The introduction of the Charter of Rights and Freedoms is the pinnacle of transition between legislative and constitutionally based rights in Canada. The 1960 Bill of Rights, which intended to protect individual rights and freedoms from government legislation, was not entrenched in the Canadian constitution, and so it did not provide the courts legitimate power to strike down legislation. The Charter of Rights and Freedoms corrected this oversight, and not only gave the Supreme Court the authority to strike down laws, but also to recommend legislative amendments. Its power over the law-making process has caused some to question whether or not the Supreme Court’s role in government facilitates or diminishes Canada’s democratic ideals.
Canada’s democracy is based on the principles of political representation, majority rule and constitutionally based rights for all citizens. Egalitarianism and respect for minority rights are also important facets of Canadian democracy and integral elements of our political culture. The notion of majority rule is accompanied by the acknowledgment that minorities should be protected by the decisions of the majority and their representatives. The Supreme Court and the Charter of Rights and Freedoms facilitates that acknowledgment. Judicial review in the post-Charter era enhances the ability of minorities to attain those equality rights. It does so in the following ways. First, judicial review broadens the scope of action for momentous social movements concerning minority rights. Through the courts, minorities can demand protection from the straggling ideologies of the executive and legislative branches of government and their constituents. Secondly, judicial review allows minority groups access to law-making powers without the need for a costly appeal to the majority. Finally, judges who are not bound by ideological banners or political parties can make impartial decisions that align with the provisions set in the Charter of Rights and Freedoms. Judicial review is non-partisan, which leads to fair deliberations in Charter cases, and increases the capacity of minorities to attain egalitarian rights.
Let us first consider the Supreme Court’s relationship with social movements, and how this relationship benefits minority groups. A social movement is an informal collective body that attempts to shift traditional values and existing perspectives in society, usually through, (but not limited to) political opposition. Social movements are progressive and pro-active, whereas changes in legislation toward those movements tend to be slow, and weighed down by conventional attitudes in government. For instance, not until 2003 did it become legal for citizens of Texas to perform acts of sodomy (Smith 331), which is an outlandish and even laughable admission. During the pre-Charter period in Canada, outright discrimination based on sexual preference was not addressed at any level of government, provincial or federal (excluding Quebec) even after the Bill of Rights was introduced (335); these are empirical examples of how slowly social norms and political attitudes are translated into actual law.
Prior to the Charter’s enactment, the gay rights movement in Canada was anything but momentous. Its base of support was weak, and social attitudes towards gay rights were stubbornly traditional. With the emergence of the Charter of Rights and Freedoms came the emergence of a stronger network of social activists. Gay rights advocacy groups suddenly had access to a potent avenue through which they could demand social and legislative changes: judicial review (333). With this new weapon of legal advocacy, the gay rights movement gained powerful momentum toward its goals. The Veysey case set a strong precedent for other gay plaintiffs to follow; it was ruled that discrimination based on sexual orientation was contradictory to section 15 of the Charter, which deals with individual rights (337). Hundreds of other gay rights cases were heard, and won, after it had been established that protection from sexual discrimination was a constitutional right. Although it was not an explicit provision in section 15-an omission that was likely due to the traditional social attitudes of the executive at the time of the Charter’s introduction-the courts inferred the section to include sexual orientation as a prohibited grounds for discrimination. Judicial review of legislation, combined with interpretive readings of the Charter, has allowed minorities, such as gays and lesbians, the ability to obtain equality rights that would have been out of reach otherwise.
Today, homosexuals, heterosexuals and bisexuals are virtually on equal standing when it comes to law. However, politicians in the legislative and executive branches of government have been outspoken advocates against gay and lesbian rights, and to this day many Conservatives have ‘opposed the Supreme Court’s decisions’ (330). Therefore, it is the judicial branch of government that has allowed the expansion of equal individual rights to minority groups. The House, on the other hand, is somewhat reluctant to convert key judicial victories into law (Vanhala 993). It is important to note that the legislative branch of government has the final say through the Notwithstanding Clause, yet, in the vast majority of cases, this provision is not used to overturn judicial decisions. In turn, the courts have ‘aired out’ the stagnant ideologies of government, and have facilitated the advancement of Canada’s democratic ideals, namely equality and individual rights.
Judicial review also allows groups seeking minority rights the ability to supersede the majority. Some might view this as anti-majoritarian, and furthermore, undemocratic; I will explain why this is not the case, and why judicial review works in concert with democracy, not in opposition. First, I will note that the majority did, in fact, consent to the Charter as they democratically voted representatives into Parliament who created these new constitutional policies (Weinrib 412). Therefore, the Charter’s enactment in itself was democratic, and did not conflict with any democratic principles. It is the function of the Charter that might be viewed as undemocratic because it bypasses the majority, not in its instatement, but in its changes to legislation.
Although majority rule is a fundamental democratic principle, there arises difficulties when the majority does not heed to the needs and rights of those who are not in such great numbers. Unfettered majority rule may be more democratic, strictly speaking, but consequently, the quality of democracy under the tyranny of the majority lessens for those who do not identify with that majority; hence, the constitution explicitly states that minority rights must be respected by the majority. Justice Iacobucci had this to say on the matter: ‘. . . I believe the Charter to have enhanced the quality of democracy in Canada by increasing our sensitivity to the importance of ensuring that legislation, and its application, is respectful of the equality and liberty of all Canadians’ (Weinrib 403). Disabled peoples are an example of a minority group that bypassed the conventional attitudes of the majority through judicial review to attain equality protection and equal social citizenship.
Much like the gay rights movement, the disabled rights movement in the pre-Charter era was fragmented and weak. Disabled peoples were considered ‘objects of pity or charity’. They were not a social issue, but a health and welfare issue; they were burdens of the state, not citizens of the state (Vanhala 987). The view of the majority was that disabled peoples wanted money and care, with little regard to their social status or equality rights. These mainstream perspectives towards disabled peoples needed to be counterweighed. With the introduction of the Charter, minority groups were given the ability to use litigation to fight against these short-sighted views on disabled peoples, and other minorities. Disability interest groups, such as the Council of Canadians with Disabilities, Disabled Women’s Network Ontario, Canadian Association for Community Living, and several others, came together to form strong networks focussed primarily on strategic litigation, facilitated by the Charter and judicial review (984). Judicial review, thereby, also gives various minority groups the ability to pool resources for legal purposes. Other funding programs and institutions were enacted to help disabled peoples, and other minorities, with their legal deliberations, including the Court Challenges Program of Canada (which has since been retracted by the Harper government, then partially re-instated) and the ARCH Disability Law Centre. These programs help to close the resource cleavages between competing interest groups concerned with litigation (985).
All of these avenues would be closed to minority groups had the Charter not been constitutionalized. These groups would have to resort back to their seemingly endless struggle against the common views of the majority with the hopes that, eventually, new social norms would result in new legislation. Even after a costly and time consuming appeal to the majority, disabled rights would have a long way to go: first, new social norms would have to convert into appropriate representation in the House, and then, this representation would have to produce appropriate legislation that deals with disabled peoples’ issues. Finally, this legislation would have to pass into law. This lengthy process, which involves drastically changing an entire society’s perception on disabled peoples, could take years, even decades. The Charter allowed these advocacy groups to bypass social and political obstruction, and move forward with their demand for social equality through litigation. Consequently, the Charter and the legal process inspired conversation within Canada on how disabled peoples were treated on a social level. The charter inspired ‘rights talk’ and helped change Canadians’ views on issues concerning, not only care and welfare, but also, social equality for the disabled (987). Therefore, the Charter, while inadvertently arousing a change in majoritarian perspectives on disabled social citizenship, also produced the legislative changes necessary to acquire that social equality. Some might call this ‘killing two birds with one stone’. An example of this two-pronged, legal-social strategy is found in the Council of Canadians with Disabilities (CCD) v. Via Rail case, wherein Via purchased rail cars that were inaccessible to those with disabilities (652). The seven year long legal battle was eventually won under the provisions of section 15 of the Charter, and meanwhile, conversation about the social status of disabled peoples re-emerged. The debate, inspired by the legal process, helped to spark a change in social perspectives concerning disabled peoples’ rights. In this way, not only does the Charter provide minority groups with a new means to egalitarian rights, but also, it sparks and oxygenates a change in the attitudes of society towards those rights. This creates a new air of respect within the majority for minority rights, which is an important facet of Canadian democracy.
Finally, I will explain the democratic importance of non-partisan decision making (offered by the judicial system) where it concerns minority rights. Following is an empirical example showing the barriers of legislative decision making in government. The Individual Rights Protection Act (IRPA) was passed in Alberta, 1972. This act was meant to prevent employers from carrying out acts of discrimination, whether systematic or isolated. Several prohibited grounds for discrimination were outlined in this comprehensive statute, but sexual orientation was left untouched. Through this legislation, the government had basically said ”all persons are equal in dignity and rights,’ except gay men and lesbians’ (Weinrib 408). Mr. Vriend, a homosexual worker, was thereby unable to challenge his employer’s new heterosexual-only policy (408). It is impossible to conceive that the Alberta government was oblivious to the idea that sexual orientation was an area of discrimination, and that homosexuals needed protection through the IRPA. Therefore, this omission was either an enormous oversight, or an intentional one. If the former, the Alberta government at the time was simply incompetent. If the latter, we must look into the reasons why such an omission would be made. The Alberta government at the time must have had traditional views on the subject of gay rights, or, the political party in power acted in accordance to its ideological banner, regardless of the personal views of each individual member. Or perhaps the party was swayed by its constituents, lobbyists, or other powerful interest groups. In any case, the politicians in Alberta were not impartial in the deliberations of passing the IRPA, which is clearly discrimination against gays and lesbians, and therefore, threatens Canada’s democratic principles.
Since politicians make decisions based on skewed views of minority groups, an impartial alternative must be introduced to protect minority rights: judicial review. However, we cannot assume that judges bring to the table a clean slate ideologically: ‘Public trust in the impartiality of judges should not and cannot be based upon the naive assumption that judges upon appointment abandon their former political beliefs and cease having an interest in political issues’ (Johnson 911). Luckily, various studies have been carried out to tackle this issue of impartiality within the judiciary. First, judges themselves have stated that there is no connection between their ideology and their appointment by the Prime Minister. However, this is an expected reply, and does not hold up as sufficient evidence. Second, scholars have shown that there is ‘little evidence that the government relies on ideological criteria to guide their appointment of judges’ (914). This is important because it is difficult for a judge to be impartial whilst being hired on the basis of ideology. Finally, scholars have carried out studies based on Charter case decisions to show that most judges are centrist, neither left nor right wing, especially while comparing their voting behaviours to American judges, who seem to vote based on ideological lines (Ostberg 768) . Centrists tend to weigh both sides of an issue evenly, and attempt to make decisions, not based on left-wing or right-wing ideologies, nor conservative, progressive or traditional values, but on the common good of society as a whole. Although it is impossible to accurately ‘measure’ the ideological component in judicial decision-making, these studies have shown strong evidence that pre-existing political beliefs are, at the very least, less of a factor within the judiciary as it is within the executive and legislative branches of government. However, these studies have concluded that ‘decisions made by the [Canadian] justices are not driven by an underlying attitude’ (768). The impartial behaviour of justices has allowed minority groups a fair trial void of ideological, traditional, or conservative preclusion. Thereby, the courts have once again aired out the playing field for equality rights and has increased the quality of Canada’s democracy.
There is a common theme throughout all of these arguments. The courts give minorities an avenue through which they can fight against government legislation, against traditional majority perspectives, and against the ideologies and biases of governing politicians and parties. In all three cases, it is traditional values and norms that hinder the progress of minority rights. Judicial review counterbalances these traditional norms so that minorities can have a fair shot at the benefits of being a Canadian citizen. The Charter promotes equality, whereas politicians and their constituents may not support all measures of equality, such a homosexual or disabled peoples’ rights. The Courts, therefore, help provide Canadians with this important element of Canadian constitutional democracy: equality.
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