Cross-posted to the BlogsCanada E-Group election blog.
There's a Toronto Star article that went up this morning that expands on Stephen Harper's views on the role of the courts and the Charter of Rights and Freedoms. It contains one sentence that clearly frames an issue on which Harper makes a lot of people nervous.
Harper said that as prime minister, he would propose for the top bench only candidates who agree with the view that courts must defer to Parliament.
I have a serious problem with this.
It's common in a society such as ours to speak of the rule of law. Elected officials on the other hand are put in place to govern us, not to rule us. That's a distinction I'm rather fond of and one I'd like to see maintained.
Harper seems to envision a society in which anything and everything can be decided upon by free votes in Parliament. Get the requisite number of warm bodies into the benches on any given day, and MPs can do whatever they please. This isn't democracy, it's a tyranny of the majority.
The system of checks and balances that's often referred to in the context of the American system of government may not be as clearly laid out here in Canada, but the judiciary still has an important role to play as a check on the power of the legislature. If Stephen Harper thinks that legislatures are incapable of making mistakes, then he needs to read some history.
George Bush recently marked the fiftieth anniversary of a case known as Brown vs. Board of Education.
"Fifty years ago today, nine judges announced that they had looked at the Constitution and saw no justification for the segregation and humiliation of an entire race," Bush said at the opening of a national historic site at Monroe Elementary, a former all-black school in the heartland of the school desegregation effort.
Those nine judges were, of course, the Supreme Court of the United States and that decision was instrumental in ending segregation in America. No doubt many at the time who disagreed with that decision referred to the SCOTUS as activist judges. Had those judges been selected for their willingness to defer to the legislative branch, one has to wonder how they would have ruled. But they deferred to the law as represented in the Constitution.
A document such as the Charter of Rights and Freedoms is in place to provide a foundation against which the courts can judge the validity of other legislation. They should do so without deferring to anything else but the law. Harper has been quoted as saying that the Charter is flawed. If that's the case then let him explain how and propose a way to fix it. If there's a problem with the way the courts function, then fix that too. But the answer isn't to weaken the role that the courts play, to make them subservient to the legislature. The election we're engaged in right now is about selecting people to represent us, not to rule over us.
Harper seems to be looking for the easiest way to get what he wants. The path I'm suggesting may be more difficult but who promised Stephen Harper that democracy would be easy?
I agree to a point - but is the current system any better? I think the way the courts function now can be quite dysfunctional as well. Some sort of midway point needs to be reached.
Dysfunctional how? And can it be fixed without weakening the role courts play in keeping the legislature from overstepping its bounds?
I suspect I'm not finished with this issue, but I'm pondering some of the comments that came in at the E-Group as well as watching what's happening south of the border.
Interesting -- because for the most part, the supreme court already defers to Parliament. The only place they don't is for constitutional or charter issues, and basically, that's why we have a supreme court -- they tell parliament whether the law is within the constitutional framework of the country. Parliament, if it disagrees, can use the notwithstanding clause anytime they want. (They would, however, then be admitting that their law is contrary to the Canadian constitution, and that makes the poor boys a tad uncomfortable, I guess.)
Cathie touches on my biggest objection to Harper's position. We already have a thing designed to let Parliament have the last say on judicial decisions. Sure it's hard to use, but that's not a bug, that's a feature.
On June 9, in the Toronto Star, Mr. Harper is reported as having said the following.
"My view is that the role of the court is to apply the Charter to protect the rights laid out in the Charter. The role of the court is not to invent rights that are not in the Charter. The role of the court is not to ignore the rights that are in the Charter."
"I'm concerned when I see courts that can find voting rights for prisoners, but can't find a right for ordinary citizens outside of political parties to express their opinions during election campaigns."
"The idea of adjudicated rights is an important development in our political system. It's one that I support in principle. But to make it work, we've got to make sure that we have courts that apply the law, not courts that apply their own criteria."
Meanwhile, on June 8 in the Ottawa Citizen, Sean Gordon wrote that Paul Martin said, "I don't believe that in today's multi-ethnic, multi-religious society Parliament should take away fundamental rights. When Stephen Harper says that the Charter is flawed, I say I fundamentally disagree with him."
There are no "fundamental rights" in the Charter. There are "fundamental freedoms", "legal rights", "democratic rights", et cetera, but there are no "fundamental rights". The only use of the word "fundamental" outside of clause 2 (on freedoms) is is clause 7 (which refers to "fundamental justice"). Given that Mr. Martin doesn't know what the Charter says about "rights", "freedoms", and "fundamental", it is not possible for him to make an informed judgment on Mr. Harper's views. Mr. Martin's opinions should be dismissed as unqualified.
Either that, or the elitist progressives are trying to tear us a new category of entitlements. After all, in "Convicts 'Morally' fit to Vote" in the 2002-11-01 National Post, Chief Justice Beverly McLaughlin wrote that "The right to vote is fundamental in our democracy and the rule of law and cannot be lightly set aside." For the record, the right to vote is explicitly enumerated in clause 3 of the Charter as a "Democratic Right", not as some sort of so-called "fundamental right".
Tony:
The first person to use the word "fundamental" here was you, not me.
I didn't defend Paul Martin or his remarks so I'm not sure why you're bringing them up. I addressed a very specific comment of Harper's.
What are "elitist progressives" and why am I expected to defend them?
Standing up for the independence of the judiciary isn't the same thing as saying I agree with every decision they've ever made.
I think that you are being a little charitable with Tony, my dear host. After all, his comment does not make an actual substantive point aside from a quibbling over semantic differentiations between fundamental rights (a connoted term) and "Fundamental Freedoms". That and a couple of criticisms of "elitist progressives" and their radical agenda.
Well, I don't know about elitist (the Trilateral Commission still isn't returning my calls), but as a self-labelled "progressive", let me make one or two points (some have been previously made, but warrant repetition).
First, there is no "radical progressive" agenda to expand the understanding of freedoms/rights beyond what the constitution allows. For example, section 15 was left explicitly obtuse (if one can use such a phrase), and provides against discrimination IN GENERAL, with the specifically outlined grounds not forming an exhaustive list. Read up on analogous grounds and the decisions behind them if you are interested, Tony. This point is equally true regarding the adaption of the common law to the post-Charter period.
In addition, it seems important to remember, that there is NO tradition of a deferential court in this country. Never has been. Just look back to the rulings of the JCPC (Judicial Court of the Privy Council). Deference indeed. That court created much of the decentralization of legislative power that exists today (not all, but most). Even when Canada finally empowered its own Supreme Court (via Britain), that court was still not deferential in sum.
More to the point, however, even if the court wanted to defer to parliament, it would not have a basis for doing so. Most pieces of legislation that make their way through the House are not taken up for debate regarding their constitutionality. This despite the fact that parliament is obligated (in principle) to do precisely that. Courts cannot defer to a parliament, which does not provide it a basis for constitutional assessment outside of its own judgement. If governments are not willing to engage with the courts in an active (reciprocal) process of adherence to the terms of the constitution, the courts are not responsible for such. (suggestion: Janet Hiebert has a good book on the subject)
That said, in my opinion, Conservatives who rant and rave about the impudence of Supreme Court justices are either being willfully deceitful or are simply ignorant of both the existing legal traditions of our country, and the very nature of our constitutional federalism.
Well, I don't know about elitist (the Trilateral Commission still isn't returning my calls)
LOL. When I think of elite, I think of those with power and money. Very few of them come to mind whom I would classify as truly progressive.