Courts have an important and integral role in protecting democracy. This concept, recognized in the Magna Carta, a pivotal "constitutional" document signed 800 years ago, is still vital today. The courts uphold the constitution and provide a check on legislative and government powers. The courts ensure that democracy is functioning according to prescribed rules.
But the courts must also exercise deference to the legislatures, allowing the legislators to fulfill their proper function: making laws. John Locke placed the pre-eminent role for governance with legislatures in his writing on the separation of powers, with those other bodies that implemented and enforced the laws being subordinate to those who made them. Democracy is upheld and enhanced if courts respect the role of the legislature to legislate. Courts must therefore exercise judicial restraint, assiduously refraining from substituting their own opinion for that of those elected to make the laws.
At a time when democracy in Canada has been under scrutiny and been found wanting by many, it is an opportune time to re-evaluate the state of our democracy. Are our institutions exercising their respective roles to maintain and enhance Canadian democracy?
It seems inconceivable that a document written in Latin in medieval England could still form the foundation of our democracy in Canada. Yet the Magna Carta does this. At its core, the Magna Carta documented noblemen's victory in wresting absolute power from King John, albeit in a limited way. Many clauses in the Magna Carta addressed legal rights and remedies. An enhanced role for the courts was one of these rights, which imposed limitations on the power of the king.
Up until the signing of the Magna Carta, the King was a law unto himself. According to the historical record, King John was a terrible king. He threw his enemies in prison and starved them to death. He appropriated property without a charge or trial. The Magna Carta did not solve all the problems, but it was the first of many steps to bring accountability to the ruler of the land. Even he was under the law rather than being above it.
Most famously, clause 40 of the Magna Carta states, "To no one will we sell, to no one deny or delay right or justice." ("We" being literally the royal we.) Clause 45 required the king to appoint as justices "only men that know the law of the realm and are minded to keep it well." This meant that the king could not use the courts for his own despotic purposes. Rather, the courts were to be part of the governance for the realm, staffed by persons knowledgeable in law and bound to dispense justice.
As well, the Magna Carta granted free men the right to a fair trial before being convicted, "except by the lawful judgment of his equals or by the law of the land." So, in addition to being the foundation for democracy, the Magna Carta is also the foundation for the rule of law and a fair and impartial justice system — all essential elements of our democratic system.
Most of us are familiar with classic separation of powers theory — the concept that the legislature, the executive and the courts are separate branches of government that provide "checks and balances" on one another. Those ideas were propounded by the French philosopher Montesquieu. The American system of government is based on it. Canadian democratic tradition is instead based on the Westminster model, which incorporated John Locke's theories on the same subject. Our tradition has a pre-eminent place for the legislature, with the roles of the executive in implementing laws and the courts in interpreting and enforcing laws supportive of the legislature. Yes, they also provide checks and balances on legislative power, but not with three equal, and staunchly separate, institutions as under the American system.
It has long been an important role of the courts to ensure that legislatures pass laws in accordance with the constitutional powers and procedures. Before the coming into force of the Charter in 1982, most such cases involved the courts pronouncing on whether a matter is properly federal or provincial jurisdiction. Courts still undertake this exercise. A recent example is the Insite case in which the court ruled that a safe-injection site for addicts in Vancouver was properly a provincial health-care issue rather than one of federal criminal law (illegal drugs). The federal government cannot legislate in provincial areas and vice versa.
Another protection of democracy that the courts offer is oversight of election rules. As long ago as 1877, a court overturned the election of L.H. Langevin in the riding of Saguenay, Que., because of undue influence of the clergy. Court cases have been much more prevalent recently because Parliament passed laws putting parameters on election campaigns. After the 2011 election, one Conservative member of Parliament was convicted of overspending and others who worked on the campaign were found guilty of other campaign violations. The ruling political party is subject to the law and it is the courts that enforce that law.
The Supreme Court of Canada recently, and rather famously, addressed two issues relating to our democracy: the appointment of Robert Nadon as a justice of the Supreme Court of Canada and proposed federal amendments to the Senate. In the first instance, the Supreme Court rejected Justice Nadon's appointment as not meeting the requirement that he be a Quebec judge. Justice Nadon sat as a justice of the Federal Court for 20 years. In the second case, the Supreme Court ruled that the federal government cannot unilaterally make changes to the Senate. Given the history of negotiating national constitutional amendments, this decision effectively made it impossible for any thoughts of Senate reform in the foreseeable future. These decisions demonstrate that courts have a significant limiting role on the powers of government; in this case, on the powers of the executive.
These examples pale, however, to the courts' powers since 1982 to "supervise" legislative and executive action and their effects on democracy with the adoption of the Charter of Rights and Freedoms. The Charter protects human rights and requires that all levels of government respect these human rights. Any law can be struck down if it violates a protected human right. Section 24 of the Charter allows anyone whose rights have been violated to apply to court for an appropriate remedy. The courts, therefore, have the very important role of providing a check on government power when human rights are at issue.
The courts clearly have an important role in establishing the rule of law. But what about the judges — are they also subject to the rule of law? They are the ones who interpret the law. How do we ensure that judges "are minded to keep it as well"? Judges are entrusted to maintain democracy; they hold the government to account, but if they overstep their bounds, they undermine the role of the legislators.
When courts rule, it has the force of the Constitution. It is immutable, or close to immutable, in that it is difficult to change, particularly if the decision is made by the highest court. Canada has a common law system, so decisions of the Supreme Court of Canada are extremely difficult to change.
A quick example will demonstrate this point. In 1990, the case of R. v. Askov was decided by the Supreme Court of Canada. The case was about unreasonable delay for criminal trials. The Supreme Court ruled that a delay of over two years between a preliminary trial and the trial was unreasonable under section 11(b) of the Charter, the section protecting the rights of the accused. At that time, without evidence before it on the point, the Court determined that eight months was the maximum acceptable delay. This resulted in the stay of some 100,000 criminal charges. Fortunately, the Court had a chance to reconsider the issue two years later, in R. v. Morin. The Supreme Court ruled that a 14-month delay was not a violation of the human rights of the accused. Rather than give a fixed time limit, the Court established guidelines for unreasonable delay. The court system in Canada cannot meet an eight-month time limit. Yet this shows the unintended consequences of a Supreme Court ruling — thousands of cases being thrown out of court.
Courts must also be aware when making decisions that they must protect the democratic system. If courts are seen to be too free with striking down laws or government actions that they deem to violate human rights, it can undermine democracy as the governments are elected to pass laws and to govern. Justice Rothstein, a justice of the Supreme Court of Canada, commented on this role in the recent Mounted Police Association of Ontario v. Canada case, which considered whether the Charter protects union rights. I note that he was in dissent:
"In a constitutional democracy, the judicial branch of government is entrusted to rule on whether laws enacted by the legislature pass constitutional muster. But this Court's rulings are not subject to review. Its rulings are binding on the legislative branch, unless that branch invokes the rarely resorted to s. 33 of the Canadian Charter of Rights and Freedoms to provide that its legislation will operate notwithstanding breaches of certain constitutional rights. This means that constitutional decisions of this Court have the power to freeze matters in time and restrict Parliament's ability to change course in the future, where facts and policy imperatives may suggest or require a different approach.
"It is fundamental, therefore, that the judicial and legislative branches of government have respect for the role and responsibility of the other. The legislative branch must respect the decisions of the courts and comply with them. Courts must equally respect the role of the democratically elected legislature and its policy choices. The judicial branch must not exercise its great constitutional power to make rulings that are not firmly rooted in the text, context and purpose of Canadian constitutional law."
The particular case at issue required the Court to rule on the right of the national police force, the RCMP, to unionize. Parliament had legislated that the RCMP did not have the right to unionize or engage in collective bargaining. The Supreme Court of Canada struck down that legislation. Justice Rothstein dissented on the basis that the court was substituting its own decision for that of the legislature. This undermines democracy.
This is one of several recent decisions where the Supreme Court of Canada judges have overturned their previous precedents. Other high-profile decisions include the Carter case, overturning the 1993 Rodriguez decision legalizing "assisted death," and the Bedford ruling, overturning its previous opinion in the 1990 Prostitution Reference. University of Saskatchewan law professor Dwight Newman has been very critical of how the Supreme Court has overturned its previous decisions with little insight as to what circumstances had changed to justify a change in the law. He points out that "their giving of reasons is how we hold them accountable."
The courts have an incredible balancing act to perform; any misstep undermines the democratic system. It is only the courts that can rein in a government that is acting outside its constitutionally mandated powers. But if the courts are too heavy-handed and start second-guessing the legislature by striking down legislation that it does not like, it can undermine the legislature. If courts do not act when they should, or if they act when they should exercise deference, it undermines the democratic system.
It is open for debate whether the present configuration of the Supreme Court of Canada is fulfilling its role as protector of democracy in both the above senses. The Magna Carta 800 years ago sought to give an anemic judicial system some measure of power to call the King to accountability. The current criticism is at the other end of the spectrum, that the Supreme Court of Canada has overstepped its bounds in striking down legislation. The judicial system can only bring the government to account if it is itself accountable to the law.
As one looks around the world at a variety of systems of government, those that have grown out of the British system initiated by the Magna Carta have done fairly well. Yet one can also see challenges for the role of the courts if either the government is not accountable to the courts or if the courts are not accountable to the rule of law. Canadian courts would do well to be mindful of the importance of their role and the balancing act they must maintain. Canadian democracy needs it to.
