I want to discuss two ideas. First, parliamentary democracy is not the same as simple majoritarianism. Second, judges are not politicians; rather they play a vital and distinct role in our democracy. Let’s look at each of these ideas in turn.
First, parliamentary democracy and majoritarianism. The parliamentary system of government is not simple majoritarianism. To be sure, the ultimate guarantors of legitimacy are free elections and thepower of the people to change governments. But this power is grounded in the law " the law of the constitution. It is this that confers legitimacy on the state’s exercise of its power.
The law not only supports the electoral process; it delimits the power of those elected to office. In the federal democracy we call Canada, it does this in two ways. First, it says which government can do what things. The federal government can legislate and act only within its powers under section 91 of the British North America Act; the provinces likewise only within their power under section 92. Second, since 1982, all governments, federal and provincial, must act within the precepts of the Charter of Rights and Freedoms, which guarantees to all Canadians their fundamental rights and freedoms, subject only to such reasonable limits as are demonstrably justified in a free and democratic society.
And so it is wrong to suggest, as some do, that anything that limits what the elected majority might wish to do " including judges " is antidemocratic. This notion that parliamentary democracy resides only in majority rule is both false and dangerous. It is false because, as we have seen, the power of elected officers is necessarily limited by the law in a constitutional democracy. And it is dangerous. It offers no protection against the tyranny of the majority and it overlooks the need to accommodate and validate minoritarian views essential to long-term democratic stability. In Canadian democracy, it is the rule of law that has traditionally provided the necessary limits on stark majoritarianism. It is the rule of law that ensures that elected representatives do not exceed or abuse their powers. And it is the law that protects minorities and permits the accommodations essential to longterm stability. Judges are a necessary part of ensuring that the rule of law fulfills these vital functions.
This takes me to the second idea. Judges are not politicians, but they play a distinctive and unique role in the Canadian constitutional democracy. To make a parliamentary system under the rule of law work, we need neutral, independent arbiters. We need independent arbiters to settle issues relating to the electoral process. We need independent arbiters to determine, when conflicts arise, what falls to the federal government under section 91 and what falls to the provinces under section 92 of the British North America Act. And we need independent arbiters to adjudicate citizens’ claims that the government has unjustifiedly violated their Charter rights. In a nutshell, a state that accepts that executive and legislative power must be exercised in accordance with the Constitution " a fundamental tenet of modern parliamentary democracy " requires institutions to decide when those powers are exceeded. These institutions are the courts. Reflecting this basic imperative, the Constitution of Canada, like those of most modern states, guarantees the fundamental independence of the courts and the men and women who occupy their benches.
Most judges are occupied with resolving disputes between citizens or applying the criminal law. Their work, for the most part, attracts little notice. However, when judges decide issues concerning the constitutional powers of the state, attention is sure to follow. The adoption of the Charter of Rights and Freedoms in 1982 has greatly increased the number of such cases. The recognition of same-sex marriage, the existence and scope of Aboriginal rights, the legality of assisted suicide, the constitutionality of the offence of possession of pornography and the appropriate sentence for ”œmercy killing” " these are but a few of the charged issues that our judges have been obliged to tackle in the two decades since the Charter was adopted.
The judges’ task is to decide these issues fairly and impartially in a nonpartisan fashion; on the basis of the law, the materials and the pleadings before them. This is a legal task; indeed, it is judging of the highest level. In discharging this task, judges are not all-powerful. In a constitutional democracy, all power is by definition limited. This applies to judges as much as to legislators. What limits judges in their constitutional role as interpreters of law, are the traditions of the law, supported by a host of rules, written and unwritten: the rule that courts must be open to the public; the rule that judges must give reasons for their decisions; the principle that all judicial decisions must be appealable, at least to one other court, and in cases of national importance, on to the Supreme Court of Canada; and the need for deference to Parliament and the legislatures on matters of social choice and expenditure of funds.
Viewed from the outside, deciding Charter cases may seem like a political task. The decisions often touch social and political issues. They have the potential to affect great numbers of people. And they invoke choices " the same choices that we think of Parliament as being empowered to make.
And so we hear the suggestion, by now the standard stock of some editorial pages, that judges have ventured outside their proper territory " the uncontroversial territory of resolving quotidian disputes " and waded deep into political waters. Moreover, the charge goes, this is improper and impractical. It is improper because highly contentious issues should be decided by elected politicians, not by politically unaccountable judges. And it is impractical because judges, in their ivory towers, are ill-placed to take and respond to the pulse of the nation. These suggestions crystallize into two themes. First, judges are more and more acting as legislators. Second, we should therefore rethink the way in which they are appointed. Commentaries over the decision of the Court of Appeal of Ontario on the question of same-sex marriages pick up the first theme, while the nomination of a new judge to the Supreme Court of Canada will doubtless reactivate the second one.
Let us turn first to the charge that judges are usurping the legislative power of Parliament and the legislatures. To put it simply, it displays a misunderstanding of what judges do. The reality comes down to this: Parliament and the legislatures are the supreme arbitrators of the social course of the nation, subject only to the constraints imposed by the constitution and its traditions. The courts, by contrast, are the interpreters of the law and the constitution. Drafting, debating, and passing laws are essentially political activities. Interpreting the laws and the constitution are essentially legal activities.
The purposes of the two functions are different. The aim of the legislative role of drafting, debating and passing laws is to create the laws that will best serve the people, in the collective and negotiated wisdom of the elected legislators. The aim of the judicial role, by contrast, is to interpret the laws that our common law tradition and the legislators have put in place. This activity of interpretation breaks down into various subactivities: assigning meaning where it is unclear; applying the law to complex fact situations; harmonizing laws that may appear to be at crosspurposes or yield different results when applied to the same situation; and finally, determining whether challenged laws are constitutional, that is, whether they fall within the powers of the legislature that passed them.
All this is high-level, specialized, intellectual work. Contrary to popular myth, judges do not pluck meanings from the air according to their political stripe. The image of the judicial cowboy riding amok through the carefully planted legislative garden is just that, an image " and a distorted one at that. The judge is more like a gardener, shaping and nurturing plants so that they grow as intended, occasionally pulling out a weed that offends the plan on which the garden is based. Unlike politicians, judges do not have agendas. They take the laws and the cases as they find them, and apply their interpretative skills to them as the constitution requires.
To accomplish this task, judges must be independent of other social institutions, including the legislative and executive branches of government. Judges cannot discharge their interpretative role impartially if they are captives of a particular constituency, be it a corporation, an interest group, a political party or the elected representatives of Parliament. The concept of judicial independence, fundamental to our constitution, rests on this essential separation between judges and politicians, be they the elected politicians of Parliament or the unelected politicians of causes and interest groups.
This brings us to the second theme " that we should rethink the manner in which judges are appointed. The independent, apolitical nature of the judicial role suggests that it would be misguided to appoint judges in a manner that gives more weight to partisan politics. In this debate, the most important question should always be the following: What kind of judges do we want? To me, the sole concern should be to appoint individuals who embody the most valuable judicial qualities of impartiality, empathy and wisdom. From where I sit, the current judiciary in Canada meets the highest standards in this respect. A reform of our appointments process would certainly be welcome if it enabled us to improve on this excellent record. That is the standard against which proposals for reform must be assessed. Most would agree that in terms of product, the present process seems to work well. Why, one might ask, fix the system if it isn’t broken? Or to borrow a figure of speech I recently ran across " ”œWhy open up that Pandora’s box when you don’t know what kind of Trojan horse might come out of it?”
The process of consultation for Supreme Court judges is lengthy and serious. Appointments have historically been made on merit. Of none of the present incumbents on the Court can it be said that they were appointed for their political views.
The method a country chooses to appoint its judges is essentially a political matter and judges, the record shows, will respect that choice, whatever it is. However, from my vantage point, let me urge that whatever changes we make, we avoid politicizing the judiciary and eschew the seductive yet pernicious tendency to merge the judicial and political roles.
We do not need yet another political institution supplementing the political judgments of the House of Commons, the Senate and the provincial legislatures. We do not need Liberal judges or Reform judges or Conservative judges or NDP judges or Bloc Québecois judges, voting according to their particular party lines. We need true judges " independent, impartial and courageous " to settle our differences wisely and to perform the vital constitutional function of determining the boundaries of the exercise of power.
I have suggested that it is a mistake to think that judges are usurping legislative power, and I have argued that we should continue in our tradition of appointing the best and wisest jurists we can find, on the basis of merit not political allegiance, trusting them to interpret the law and decide the issues impartially on the law and the submissions before them.
Should we be concerned that judges thus appointed will usurp the position of Parliament and the legislatures? I would argue not. Rather, we should see judges as part of a larger process by which we resolve social issues and work out accommodations " the process we call democracy. The process is a complex one in which the legislatures and the courts play independent but complementary roles.
Judges have an important role to play in maintaining Canadian parliamentary democracy. Parliament and the provincial legislatures remain the dominant players in shaping our society and responding to its needs " a creative and proactive role. But judges, when called upon, stand ready to answer the difficult questions on the constitutional limits of the exercise of power and the multiple accommodations so essential to the continued stability of our country. If judges are to discharge this role, they must not become politicians, nor can they be made politically accountable. The continued good governance of Canada demands no less.