Double Aspect

Andrew Coyne had an excellent column in the National Post for the 30th anniversary of the Canadian Charter of Rights and Freedoms, which only came across after he re-shared it this week. (Indeed, I had originally thought it was published this week, but he has corrected me. Apologies!) Mr. Coyne argued that the Charter must be seen as only a part of the broader legal system which, no less than the Charter itself, constrains legislatures, limits the discretion of the executives, and requires judges to engage in interpretation ― and thereby gives them a legislative power of sorts. He also reminded us that judicial review of legislation existed in Canada well before the Charter, albeit that the grounds for it were narrower. In seeming contradiction with his more recent claim that the current Supreme Court is “the most liberal-activist … in our history,” Mr. Coyne wrote that

[t]he courts … have frequently erred in their interpretation of [the Charter], 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.

I have little quarrel with this (beyond my oft-stated opposition to the use of the term “activism,” which extends to “inactivism” as well), or most of the rest of the column. Mr. Coyne’s discussion of the Rule of Law, in particular, is excellent.

One of Mr. Coyne’s claims, however, does not persuade me. “You can call [the Charter] many things,” he says,

but the one thing you can’t call it is anti-democratic. Because … 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.

The idea of a promise by Parliament is a very apt description. But I don’t think that it can carry the burden that Mr. Coyne wants it to bear ― that of proving that the Charter is not anti-democratic.

To state what is probably obvious, not everything a democratically elected legislature does by a majority vote is democratic. An extreme example of that, of course, is a legislature that extends its own term in office or otherwise interferes with the democratic process itself. But legislatures can act undemocratically in other, less blatant ways.

One such way is delegation of power. When a legislature passes on some of its law-making authority to unelected bureaucrats within administrative agencies, or even to ministers who, although elected, need not submit the regulations they make to a Parliamentary vote (and, before that, to the strictures of what Jeremy Waldron calls legislative due process ― repeated debate, study in committee, bicameralism, etc.), the result is a democratic loss. This loss may well be inevitable, or even worthwhile. Legislatures can probably not handle all the regulatory work that a modern state feels entitled and compelled to undertake. In some cases, it may well be that expert regulators insulated from political pressures will come up with better rules than legislators (monetary policy is perhaps the most extreme example). But from the standpoint of democracy itself, if democracy is understood as control of policy by elected legislatures, it is a loss all the same.

If the Charter is indeed understood as a promise by Parliament (as opposed to the exercise by the nation, or even by the old colonial power, as John Finnis argues, of its pouvoir constituant), then it is, arguably, something quite similar. It is a delegation to courts of a power to hold legislatures to its promises regarding the respect of individual rights and liberties. Like other forms of delegation from a democratic legislator to an unelected group of experts, it is a trade-off: the acceptance of a loss of democracy, in return for a gain elsewhere ― namely, in respecting the rights and liberties of Canadians.

Again, this trade-off may well be justified ― indeed, despite my occasional misgivings about the Charter, I think it is a very good deal for us. In my opinion, we have gained a lot, in terms of the state’s respect of our rights and liberties, thanks to the Charter, while the losses to our ability to govern ourselves, while not nonexistent, have been contained. But I think that we do better by acknowledging the trade-off, including the democratic loss. At an intellectual level, acknowledging it makes it easier for us to recognize that there are different sources of legitimacy, which include respect for individual rights no less than self-government ― and that we strive to strike a balance, perhaps an uncertain and precarious balance, in order to achieve legitimacy for the Canadian state. And at a more practical level, it seems to me that reminding the judges that their legitimacy too is, if not questionable, then at least least incomplete, may be useful in keeping them in check ― something that must be done to those who exercise judicial power as well as to those who exercise the legislative and the executive sorts.

I cannot agree with Mr. Coyne that the Charter, or judicial review of legislation more generally, is really democratic. (There are other, quite different arguments to the same effect, by the way, with which I do not agree either, but that is another story.) That alone does not make it bad. Democracy matters, but it is not the only thing that matters.