of the top constitutional expert in Canada, Peter Hogg, Jody has one deep-seated, serious problem - herself.

The issue, of course, is the Carter decision of the Supreme Court of Canada and how much leeway justice minister Jody has to defy the Charter of Rights and Freedoms to whittle away the constitutional protections of severely afflicted Canadians.

Jody has sent a background paper to Canada's senators arguing that Trudeau's bill C-14 is "Charter proof." Jody is cleaving to the sophistry that the restrictions in C-14 are necessary if we're to avoid a stampede of people out to off themselves. Following the SCC decision, she maintains, would encourage suicide.

Josh Paterson, executive director of the British Columbia Civil Liberties Association, a plaintiff in the Carter case, said it doesn’t matter “how many new purposes they put in the bill or how many bells and whistles and safeguards they impose,” the legislation is unconstitutional because it maintains an absolute prohibition on assisted dying for all those who are not close to death.

Canada’s leading constitutional authority, Peter Hogg, last week noted that the top court specifically directed the government to enact legislation “consistent with the constitutional parameters” set out in the Carter decision. Excluding all those who are not terminally ill from the right to assisted dying is not consistent with Carter and will thus be inevitably struck down, he told a Senate committee.

We already have a highest court of the land and it's not Jody much as she might think otherwise.

Here's an idea. Why not just pass C-14 on condition that Jody agree to resign, not her portfolio but her seat in Parliament never to seek office again, if when Canadian judges throw it out as unconstitutional?


Toby said...

One wonders why Wilson-Raybould is charging off on the wrong foot, in this and other issues. Is she getting some terrible advice? If so, from whom? The Supremes set the rules. What's to debate? Why deviate?

Trudeau and his Cabinet seems to be pandering to political expediency rather than do what is right. Yes, most of them are fledglings but some of the issues are straight forward. Are any of them learning? Is this a one term government?

Dana said...

It will certainly now be interesting to watch when someone challenges this to the Supremes. I wouldn't put money on the Court declining to comment on her observation.

The Mound of Sound said...

If this gets to the SCC again it will be on an appeal by the federal government and possibly one or two provinces. It won't be brought by another Sue Rodriguez or Kay Carter. Our lower courts - supreme or superior and provincial courts of appeal have already shown that they have no doubt that the Carter decision is the law of the land. On three major cases, as in "all three," they've booted the government right out of the courtroom.

I don't know what's wrong with Jody. Then again I don't know if constitutional law is no longer a required course at UBC or if maybe she skipped a few critical lectures. What I do know is that she's shamelessly dishonest. As I have tried to emphasize, this is an extraordinary decision. 9-0 but even more than that it's a "per curiam" judgment. The court spoke with one voice. That's as powerful a decision as ever comes out of a top appellate court, the court of final judgment. You cannot get a more forceful decision like that and every lower court understands how binding it is.

I do know Peter Hogg. He was the expert on constitutional law when I was in law school back when Christ was just a corporal. Like Donovan Waters on trusts and equitable remedies, when it comes to constitutional questions, even the SCC goes to Hogg's learned texts. They consult Hogg. Jody, not so much.

Liberals won't like to hear this but the Trudeau government is trying to put itself above the law. In this and other ways they're coming to resemble the Harper government. That's cause for disappointment and even sadness.

susansmith said...

With MoS on this one Alice. A unanimous ruling by the Supremes, and this govt putting itself above the law, and acting like the Harper government.

Unknown said...

I have the same questions as Toby. What is so hard about creating legislation that is constitutional. for the Minister of Justice to treat our constitution as if it's a ball of silly puddy that she can mold to her needs and wants is offensive.The law is not what she dictates it be. The liberals seem to be acting incompetent and deceitful. Gee, where have we seen that before. What a disappointment!

The Mound of Sound said...

Why? Perhaps they've got some counsel who tells them the Court is off base or that they have a responsibility to interpret the Court's interpretation of the Charter right to bring it into conformity with what they perceive as the vox populi. Perhaps they don't believe the polls that show Canadians strongly support the sort of amendments the Senate has brought forward. Possibly they want to cater to, or at least not offend, some narrower constituency that demands their restrictive take on the Carter decision. Perhaps there's a reason why most of Canada's great prime ministers have been lawyers. Just sayin'.

Northern PoV said...

Context. Our Chief Justice recently lauded the creative tension between the courts and the legislatures. Elected politicians are not stenographers for the the courts.

So the CONs let a court directed deadline approach while they dither towards an election because their base will not like the issue.

The Libs struggle to meet the deadline. They go about 80% of the way and come up with what they think is a compromise between the courts ideas and a society that NEVER before allowed assisted dying... in the context of being 1st in the world. (Does the Dutch or Oregon law allow support the SCoC aggressive stance?)

Breathe - this is the normal governing process - we haven't seen it in a while.

(And note the Senate defeat yesterday of your hobby horse.)

crf said...

There are so many stories over the years where you read about a small town in the American South passing an law authorizing official religious prayer before a town council meeting or school board meeting, or what have you, despite its obvious incompatibility with the U.S. constitution.

Of course those town officials know that before their ordinance, the courts have overturned similar ones, seemingly innumerable times. But they think: "we're elected, we like how we personally interpret our constitution, and our special law is appropriate for our special town".

Jody Wilson Raybould needs to climb down from her high-horse and recognize that her defence of the government's proposed law suffers from the same logical deficits these small town U.S. officials frequently make. It's starting to look narcissistic.

The sanest thing would be, in the least, for Trudeau to tell his Justice Minister to ask the court for an extension. This is far preferable to gambling that the currently proposed law not be struck down.

The Mound of Sound said...

What perplexes me, Chris, is that if Jody really believes C-14 is "Charter proof" as she claims, why she doesn't take it on a reference to the SCC? Government has that privilege.

I'm pretty sure there's a reason she hasn't availed herself of that option. I think it's rooted in mendacity.

Unfortunately, as we saw in the E.F. case, Canadian courts are doing what the law requires and following the Carter decision, a 9-0, per curiam judgment.

Peter Hogg left no doubt that the government's law would be tossed out as unconstitutional. Is that what Trudeau is really after? Does he want Canada to have no law on assisted dying? That would be utterly pernicious, despicable, cowardly.