Democracy Gone Astray

Democracy, being a human construct, needs to be thought of as directionality rather than an object. As such, to understand it requires not so much a description of existing structures and/or other related phenomena but a declaration of intentionality.
This blog aims at creating labeled lists of published infringements of such intentionality, of points in time where democracy strays from its intended directionality. In addition to outright infringements, this blog also collects important contemporary information and/or discussions that impact our socio-political landscape.

All the posts here were published in the electronic media – main-stream as well as fringe, and maintain links to the original texts.

[NOTE: Due to changes I haven't caught on time in the blogging software, all of the 'Original Article' links were nullified between September 11, 2012 and December 11, 2012. My apologies.]

Tuesday, April 17, 2012

Canada’s Charter of Rights imposes vital limits on the discretion of government

Whatever else they may disagree on, critics and admirers of the Charter of Rights are united in their belief in its centrality. Whether you share the conviction of one critic that the day the Charter passed Canada “surrendered any claim to democratic self-government,” or whether you subscribe to the late Chief Justice Brian Dickson’s reported assessment, that the Charter transformed Canada from a system of “parliamentary supremacy” into one of “constitutional supremacy,” what is common to both is the suggestion of a fundamental break with the previous order.

That we have become a noticeably freer and fairer country in the 30 years since the Charter became law I do not dispute. But the changes it has wrought have as much to do with the system of law of which it is a part as with any particular provision of the Charter.

Indeed, the most common complaints about the Charter, that it has confined Parliament’s powers to make laws for the general good, while handing unelected judges the power to make law, are not only exaggerations: they could as well be said about the rule of law itself.

All laws, not just the Charter, bind the legislatures that pass them, at least until they are changed. All laws, not just the Charter, limit the discretion of governments. That is precisely their point. The purpose of law is not to restrain the citizens: governments can do that very well in its absence, as in any dictatorship. It is, rather, a restraint on government. We do not trust our leaders enough to permit them to rule by fiat. We make them put it in writing. We grant them this much power, and no more.

We insist their powers be defined in this way, not only to contain them within limits, but that we might better understand what they are — that they might be more predictable, more certain, more clear. We desire, at a minimum, that laws should mean the same thing from one day to the next, and be consistent with each other.

But for that we need an independent adjudicator. If the people who made the laws also had the power to interpret them — as kings have claimed, in ages past — the law would cease to perform its intended restraining role. Legislation would mean whatever was convenient in any given case. Only by dividing power between the legislative and judicial branches — one proposing, the other disposing — can we be protected, however imperfectly, from “arbitrary measures.”

All laws, then, not just the Charter, involve the judiciary in “making law.” The minute you given anyone the power to interpret the law, that inevitably impinges upon the legislative power to some degree, no matter how scrupulous they may be about original intent. That is an implication of the rule of law, not the Charter. (And not only written law: The common law that conservatives get all misty about is judge-made law in its purest form, consisting as it does entirely of jurisprudence).

To be sure, the Charter differs from ordinary laws in some respects. It is explicit in stating its supremacy over other laws, even those that come after; accordingly, it is harder to change than they are. But even these are hardly new. The popular theory that Canada had no “written constitution” before 1982 would seem to have trouble explaining the existence of the British North America Act, which I distinctly recall being a document of some kind. As, for that matter, was the Bill of Rights 1688, the Act of Union and the rest of the English constitution back to Magna Carta.

Parliamentary supremacy was never the principle by which Canada was governed, in other words, nor was judicial review the invention of the Charter. Before 1982, the courts were regularly called upon to decide whether one level of government had intruded upon another’s powers and prerogatives, and to toss out the offending legislation as ultra vires the Constitution. All the Charter did was grant the people the same protection. Henceforth, governments had to be as considerate of their citizens’ rights as they were of each other’s.

You can call that many things, but the one thing you can’t call it is anti-democratic. Because — I’m going to let you in on a secret here — the Charter was itself the creation of a democratically elected Parliament. More than a statement of abstract principle, the Charter is a list of solemn promises on Parliament’s part: about how it intended to act in future, about how its past acts were to be judged. It wasn’t the courts that imposed these obligations upon it. Parliament itself assumed them, presumably in good faith. All the courts are doing is holding it to its word.

I do not mean to suggest that we live in the best of all possible worlds. The Charter is a vastly flawed document. It omits the right to own property, a right protected in most other nations’ constitutions, while its prohibition of legal discrimination is instantly eviscerated by a rider allowing for just that, provided it is for the right reasons — one of half a dozen such exceptions and escape hatches, most notoriously the notwithstanding clause.

The courts, for their part, have frequently erred in their interpretation of it, though not in the reliably expansive way critics of judicial activism fear: more often the problem has been judicial inactivism, a failure to uphold the Charter’s primacy over legislation that conflicts with it, as it is their duty to do. For it was Parliament that decreed they should.

Original Article
Source: national post
Author: Andrew Coyne

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