Is the Charter Really Democratic?

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 argues 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 reminds 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 fairly recent claim that the current Supreme Court is “the most liberal-activist … in our history,” Mr. Coyne now says 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 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 it 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.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

5 thoughts on “Is the Charter Really Democratic?”

  1. This is one of your best articles, Leonid; relatively short but to the point. I often view the US and Canadian supreme courts, along with a number of other courts around the world with constitutional review powers, as being as much as anything a restraint on what could best be described as democratic excess. Certainly the US Founding Fathers, while great believers in democracy, also retained a healthy skepticism of democracy as an absolute good.

  2. I wonder if there are not some features of our Charter of Rights and Freedoms which do not dull your delegation anti-democracy argument (allowing that democracy really corresponds to the exercise of power by the elected legislature). The first most obvious of these features is the inclusion of s. 1 which expressly provides a role for the legislature in defining the limits on underlying Charter rights. However, I think what is more important is the inclusion of s. 33 with its express legislative override power attached to a sunset clause. It strikes me that this is a highly democratic tool which directly empowers the legislative branch but does so in a way that requires ongoing engagement with the electorate. Unfortunately in Canada we have perhaps missed an opportunity by vilifying s. 33 and not having explored more deeply how the legislatures and electorate could have had a role in defining the role of Charter rights and limiting those rights.

    1. I don’t think that s. 1 really makes a difference. It’s an explicit acknowledgement of the collective countervailing interests that can serve to limit rights, but courts very much have the last word about it. S. 33 would of course be different if it were used. I personally don’t think it should be (I gave some explanations here: but in any case, the fact is that it is not, and unless something changes, I think that we can, as a practical matter, ignore its existence.

      1. What has been made very clear over the last 33 years is that even musing about invoking the Notwithstanding Clause carries significant political risks. I think such a clause is an anathema in any entrenched bill of rights, myself.

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