, Research Paper
With the adoption of the Canadian Charter of Rights and Freedoms in 1982, Canadian courts have increasingly played a role in Canadian politics. Peter Russell describes the impact of the Charter on Canadian politics as having “judicialized politics and politicized the judiciary.” The Charter has given the courts the power of judicial review, that is, the examination of laws and state conduct in light of their constitutionality. The Supreme Court of Canada’s Judges are not elected, they are appointed. This would seem undemocratic to some, how can these appointed judges overturn the legislature decided upon by the majority of Canadians.
…judicial review, it is alleged, is illegitimate because it is anti-
Democratic in the unelected officials (judges) are overturning
elected representatives (legislatures).
The Charter has allowed our judges to become legislators; judges can over rule laws when their individual opinion is inconsistent with the Charter. This is where enormous controversy arises. How can the interpretation of an individual overrule what is considered the law by the elected representatives of parliament? When a Supreme Court Judge implements “their view” in the judicial review process, they are putting “their view” up against the collective view of parliament. The argument that the Charter of Rights and Freedoms is anti-democratic is a viable one under this light. It is not easy to answer the question “Is the Canadian Charter of Rights and Freedoms Anti-democratic?” Democracy is broader than the notion of majority rule. The Charter is a document set out to protect the rights of minorities, and the equality of Canadian citizens. Equality and minority rights are key characteristics of justice within a democracy. In a democratic society it is important to protect minorities from the possibility of the tyranny of the majority. Charter supporters may argue that it is the Charter that grants people power. The Charter limits provincial and federal governments from ruling arbitrarily and grants citizens the power to take issues to court that they feel have denied or impaired their rights. The limiting of government power would transfer more power into the hands of the people. This is what democracy is all about, power in the hands of he people. This is the argument that the Trudeau government tried to get across to Canadians in the early 80’s when they were publicizing the Charter in an attempt to gain support. They did not explain the Charter in the context that non-elected judges would be able overrule legislation, legislation supported by Canadians through elected representatives. Another common belief about the Charter, held mainly by Supreme Court judges, is that they do not legislate, they merely interpret the Charter.
Quite simply, it is not the courts which limit the legislatures.
Rather, it is the constitution, which must be interpreted by the
Courts, that limits the legislatures.
It is obvious however that the courts are not just interpreting the law, they are going much further than that. Rory Leishman argues in his article, Legislators for Life, that “the Supreme Court of Canada has routinely struck down laws enacted by Parliament or a Provincial legislature on grounds of policy, amended statutory laws from the bench, ignored the law altogether, and told legislatures what laws to enact.”
Leishman is quite obviously a critic of the Charter and provides many contemporary examples of Charter violating and discrediting legislation. The examples he provides present the Charter not as an apologist of democracy, but as antidemocratic literature. Upon review of some of the historical and contemporary influences the Charter has had on Canada, we will see that the Charter of Rights and Freedoms has had an antidemocratic effect on Canada. The Charters legalization of politics is also an example of the Americanization of Canadian politics. The latter issue should be taken most seriously if we want to continue to have a voice in politics and not have to fear that one day who our Prime Minister is will be decided upon in the courtroom.
II. The Charter is Antidemocratic.
The process of judicial review that has been sponsored through the Charter of Rights and Freedoms gives Supreme Court judges legislative power. This process is undemocratic for one important reason; the judges that are over turning and generally meddling in legislative affairs are not elected, they are appointed. In Canada the difference between a Judge and a Legislator is a judge is appointed and a legislator is elected. The legislator is accountable to its electorate; the judge is accountable to no one. This is the root of responsible government, when legislators decide they no longer want to be accountable to the people in which they represent they will not get re-elected and therefore the will of the people will rule and a more accountable representative will be elected. When a Supreme Court judge implements his or her “view” or “interpretation” of the law, he or she is accountable to no one, and therefore suffers no consequences from their decision.
A good example of Supreme Court Judges lack of accountability and the surfacing of the consequences of their judgements was in R. v. Askov (1990). In this case charges were dismissed against the accused that waited 23 months to stand trail. The Supreme Court of Canada ruled it violated section 11b of the Charter of Rights and Freedoms which states “any person charged with an offence has the right to be tried within a reasonable amount of time;” If the courts had left it at the conclusion that 23 months was too long to wait to stand trial they would have been fine, however, they did not leave it at this. The Supreme Court went on to rule that “in the range of some six to eight months between committal and trial might be deemed to be the outside limit of what is reasonable.” The consequences of this decision were reported by Knopff and Morton in the book Charter Politics: “In Ontario, 43,640 charges were stayed, dismissed, or withdrawn on the basis of Askov by mid-1991. These included at least one charge of manslaughter, 817 ‘extreme assault’ offences (e.g., assault with a weapon, assault on a police officer, or assault causing bodily harm), 290 sexual assault charges, 402 lesser sex offences and 11,623 charges of impaired driving.” The Supreme Court in this case only suffered an extreme backlog within the courtroom, but the MP responsible for such a miscalculation would be held much more accountable and would risk not being re-elected.
Parliament, in opposition to judges, would not be as likely