National Post

Tuesday, February 23, 1999

Democracy and its discontents
We shrug off the burden of self-government when we let the courts decide fundamental issues of policy

Ian Hunter
National Post

When The New Despotism was first published in 1929, it caused quite a stir. After all, here was the Chief Justice of England, Lord Hewart, contending that "the pretensions and encroachments of bureaucracy threatened the rule of law." Lord Hewart's attack was on vaguely worded statutes that gave broad discretion to civil servants to exercise "departmental authority and activity beyond the realm of ordinary law." In theory, the British subject was governed by elected representatives in a sovereign parliament; in reality, the chief justice contended, the subject was increasingly ruled by "an organized and diligent minority" in Whitehall.

When I was a law student in the late 1960s, it was fashionable to sneer at Lord Hewart. His was a voice from the past, an antique fuddy-duddy, who failed to comprehend the workings of modern government. Not that we particularly trusted civil servants, but we trusted even less the ninnies who took up space in Parliament. What we really trusted was courts. "Who is wiser than Bora Laskin?" was an unspoken credo.

Looking back, it seems to me remarkable how our jejune faith in courts and judges mirrored the critics of Lord Hewart and their faith in bureaucracy; he had summarized their attitude: "Why should the work of experts be always at the mercy of the ignorant amateur? Why should the people be allowed to govern themselves when it was manifestly so much better for them to be governed by those who knew how to govern?"

Ironically, Lord Hewart had looked to the courts for protection against executive despotism. Where shall Canadians turn for protection against the new despotism of the courts?

The chivvying and badgering of citizens by uncivil servants, and by burgeoning government boards, agencies, and commissions (most egregiously by human rights commissions, which not only tell us how to act, but what to say and how to think), all of that which exercised Lord Hewart, remains still a threat to self-government; but at the end of the 20th century what is a more serious threat is judicial usurpation of democracy.

The 1982 Charter of Rights and Freedoms transformed Canada from a system of parliamentary supremacy to one of constitutional, and hence judicial, supremacy. Oh, yes, the Charter contains the "notwithstanding clause" (Section 33), inserted to placate a few noisy, populist premiers, but Pierre Trudeau, the prime minister who brought us the Charter, and his advisers were confident it would soon become a dead letter, as indeed it has.

How shall Canadians govern themselves in the face of an omnipotent judiciary? One could at least lawfully try to influence one's member of Parliament; failing that, vote him or her out of office at the next election. But judges are not politically accountable. Nor is it desirable to phone one up to suggest how he or she should decide an upcoming case; that's called contempt of court, and the citizen who tries it will soon find the constabulary knocking at his door.

When Canadians allow fundamental issues of public policy -- such as abortion, euthanasia, or whether possession of child pornography should be a crime -- to be decided by courts, rather than by Parliament, they are shrugging off the perhaps now irksome burden of self-government. At bottom, democracy is anti-authoritarian, not because it arrives at correct, or even principled, conclusions, but because it imposes on everyone the burden of thinking and deciding for oneself. How much easier to allow the nine philosopher-kings on the Supreme Court of Canada to think and decide for us. Thomas Carlyle, that crusty old Scot, spoke truly when he said: "Democracy means despair of ever finding any Heroes to govern you, and contentedly putting up with the want of them."

Most Charter proponents acknowledge its anti-democratic nature, but they defend the Charter as a check on what John Stuart Mill famously called "the tyranny of the majority." I should like to suggest three reasons why this defence is not persuasive.

First, a charter of rights wrongly conceives the problem. It is true that ever since Mill's essay On Liberty in 1859 we have come to think of liberty almost exclusively in individualistic terms, a view the Charter embodies. But the claim to individual liberty may often mask harm to the collectivity. After all, we are not just atomized individuals, we are also members of a community, citizens of a society. The individual's claim to liberty, albeit expressed in the high-minded rhetoric of rights, often conceals selfish, sometimes (as in the British Columbia child pornography case) perverse, interests. The lone, brave individual standing his ground against the menacing omnipotent State was Mill's archetype, and this is a powerful symbol; the sadistic criminal going free and making citizens ever more fearful, even in their own homes, is the more common reality.

Second, the Charter forestalls what should be a fundamental political debate. The appropriate level of restraint on individual liberties is, or should be, a question of the first importance. But in Canada such debate does not occur; it is reduced to one person or a group claiming "I have a right to abortion on demand, assisted suicide, same sex benefits, or (you fill in the blanks)"; to which the only possible response is either government acquiescence, or "No, you do not." Ultimately, all such issues are now resolved by the courts. Such a puerile approach to deep questions of political philosophy is consistent with what I often think to be the governing dynamic of Canadian life -- the principle of infantile regression -- but it does immeasurable harm to the possibility of mature political discourse. It also inflates judicial hubris.

Finally, the problem is that we look to the Charter for that which it cannot give -- the discernment of an appropriate balance between freedom and restraint, between liberty and licence, between indulgence and self-discipline. The Charter cannot provide such discernment because that must come from within, not from without, from the heart and mind and soul. You remember Alexander Solzhenitsyn? He wrote that the lesson he learned in the freezing darkness of the labour camps of the Gulag Archipelago was that the line between good and evil ran not between nations, nor between states, nor even between political ideologies, but right down the centre of each and every human heart. So, too, does the line between rights and responsibilities. The Charter is only the most recent attempt, in a long and mostly sordid history of such attempts, to legislate what cannot be legislated.

So judges may pore over Sec. 1 of the Charter until their eyes glaze over, but they will find there no answer to the question they are asking: What is "a reasonable limit . . . justified in a free and democratic society?" They would do better to ponder these words of English writer Hugh Kingsmill, from his neglected little masterpiece, The Poisoned Crown:

"What is divine in man is elusive and impalpable, and he is easily tempted to embody it in a collective form -- a church, a country, a social system, a leader [a Charter], so that he may realize it with less effort and serve it with more profit . . . Yet the attempt to externalize the Kingdom of Heaven in a temporal form must end in disaster. It cannot be created by Charters or Constitutions, nor established by arms. Those who set out for it alone will reach it together, and those who seek it in company will perish by themselves."

Ian Hunter is Professor Emeritus in the Faculty of Law, University of Western Ontario.

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