Seat of the Pants Lawmaking and the Art of Media Hyperbole

It is hard to believe that in Canada some of the most profound social and political issues confronting the nation are adjudicated by unelected ideologues and activists. Accountable to no one, these appointees arguably wield greater power and influence than the democratically elected politicians who appoint them. No we’re not referring to Canada’s Senate.

Rather, the topic of scorn for today’s discussion revolves around yet another broken government institute, the Supreme Court of Canada. As shocking as the court’s recent ruling was in Manitoba Metis Federation v. Canada, equally disconcerting was the media’s profound misunderstanding and misreporting of the outcome. In a classic case of wishing how things ought to be versus how things are, an irresponsible bias, in the name of progressive ideology, has betrayed itself, both within our Supreme Court, and in our media. They who interpret the laws trump those who write the laws sure as those counting ballots hold sway over those casting them. Such is the state constitutionally in Canada, where activist judges have free rein to impose irrational will, often trashing the rule-of-law and the parliamentary system in the process. The Manitoba Metis Federation v. Canada ruling, despite depictions in the media, is hardly a “landmark settlement” or “historic victory”. Rather, the court has handed this political hot potato back to the politicians, since other than a declaration – whatever that is – the Metis came out of the case empty-handed. The majority of Justices, ruling in favour of the Metis, could do little more than issue an extra-judicial declaration, since the Metis sought no, and received no personal relief or remedy from claims for damages or land as a result of the Supreme Court case. At this point all the Metis can do is take their declaration, along with their beautifully printed party invitations, to future negotiations with the Crown.

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The shocking aspect of this case is that the majority of Justices, on their own behest, advocated on behalf of the Metis by creating a non-constitutional declaration, presumably, which the Metis could leverage in future land claim negotiations. The ruling majority went beyond trashing common law and the primacy of the legislature to set statutory limitations (laches), instead they’ve adulterated, tainted and influenced future land claim negotiations as a result of their liberal meddling. In their dissenting reasons Justice Marshall Rothstein summarized,

“In this case, the majority has created a new common law constitutional obligation on the part of the Crown — one that, they say, is unaffected by the common law defense of laches and immune from the legislature’s undisputed authority to create limitations periods. They go this far notwithstanding that the courts below did not consider the issue, and that the parties did not argue the issue before this Court.  As a result of proceeding in this manner, the majority has fashioned a vague rule that is unconstrained by laches or limitation periods and immune from legislative redress, making the extent and consequences of the Crown’s new obligations impossible to predict.”

As all progressives know – even red-robed ones – never let law stand in the way of a so-called just cause. And when no laws exist to advance the liberal agenda, simply legislate from the bench as do all good progressive judges. Justice Rothstein elaborates,

“The bulk of these claims were dismissed by the Chief Justice and Justice Karakatsanis and I am in agreement with them on those claims. I agree with their conclusion that there was no fiduciary duty here and therefore the claim for breach of fiduciary duty must fail. I agree that there are no valid claims arising from s. 32 of the Manitoba Act and that any claims that might have arisen from the now repealed Manitoba legislation on the land grants are moot, as those acts have long since been out of force….” “ However, in my view, after correctly deciding all of these issues and consequently dismissing the vast majority of the claims raised on this appeal, my colleagues nonetheless salvage one aspect of the Métis’ claims by expanding the scope of the duties that are engaged under the honour of the Crown. These issues were not the focus of the parties’ submissions before this Court or the lower courts. Moreover, the new duty derived from the honour of the Crown that my colleagues have created has the potential to expand Crown liability in unpredictable ways. Finally, I am also of the opinion that any claim based on honour of the Crown was, on the facts of this case, barred by both limitations periods and laches. As a result, I would find for the respondents and dismiss the appeal. “

Consequently the Metis case heads into uncharted legal waters, defined by liberal double talk, fueled by media hype and liberal guilt, and euphemized as “conciliation” in an effort to condition the capon taxpayer as the stage is set for the parceling out of our legally-owned land and earnings in upcoming land claim negations. And thanks to the progressive activists sitting on the Supreme Court - who have taken it upon themselves to right history’s wrongs while forcing the redistribution of wealth in spite of the lack of legal precedent or constitutional redress - our civil society dies a little more. Given that our great nation was built on a foundation of common law, private property rights and contracts, the Liberals are taking it upon themselves to tear down our societal dictates in favour of a socialist utopia fuelled by ideology. History, facts and common law be damned. And to heck with the parliamentary system which is supposed to be the representative body that writes the laws and governs this land and its people. This case is ludicrous on its face, and I’d liken it to if I were to sue the great, great, great, great grandson of the guy who sold my great, great, great, great grandfather a horse. Any rational judge would dismiss the case immediately given the insurmountable obstacles to discovery – legal talk for investigating the facts. Never mind that all the parties involved are long passed away, and that laws that governed the transaction have been long repealed. But ever since Aboriginals have been granted special status in this country, their exemptions from the laws of the land have grossly extended beyond mere immunity from paying taxes. The same way an Aboriginal offender receives a healing circle as a sentence for murder rather than the compulsory 25 year prison term that other citizens would receive, basically the judges and politicians in this country are creating a two-tiered justice system which is heavily skewed in favour of Aboriginals. To boot, the taxpayers are forced to pay reparations for so-called transgressions that they are multiple generations removed from. In short, we have a constitutional crisis brewing which will pit groups within our society against one another. Our parliamentary system allows the citizenry some control over their leadership. Arguably one vote every four years barely constitutes democracy, but as imperfect as the current system is, it does allow the governed a voice. When Supreme Court Justices are given power that is immune from public scrutiny, when no accountability is built into the system, we have little more than a tin pot dictatorship like those found in the Third World. Further, when these unelected, unaccountable masters use their unfettered power to loot and pillage one sector of society to enrich another, quite arbitrarily, then we have tyranny. And one must earnestly question the validity of both the Senate and Supreme Court being they are appointed bodies which circumvent the notion of the separation of powers. These institutions have become little more than rubber stamps for the political party du jour that appoints them. And perhaps more troubling is how these institutions have been increasingly abused. The recent shenanigans in the Senate have forced the government to renew calls for reform or outright abolishment but sadly rather than acting boldly, Prime Minister Harper has simply referred the issue to the Supreme Court for an opinion. Almost as effective as having the wolves look after the henhouse. But if we’re at least looking at the Senate perhaps it is also a good time to look at the Supreme Court as well. Given that the institution is the highest court in the land, interpreting the laws as they are written and setting precedents that subsequent cases follow, it is simply too important to ignore. The Supreme Court has shown repeatedly that it is a highly politicized body, and too many of the Justices make their rulings based on personal ideology rather than the letter of the law. The Justices who wrote the majority opinion in the Manitoba Metis Federation v. Canada case have clearly shown their activist stripes. Given that blind justice is a crucial foundation to an unbiased system that advances fairness and just redress, this decision is a mockery not only of the law, but of our civil society. The sooner we impose term limits and insist those sitting on the Supreme Court be elected the better. And while we are at it, we must reject the biased Liberal media and their promotion of Socialist dogma on behalf of the social engineers within our government and their appointees.