Humble suggestion – Supreme Courts and stricken laws

As political leaders and pundits have observed, there’s an elephant in the halls of parliament that people are really starting to talk about. While the ingredients of democracy exist in Canada remains – we enjoy elections, we have legitimately different political party options, a lack of coercion – one of the key elements of a robust democracy has been seriously undermined.

Decisions made by elected officials, representing the will of voters, can be overhauled by the Senate or completely overturned by the Supreme Court. Neither of these two institutions is in any way accountable to the voting public. They are not elected; the Canadian public did not hand them the power they exercise.

Although they are not elected, these institutions serve a valuable purpose; we need independent bodies to keep a more direct eye on our elected officials than your average voter is able to. But it is one thing to keep an eye on parliament, and quite something else to regularly, systematically, overturn and undermine the efforts of the officials that Canadians elect to office; a situation we find ourselves in today, in Canada. The Supreme Court appears to be in the habit of fairly regularly striking down laws as “unconstitutional,” even laws that we adopted from the UK which predate the constitution itself.

The current system is clearly well-intentioned, but falls far short of the democratic ideal. The right pieces are in place, but the authority of the Canadian public has been hijacked by unacountable, unelected officials who are essentially telling the Canadian public how we can, or cannot, run the country.

So how can we keep all the right pieces in place, but restore the Canadian public to their rightful place as the final authority on these matters? How can we maintain institutions that keep an eye on our elected officials without undermining the essence of a healthy democracy? A number of possible changes to the current system present themselves, such as electing judges as other nations do. Though this is a reasonable option, I propose we keep every aspect of the current system in place, untouched, but we introduce two checks and balances to restore Canada to a robust democracy, at least with respect to the Supreme Court.

First, if the Supreme Court wishes to strike down a law that has been passed by democratically elected officials then their decision must be unanimous. If the court is divided, the law stands.

Second, if the first criteria is met then a national referendum is automatically triggered. The wording of the referendum would be extremely straightforward. The law, as it is currently on the books, would be written on the ballot, voters would be told that the Supreme Court considered that law unconstitutional, and voters would be asked if they agree. It’s a simple “yes” or “no.” And a 51% majority would not be enough to strike it down; something like a 2/3 majority would be more appropriate.

If Canadians voted to keep the law in place then the issue would be settled for Parliament, the Senate and all Canadian courts of law right up to the Supreme Court. This approach is also more likely to reduce the financial burden on taxpayers associated with the increasingly common practice of repeatedly re-litigating certain issues when social activists don’t happen to like the decision of the Supreme Court the first time around. There’s hardly any benefit in trying the same case over and over again when it’ll just end up before the Canadian public who has already spoken on the issue.

This approach would be very simple, very effective, and most importantly very democratic. Once again the Canadian public would have the democratic authority they ought to have, but the essential institutions that keep our elected officials on their toes would also remain intact and robust. Parliament would still be accountable to unelected officials, but both parliament and those unelected officials who are keeping an eye on them would ultimately be accountable to the voters. This is, after all, the essence of a healthy democracy.

If Canadians doctors are going to be allowed to end the lives of their patients, don’t you think that’s the kind of decision that Canadians might want to have a say about? When the Supreme Court struck down the law, the one conversation I don’t remember hearing in any of the media was whether or not Canadians agreed that the law should be struck down in the first place. It was broadly assumed that if the Supreme Court said it, Canadians needed to accept it; the issue was settled. Who, exactly, is in charge around here?

A system like what I have proposed would bring the issue back to Canadians to let them make the final decision. The voters said it; Parliament, the Courts and the Senate must accept it; the issue is settled. Doesn’t that sound a little more democratic to you?