June 30, 2019

It is funny what will get some people incensed.

When the Ontario Court of Appeal issued their ruling on the constitutionality of Justin Trudeau’s carbon tax I called it a split decision. Well, you would think the world had ended.

Calling it that meant that I either don’t understand the law and how courts work, that I was stupid or worse lying to my readers.

No, it’s a split decision.

Let me explain how this works. If an appellate court does not issue a unanimous decision then what have issued is, by definition, a split decision.

I’m not misleading.

The total decision in this case consists of a majority decision which was written by Justice Strathy and signed also by Justices MacPherson and Sharpe. Justice Hoy wrote a concurrence where he agreed in the main but had some differences and Justice Huscroft wrote the minority or dissenting opinion.

All three parts make up the decision of the court.

When writing about it you can refer to the majority, the minority or the concurrence but to say that because a majority supported one side that this is not a split decision is false.

There doesn’t need to be a magical number of judges siding with the minority to make it a split decision.

If you still don’t believe me then you can read more on this topic here.

Where did I go to law school?

Another remarkable thing I see each time that I write a column that is critical of the court is the automatic assumption that I am not qualified to do so because I am not a lawyer.

I’ll be blunt here, I can damn well criticize any court and any judge in this country. I am a free man, a Canadian, a citizen of this great country and that is all you need to know about what qualifies me to criticize judges.

No, I didn’t go to law school. And as my detractors are so quick to point out, I studied at Mohawk College. It was a two-year course in broadcast journalism.

I often have that thrown at me as a reason that I’m not qualified to comment on court rulings, politics or just about anything else.

Funny, isn’t that an elitist view, that you need to have a law degree, or a degree, to hold an opinion? I’d say so.

Having a degree doesn’t mean you are intelligent, we’ve all met people that prove that to be the case.

As for my opinion on this particular case, I agree with Justice Huscroft who has been a lawyer for decades before becoming a judge and even taught at the law school of the University of Western Ontario.

If you don’t like my opinion because you don’t think I have the right credentials then try his.

About the author 

Brian Lilley

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