The SCC is supposed to act as a check on the concentration of power in the Prime Minister's Office and Cabinet. However, due to the current appointment process, albeit better then it used to be since reforms introduced by Harper in 2006, the SCC is still largely an extension of the power of the Prime Minister who appoints SCC judges.
The nomination of Judge Marc Nadon has raised important questions about the process used to select justices for the Supreme Court of Canada. Indeed, his appointment has led to charges of the politicization of the judiciary in the media, with some Canadians, rightly, wondering how our nomination process works.
Right now the Supreme Court of Canada is tackling the obvious contradictions implicit in it being against the law to "communicate for the purposes of prostitution," "operate a bawdy house," or "live off the avails of prostitution." In effect, the court is trying to decide whether brothels and their pimps/managers/bookkeepers/cleaning staff/bodyguards/chauffeurs etc. should be legalized.
A few years back I had an affair with a friend who'd been one of Toronto's most exclusive and expensive whores. To her, prostitution was a job pretty much like any other. She wrote: "Like any other whore I've ever known, I have two lives. One life earns all this money for being available for men and women who want -- and can afford to pay -- for the pleasure of my company. It's the other life, my personal life, that's my real life. The life where I win and lose, behave well or badly, am happy or sad. The part of my life where there's real meaning. ... When I'm working there's nothing womanly involved. Just business. "
This week the Supreme Court of Canada will hear a landmark appeal in the case of Terri Jean Bedford that challenges the constitutional validity of the sexual solicitation and bawdy house laws. The court will also consider whether the criminal offence of living on the avails of prostitution should be limited to situations of exploitative conduct.
Harper's government introduced Bill C-65, a Bill that may make it nearly impossible to build another safe-injection site. The government surely knows that the law may not stand Charter scrutiny. But the Conservatives don't care about that. They will push ahead with the Bill because it makes it sound like they care about (some) Canadians. But in doing so, the Harper government harms not only those with addictions, but all Canadians.
The utilitarian belief that individual rights to speak freely are somehow less important than the right of others to not be offended is ludicrous in so many ways. For the top court of the country to support it brings many questions of its legitimacy and effectiveness in protecting the fundamental freedoms that we supposedly enjoy.
Numerous examples, as recent and divergent in character as Hutu Power and the suicide of Amanda Todd, establish the causal relationship of hateful expression and material harms. And who can doubt the cranking of the thermostat which would occur if the William Whatcotts had their way? Viewed in this sense, Canadian hate speech laws may best be characterized not only as a striking of balance but as an essentially pre-emptive effort. But the Flanagan case reminds us that even in the absence of a formal criminal charge, an offended majority will impose its justice of the marketplace.