So, about that Canadian “democracy” thing…

Well I had my eyes opened recently. As a Canadian I don’t actually live in a democracy. Oh, sure, Canada looks and acts like a democracy – we have elections every four years; governments come and go, laws are written, taxes are collected – but when push comes to shove it is not elected officials who get the final say with respect to the laws of the land, but unelected officials.

No, I’m not just ranting, this is a verifiable claim and others are starting to express precisely the same concerns. Hold on to your seats and grab a coffee for this one.

[Quick note: any bold in quotations is my emphasis, throughout this article.]

Our current system came about as a result of the Constitution Act of 1982; the handiwork of Trudeau Senior. In the Constitution itself it states,

The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

That seems reasonable, on the face of it. It means lawmakers  – our elected parliament – cannot go about making any old law that they want to make; their laws must be consistent with the principles already laid out in the Constitution. This would seem to be a form of protection against radical revisions to the laws of our land based on some trendy new view of things.

But consider the implications. Who is it that gets to decide whether a law is inconsistent with the provisions of the Constitution? If you’ve been following the news in Canada you’ll know the answer right away; the Courts. Specifically, the Supreme Court of Canada.

Which all sounds like a good check on the powers of the elected officials until you consider one sobering fact:

None of the judges on the Supreme Court are elected.

Unelected officials get to unilaterally strike down any law that they determine is “unconstitutional.” And they seem to do so with relative frequency. This conversation came about because they struck down the law against doctors killing patients, but here’s another example of a law they struck down. In fact, this website provides a “score card” of laws that have recently been overturned; at least one of them – the law against prostitution – actually pre-dates Canada’s very existence. Of the others, it would seem the Supreme Court (at least for a season) struck down far more laws than they “permitted” to stand.

What does this say about the politicians we elected? Are they so ignorant that they don’t know what the Constitution says? Actually, that’s not the problem at all. According to this paper at the Canadian Parliamentary Review, the problem is not that they politicians don’t know what the Constitution says, they just don’t know how the judges are going to interpret the constitution.

Justice Iacobucci argued that upon the introduction of the Charter Canada went from a system of Parliamentary supremacy to constitutional supremacy. Simply put, the Charter meant that each Canadian now had rights and freedoms which governments and legislatures could not take away. … Justice Iacobucci continued that disputes would inevitably arise over the meaning of these rights and their justification; it was the role of the judiciary to resolve them.

The final authority in Canada is not the parliament (elected officials), but the Constitution. And what the Constitution “means” is decided by the Supreme Court; unelected judges. In the same paper another justice is quoted as saying,

Quite simply, it is not the courts which limit the legislatures. Rather, it is the Constitution, which must be interpreted by the courts, that limits the legislatures.

This could be seen as reasonable, but only if those who are interpreting the Constitution are as steady, unbiased and neutral as the Constitution itself. If that’s the case, then the interpretation of the Constitution should be a relatively straightforward act that any competent person, knowledgeable in the field of law, can do. And they should almost always come to the same conclusions, if interpretation is so straightforward and objective.

That is self-evidently not the case for at least two obvious reasons. First, the nine judges on the Supreme Court do not always agree. Not all Supreme Court decisions are unanimous. If there is even one dissenting voice then the interpretation of the Constitution is demonstrably not self-evidently obvious and is, therefore, subjectively interpreted.

The second reason this is self-evidently not the case is because of the history of laws that the Supreme Court has struck down. The prostitution law was inherited from the UK, so it predates the nation of Canada (and certainly predates the 1982 Constitution) yet in 2013 the Supreme Court struck down the law. If the law was clear, and the Constitution was clear, then there is no plausible reason why it should have taken the Supreme Court roughly three decades to “discover” that the law was unconstitutional. Prostitution is a very prevalent reality in society, so this is not some obscure law that nobody was bothering to think about. Likewise, the Constitution is a central document of our nation and anybody with that background should be well versed in it. If there was an inconsistency it seems obvious somebody would have noticed that back in 1982, or shortly thereafter.

On the contrary, because it’s been a full 30 years since the Constitution was formed, and the law predates the Constitution by centuries, it seems self-evident that the interpretation of the Constitution is what has changed.

But it gets better! The “right” of doctors to kill their patients was considered by the courts back in 1993 (Sue Rodriguez) and the courts decided that the right to assisted suicide is NOT guaranteed by the constitution. Roughly two decades later those judges have done a complete 180 degree turn-around on the subject. If the constitution remained the same, and the laws remained the same, then the only thing that changed was the interpretation of the Supreme Court judges.

We might expect political parties to change from election to election, but the courts should be unchanging if all they are doing is interpreting the constitution. But the courts do change. Huh. It almost seems as if the courts are getting into politics without having to deal with all those horrible inconveniences like running campaigns, talking to voters, getting elected and stuff…

Professor Allan Hutchinson of Osgoode Hall Law School has argued that under the Charter, the Supreme Court of Canada cannot but act politically; its only choice is to decide how it is going to do so. Whether it upholds legislation, strikes it down, or reads in provisions, the Court is engaging in equally political conduct in that it is imposing its own solution over that of a legislature’s initial response.

Yes, in fact, the courts are “playing politics.”

It gets even more interesting, not only are the interpretations of these judges subject to their personal political leanings on the matter, they extend this process of interpretation even further. They have begun “reading in” to the Constitution what is not actually contained in it. As the above article describes,

In the case of reading in, the constitutional inconsistency is defined as what the legislation wrongly excludes, rather than what it wrongly includes.

In short, the judges get to arbitrarily decide what should have been included in the law according to their personal politics. And this is on top of their previously-mentioned liberty to interpret what has been included in the Constitution through the lens of their personal political views.

The Constitution may have been intended to serve as a fixed reference point for our nation, but so long as the act of interpreting the Constitution is left to the unrestrained opinions of a handful of unelected officials – guided by they personal politics and ideologies, with the occasional “reading in” for good measure – then functionally the Constitution is no fixed reference point at all. It is as “fixed” as the whims of the nine individuals who happen to sit on the bench at this particular junction in history. We can reword the previous summary of the Canadian system thusly,

upon the introduction of the Charter Canada went from a system of Parliamentary supremacy to constitutional judicial supremacy.

Clearly the Supreme Court is acting as far more than ‘just the messenger.’ The Supreme Court looks a whole lot more like the Supreme Leaders.

Whether you agree with the decisions of the Supreme Court of Canada or not, any sober-minded lover of true democracy should recognize that this is an inherently flawed system. When unelected officials get to strike down the laws that have been passed by elected officials – and do so based on their personal, politically motivated, “interpretations” of the Constitution – then we have a serious problem. This is not a valid democracy anymore.

And I am certainly not the only one who is more than a little concerned about this state of affairs. According to this article, judges are apparently in the habit of boasting about their self-designated powers.

For as the Chief Justice said bluntly in 2001, barely a year after becoming Chief Justice, “the law-making role of the judge has dramatically expanded” to include “invading the domain of social policy, once perceived to be the exclusive right of Parliament and the legislatures.”

In fact, with respect to the recent assisted suicide bill, an author at MacLean’s had some remarkably similar concerns about the Supreme Court overstepping its bounds,

Some experts claim it’s unconstitutional for Parliament to express itself in any way on this topic. If such views take hold, Canada’s elected representatives will be turned into mere scribes — meekly copying down pronouncements from unelected judges.

For the sake of Canada’s democratic system, Parliament must protect its turf with far more gumption. Trudeau, for example, could have ignored the court’s arbitrary deadline and simply taken the six extra months he needed, invoking the notwithstanding clause if necessary. And the federal government should vigorously defend its measured and gradual approach to a right that did not even exist 16 months ago. Legislators must be allowed to legislate.

Rona Ambrose, the interim leader of the Conservative party, has some similar observations, but she also adds the further layer of Senate intrusion in the democratic process.

“We have the courts making laws in this country and now we have an unelected Senate changing the laws of an elected House,” Ambrose told a news conference Thursday.

“There’s even a larger debate here, which I think is upsetting a lot of my constituents and a lot of people across the country.”

The unelected Senate can refuse to approve a law drafted by an elected Parliament. The unelected Supreme Court can strike down any law that happens to get passed by both the elected parliament and the unelected Senate. In short, if Canadians want their laws, they have to get those laws “approved” by two unelected bodies with their own personal politics on these matters and absolutely zero accountability to the Canadian public.

When the form of democracy remains intact, but the power thereof has been functionally handed over to a cadre of unelected “Supreme Leaders,” I’m not sure what else to call our democracy but a charade. We are like little kids who get to “play democracy” in the sandbox only as long as the adults approve of how we are playing together. But if we step out of line they will set us straight using their absolute, unquestioned, power.

What kind of democracy is that? When the Supreme Court (as unelected officials) say, “jump,” it is Parliament’s job (as elected officials) to ask, “how high?” Parliament is no longer ultimately accountable to the masses, but to the Supreme Court.

As the MacLean’s editorial comments,

The Supreme Court has an extremely important role to play in Canada’s democracy. But its role is not to write laws, or put elected representatives on the clock. Parliament needs to stand up for itself.

How to fix this? I have a rather simple solution in mind. But that’s an article for another day.


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