October 03, 2006

Oct. 3, 2006: Let's look at the Law Commission's Experts

Update: I think this is worth reading along with the items below. Note that the link is incorrect (Gremlins again) but the correct link is given.



It is under this heading:
The Supreme Court
Judicial Impartiality as Practiced in Canada

Bad Link: Gremlin spotted. Funny how this happens

Correct link:

End of Update

No axe too left-handed to grind ... with apologies to the man who wrote No axe to small to grind, Joey Slinger

The article which led to the search for who are the experts identified in the Globe and Mail article, excerpts of which follow: Laying down the law -- The government's axing of the Law Commission of Canada was controversial not only at home but overseas , Bert Archer, September 30, 2006


[...] The Law Commission, ... left-tinged reports on such subjects as electoral reform and marriage. [....]

[Justice Minister Vic] Toews also pointed to the legal community at large, and specifically the Canadian Bar Association, as an ample source of the sort of material previously provided by the commission.

[....] But according to Lorne Sossin, associate dean of the University of Toronto law school and an expert in law reform, the value of such an organization [....]

"It's about creating networks and relationships that will have much greater and deeper payoffs down the road." [....]

.... the new commission would act as an autonomous, arm's-length government think tank, generating big new ideas on the very biggest issues. [such as? ....]

... mandate ... "independent advice on improvements, modernization and reform that will ensure a just legal system," [independent? I snicker ....]

One of the commission's projects, called What Is a Crime?, looked at why we criminalize certain unwanted behaviours and not others. In a 2002 report called Beyond Conjugality, the commission investigated how the government recognizes and rewards different sorts of personal relationships. Foreseeing the not-yet-legalized same-sex unions as only a partial solution to what it saw as a series of inequities, it recommended the government get out of the marriage business entirely and offer any two interdependent adults the same benefits it gives married couples.

Search: old Law Reform Commission , But Allan Rock , Roderick Macdonald , the commission's president, Yves Le Bouthillier , a creature of the Justice Department [which just happened to be Liberal--Irwin Cotler was the last one to appoint one of those mentioned in the article.]

The author is not identified as a member of a special interest group who might have an interest in "Charter rights".

Bert Archer ... is gay, according to , an article entitled "Gambling man" by Val Ross, Quill and Quire which profiled Archer's friend Dennis Bock in August 2001



One day he saw pal Bert Archer with a beautiful female friend. “I called him and said Bert, you’re gay, what are you doing with this hot woman?” The agreeable Archer said that her name was Andrea Kellner, she was an editor at a Toronto publishing house, and they could all meet at a Toronto pub later that week.

Do you suppose Bert Archer, the author has an axe to grind? I would say it is a possibility.


Lorne Sossin sounds like an appointed activist or at least one who might be relied upon to legally justify what is wanted by those who appointed him ... but read and judge for yourself

The Views of "some" scholars ... Liberal appointees ...



7. LORNE SOSSIN, Faculty of Law, University of Toronto

[....] First, the debate established that there is no consensus on the meaning of terrorism. [.... and CBC follows this dictum, scrupulously]

Second [.... He's against the anti-terrorism act ... mentions "minimizes the risk of error" ... He doesn't explain how law procedure deals with those who don't play by any rules and use our system against us. ]

Third .... The Anti-Terrorism Act, in other words, represented an admission of defeat in the "war against terrorism".

[....] any anti-terrorist strategy must confront root causes. This means giving careful thought to our policy of foreign aid and its goals. [....]

[....On profiling] Anti-terrorism measures at border-crossings, airports, etc., reflected a crude profiling of potential threat indicators. .... For example, to single out people for scrutiny who travel on one-way tickets for which they paid cash is not odious but to single out all Arabs or foreign nationals from particular countries is. [....After all, it might work ...]

There is much more but I suspect you get the idea.

He will be able to reason elegantly ... up to the point when the terrorists not profiled using commoner citizens' common sense bomb his finely honed legal arguments and their domains to smithereens.

BOUNDARIES OF JUDICIAL REVIEW: THE LAW OF JUSTICIABILITY IN CANADA , by Lorne M. Sossin. Scarborough, Ontario: Carswell, 2000 -- Reviewed by Roy B. Flemming, Department of Political Science, Texas A&M University. Vol. 10 No. 10 (October 2000) p. 523-527.

... Is justiciability "a word game played by secret rules"? If so, will a close reading of the relevant case law reveal how this game is played? Access to the courts, the scope of judicial review, and relations between the courts and the elected branches of government are affected by justiciability doctrines largely constructed by the courts themselves.

[....] Conversations about justiciability in Canada

[....] Anxious to ward off doctrinal rigidity, [Lorne] Sossin stresses the importance of pragmatism and claims it need not be incoherent or unprincipled (pp. 230- 31). The path toward a principled pragmatism, he feels, is to pull justiciability out of its traditional home in Canadian common law and relocate it on constitutional grounds, especially those parts dealing with the separation or distribution of powers (p. 231).

This is quite a tall order for the Court. As Sossin notes in his book's first pages, "In attempting to define justiciability, Canadian courts have rarely expressed broader concerns for the nature of judicial review" (p. 3). Without further elaboration of the framework's key terms, one is hard put to know if it would be effective or not in constraining the Court's discretion. And surely the devil lurks in these definitions. Equally as important, Sossin does not discuss the circumstances under which the Supreme Court would fence in its powers of judicial review. The Court currently has the doctrinal largess to hear cases it feels are publicly important while declining others for prudential reasons or political convenience. In other words, why would the Supreme Court tie its hands in the absence of compelling reasons to do so? Finally, Sossin does not discuss the potential problems that constitutionalization of justiciability doctrines might create. A move in this direction would inevitably affect its relations with Parliament; perhaps in the same way that constitutionalization of standing doctrine by the U.S. Supreme Court has impinged on the authority of Congress (Gilles 2000).

If justiciability is a word game or more in Canada, Sossin's case- oriented approach fails to remove the shroud over its rules. Inconsistency may reflect more than just doctrinal shiftlessness. An American law professor recently despaired of the inability of doctrine to accurately predict judicial decisions dealing with standing. He confessed that the attitudinal model of judicial behavior in which access to the courts depended on the ideological agendas of the judges worked much better (Pierce 1999). The attitudinal model, of course, does not preclude inconsistent case development if voting majorities are unstable on a bench or across courts because justices hold heterogeneous views about the administrative, jurisprudential, and political aspects of justiciability (e.g., Rathjen and Spaeth 1979). Sossin's framework also has a static quality; the implicit assumption seems to be that once doctrinal clarity is achieved pragmatism will account for deviations from the criteria. On the one hand, this reliance on pragmatism begs the question of what prompts exceptions in the first place. And on the other hand it is not clear how it incorporates change in the doctrines. [....]

"From Neutrality to Compassion: The Place of Civil Service Values and Legal Norms in the Exercise of Administrative Discretion", Lorne Sossin, University of Toronto Law Journal - Volume 55, Number 3, Summer 2005, pp. 427-447

[W]e Canadians do not know much about our own situation. We do know that in our country, as in England and the United States, there is at the federal level and at the provincial level a heterogeneous collection of bodies other than courts – independent commissions, civil service departments and other statutory authorities – deciding disputes between that mighty engine, the state, and the individual citizen or business corporation; but of what most of them in fact do, how they in fact do it, and to what extent they are in fact supervised, checked and controlled, we have only a hazy and rather general knowledge ... Law teachers and political scientists take note; here lies an untilled field for badly needed research and description.1

I Introduction

I start from a proposition that owes much to Willis's influence, namely, that administrative law has failed to develop an account of administrative decision making rooted in the lived experience of administrative decision making. Willis juxtaposed the formalism and abstract reasoning of lawyers with the functionalism and practical reasoning of civil servants.2 Rather than emphasizing this dichotomy, I suggest that coming to terms with the dynamics of administrative decision making leads to a consideration both of civil service values and of legal norms. Further, I argue that courts have a key role in shedding light on civil service values and that civil servants have a key role in shedding light on...

No axe to grind, of course ...

Yves Bouthillier, President of the Law Commission of Canada -- hardly an unbiased souce who was proposed for the position by Liberal Minister Cotler -- here


Monsieur Le Bouthillier .... From July 2002 to June 2005, ... Vice-Dean of the French Common Law Program at the University of Ottawa. An expert in international law, ... Scholar in Residence at the Oceans, Environmental and Economic Law Divison at the Department of Foreign Affairs and International Trade .... a member of the negotiating team that won the Head of the Public Service Award .... responsible for human rights law projects at the Agence universitaire de la Francophonie in Paris. He has appeared before a number of Parliamentary Committees, and acted as an authority in the Quebec Secession Reference ....Vice-President of the Canadian Council on International Law, ...

... taught international law ... international human rights law, international environmental law, and in related areas such as immigration and refugee law. He also has an interest in the protection of minorities.

... Université de Moncton, a Bachelor of Laws degree from the University of Ottawa, and a D.E.A. from the University of Paris II....

Which minorities?


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