Introduction – The role of judges in a democracy with constitutionally protected rights
In “Message in a bottle (or from my basement)” I discussed why “freedom” and “democracy” are not the same. I also described the differences between constitutionally protected rights, common law rights and legislative rights.
The message was:
Constitutionally entrenched rights are necessary to protect certain minority interests from the tyranny of the democratic process. Canada’s “Charter of Rights” is a set of “constitutionally entrenched rights”. The effectiveness of a Charter of Rights is determined by the interaction of three groups of people:
First, the general public
Yes, individuals must have the courage to stand up for their rights. They must have the conviction to use the courts. I recognize Gwen Deegan and Ginny Hillis as courageous Canadians. They are strengthening Canada’s Charter of Rights by pursuing litigation against the Government of Canada. It doesn’t take a hero. But, it does take courage.
The truth is that:
Second, the legal profession
The fact is that most lawyers are absolutely useless when it comes to defending individual rights. Absolutely useless. There are exceptions. Obviously our lawyer, Joe Arvay has a long history of Charter litigation and is an exception. We are proud to have him as our litigator in our FATCA lawsuit. Mr. Arvay has made a huge difference in the lives of Canadians.
But, speaking of lawyers who have made a difference, I can’t resist mentioning Toronto lawyer Rocco Galati – who Globe and Mail journalist Sean Fine, recently referred to as “the unofficial opposition“.
Third, the judges and the courts
Courageous plaintiffs and principled lawyers are not enough. The protection of individual rights requires a strong independent court composed of judges who are INDEPENDENT of the government. Few people realize how important judges are. Few people realize that the most “enduring” things that governments do is to appoint judges. Governments can leave their legacy through their judicial appointments.
At the present time, Prime Minister Harper has appointed (are you ready for this) seven of the nine judges of the Supreme Court of Canada. Yet, the Supreme Court of Canada has consistently ruled against the Harper government.
In a democracy, with constitutionally protected rights, judges can and do protect individuals from tyrannical democracies. It appears that the Supreme Court of Canada understands its proper role:
And this is why:
Candidates and elected officials are discussing the role of judges …
Yesterday I listened to an interview with former Arkansas Governor Mike Huckabee. In addition to commenting that he: “would rather live in a country that people were trying to break into than break out of” (hmm, what about the S. 877A Exit Tax that may be payable on renouncing U.S. citizenship), he made some interesting comments about the role played by UNELECTED judges. The interview reflects the same attitude that members of the Harper Government have toward the judiciary.
To put it simply: Mr. Huckabee (although he is not conscious of this) appears to prefer a democracy where minority rights are left to the whims of the majority. The reasons that Mr. Huckabee offers as criticism of the U.S. Supreme Court, may be precisely the reasons why the Supreme Court is important.
In other words:
In a democracy with constitutionally protected rights, you would want judges to be able to strike down the laws enacted through the democratic process. Of course, there are those who disagree with me. A google search of “is the Canadian Charter of rights and freedoms undemocratic” reveals a long list of articles.
The question is:
Are there individual rights that are so fundamental that they should not be subject to override in the democratic process? I believe the answer is YES. That’s why we have a Charter of Rights.
Why call this post “Message in a bottle 2”?
I was reminded of a post that I wrote on this very topic during the 2011 Canadian Federal Election campaign (prior to FATCA and President Obama’s FBAR Fundraiser). You may recall that the Harper Government went into this election with a minority government. The reasons that he won a majority government exist today. The reality is that the Conservative Party of Canada – led by Stephen Harper has an excellent chance of retaining their majority government. That’s the price of the “first past the post” electoral system.
Democracy, The Appointment of Judges and the Charter of Rights
We are in the middle of a Federal Election. Respect for the democratic process has been an issue in this campaign. The conservative government has been the most heavily criticized of the main parties.
The grounds of criticism include:
– overriding the wishes of local riding associations in selecting candidates;
– being held in “contempt of parliament”
– renaming Canada’s parliamentary democracy “Harper Government”
– the “in and out” financing of the 2006 election
– the fact that Harper has prorogued parliament rather than face parliament
All of these allegations are deserving of investigation. That said, there is another area – which is potentially far more damaging – where Mr. Harper has exhibited a clear “contempt” for democracy.
The Charter of Rights – Are Judges Now The Official Opposition To The Government?
April 17, 2011 will be the 29th anniversary of the enactment of the Canadian Charter of Rights and Freedoms. The Charter was radical for Canada because for the first time there were limitations on the power of Parliament. Prior to April 17, 1982 there was no law that could not be enacted by some level of government. Canadians had rights only to the extent that the governments of Canada allowed them. The effect of the Charter of Rights was that individual Canadians now had constitutional rights and freedoms. In other words, there are now limits on the power of government. The Charter is a fascinating document – all Canadians should read it. It simply defines human interests that are so basic and fundamental that governments are prohibited from unduly burdening them.
– freedom of speech and religion
– certain rights when interacting with the police
– Equality rights and freedom from discrimination
How Does The Charter of Rights Work?
In any event, when a law conflicts with a Charter right, the aggrieved party can seek redress in the courts where a judge has the authority to “strike the law”. This gives Canadians protection from the excesses of government.
Judges across the country look to decisions of the Supreme Court of Canada for how to interpret the meaning of charter rights. Therefore, the identity of Supreme Court of Canada judges matters a great deal in the life of Canadians. Furthermore, Supreme Court judges, once appointed can serve to the age of 75. If you doubt the importance of Supreme Court judges and/or if you want to learn about how they protect you from the excesses of governments, they you should read “Mighty Judgment” by Philip Slayton. This newly released book is a must read for all Canadians and will teach you with important aspects of Canada’s democracy that have been left of the political debate.
The appointment of Supreme Court of Canada judges is done by the Prime Minister – historically with neither parliamentary nor public input. This seems strange. Given the amount of litigation that goes on between Canadians and the government – is it fair that the umpires be appointed by the government?
Interestingly, the government of Paul Martin set the stage for some parliamentary input into the appointment of supreme court judges. Justice Rothstein was actually part of a group identified and considered by the Martin government to replace Justice Major. Furthermore, this appointment was to be the first where a nominee to the Supreme Court of Canada was to be subjected to some parliamentary scrutiny (“scrutiny lite” to be sure, but it was at least a start). When Mr. Harper became Prime Minister he appointed Marshall Rothstein. Justice Rothstein did appear before a parliamentary committee. (Mr. Harper had previously campaigned on a platform that included reforming the process under which Supreme Court Justices were appointed.) Although, it was not particularly probing, it was at least a good start. It seems fairly obvious that, given the importance of Supreme Court judges in the democratic process, that all nominees should be scrutinized and that the Prime Minister (since the judges are in fact the “unofficial – official opposition to the government”), that the appointment of judges should not be at the sole discretion of the Prime Minister.
The Worst Abuse of Parliament and the Democratic Process
In 2008, Mr. Harper appointed Justice Thomas Cromwell to the Supreme Court of Canada with neither parliamentary nor public scrutiny. Justice Cromwell will serve until 2027. He will have far more influence on the lives of Canadians, than Mr. Harper.
The failure to submit Justice Cromwell to parliamentary scrutiny is probably Mr. Harper’s worst abuse of the Parliament of Canada and the democratic process. It will have the most far reaching consequences. It should be an election issue.
Footnote: Added on April 23/11
Here is an article by Philip Slayton on this topic.