Ju­di­cial ac­tivism pro­tects us from the tyranny of the ma­jor­ity

The Globe and Mail (Prairie Edition) - - OPINION - PHILIP SLAYTON

Au­thor of Mighty Judg­ment: How the Supreme Court of Canada Runs Your Life and a for­mer pres­i­dent of PEN Canada

What a mess! On­tario’s Bill 5, the Bet­ter Lo­cal Gov­ern­ment Act re­duc­ing the num­ber of Toronto wards and coun­cil­lors from 47 to 25, was ex­traor­di­nar­ily badly timed, com­ing dur­ing a mu­nic­i­pal elec­tion that it threw into com­plete dis­ar­ray.

A judge’s de­ci­sion on the bill, strik­ing down its first ver­sion as con­trary to the Cana­dian Char­ter of Rights and Free­doms, is legally du­bi­ous and likely to be over­turned on ap­peal. Premier Doug Ford’s re­sponse to the judge’s de­ci­sion – the in­clu­sion of the Char­ter’s Section 33 not­with­stand­ing clause in a new ver­sion of the bill (this one called the Ef­fi­cient Lo­cal Gov­ern­ment Act), in ef­fect over­rid­ing the judge’s de­ci­sion – is con­sti­tu­tion­ally ill judged and legally tone deaf.

But there is noth­ing fun­da­men­tally new in the Bill 5 brouhaha. It re­flects a com­pli­cated dilemma that Cana­di­ans have strug­gled with since 1982, when the Char­ter came into force. Mr. Ford un­wit­tingly cap­tured the essence of this dilemma when he com­pared him­self with the judge who struck down the first ver­sion of the bill.

“I was elected,” Mr. Ford said. “He was ap­pointed.”

I was a law pro­fes­sor in 1982. I wasn’t a fan of the new Char­ter when it came into ef­fect. I’d been taught that, in a democ­racy, the leg­is­la­ture was sov­er­eign. I be­lieved that in a democ­racy the will of the peo­ple was ex­pressed by and pre­vailed through its elected rep­re­sen­ta­tives. To my dis­quiet, the Char­ter handed huge power to the ju­di­ciary. What were judges but un­elected, well-fed, up­per-mid­dle-class bu­reau­crats, drawn from a nar­row and elite sec­tor of so­ci­ety, with sim­i­lar ed­u­ca­tions and world­views, safe in their jobs and im­mune from crit­i­cism? It was fine for them to re­solve pri­vate dis­putes and ap­ply the law rou­tinely. But it wasn’t right that they de­cide im­por­tant mat­ters of pol­icy and pol­i­tics. It wasn’t demo­cratic. That’s what I thought in 1982.

Cana­dian judges have em­braced their Char­ter power with en­thu­si­asm. They have de­cided some of the most pro­found so­cial and po­lit­i­cal is­sues of the past 36 years – for ex­am­ple, the le­gal­ity of abor­tion, same-sex mar­riage, pros­ti­tu­tion and med­i­cally as­sisted sui­cide. The list is long and con­stantly grow­ing. But shouldn’t mat­ters such as th­ese be de­ter­mined by the cit­i­zenry, speak­ing through their elected rep­re­sen­ta­tives? Don’t th­ese is­sues re­quire po­lit­i­cal and pol­icy de­ci­sions, rather than le­gal judg­ments?

Have judges be­come

“politi­cians in robes,” to use a phrase coined by

Richard Pos­ner, a dis­tin­guished Amer­i­can ap­pel­late court judge?

As time went by, I soft­ened my view of the

Char­ter. You had to be im­pressed by the hon­est and in­tel­li­gent at­tempt of most judges to un­der­stand and re­solve com­plex is­sues. There’s some­thing to be said for a dis­ci­plined de­ci­sion­mak­ing process, free from sim­plis­tic po­lit­i­cal rhetoric, which, fol­low­ing care­ful ar­gu­ment made by op­pos­ing sides, de­liv­ers to the pub­lic a de­tailed writ­ten ex­pla­na­tion of why a de­ci­sion was made. Maybe Jean Chrétien, then min­is­ter of jus­tice, was right in 1981 when he gave tes­ti­mony to a par­lia­men­tary com­mit­tee con­sid­er­ing the Char­ter. “I think we are ren­der­ing a great ser­vice to Cana­di­ans by tak­ing some of th­ese prob­lems away from the po­lit­i­cal de­bate and al­low­ing the mat­ter to be de­bated, ar­gued, coolly be­fore the courts,” he said.

Politi­cians are of­ten com­plicit with ju­di­cial ag­gran­dize­ment. Faced with a con­tro­ver­sial is­sue, they may be happy to duck be­hind the Char­ter and char­ac­ter­ize a tricky pol­icy prob­lem as a le­gal is­sue to be de­cided by a judge. (Of­ten, but not al­ways. Mr. Ford, it seems, does not sub­scribe to this ap­proach.) Creep­ing le­gal­iza­tion shifts de­bate away from the po­lit­i­cal arena, where moral and so­cial-pol­icy ar­gu­ments can be con­sid­ered head-on and where due weight can be given to pub­lic opin­ion. When this hap­pens, the pub­lic may be­come un­easy and feel it has been given short shrift.

The late Steve Jobs fa­mously used to say at the end of sales pre­sen­ta­tions, “But there is one more thing …” That one more thing was al­ways the most im­por­tant thing he had to say. In the de­bate over ju­di­cial ac­tivism and the Char­ter of Rights of Free­doms, the one more thing, the most im­por­tant thing, is the ju­di­ciary’s role, made pos­si­ble by the Char­ter, in guard­ing against the tyranny of the ma­jor­ity and in par­tic­u­lar pro­tect­ing us from an over­ween­ing ex­ec­u­tive branch in full con­trol of the leg­is­la­ture. Un­wise or in­dis­crim­i­nate use of the not­with­stand­ing clause would sub­vert that role. It would de­stroy a del­i­cate con­sti­tu­tional bal­ance that was dif­fi­cult to cre­ate and is es­sen­tial to pre­serve.

Mr. Ford has said he “won’t be shy” in us­ing the not­with­stand­ing clause again and again. If that hap­pens in On­tario – and per­haps in other prov­inces, en­cour­aged by On­tario’s ex­am­ple – it will gut the Char­ter and put our free­doms in peril. But be warned, Mr. Ford. A 2014 Léger poll found that Cana­di­ans re­gard the Char­ter of Rights and Free­doms as the prin­ci­pal cor­ner­stone of Cana­dian val­ues. The Char­ter won’t be de­stroyed with­out a big fight.

As for me, I was wrong in 1982.

There’s some­thing to be said for a dis­ci­plined de­ci­sion-mak­ing process, free from sim­plis­tic po­lit­i­cal rhetoric, which, fol­low­ing care­ful ar­gu­ment made by op­pos­ing sides, de­liv­ers to the pub­lic a de­tailed writ­ten ex­pla­na­tion of why a de­ci­sion was made.

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