Settled Law?
Ezra now has a copy of the Department of Justice’s brief against Marc Lemire’s constitutional challenge mounted against s.13. Personally I was not terribly impressed with Lemire’s challenge in the first place largely because it was drafted before the excesses and the illegalities of the CHRC’s investigative techniques had come to light. Ezra clobbers the feds for relying on rather out of date left wing American legal scholarship for which he is to be commended.
However the main thrust of the fed’s position is that the constitutionality of s.13 was decided in the Taylor case determined 18 years ago. And that is worrying. Not because the Taylor case can be distinguished on its facts – as it can be. And not because it is older – older cases are vital to the development of a constitutional jurisprudence. No, what is worrying about the feds’ position is that they seem to believe that in constitutional law challenging apparently settled law is, to use the feds phrase, “an abuse of process.”
Canadian Charter jurisprudence is only a few decades old. It will take at least another fifty years to develop the case law which will throughly define how cases may be brought and the circumstances in which a prior decision of the Court may be overturned or distinguished. However, the thrust of the fed’s brief seems to be that, regardless of shifting circumstances, changed legislation, altered facts and a different legal and cultural milieu, any decision of the Supreme Court of Canada on the constitutionality of a particular section of a statute is written in stone and cannot be altered.
This position would put paid to the development of any but the crudest sort of black letter constitutional jurisprudence as it would effectively prohibit decided cases from being creatively revisited. As with so much concerning the CHRC, the legal position of the Department of Justice is simply hamfisted when it tries to say that re-examining a constitutional decision made in a significantly different context is an abuse of process. Taylor may well have been rightly decided however suggesting otherwise is a constitutional argument not an abuse of process.
May 13th, 2008 at 4:29 am
The Department of Justice brief is faulty for more than mere reliance on “out-of-date left wing American legal scholarship”. The brief relies on the testimony of Mr. Alexander Tsesis, for purposes of illustrating, on a historical basis, the relationship between hate propaganda and oppressive actions taken against minorities. The problem, however, is that Mr. Tsesis (who the brief strangely describes a “Dr.” Tsesis, despite the fact that his “doctorate” is a J.D., which every American law school graduate has) has, according to his own curriculum vitae, absolutely no academic qualifications in history! In other words, the federal government’s brief relies on so-called “expert testimony” from someone with absolutely no special expertise in the subject matter of his testimony. Why the Tribunal should give such nonsense any weight whatsoever is beyond the understanding of this writer.
May 13th, 2008 at 5:41 am
There is another problem, Jay. It is one thing for the Supremes to decide that particular legislation is constitutional, it is another to decide that the constitution requires particular legislation. I can accept the “settled law” argument in the first instance; once the SCoC has ‘read in’ sexual orientation
for instanceinto anti-discrimination law, then it remains read in. In this case, a series of challenges by the Federal or Provincial governments would indeed be an abuse of process – although their use of the Notwithstanding Clause presumably would not. But that’s not what was decided in Taylor – all the SC determined was that §13(1) was a reasonable infringement on free speech in a free and democratic society – they did not say that §13(1) was required to maintain such a society, or that it was a necessary component of Charter Rights. Reasonable people can disagree with that assertion finding – but on it’s own, it does nothing to affect Parliament’s right to rescind a bad law. No doubt, if ajudicated the Gun Registry would be found to be a “reasonable limit” on property rights, not least since property rights are not guaranteed in the Charter – but that is a much different thing than ruling that a long gun registry is a constitutional mandate, although tht is the position that the DoJ has taken in this brief.May 13th, 2008 at 5:57 am
Looks like vacant Robbie is out of control of his own ministry…fanatical revisionist elements from Alan Rock’s administration are still providing departmental policy direction. Things haven’t changed in the fed JD since Cotler left.
Robbie the Zombie…call your office some day and get your messages.
May 13th, 2008 at 7:02 am
If I may speak as someone who taught Constitutional Law in a Canadian university for thirty years, the “arguments” submittef by the Department of justice are pathetic and risible and would not convince a four year old. The “historical analysis” of Dr (sic) Tsesis is pure fantasy and sounds like the result of an especially bad acid trip.
May 13th, 2008 at 8:31 am
“...the “arguments” submitted by the Department of justice are pathetic and risible and would not convince a four year old.”
————-
Uh, yeah, they don’t have to. They only have to convince a Tribunal Member, who has not disallowed all the corruption and who has claimed the case is over.
Don’t worry about Constitutional Law, arguments, fantasy and a bad acid trip. It’s already in the bag, so chill.
May 13th, 2008 at 9:23 am
I will just point out what no one else seems to want to. The social nuke in the corner so to speak.
The CONSERVETIVE Justice Minister just made the supreme court god the Pharaoh King. Never to be questioned. Solidified anti-democratic laws. Supported a tyrannical parallel legal system that has no checks or balances. No Authority to answer to. Threw out the Magna Charta & 800 years of common law.
The social bomb being : Canada as a free Country by next month will not Exist. That it period. Its over. The slow decomposition to Mugabe land begins with vigor. Leading to Dhimitude. This is what the announcement meant, make no mistake. Without news from anywhere, we will become Cuba or North Korea. Next to fall will be the web from government, for our own good of course.
May 13th, 2008 at 10:56 am
Jay,
I think you’re missing the point.
The DoJ brief isn’t saying that it is an abuse of process to argue that a SCC decision was wrongly decided. It’s saying that using a rotating cast of characters, all of whom are connected and who intervene in each others cases, to repeatedly argue in the same forum that Taylor was wrongly decided, despite repeated findings to the contrary, is an abuse of process.
BTW, the ad hominem attack on Tsesis (who teaches at a law school several notches above the frat-boy hangout where Robert Martin hung his hat) neatly ignores the expert summoned by Lemire and company: Dr. Michael Persinger, whose specialties includes neuropsychology, neuromorphology, parapsychology, psychoimmunology, etc.
As the DoJ brief notes, Persinger admitted he hadn’t researched the effect of hate speech on brain function and wasn’t familiar with the literature (which is to say, that he wasn’t actually qualified as an expert). He is, however, the creator of the so-called “God helmet”, which employs magnetic fields and is said to create religious experiences in wearers.
Nothing kooky about Persinger. Of course, “kook” probaly means something differnt to Ezra, a self-regarding putz who once described himself as a “Stockoholic” and who boasts about being a lawyer while publishing reams of misleading nonsense about the law.
May 13th, 2008 at 11:18 am
> ” taught Constitutional Law in a Canadian university for thirty years”
Ah, yes, Robert, but was that devant or apres L’An Nul of 1982?
May 13th, 2008 at 2:33 pm
Indeed, truewest, and where did you get your LL.B?
“Robert Martin, B.A., LL.B., LL.M., is professor of law at the University of Western Ontario where he teaches constitutional law and media law. He is also secretary-treasurer of the Commonwealth Association for Education in Journalism and Communication. Professor Martin has taught extensively in Africa where he has held appointments in law at the National University of Lesotho, the University of Mauritius, the University of Dar es Salaam (Tanzania), and the University of Nairobi (Kenya). He is the author of numerous books and articles including Media Law (1996) in Irwin Law’’s Essentials of Canadian Law series, and the editor of Speaking Freely: Expression and the Law in the Commonwealth (1999), published by Irwin Law and the Commonwealth Association for Education in Journalism and Communication.
Julian Porter practices as independent counsel and is co-author of the text Canadian Libel Practice. Porter has practiced litigation exclusively since 1963 and is recognized by the Law Society of Upper Canada as a specialist in civil litigation.”
You’ll have to do better than that to make it to the semis of the Lying Jackal drive by smear contest. But do please, for the amusement and edification of us all, keep trying.
May 13th, 2008 at 3:14 pm
sharia law catch 22A: .....blah, blah, blah the tribunal is correct in law unless the tribunal admits its not correct in law but the tribunal has no authority to admit its not correct in law blah, blah, blah…. Ipso facto, you’re fucked Mr Steyn (that’ll teach you to be Canadian)
May 13th, 2008 at 9:26 pm
Jay,
Hypocrisy looks good on you. After applauding Levant’s drive-by of Tsesis (man works for Ted Kennedy, therefore must be a dangerous radical kook), you step to the plate to defend (someone who might be) Robert Martin as a pillar of Canadian legal scholarship.
Well, I’m sure the real Martin is a swell guy, but his text on Media Law is hardly authoritative—Irwin Law texts, with a few exceptions, tend to paint with broad strokes – and frankly, if Martin was posting here I would expect him to post something a little more, well, substantial than the silliness above. BTW, Western is not, by any measure, among the top ranks of law school in Canada and has spawned right wing kooks aplenty—Ian Hunter comes to mind.
All of which is besides the point, since the main thrust of my post is that you have, once again, made a botch of the law, this time by completely misstating the abuse of process argument set out in the DoJ brief. This is made all the more amusing by the fact that, over on Dawgsblog, you’ve been scoldng “lefties” about the need to get the law right. As the Bibles say, “And why beholdest thou the mote that is in thy brother’s eye, but considerest not the beam that is in thine own eye? ” Why indeed?
May 14th, 2008 at 12:23 am
Constitutional lawyers and even professors can disagree from time to time (like in every case) so that there is disagreement should not be a shock.
But isn’t the real point that the Government may be taking the position that every consitutional ruling of the SCC is fixed so that every one from this point on can also be considered fixed and “the living tree” of our consitutional history gets chucked in the wastebasket of “things Harper does not like”?
May 14th, 2008 at 2:31 am
it simply doesn’t pass the smell test….and anyway the whole brief is an insult to common sense and ‘natural law’....was written by another lllefty goof who doesn’t understand human nature and anyway has an obvious bias against individualism and the right to make mistakes and to LEARN from those mistakes….i believe that’s been the template that has served western society well for a thousand years or more…
anyway…i expected much MUCH better from the CPC ….i’m truly disappointed in the party….
May 14th, 2008 at 2:56 am
Frankly, given what we know about how the Commission has behaved in investigating and prosecuting this case, I think the DoJ’s concerns about abuse of process are, to say the least, misplaced.
Furthermore, I’d like to know why a Department of the Canadian Government is relying on an American Law Professor to round out its legal two cents worth.
May 14th, 2008 at 3:42 am
Tsesis thesis torn to pieces:
http://tinyurl.com/4e4dzj
May 14th, 2008 at 4:03 am
More and more, the DOJ makes me believe that Lucien Bouchard was right, “Canada is not a real country.”
May 14th, 2008 at 4:06 am
golly jan…i don’t thimk the DOJ has shown the least concern about ‘abuse of process”..
from what i’ve read they’re oblivious to it or unconcerned….
which is depressing disappointing indeed…
i’m sanguine tho..i know PMSH is no dummy…i know he’s hip to what’s going down…but perhaps NOW is not strategically or tactically the time to flatten the CHRCs….
we live in hope and die in despair..
May 14th, 2008 at 8:34 am
I must say I had to giggle at Truewest’s vacant partisnaim in defending the indefensible. I doubt he’s read Tsesis’ ridiculous theorizing as it certainly is nothing to attach your credibility to.
Tsesis is just plain wrong because he omits 500 years of free speech cause and effect on the liberalization of European law and politics and focuses (quite disingenuously) on one 10 year period.
I believe the technique employed in making these vacant arguments is called negative historical revisionism.
Teseis omissive theory is at worst self evidently fraudulent, and at best specious unprovable presumption.
May 14th, 2008 at 1:21 pm
Redux,
“Partisnaim”? I would have excused it as a typo, but the rest of your argument was equally incoherent. Had a few pops before you posted? Or do you babble like this sober?
In any case, my post didn’t turn on Tsesis’s theories or qualification (the words “all of which is beside the point” might have given a thinking person a clue), but on Jay’s continuing inability to accurately summarize the law and legal arguments generally.
Back to you, fickwut
May 14th, 2008 at 2:15 pm
Having read the brief tw the legal argument seems to be:
1) we found an obscure and throughly debunked American who teaches at a law school who agrees with our position;
2) Pre-internet the SCC by a 1 vote majority said s. 13 is OK and so the law, for ever more, is settled.
3) People who repeatedly disagree with us on 2 are not with the program and are thus process abusers.
It really isn’t much of a legal argument tw.
However, crappy as it is as a legal argument it is even worse as a reflection of how badly the CPC have bungled taking charge of the Departments.
In the instant case highest and best would have been for the DOJ to switch sides; but, at a minimum, the Department should have been instructed to withdraw from the case.
May 14th, 2008 at 6:26 pm
Scratch the above, thanks to BCF. That would be “an American Assistant Professor of Law”. My apologies for not recognizing his proper station.
I gather they really are tired of hearing from the same old people, ad nauseum. Is the desperation to find a new apologist for this degenerate law so bad, that they couldn’t find anybody but the usual suspects to advance their argument? Did they then have to reach so deeply into the slop bucket that they had to go alookin’ south of the border to find any kind of bone to toss us waiting dogs?
Surely, they could find some Associate Law Professor on this side of the border who would be able to write a sophistic paper in support of Canadian hate speech laws.
Truewest, I think you’ve missed your opportunity. Thar’s gold in them thar hills.
May 14th, 2008 at 11:19 pm
Truewest is a shining example of the lack of decorum and manners that can be brought about by the lack of proper parenting. The sad part is that he is likely to pass on the same bad traits to his own offspring. But then again, selfishness and materialism is a hallmark of modern liberalism.
May 14th, 2008 at 11:20 pm
Jay,
If the Harperites want to change the law, they can do so. As one of your posters correctly pointed out, there’s nothing in Taylor or elsewhere that says a provision like s. 13 is mandatory in human rights codes.
Sure, they’d take a political hit, but not nearly the hit they’d take if they threw their hat in with Lemire and his ilk, which would not only be bad politics, but legally unsound. When you’re the government, you don’t get to file a brief asking a tribunal to strike down a law that you could change on your own.
You’re getting closer on the analysis, although the notion that Tsesis is debunked because some other academic who has nicer credentials disagrees with him might be overstating the case. As is the argument that DoJ’s argument is that those who believe Taylor was wrongly decided are guilty of abuse of process. The argument is that it is an abuse of process for a small coterie of litigants—sock puppets for one another if you will – to run the same unsuccessful legal argument over and over again before the same body, all without bringing anythin new to the table. Making new challenges to old law is not an abuse of process; stamping your feet, repeating the same thing over and over again while plugging your ears and chanting “I’m not listening” is.
May 15th, 2008 at 12:42 am
On what basis do you think this is not in line with CPC / Harper instructions? I hate to have to be the one to tell you but he may have a greater agenda than listening to conservative bloggers. It entirely fits in agenda of a strict interpreter and discourse limiter.