Saturday, March 10, 2012

The Charter, Judicial Review, and Democracy

The Charter of Rights and Freedoms

One of the “key words” we address in an intro Canadian Studies course I teach is “The Charter of Rights and Freedoms.” I become more and more convinced that the Charter is one of the most misunderstood elements of current Canadian life. One can like the Charter. Polls indicate that Canadians do. And, my students certainly love it. But, I have wondered is “the Charter” one of those things that you are supposed to love, say like the Constitution in the US or hockey? Do those people who love it, really know what its about?

I don’t want to pick on my students. Indeed, that would be wrong because they are a good lot. I use them only as an example of what a bunch of young middle class Canadians think. And, to be clear, I think we need the Charter. I think it is an important and useful part of the Canadian constitution and Canadian public life. It does not work perfectly. And, the courts are not foolproof. Before we throw the Charter out because of the imperfect working of the courts, however, we need to consider:

1)  what does it mean to not work perfectly. This requires us to understand what the Charter is about.

2)  what are the alternatives to it?

Let’s address very quickly each of these points.

First, nuance is important in considerations of the Charter. This is not just because the Charter is a legal document but because public discourse on the Charter and no rights is often poorly framed and, as a result, either ambiguous or wrong. For example, the Charter did not give Canadians rights. Canadians had all kinds of rights before the Charter (free speech, due process of law, various civil and equality rights enshrined in human rights acts, and political rights guaranteed by other elements of the constitution). Second, the Charter does not ensure that Canadians have rights. This is one of the criticisms of the Charter, in fact. The Charter through judicial review, protects certain rights but its mode of operation is often poorly understood. One of the problems with the Charter is that it tends not to be pro-active. Instead it provides a remedy through the courts to address infringements of rights, but after they have occurred.

Let me give you an example: imagine that I run the government and I pass a law that discriminates against a particular group of people. Let’s say red heads, just for the sake of an example. The Charter does not stop my government from passing that law. What it does is allow that group to better make an argument in court that the law should be modified so as to eliminate the discrimination. This was precisely what happened with regard to equality for gay and lesbian Canadians. The discriminatory laws existed. Equality advocates used the Charter to advance a claim that the law should be modified. In other words, the Charter allowed a discriminatory law to be repaired, long after the law had been passed. In this way, the Charter does indeed protect rights but its mode of operation is often post hoc.

Nor, is the Charter undemocratic. This is another common criticism of it, although one advanced by a different group of people. The idea that the Charter is enforced by unelected judges who have no right to make policy is a common discourse in Canada, particularly on the right wing. Yet, this is a very simplistic conception of democracy whose very simplicity elides the tough questions that all democracies, sooner or later, have to confront. For example, can a majority decide to make a minority into second class citizens, who have fewer rights then the majority? Again, let us use an example to illustrate this point. Red heads are a minority in Canada. Can the blond and brunette majority use its majority through  elected legislatures to deprive red heads of, say, due process of law? Would that be democratic? What if we started to use non-hypothetical examples? What if a majority decided to use the force of the state to liquidate the culture of a minority or, in other countries, to physically kill off that minority. Would we view that as democratic?

The point I am making is that something does not become democratic simply because a majority favour it. If it were, there would be no debate about gay equality in Canada (since this is favoured by a majority of Canadians) or gun control. Some rights are necessary for democracy and without them democracy does not function. This is not an exhaustive list but I’d number among these rights: due process of law, equality, freedom of speech, freedom of association (no guilt by association), freedom of conscience. If these things are missing, if someone can be jailed because of whom they hang out with, or if one cannot freely criticize government (regardless of what the majority thinks), then we lose degrees of democracy.

There is more that can be said but I am already running too long so let me shift to the second point: alternatives and working perfectly. Another criticism of the Charter is that judges make mistakes in interpreting law. This is true. But, before we “throw the baby out with the bath water” we need to ask other tough questions: what is the alternative to judicial review in protecting rights? Is anyone going to say that legislatures and Prime Ministers work perfectly? A quick glance at Canadian history should eliminate that view right away. Canadians have changed a bunch of laws over the years because they determined that the legislature erred in passing the original law. So, laws regarding the sterilization of aboriginal women, for instance, or prohibiting entry into Canada on the basis  of a person’s skin colour, or imposing special taxes on specific ethnic groups, have all been  changed because Canadians decided “that was wrong.” These are just examples to illustrate my point: before we say “Parliament should look after this,” we need to think clearly about how perfect Parliament works.

Do MPs actually represent the views of their constituents? No conspiracy theory is needed here. I’ve already blogged about this and how difficult it is for any one individual to represent the views of their constituencies, simply because of diversity (whether it be occupational or social or religious). The truth of the matter is that Canadians are often deeply divided on public issues.  There is nothing wrong with this, by the way. It might be a sign of democracy. The point is that defaulting to Parliament often does not guarantee democracy but the rule of plurality. (No government since Mulroney’s first administration has commanded the support of a majority of Canadians). This does not make Parliament illegitimate either. The argument that I am making is not zero-sum. It means that some system of checks and some balance is not a bad thing in producing good policies that meet the highest ethical standards. In other words, no one should think I am “dissing” Parliament. I’m suggesting that Canadians can have what they actually already have: both Parliament and a Charter.

Finally, one might ask this: if we acknowledge that the courts can make mistakes and that Parliament is imperfect, how well is Canadian rights culture working? Joseph Heath speaks of the nobility of rights. What he means here is another question: if we are going to make a mistake, which mistake is better to make? Should we err in a way that protects minorities and historically marginalized groups? Or, should we err in a way that perpetuates inequality and marginalization? I have my answer to that question and you can have yours. I’ll rephrase the question: which  is more noble, which makes you more proud to be Canadian? Is it more noble to act to protect the marginalized? When you think of what kind of country you’d like to live in … what is your response? 

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