As a keen follower of Canadian politics, I am subscribed to the mailing lists of all the major Canadian parties. I have received many an email from various MPs, speaking on numerous issues across the political spectrum, and there is much that I may choose to discuss. Today, however, I wish to discuss one issue in particular, one more conservative in nature.
The leadership race for the Conservative Party of Canada has pit numerous members against each other as they all fight for the coveted position of leading their party. Amongst the more socially conservative members of the CPC participating in the race, we have Pierre Lemieux. I saw in one email from Pierre Lemieux the following contention:
In recent decades it has been Supreme Court judges who have decided the most controversial questions of our times – not voters. Prostitution. Abortion. Euthanasia. Supreme Court judges have have made the law in Canada – not Parliament.
It is this contention that has inspired this article for today. It is true, indeed, that the Supreme Court has decided amongst the most controversial questions of our times. In Canada (AG) v. Bedford, 2013 the Court struck down certain provisions of the Criminal Code restricting the sale of sexual services. Earlier, in R v. Morgentaler, 1988 the Court struck down the Criminal Code provisions prohibiting abortion, and more recently in Carter v. Canada, 2015, the Court held that the blanket prohibition on doctor-assisted suicide was, in some cases, unconstitutional.
If Lemieux is, amongst others, advancing the contention that the Supreme Court of Canada has seen unprecedented gains in power and authority over the last few decades, he is no doubt correct. The Constitution Act of 1982 and the Charter of Rights and Freedoms within it have greatly expanded the Court’s authority over judicial review. Traditionally, the Court was concerned primarily with issues pertaining to federalism as mandated in the Constitution Act of 1867 (originally titled the British North America Act, 1867.) In Hodge v. R, 1883 for example, the Judicial Committee of the Privy Council (the then highest court of appeal in Canada) established the doctrine of double aspect as applied to the division of powers, whereby laws can be created by both federal and provincial governments regarding certain subject matter.
This very directed focus on federalism was for the reason that traditional British governance established by convention that the legislative authority of parliament was to be supreme, giving the body the authority to pass and repeal all laws within its jurisdiction. In Canada, the primary focus for the Court was to determine whether the law in question was passed by the appropriate head of power, with no discernible contraventions. It was not so important to discuss the more abstract considerations of rights. This changed, however, in 1982.
The constitutional amendments in 1982 saw the enactment of numerous provisions, the Charter being amongst them. Whilst Parliament was for the longest time given, by virtue of convention, the authority to pass and repeal any law within its jurisdiction, nowadays it does not suffice to simply have jurisdiction in a given area for a law to be enacted (and remain as such.) The laws must abide by the terms of the Charter.
So in this regard, I do, indeed, find agreement with Lemieux. The Court has decided some of the most controversial decisions of our times, and has absolutely assumed greater power than it has ever had before. However, I do not see it reasonable to go so far as to say that the Court has assumed legislative authority.
I have the impression that it is often forgotten that Canada is not a purely democratic state. Indeed, we are a liberal democratic state. That is to say that while there are mechanisms for the common citizens to express their political sentiments, the collectivity of which forming the general will, and in doing so influence politics, there are limitations upon the extent to which the general will can affect substantive political change. This is because of liberalism.
Classical liberalism is by no means a novel ideology, and has its roots in the enlightenment period of philosophy, being expounded by such philosophers as John Locke, Benjamin Constant, and Charles de Montesquieu. Liberalism, in the classical sense, is essentially an ideology that espouses the democratic expression of the general will, yet contends, all the same, that there must be institutional safeguards imposed upon that very will. This is very much in opposition to the sentiments of philosophers such as Jean-Jacques Rousseau, and others more sympathetic to absolute democracy, who contended that when everyone has power (that is to say that sovereignty is held by the people) there need not be any legal constraints. Popular sovereignty is, effectively, absolute. For liberal philosophers, however, this is not acceptable.
John Locke, in his Second Treatise on Civil Government, contended that all individuals are endowed with individual rights, amongst them being life, liberty, and property, that cannot be ordinarily infringed by any governing authority. The sovereignty of government is exercisable only insofar that these rights are not infringed. Similarly, Benjamin Constant, a noted Swiss philosopher of the 17th century, has asserted that when the sovereignty given to the people is absolute, this will inevitably lead to tyranny. Popular sovereignty cannot legitimize all laws, and there are some laws that no degree of popular sovereignty can justify. There are, in his mind, “weights too heavy for the hand of man.” No authority on earth is unlimited. Furthermore, Montesquieu contended that government must be mixed and balanced: it must consist of three branches, the executive, the legislative, and the judicial, each of which being given the authority to temper and moderate the activities of the other two. These are only a few of the numerous convictions of liberal philosophers.
Turning back to Canada, liberalism has always been present. The Constitution Act of 1867, for example, established a government composed of the three branches expounded by Montesquieu. Per the Act, executive power is vested in the Monarch (though by convention effective political power is transferred to the Cabinet), legislative power in the House of Commons and the Senate, and judicial power in the judiciary. Likewise, we further see liberalism in application through constitutional convention. The Court, for example, in Reference re: resolution to amend the Constitution, 1981, also known as the Patriation Reference, 1981, held that while the federal government had the legal authority to unilaterally patriate the constitution, it could not do so without substantial provincial consent. Lastly, through the convention of responsible government, any ruling government must maintain the confidence of at least 50% of members of the House of Commons. If it cannot do so, the government will collapse, and the Governor-General will either call upon the official opposition party to form government, or call for a new election.
The point to be taken in all this is that Canada has never been a purely democratic state. Our democracy has always been tempered by liberalism. In this regard, Pierre Lemieux is wrong in asserting that the Supreme Court has made laws instead of Parliament. In my mind, the Court has never acted as a legislative body. It has simply carried out the functions to which it has been mandated.
This leads to an important question, however. What are we to do when the Court makes a decision that the majority of individuals patently reject? What are we to do if the Court has erred in its decision, or made an erroneous judgement? Turning back to liberal philosophy, in the mind of Constant, we must be prepared to be flexible for public peace. It is only when the society has become fundamentally oppressive that we should usurp it. There are, essentially, some things that people must accept. Thankfully, however, we in Canada have more tools to our disposal.
In the Charter, we see in S. 33 a provision that has become known as the notwithstanding clause. The clause allows for the federal, and any provincial government, to pass a law ‘notwithstanding’ a charter provision. The overridable charter provisions are those found in sections 2 (fundamental freedoms) 7-14 (legal rights) and 15 (equality rights.)
While it is not my purpose today to discuss in great detail the history and application of the notwithstanding clause, what must be taken is that the Canadian people have certainly not been put in a position of servitude by the Court. There are options available to circumvent undesirable Supreme Court rulings. Furthermore, we must not forget that the Charter itself was passed through a democratic process, with the consent of the federal government, a majority of the provinces, and the majority of Canadian peoples vicariously through the institutions that represent them. Most importantly, however, and it is on this note that I shall end this article, the judiciary is a constitutionally mandated institution that operates against a backdrop of the law, a law which the legislatures themselves pass. The judiciary does not exist, nor operate within a vacuum, seeking to subvert the other institutions of government. It is not a perfect institution, and it never has been. It is, however, a creature of the legislatures that created and continue to mandate it, and it is our liberal democracy that has allowed for this.