Notwithstanding When You Don’t Have A Leg To Stand On

It’s time for a rant regarding the Notwithstanding Clause and the need for an independent judiciary as check to government tyranny. It seems that the right forgets the basic fundamentals of Canadian democracy whenever it is convenient.

Parliamentary democracy is not the same as simple majoritarianism. The ultimate protectors of governmental legitimacy are free elections and the power of the electorate to change governments. Elections are one of many checks on Government power. Doug Ford claims that because he has a majority, there should be no check on his power until the next election. While he is saying this, he is interfering with Toronto’s ability to have fair and free elections. With Section 33, what’s to stop him doing it province wide?

It is wrong to suggest, as Doug Ford does, that anything that limits what the elected majority might wish to do, including the judiciary, is anti- democratic. This notion that parliamentary democracy resides only in majority rule is both false and dangerous.

While judges are not elected, they play a distinctive role in Canada’s constitutional democracy. To make a parliamentary system under the rule of law work, we need neutral and independent arbiters to set limits to the power of those who hold elected office. The need to listen to, and accommodate minority views is essential to Canada’s long term democratic stability and strength. It has often been the rule of law and the judiciary to protect and give voice to the minority view.

Parliament and the legislatures are ultimate arbiters in deciding the legislative course of the nation, subject only to the constraints imposed by the constitution and the Charter. It is up to the judiciary to act, when government fails to live up to that promise. Drafting, debating, and passing legislation are political activities. Interpreting the laws and the constitution are legal activities. One legislative, the other the judiciary. One is cause, the other effect. Herein lies the difference.

The purposes of the two are completely different, the political aspect ideally looks at passing laws that are in the best interest of the people, the judicial aspect interprets the laws and ensures that they adhere to the Constitution and Charter. It’s the yin and yang of Canada’s Constitutional Democracy. The legislative side is not all powerful nor is the judiciary. Judges must give reasons for their decisions, the principle that all judicial decisions must be appealable to another court is proof of that accountability.

To watch right wing politicians and media try and paint the judiciary as activist or politically motivated has no basis in legal or constitutional reality. It only serves to sow the seeds of dictatorship to sell distrust in the judiciary. Rant over.


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