Saturday, June 09, 2007

In Which We Declare War on Kirk Makin, the Globe's Law Reporter

I've long thought the guy is a bozo, as well as a sock puppet for the legal establishment. In today's Globe, we get:

The court's astonishing about-face [from the 1987 Labour Trilogy] ranks with its 2004 [sic.] Chaouilli [sic.] ruling in terms of unexpectedness, coming from a bench that has carved out a reputation as conservative, pragmatic and uneasy about using the Charter of Rights to disturb the status quo. [....]

Rather than being perceived as a startling reversal, however, the majority said that yesterday's decision "may properly be seen as the culmination of a historical movement towards the recognition of a procedural right to collective bargaining."

The first paragraph is a classic example of journalistic unwillingness to revise a narrative in light of counter-evidence. A court that takes major social programs and labour law into the scope of the Charter -- moves the Dickson and Lamer courts did not -- cannot be considered judicially conservative.

The McLachlin Court is not genuinely deferential. It combines an aggressiveness about judicial power with substantively moderate decisions. There are no genuine left-liberals like Wilson or Dickson, but there is an ever-increasing comfort with overturning legislation that they disagree with. They just don't disagree with as much as a Bertha Wilson would.

Let us imagine a court that would hold unconstitutional all and only those statutes it disagreed with. Let's further imagine that the court generally sees things in a similar way to politicians. We'd get a lot of language about deference. No judge upholding a law ever says the challenged law was a good one. For one thing, it's human nature not to take more responsibility for a negative decision than is necessary. Beverly McLachlin was happy to rewrite the law of spanking. She just doesn't think spanking should be criminal (which shows she is a sensible person, by my lights). One would expect a reporter to try to see past spin, but that rarely happens on the court beat.

The second paragraph is even more embarrassing. It claims that there won't be a perception of "startling reversal" because the Court says what it is doing is consistent with history. Similarly, if Stephen Harper says changing the tax treatment of income trusts is completely consistent with his election platform, then there will be no perception of a reversal either. Jeez.

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