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 Ezra clobbers the feds for relying on rather out of date left wing American legal scholarship for which he is to be commended.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.
Written by jay on May 13th, 2008 with
24 comments.
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#1. 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The Department of Justice brief is faulty for more than mere reliance on “out-of-date left wing American legal scholarship”.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.