"If the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation...the people will have ceased to be their own rulers."Abraham Lincoln in his first inaugural address (Manfredi, 1993:37)
On April 17, 1982 the Canadian Charter Rights and Freedoms was entrenched in law, proclaiming guarantees of individual rights and freedoms in the constitution and as a result, forever transforming the nature of Canadian constitutionalism. No longer would the Supreme Court of Canada be solely concerned with adjudicating the proper division of powers between the national and provincial governments, but it would extend the realm of legal debate to deal with issues concerning the limits of state action and intervention in light of individual and group rights.
Moreover, the Charter went even further in altering Canadian constitutional law by directly impacting the doctrine of parliamentary supremacy. Section 52(1) of Canada's Constitution Act, 1982 established:
an explicit basis for the judicial veto of unconstitutional law by declaring that the Constitution of Canada is 'the supreme law of Canada' and that 'any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect' (Russell et al., 1993:4).
In addition to section 52(1), Section 24(1) of the Charter allowed for anyone whose rights or freedoms as set out in the Charter to "apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate or just in the circumstances" (Russell et al., 1993:784). Thus, "The enforcement of the Charter or Rights is allocated to the judiciary by Section 24," and Section 52(1) effectively made "the Constitution of Canada...the supreme law of Canada'" (Landes, 1998:67-69).
The net result of the movement away from an "unwritten constitution" and the adoption of a constitutionally entrenched Charter with its emphasis on constitutional supremacy through judicial interpretation and enforcement rather than parliamentary supremacy, has been a decline in democratic accountability. According to former MP Jim Jepson, "The politicians make the laws but Trudeau gave the final word to that little marble building down the street [Supreme Court of Canada]," and he continued by stating that "The Charter focuses a concentration of power not on the democratically elected choices of Canadians, but on the appointees who gather at the Supreme Court" (Brode, 1990:36).
Thus, it has become apparent that the entrenchment of the Charter of Rights and Freedoms in the Constitution Act, 1982, significantly altered the nature of political power and responsibility in Canada's parliamentary system, as it sanctioned the transformation of the judiciary from the referee of law into the supreme law-maker in Canada, notably at the expense of democratic accountability. After an examination of the theoretical underpinnings of democratic accountability as it currently exists, and several significant court decisions, the notion that the increase of interaction between the courts and the legislatures because of the Charter of Rights and Freedoms has resulted in a decline in democratic accountability will be made clear.
To begin with, according to F. L. Morton, "the principle impact of the Charter can be seen not so much as the creation of new rights, but a new way of making decisions about rights, in which judges play a more central and authoritative role (1986:3). He could not have been more correct in his presumption. In 1984, the time it took for the first Charter cases to work their way up to the Supreme Court of Canada, Justice LeDain echoed the feelings of various member of the Court in that it was felt "that the Charter brought with it...'a new constitutional mandate for judicial review" (Russell et al., 1993:11).
Moreover, the results of Supreme Court rulings between 1984 and 1986 revealed that of the fourteen Charter cases, in nine cased the individual litigant won, in four cases the Crown Won, and in one case there was no clear victory for either side (Morton, 1986:5). In comparing these results to the results obtained while Canada operated under the Bill of Rights reveals that sixty-four percent of the cases under the Charter were unsuccessful, compared to 14% under the Bill of Rights (Morton, 1986:5). Thus, the interpretation by Supreme Court judges of a new judicial review mandate as a result of the Charter, and the subsequent results of early Charter decisions proves that the Charter undoubtedly had a profound effect on the interaction between the court and the legislatures.
As aforementioned, section 52(1) of Canada's Constitution Act, 1982 and section 24(1) of the Charter of Rights and Freedoms establish constitutional supremacy in which constitutional limits on the power exercised by the state are implemented through judicial review of government statutes, regulations, and official government behaviour and/or actions, as opposed to parliamentary or legislative supremacy. However, the birth of constitutional supremacy forebodes "The paradox of liberal constitutionalism" (Manfredi, 1996:36). According to Manfredi, the paradox of modern liberal constitutionalism lies in this:
if judicial review evolves such that political power in its judicial guise is limited only by a constitution whose meaning courts alone define, then judicial power is no longer itself constrained by constitutional limits. Contrary to liberal constitutional theory, the modern development of American judicial review suggests that judicial supremacy can easily overtake constitutional supremacy. The paradox is that judicial enforcement of rights in the name of liberal constitutionalism may destroy the most important right that citizens in liberal democracies possess, i.e., right of self-government (Manfredi, 1996:37).
Thus, constitutional supremacy risks becoming judicial supremacy with predictable results for the eventual decline of democratic accountability.
Proponents of the Charter argue that section 33 of the Charter ensures that judicial supremacy never becomes a reality. According to McMenemy, the notwithstanding clause "allows provincial or federal legislatures to enact legislation that violates, limits, or overrides specific sections of the Charter: fundamental freedoms (s.2), legal rights (ss. 7-14), and equality rights (s.15)" (1995:198). Nevertheless, Swinton argues that:
Although legislatures can override many provisions of the Charter through section 33, there are serious political constraints on such action, with the result that the Charter places a real restraint on legislative institutions, enforced through the judicial branch. The result has been as significantly expanded role for the judiciary, and particularly the justices of the Supreme Court of Canada, in the definition of the powers of our political institutions (1990:1).
Therefore, the argument often put forth by proponents of the Charter that judicial supremacy is next to impossible given the existence of the notwithstanding clause, is easily refutable given the serious political limitations involved in invoking section 33.
Speaking before the King of England in 1717, Bishop Hoadly stated that "Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the Law-giver to all intents and purposes, and not the person who first wrote or spoke them" (Case, 1997:19). The problem with the Charter, as identified by Bishop Hoadly, is that it transfers power not to the people but to the judges and subsequently subverts the democratic polity. Michael Mandel, a Charter critic, sees most of the provisions in the Charter as "vague incantations of lofty but entirely abstract ideals, incapable of either restraining or guiding the judges in their application to everyday life" (Hiebert, 1996:105). With such phrases that stipulate that no citizen can be subjected to "cruel or unusual punishment," and everyone has the "right to life, liberty and security of the person" (Case, 1989:276), the judiciary has its work cut out. There is no clear definition of what the above phrases mean in certain situations, and the only matter that is clear is that Supreme Court judges interpret these phrases, and thus construct a new set of binding legal standards (Brode, 1990:14). Perhaps Justice Roland Martland said it best upon his impending retirement from the high court in 1982 when he stated that:
The essential difficulty is that the Charter is a collection of broad, generalized phrases. These phrases will have to be given meaning by the Courts, and that means entrenching the judges' opinions. It is better to allow legislatures to pass specific enactments... (Russell, 1987:360).
Thus, because the Charter transfers power away from the people to an appointed judiciary and this judiciary has the task of deriving meaning from vague phrases, judges are often "entrenching" their opinions and as a result are undermining democratic accountability.
Furthermore, Morton and Knopff also argue that the democratic character of a nation is undermined by the Charter. They argue that the political process has been usurped by a political elite of well-educated bureaucrats, media and feminists who use the system as it exists under the Charter to pursue their interests in the judicial arena rather than the more traditional political arena which "bypasses the traditional democratic processes of collective self-government through popular elections and responsible parliamentary government" (Hiebert, 1996:111). The Supreme Court it can be argued has encouraged the proliferation of interest groups as well, due to the fact that intervener status has been made easier to acquire and the doctrine of standing has been relaxed over the years (Mandel, 1994:40). The result of the aforementioned changes according to Hiebert "is that judicial review is no longer characterized by its traditional role as a conservative check on democratic change but rather is engaged in the wholesale scrutiny of governmental policy initiatives (1996:111). Therefore, allowing individuals to make shortcuts pass the representative institutions of the state, and make claims "which 'trump' more representative claims on the basis of consistency with abstract rights embedded in the status quo" democratic accountability is subverted.
Moreover, even though some argue that the Charter has had a democratized effect on political participation, Professor Peter Russell is concerned that too much of a reliance on the judicial process rather than the political process for solving certain policy conflicts will weaken the democratic character of the state, and as a result undermine democratic accountability. Russell states that:
The danger here is not so much that non-elected judges will impose their will on a democratic majority, but that questions of social and political justice will be transformed into technical legal questions and the great bulk of the citizenry who are not judges and lawyers will abdicate their responsibility for working out reasonable and mutually acceptable resolutions of the issues which divide them (Hiebert, 1996:115-116).
Thus in the long run, allowing individuals and interest groups to bypass the political arena and enter the judicial arena will have the detrimental effect of a large majority of the citizenry abandoning their traditional role as consensus builders and brokers between conflicts. The reality of this is already present as governments at all levels, especially the current federal government, choose to allow the courts to offer solutions to complex and contentious social issues rather than formulate policy themselves.
"Power corrupts and absolute power corrupts absolutely," is the oft-quoted saying the Lord Acton. However, according to critics of the Charter, "why it is that, while power tends to corrupt, the absolute exercise of judicial power not only fails to corrupt, but actually guards against the corrupt exercise of legislative power?" (Case, 1997:19). Nevertheless, due to the inherent nature of judicial review, it runs counter to majoritarian principles. Legislatures are directly elected by the people at regular intervals and as such are assumed to be the best agents of the "public will" and subsequently "provides a democratic justification of the constitutional supremacy of these bodies over non-elected agencies such as courts.
According to Michael Mandel:
Once we admit the controversial nature of constitutional rights and the great differences in "interpretation" that can result from differing ideological points of view among judges, and between judges and the rest of us, the idea that judicial review is democratic, in the usual sense of enhancing popular power, evaporates into thin air (1994:42).
The Morgentaler decision (Morgentaler v. the Queen, 1988) is a perfect case in point. On January 28, 1988, Canada's high court struck down the restrictions in the Criminal Code requiring the approval of a therapeutic abortion committee before an abortion could be performed in an accredited hospital. Dr. Henry Morgentaler's victory culminated almost twenty years of civil disobedience against the Canadian abortion law. However, what is important to note is that the Morgentaler case as already mentioned, is a classic example of how differences in interpretation that can result from different judicial ideologies raises question as to the extent to which judicial review id democratic, because the case consists of:
a unanimous Ontario Court of Appeal, following a prior (split) decision of the Supreme Court of Canada, overruled by a (split) Supreme Court decision in which the five judges of the majority give three different opinions (Mandel, 1994:42).
Thus, with the high courts power to nullify the laws of Parliament while being responsible to no one, it is almost impossible not to come to the conclusion that the Charter "is even less democratic than the parliamentary democracy it is supposed to keep honest" (Brode, 1990:34).
Moreover, Canadian political scientist F. L. Morton argues that no where in the Canadian constitution does the right to an abortion exist, yet in each country statutes limited access to abortion have been stripped from the law books. Morton believes that Morgentaler and Borowski are excellent case examples of the political nature of constitutional arbitration in that:
Morgentaler argues the "principles of fundamental justice" include a women's absolute right to abortion. Borowski argues the same words protect the right to life of the unborn. Which version is right? Strictly speaking - based on the text and legislative history - neither is correct [emphasis added]. But if either one can garner the support of at least five justices, it becomes the new law of the land (Case, 1997:20).
Thus, because the words of the Constitution do not provide an answer to the abortion dilemma, Morton suggests that the Justices were legislating on the basis of their own morality.
In 1968, an amendment was passed in the House of Commons that legalized abortion under circumstances when the mother's life or health might be in danger. Although this decision was unsatisfactory to both sides of the abortion debate, at the time Chief Justice Laskin supported the decision by claiming that:
Parliament, in fastening upon certain behaviour or conduct or activity as criminal by proscribing it with penal sanctions, exercises a judgement which is not constitutionally impeachable simply because it may attract the opposition of a section of the population. The remedy or relief, as the case may be, lies with Parliament and not with this court... (Brode, 1990:10).
This phrase is a definitive summation of the previous role of the Courts by acknowledging the supremacy of elected politicians over that of appointed judges. However, in 1988, Chief Justice Dickson found that the procedure required under section 25(1) to abortion approval foe a legal abortion subjected women to physical and psychological burdens, thus limited their right to "security of the person" as guaranteed by section 7 of the Charter. He also found that the above limitation was inconsistent with the "principles of fundamental justice" (required by section 7), or rational or justifiable in a "free and democratic society" (required by section 1) (Manfredi, 1993:19). What is worth noting is that the Charter's entrenchment in 1982 caused Chief Justice Dickson to change his previous viewpoint on there proper role of the courts in the controversy surrounding the abortion issue. In 1975, Dickson stated that the Court should refrain from engaging in "the loud and continuous public debate on abortion" (Manfredi, 1993:20). However, by 1988 Dickson changed his frame of mind by stating that the court had the "added responsibility of ensuring that the legislative initiatives pursued by our Parliament and legislatures conform to the democratic values expressed in the Charter" (Manfredi, 1993:20). Despite Chief Justice Dickson, dissident opinion was expressed by Justices McIntyre and La Forest. They argued against substantive judicial review in this case because:
It is not for the court to substitute its own views on the merits of a given question of those of Parliament...The court must not resolve an issue such as that of abortion on the basis of how many judges may favour "pro-choice" or "pro-life." To do so would be contrary to sound principle and the rule of law affirmed in the preamble to the Charter which must mean that no discretion, including a judicial discretion, can be unlimited...What this basically means is that the court must be "constrained by the language, structure and history of the constitutional text, by constitutional tradition, and by the history, traditions, and underlying philosophies of our society." (Mandel, 1994:419).
Thus, this court decision had the effect of erasing a century of Parliamentary jurisdiction, of imposing a set of values and beliefs of unaccountable judges on the majority's wishes and thus subverting democratic accountability, and effectively restraining any future actions of Parliament concerning abortion.
In Smith v. The Queen, democratic accountability was further eroded by establishing that "Parliament is not permitted to establish a sentencing rule that significantly restricts that discretion [of the sentencing judge], even when Parliament decides that the gravity of an offence and the protection of the public requires a minimum sentence" (Hogg, 1992:1132). In this particular case, the accused had pled guilty to importing into Canada a narcotic estimated at a street value of between $126,000 and $168,000. Nevertheless, Canada's highest court threw out the minimum seven-year sentence in the Criminal Code for such an offence because it was deemed "cruel and unusual punishment" prohibited by section 12 of the Charter (Brode, 1990:28).
What is interesting to note is that a majority of the British Columbia Court of Appeal agreed with the sentencing of a minimum of seven years for this particular offence because according to Justice Craig, "Parliament, representing the public, should have a reasonably wide scope in determining what should be a crime and what should be the degree of gravity, and what should be the appropriate range of penalty for the crime" (Brode, 1990:28). Furthermore, the sole dissenter in this case was Supreme Court Justice McIntyre. In his dissenting opinion he stated that:
Parliament has determined that a minimum sentence of seven years imprisonment is necessary to fight the traffic in narcotics...One might question the wisdom or desirability of this legislative decision but, in any view, given the possibility of early parole, it cannot be said that the minimum sentence is so severe that it outrages the public conscience or is degrading to human dignity (Mandel, 1994:207).
Thus, the disagreement between the two courts as to the constitutionality of the minimum sentence and the resulting different rulings, as well as Justice McIntyre's dissenting opinion, does not say much for the judicial process, and as a result the degree of democratic accountability that the Supreme Court can offer.
Moreover, the administration of constitutional supremacy by the Supreme Court was thrown even further into disrepute by the admission of Justice Lamer that the majority could not point to one real example of a situation on which it was basing its entire judgement. In the words of Lamer, "No such case has actually occurred to my knowledge..." (Mandel, 1994:209). In reality, the sentence handed down by the trial judge in Smith eight years, which was above the minimum seven-year sentence for this crime. It is apparent then that the trial judge thought the seven-year minimum was too low in this particular case. However, the majority paid no attention to this reality, and as a result Justice McIntyre points out that:
There is an air of unreality about this appeal ... The judges who have considered the case ... are unanimously of the view that a long sentence of imprisonment is appropriate and no one has suggested that the appellant has been sentenced to cruel and unusual punishment. Recognizing this fact, the appellant does not attack s. 5(2) ...on the ground that it violates s.12 of the Charter in general, but rather on the ground that the imposition of a "mandatory minimum sentence of seven years" on a hypothetical "first-time importer of a single marijuana cigarette" would constitute cruel and unusual punishment. In effect, the appellant is stating that while the law is not unconstitutional in its application to him, it may be unconstitutional in its application to a third party, and therefore, should be declared of no force or effect (Mandel, 1994:209).
Thus, under the façade of protecting citizens from cruel and unusual punishment, the Courts effectively undertook the power to set the range of criminal sentences it deemed appropriate. As a result, the courts effectively took control of a policy area, one in which Parliament possessed the presumed necessary and adequate resources to investigate, debate, and legislate policy in regards to sentencing for commission of crimes. According to Justice McIntyre, the judges granted themselves the ability "to determine the appropriate sentence in their absolute discretion" (Brode, 1990:28).
In M v. H, the gay rights palimony case, the Supreme Court of Canada (8-1) found that the failure to allow homosexuals to apply under Part III of the Family Law Act of Ontario (FLA) was a violation under section 15(1) of the Charter (Reform Party, 1999:1). After the separation of M. and H. in 1992, M moved to make application to the court for support pursuant to the Family Law Act of Ontario, however Part III of the FLA which deals with support obligation of spouses when relationships sour states that only non-married couples could apply if they were of opposite sex, had been together for at least three years, and if they had had a conjugal relationship (Reform Party, 1999:1). Thus, M. could not make application under the FLA because the right to apply was only guaranteed to members of an opposite sex relationship.
Furthermore, in the judicial decision, the High Court decided in very narrow terms that:
the FLA draws a distinction by specifically according rights to individual members of unmarried cohabiting opposite sex couples, which by omission it fails to accord to individual members of same sex-couples who are living together. It is this distinction that lies at the heart of the s. 15 analysis. The rights and obligations that exist between married persons play no part in this analysis (Reform Party, 1999:2).
In addition, in paragraph 134 of the Supreme Court ruling, the judicial decision states that "The appeal does not challenge traditional conceptions of marriage, as s.29 of the Act expressly applies to unmarried opposite-sex couples...I do not wish to be understood as making any comment on marriage or indeed on related issues" (Reform Party, 1999:2).
Thus, although this decision was careful to avoid being to expansive as detailed above, as a result of this decision, the Supreme Court put Ontario and the rest of the country on notice that discrimination against same-sex couples because of their sexual orientation was not allowed. The court then gave Ontario six months to make corrections to its legislation in order to bring it in line with the judicial ruling. Subsequently, when the provincial legislature sitting after the spring election of 1999, the Progressive Conservative government introduced changes to its legislation.
What is the fallout of the judicial decision in the M v. H decision? As a result of the Supreme Court redefining the legal definition of spouse to include homosexuals, the court struck down the Ontario Family Law Act and hundreds of other provincial and federal laws that use the traditional definition of spouse as being a member of the opposite sex. According to Professor Ted Morton, "Unless elected governments find the courage to resist, more statutes will be struck down by this one decision than by all previous Charter decisions combined (57 statutes in 352 decisions)" (1999:1). However, what is even more disturbing according to Morton is that the decision has no basis in the Charter because the words "sexual orientation" do not appear in the Charter. Moreover, in 1981, an amendment was voted on and defeated by a margin of 22-2, excluding sexual orientation from the Charter itself. Thus, according to Morton, "judges have used their power of interpretation to give the Charter meaning that it was not intended to have" (1999:1). Thus, democratic accountability is subverted due to the fact that the judiciary explicitly read in sexual orientation in the Charter where it did not exist before, even though including sexual orientation in the Charter was voted down by the parliamentary system in 1981.
In M v. H, constitutional supremacy seems to have been replaced by judicial supremacy, where the Charter means whatever the judges deem it to mean. Another case in point is that the word "dignity" does not appear in the Charter. Equality as it is traditionally understood means being treated equally or differently in order to achieve a similar result in the long run however, the courts decided that "Equal dignity" is in the eye of the beholder. If a member of a 'historically disadvantaged group' feels that a public policy 'demeans his or her dignity,' then that public policy is unconstitutional" (Morton 1999:1).
What is even more disturbing for democratic accountability besides the extent to which the High Court will go to in its interpretations, is that in the 1995 Egan case, five of the nine judges (a majority) upheld the traditional definition of spouse. Justice LaForest ruled that the family was still "heterosexual by nature" and so discrimination by the state was nonexistent, and Justice Sopinka on the other hand argued that there indeed was discrimination (Morton 1999:1), but that this was the type of discrimination that was "reasonable," in that it could "be demonstrably justified in a free and democratic society" (Russell et al., 1993:779).
The question then arises as to why the precedent established in Egan did not carry over into the M v. H decision? To put it simply, the majority that carried the day in the first case was no longer present, due to the retirement of the LaForest and the death of Sopinka. According to a Globe and Mail article that appeared in its September 22, 1997 edition, EGALE (an influential gay rights lobby) told their members that:
it is vitally important for our communities that LaForest be replaced by some one more committed to equality issues ... We now have a ...good idea of who the main contenders for the position are, but need some background info on these candidates so that we know which ones are more likely to be supportive and which ones should be avoided (Morton, 1999:2).
Thus, it appears that judicial rulings depend on who is sitting on the bench just as much as, if not more than any legal reasoning put forward by the judiciary for its conclusions. What this finding says for democratic accountability is understandably quite dismal.
In conclusion, as Canada establishes itself in the new century and after almost twenty years of life under the Charter of Rights and Freedoms, it is necessary to encourage a wide-open democratic debate about the ramifications of the Charter and the Supreme Court on Canadian society. Through the reality in which the current system operates, such as to eliminate the "legitimate" use of the notwithstanding clause because of the possible political costs involved, and the decisions of Canada's Supreme Court from Morgentaler to M and H, Canada's uneven experience with the interaction between courts and legislatures has had a detrimental affect on democratic accountability. A serious debate concerning the difference between constitutional supremacy, obeying what the Charter says or was intended to say, as compared with judicial supremacy where the Charter says what judicial interpretation dictated it to mean, has become ever more pressing. This is an absolutely crucial debate for the future of democratic accountability in Canada, which is the foundation upon which the entire political system both functions and operates.
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