The Cons have their shooter

I wonder if it's not, to little to late. One person grasping at straws?? One judge who thinks his ideas are correct? I guess he feels like he is right and the rest of the country isnt.

Have another shot with those first ten!!! and don't stop
this kind of thinking is ludicours and it shows!

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Supreme Court unfair to Harper government, new Ontario justice says
SEAN FINE - JUSTICE WRITER
The newest judge on Ontario’s top court has an explanation for the Conservative government’s well-known losing streak at the Supreme Court of Canada: The court’s reasoning process is unfair, making it almost impossible for the federal government to defend its laws, such as those involving assisted suicide, prostitution and the war on drugs.


Justice
Stephen Harper’s courts: How the judiciary has been remade
Read more: Stephen Harper’s courts: How the judiciary has been remade

Ontario Court of Appeal Justice Bradley Miller, whose appointment was announced last month, is part of Prime Minister Stephen Harper’s vanguard on the bench – a leading dissenter, along with fellow appeal-court Justice Grant Huscroft, from much of what Canada’s judges have said and done under the 1982 Charter of Rights and Freedoms.

As The Globe reported on the weekend, Mr. Harper has been on a decade-long quest to transform the lower courts by finding judges who would be less activist, and less likely to stand in the way of policies such as a crackdown on crime. Justice Miller and Justice Huscroft offer an approach that is more deferential to government than is currently the norm on Canadian courts. If over time they are able to point the court in a new direction, judges will become less likely to strike down laws in which broad moral issues are at stake; government would be given more respect as the authority to decide such issues.

Justice Miller also brings a passionate voice for freedom of religion, arguing that the right to morally disapprove of gay marriage is vital to freedom of conscience. Justice David Brown, appointed to the appeal court last December, makes a similar argument.

But Justice Miller’s most important effect on the law could be on the interpretation of the right to life, liberty and security in Section 7 of the Charter of Rights. This was the section used by the Supreme Court to strike down a ban on assisted suicide this year and prostitution laws (2013), and to reject the government’s attempt to close Insite, a Vancouver clinic where illegal drug users shoot up in the presence of nurses (2011).

A judicial “blind spot” explains the government’s losing streak in those three cases, Justice Miller said in his published work as a law professor. (As a lawyer, he represented the Christian Legal Fellowship in arguing at the British Columbia Supreme Court against physician-assisted suicide.)

Canadian judges have become blind to certain kinds of harm – harm to important principles and harm to culture, he said. They understood such broad social harms in the 1990s, when the Supreme Court allowed criminal laws on hate speech and pornography to stand, he said.

A bit of background on the Charter is necessary to understand Justice Miller’s argument that the court’s approach to Section 7 is unfair to government.

The Charter’s very first section allows government to put “reasonable limits” on rights, if it can show that the limits are justified “in a free and democratic society.” But the court has never allowed an infringement of the Section 7 right to life, liberty and security to stand. The reason is to be found in the wording of Section 7: Any limits have to be in accordance with “the principles of fundamental justice.” It would be illogical to say a government could violate a principle of fundamental justice in a free and democratic society.

The result, according to Justice Miller, is a drastically unfair approach.

“The Court remains entirely focused on the rights-holder,” such as a sex-trade worker, he wrote in an essay last year published on a British constitutional blog. “Justice and justification are to be considered from one side only. All other considerations are to be postponed to the second stage [Section 1] that never comes.”

Thus, he says, it is “profoundly difficult” for the federal government “to articulate the reasoning behind much criminal legislation.” Courts do not perceive the harm done by removing the prohibition against intentional killing in the assisted suicide case, he said in a 2012 interview with Cardus, a Christian think tank with offices in Canada and the United States.

He underlined that point in an interview with Western Law Alumni Magazine two years ago, explaining the success of Vancouver lawyer Joseph Arvay, who represented the individuals seeking the right to a doctor’s help in ending a life.

“Joe’s success – and he does this better than anyone – depends on persuading the court that his client’s personal drama is of the utmost significance, and that those persons who will be stripped of the law’s protection in order to accommodate Joe’s clients just don’t matter all that much.” (Mr. Arvay said at the time that he tries to show it isn’t necessary to trounce his clients’ rights to protect the rights of others.)

Carissima Mathen, a law professor at the University of Ottawa, offered another perspective on the courts’ approach to life, liberty and security. “Arguments extending beyond the right holder are certainly considered,” she said in an e-mail. “They just come up earlier in the process, when thinking about ‘fundamental justice,’ which is really Section 7’s core guarantee.”

She added that in the prostitution, assisted suicide and supervised-injection cases, the law’s impact was severe. “If you have horrific suffering or risk of death on one side, you’re going to need really strong arguments on the other. And it’s probably true that symbolic purposes (such as simply promoting a certain moral vision) are not going to make the cut. But I think that is actually a strength, and not a weakness, of the Charter.”

Justice Miller is a proponent of “natural law” – the idea that universal, unchanging moral principles are inherently human, and form the true underpinnings of law. Iain Benson, a lecturer visiting his law school at the University of British Columbia, introduced him to the philosophy and gave him a book by Canadian philosopher George Grant called English-Speaking Justice. (Justice Miller went on to obtain a doctorate in law at Oxford under a leading natural-law philosopher, John Finnis.)

The George Grant book described the contemporary West as having “lost our confidence in speaking about what is good for human beings,” Mr. Benson said in an interview from France, where he lives. “He actually refers to it as ‘the terrifying darkness that has fallen on contemporary justice.’” Justice Miller, he added, offers “a set of insights that the system desperately needs.”

On gay marriage, Justice Miller’s main themes come together – that government has the right and duty to protect society from harm to its natural moral principles.

“Natural is code for Catholic values with Brad,” in which sex between same-sex individuals is seen as unnatural, or sinful, University of Toronto law and philosophy professor David Dyzenhaus said.

Justice Miller says government is obliged to protect marriage between a man and a woman. “In the same way that government is obligated to steward the political community’s forests, fresh water and other resources, it is obligated to identify the morally valuable aspects of a national culture and its morally valuable institutions and to preserve them from one generation to the next,” he wrote in a 2011 paper, “Sexual Orientation and the Legal Regulation of Marriage.”

“There would seem to be no reason why this obligation to protect a political community’s cultural property should not extend to protecting a morally valuable concept and culture of marriage.”

And Stephen does what Stephen wants....

WHATFG said:

And Stephen does what Stephen wants....

Click to expand...

That is very Nixonesque

and more about their shooter. Although no one knows why he's where he is!?!?!?! or how he got there so fast....

His rise to the country’s most powerful court was, in the words of a former law-school colleague, “meteoric.” And thus far it has been unexplained. Prime Minister Stephen Harper and Justice Minister Peter MacKay have said little about why the government chose Russ Brown of Alberta, who has just two years’ experience on the bench.

But before he became a judge, Justice Brown was a law professor, and blogged frequently on the University of Alberta’s website, between 2007 and 2012.

In those blogs, he emerges as a vocal and irreverent conservative. At times, he appears more pundit than professor – describing Justin Trudeau as “unspeakably awful,” and deriding the Canadian Bar Association as a left-wing, anti-Conservative group. He also wonders whether Chief Justice Beverley McLachlin shares the CBA’s anti-Conservative bias.

His writings offer a portrait of judge he might be – a judge likely to shake up a court that has ruled more often and with greater unanimity against the federal government in big cases than it has since the 1982 Charter of Rights and Freedoms came into effect. A judge who stands outside of the court’s consensus and, as a professor, said so on many occasions.

Justice Brown has not given media interviews. And there is no longer any forum in which he can be asked about his views on the law. The government appears to have given up on the parliamentary hearings at which MPs publicly grilled the Supreme Court’s newest appointee. The Globe asked an official at the Supreme Court to contact him to ask if he would discuss the content of his blogs. Justice Brown declined to do so.

The 49-year-old Justice Brown accuses the court of expanding the reach of the Canadian Charter of Rights and Freedoms beyond what those who drafted it intended. From the beginning, he says, the court misinterpreted the right to life, liberty and security, the section that caused prostitution and assisted suicide laws to be struck down. (He is the third former academic appointed in the past eight months to voice this view. Bradley Miller and Grant Huscroft, named by the Conservative government to the Ontario Court of Appeal in the past eight months, are the others.)

Now a member of a court that since 2001 has barred all extraditions of accused murderers to face the death penalty in the United States or elsewhere, he said in a blog he sees no obvious why capital punishment in the U.S. should not be used in cases of child rape. (In a ruling he was part of last year, the Alberta Court of Appeal allowed the extradition of a suspected terrorist to face life without parole in the United States, saying the penalty would not “shock the conscience” of Canadians.)

Justice Brown, who has a doctorate in law from the University of Toronto, is not lacking for confidence; he thinks the court is weak on “private law” – his specialty, also known as civil law, which relates to disputes among individuals or companies.

And he is no federalist – he refers to the Canada Health Act, which defines the terms of public health care, as “an inappropriate [federal] intrusion into sacrosanct provincial swimming pools.” (The square brackets are his.) And he thought the 1998 secession reference case, which scholars deem one of the most important in Canada’s history, on the terms of Quebec’s possible separation, was none of the court’s business.

Reflecting separate strands in the Conservative Party, he appears to see himself as a “conservative libertarian.” But when push comes to shove, he says he favours the libertarian over the conservative. That is, he believes in judges defending constitutional rights when government goes too far in limiting them.

And he does not think much of the judicial appointment process – calling it a “disgrace” in its lack of parliamentary oversight. He goes much further than the CBA, representing 37,000 lawyers, ever has, in calling for a parliamentary review for each judge appointed to the top trial and appeal courts of the provinces.

On Oct. 21, 2008, with the Liberal Party looking for a new leader after Stephane Dion stepped down, Justice Brown blogged: “As someone who hopes the Grits just fade away by the next election, I’m cheering for Justin Trudeau or Joe Volpe. Or have I missed a possible candidate who is as unspeakably awful?” Someone asked in response whether his position was based on a hatred of the nanny state. His reply was that he is “no fan of the nanny state,” but more important is that “I’m no fan of any party that comes to see itself as the embodiment of the nation.”

His sympathies with the Conservatives are clear. On Sept. 8, 2008, responding to a blog post describing Prime Minister Harper as “scary,” he said: “I don’t see it. Admittedly, I harbour some hope for a hidden agenda, but I doubt it’s going to happen.” (Critics had said Mr. Harper had a “hidden agenda” of conservative policies that would emerge once he had a majority government.)

Justice Brown views the Canadian Bar Association as politically partisan, mocking it for calling on Canada to demand freedom for Omar Khadr at a time the United States was holding the accused teenage terrorist at Guantanamo Bay, Cuba. He said the bar association is indifferent or silent when repressive Middle East regimes hold, torture or in one case even kill Canadians such as Zahra Kazemi, Maher Arar or William Sampson. The reason for its selective outrage, he said, is that it doesn’t like the Conservative government.

He also wonders, in a blog post on April 12, 2008, about whether Supreme Court Chief Justice Beverley McLachlin has a bias similar to the CBA’s.

“Perhaps I’m reading too much into this, but I could not help being struck by the penultimate sentence in Chief Justice McLachlin’s news release announcing the imminent retirement of Justice Bastarache. ‘I know,’ the Chief Justice said, ‘that the Canadian Government will consider the appointment of a new justice with the care and deliberation required.’ Again, I might be reading too much into this, but it seems to come off more as a shot across the bow, rather than as a genuine expression of being reassured. Kind of like the way we tell our kids ‘I know you wouldn’t think of tracking mud into the house’ when we’re afraid they are about to do just that.

“Thinking that this is maybe something she says all the time, I tracked down the news release from February 2004 when the Chief Justice announced the imminent departure of Justice Arbour. Not a peep about any concern for care and deliberation in choosing her replacement.” A Liberal government was in place at the time.

He was also less than impressed by the Chief Justice, with whom Prime Minister Harper has publicly tangled, on another occasion, writing on Sept. 21, 2008: “By the way, did anyone notice when McLachlin CJ spoke at the law school on Friday that she listed China (!?!?!?) as one of the countries whose constitutional law might be a helpful source from which to draw? Frankly, if the SCC justices are going to dabble in comparative constitutional legal analysis in order to ‘inform’ the content of Canadians’ constitutional rights, I’d prefer they stick to countries that observe the rule of law.”

more... another writer..

Prime Minister’s Stephen Harper’s latest appointment to the Supreme Court was a prolific blogger who regularly offered opinions on Senate reform, the federal government’s role in health care, elections law, the Omar Khadr case and other matters that could now come before him in his new role on the bench.

Russell Brown, appointed to the top court last week, was an active contributor to a blog shared by faculty members at the University of Alberta law school.

Numerous posts made under the name “Russ Brown” between 2007 and 2008 appear to have since vanished from the blog but still appear in Internet caches. The cached pages also include numerous comments Brown made on other faculty members’ posts.

Brown’s political orientation and Libertarian perspective are clearly in evidence in many of the posts.

In one 2008 post, he says he hopes Harper wins a majority government and that he hopes Harper does, in fact, hold a “hidden agenda.”

In another post regarding successors to outgoing Liberal leader Stéphane Dion, Brown disses potential contender Justin Trudeau.

“As someone who hopes the Grits just fade away by the next election, I’m cheering for Justin Trudeau or Joe Volpe. Or have I missed a possible candidate who is as unspeakably awful?”

Brown, now 49, wrote the posts when he was an assistant professor with the Faculty of Law. The Conservative government first named him to the Alberta bench in 2013 and last year elevated him to the Alberta Court of Appeal and the appeal courts for the Northwest Territories and Nunavut.

In less than three years, he has risen from a job teaching law to a seat on the highest court in the land.

Brown could not be reached for comment Friday.

There is nothing wrong with future judges holding personal views on politics and other matters of national importance. But it is unusual – and perhaps a symptom of the digital age – for an incoming Supreme Court judge to have left such a verbose record of opinion, which some could use to question his neutrality on cases that come before him on the court.

Consider, for example, the federal jurisdiction in health care, an issue that has arisen in past Supreme Court cases. In a blog post, Brown called the Canada Health Act “an inappropriate (federal) intrusion into sacrosanct provincial swimming pools.”

Or Senate reform, a topic on which the Supreme Court last year handed down guidance, Brown wrote in 2008: “My own preference would be to democratize the Senate (thus presumably throwing out the deadwood and injecting new life into the place) and give it more work to do (i.e. vetting SCC nominations). Still, abolition is better than the status quo.”

He also weighs in on third-party spending limits on election campaigns, an issue that Prime Minister Stephen Harper, when he was head of the National Citizens Coalition, challenged unsuccessfully at the Supreme Court.

“I do hope Harper gets a majority and reforms the Canada Elections Act, starting with those odious third party spending limits,” Brown wrote on Sept. 29, 2008.

In comments on the blog, Brown also suggests that the Canadian Bar Association called for the U.S. to release Khadr from prison because it didn’t like the Conservative government. He says that CBA position on Khadr (who, after being held for a decade at Guantanamo Bay, pleaded guilty to war crimes and was later transferred to Canada to finish his sentence) was at odds with other cases involving Canadians detained abroad, including Zahra Kazemi in Iran and William Sampson in Saudi Arabia.

Nevertheless, he commented, “… his case shows how woolly terms like ‘unlawful enemy combatants’ pose practical problems for judicial and quasi-judicial tribunals when asked to make concrete determinations about someone’s status …”

When he takes his place on the Supreme Court bench, Brown may be called to sit in judgment of Khadr’s case, which has already come before the court three times.

A strong Libertarian perspective is found in many of the blog posts and comments posted by Brown. He posted on issues including climate change, banking deregulation, and U.S. vice-presidential candidate Sarah Palin.

Of the Dalai Lama, the spiritual leader of Tibetan Buddhism, Brown wrote, “The Dalai Lama is (despite his physical resemblance to Phil Silvers) not a nice man. His spiritual sycophants in the West overlook his positions which don’t conform so nicely to the image of an avuncular bespectacled monk-en-chef.”

He called the assassinated prime minister of Pakistan, Benazir Bhutto, a kleptocrat and “a thoroughly venal character” and asked if her death wasn’t in part the result of “her own Cynical Minuet with Jihadists?”

And in a post about the Anglican church, he writes that it “seems to have morphed into some deeply weird post-Christian eco-pagan group run by a flakey fringe of the greying Godspell crowd.”

gmcgregor@ottawacitizen.com

Twitter.com/glen_mcgregor

Other opinions Russell Brown expressed:
— On a colleague’s opposition to a new federal agency for mental health: “Let me (albeit predictably) chime in: for what it’s worth, you are correct, those of us who see the Canada Health Act as an inappropriate (federal) intrusion into sacrosanct provincial swimming pools don’t find that argument convincing.” (Sept. 1, 2007)

— On public health care and personal liberty: “Where, however, health care is furnished within an involuntary, non-alternative state-imposed context, reconciliation must be achieved of the supposed primacy of the patient’s negative liberty – his or her private self – with a publicly funded health care system, instantiating the state’s imposition of a public self.” (Aug. 26, 200

–– On a reference to the Supreme Court on Quebec secession: “Parliament conferred upon the Court powers to interpret the rules of the game, not to determine how and when someone can quit the game. If there ever was a question for legislatures and parliaments to sort out for themselves, subscription to and disassociation from a federal structure is surely it, no?” (June 22, 2007)

–– On Harper’s elimination of the per-vote subsidy for political parties: “… it’s only the cash-per-vote scheme that’s going, but it’s a step in the right direction. That said, none of the party subsidization schemes are as objectionable as the restriction on private expenditure during elections.” (Nov. 28, 200

–– On whether Canadians want a majority Conservative government: “As to whether the Conservatives are ‘scary’, I don’t see it. Admittedly, I harbour some hope for a hidden agenda, but I doubt it’s going to happen.” (Sept. 8, 200

–– On the Charter of Rights and Freedoms and Supreme Court appointments: “No matter who is appointed, we should – for the sake of good lawmaking – hope that the prime minister will focus on something other than (or at least in addition to) the Charter when considering a person’s potential contribution to the Court.” (March 10, 200

— On the Canadian Bar Association calling for the U.S. to release a Canadian prisoner from Guantanamo Bay: “The case of Omar Khadr: Does the CBA speak for all of us?… Aside from the possibility of a “conversion on the road to (ahem) Damascus”, two obvious possibilities present themselves (both of which I’m sure the CBA would want to disavow): (1) it’s all about which offshore party is interning Canadians at the relevant time. Or (2) it’s all about which onshore party is governing Canadians at the relevant time. Personally, I subscribe to the second option as the likely motivation.”

— On then-Ontario premier Dalton McGuinty and climate change: “Hot Air on Climate Change … No surprise, then, that Ontario’s selectively-green-Premier-who-subsidizes-muscle-cars also opposes emissions limits or higher tailpipe emission standards. But cap-and-trade schemes? He’s all over them, of course.” (Dec. 10, 2007)

— On a possible coalition government: “I agree that the proposed coalition would be legal, constitutional, yadda, yadda, yadda. There is, however, one non-legal, non-constitutional aspect in which the ‘undemocratic’ rap sticks … Rather, I think the serious political problem for the proposed coalition is that it is propelling Stephane Dion into the office of PM.” (Dec. 4, 200

— On free speech and human rights commissions: “Like any other right, freedom of expression is not absolute, but I would rather see any limits considered by courts of law and not by puritanical functionaries.” (Aug. 21, 200

— On Liberal MP Bob Rae welcoming new leader Michael Ignatieff with a kiss: “Maybe Iggy should make a Sexual Harassment in the Workplace Complaint?” (April 1, 200

— On a Liberal senator’s bill to deem suicide bombings acts of terror: “I guess this is one of those ‘just-in-case-the-obvious-wasn’t-obvious-enough’ amendments. One can only hope that the courts will follow Parliament’s lead and impose the severest possible sanctions on people who kill themselves.” (May 01, 200

— On Tibet and its Buddhist religious leaders: “I hope (the West) makes the case for democracy in Tibet and concomitantly for freezing the mediaeval nutcases from power … Otherwise, we simply replace a distinctly modern totalitarianism with a Himalayan version of the ayatollahs.”

— On war criminals who came to Canada after WWII: “… fuelled by the anti-Semitism of federal immigration bureaucrats and of Canada’s Liberal prime minister of the time (in the far left of the photo, next to some unidentified travelling companions)” (post includes a photo Prime Minister Mackenzie King next to uniformed Nazis saluting, Sept. 2, 2007)

— On the death penalty for child rapists in the U.S.: “My own view on this case is that there is no obvious reason for the death penalty to be confined to cases of homicide, unless we presuppose that a victim’s death is the worst of all possible outcomes (which is not, at least to me, obviously true, when compared to, say, a lingering, vegetative existence). In other words, the punishment of death may in fact be proportionate to the offence of raping a child.”

"On a Liberal senator’s bill to deem suicide bombings acts of terror: “I guess this is one of those ‘just-in-case-the-obvious-wasn’t-obvious-enough’ amendments. One can only hope that the courts will follow Parliament’s lead and impose the severest possible sanctions on people who kill themselves"....uhm-if they have killed themselves, what are you going to do? solitary confinement? bread and water??