Within the last generation, Canada has embarked on uncharted waters because two of the traditional pillars of democracy, the judiciary and Parliament, have fundamentally changed. Historically, these two pillars have upheld a free society by the equal application of common values and the protection of individuals from intrusion by the state and from the unlawful acts of others. This is no longer true. The judiciary and Parliament have been undermined and manipulated by political elites, to such an extent that these institutions no longer exist for the public’s benefit and the common good, but for the interests of those in charge. The latter now determine our future for their own benefit with no accountability to the public. The public has become a spectator in the proceedings. This is creating dissension and divide between the elite decision-makers and the public.
For example, the Canadian judiciary has used the Charter as a tool to make itself the uncontested and the unaccountable lord over Canada’s present and future laws, contrary to the clear intention of the drafters of the Charter, and the former Liberal government that introduced the Charter in 1980.
Parliament, in turn, has ceased to be a forum for public debate, and has become a forum for the political parties to promote and advance their agendas for the benefit of the party. This disconnect between the public and the decision-makers has created a hostile world for much of the public.
As a result, no one should be surprised if populism surfaces in Canada as it has in England, the US and Europe.
The Crippling of Parliament
Parliament has been crippled and rendered ineffective by the consistent and continuing centralization of privileges and power in the Prime Minister’s Office (PMO) and Privy Council Office (PCO).
The Prime Minister, his political staff and some senior bureaucrats in the PCO determine all government policies. Cabinet Ministers are no longer permitted even to appoint their own personal staff. This flawed system has resulted in the Prime Minister enjoying almost absolute political power in Canada.
Further, Parliamentary practices have removed responsibility from elected Members of Parliament who no longer have any role other than to carry out the decisions and vote as directed by party leaders. In fact, the Canadian MPs’ very existence is now dependent upon the party elites, since the party leader approves all nominations ignoring the views of the local constituency.
MPs are provided few opportunities during the Parliamentary sessions to address issues in the House on matters of concern to their constituents.
The Charter of Rights came into effect in 1982 and members of the Supreme Court of Canada have used it to become the most powerful individuals in Canadian history. That is, judges have used the Charter to deliberately change our culture and values to make this country one of the most left-wing, “progressive” nations in the world.
The Supreme Court of Canada increased its own power and influence by throwing aside judicial restraint, abandoned legal precedent and applied its own personal ideological views to make laws which it believed preferable to those passed by Parliament. If a judge obtains a majority of judges to agree with his/her particular insight as to what the law should be, it then becomes law, and the hapless public is bound by this decision no matter how idiosyncratic. The Court has been able to do so because it is accountable to no one and there is nothing to hold it in check. The Court has taken advantage of this fact.
Judges Determining Public Policy
This judicial activism contradicts the once accepted judicial role, which is to interpret the law, not make it. However, using the Charter of Rights, the judiciary has widened its jurisdiction in order to determine public policy.
It is scandalous that the Court has used the Charter this way, whereby it sets its own boundaries, and in doing so, has chosen an extreme position that benefits itself by increasing its powers.
The truth is that judges have no special or esoteric knowledge or ability to make decisions on public policy. Charter cases are based on the narrow arguments of the litigants, all too frequently based on the wishful-thinking of individuals or organizations, which have the financial clout to initiate costly litigation. Also, judges do not have the advantages of Parliament with its access to research facilities, the luxury of time, nor access to the practical experience and views of the public on issues that are increasingly complex economically, socially and scientifically. Simply put, judges do not have the background, understanding, or skill to make public policy decisions which so deeply affect the daily lives of Canadians.
Former Chief Justice Beverley McLachlin, however, had a novel, grandiose concept of the role of judges.
My job is simply to listen to what the parties have to say … to think about what’s best for Canadian society on this particular problem that’s before us, and give it my best judgment after listening to also, my eight other colleagues.
Who is she to determine “what is best for Canadian society”? That is the role of Parliament.
Judges are not qualified to make public policy decisions as they are not equipped to determine the broad implications of such decisions. They, nevertheless cling to the mistaken belief that somehow they are superior to the public, and, therefore, justified in changing Canada’s social, political and cultural values.
Both the judiciary and Parliament must actively seek to re-balance their respective roles, in order to ensure that our nation once again becomes strong and free, and rooted in the consent of the people – the basis of democracy.
September 16, 2019