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Opinion Judicial activism protects us from the tyranny of the majority

Philip Slayton is the author of Mighty Judgment: How the Supreme Court of Canada Runs Your Life. He is 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.

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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 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. 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.

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