On this Canada Day there is an underappreciated and growing risk to our democracy – the Charter of Rights and Freedoms. Its use by judges wedded to “judicial activism” is undermining the ability of our governments to govern and their accountability to the voters who elect them.
Politicians may be held in low esteem these days – which is understandable but unfortunate as there are still many dedicated individuals who serve well – but they are all accountable to you, the voter. They knock on doors, they hold town hall meetings, they have to face daily grillings by reporters. You can contact them, you can lobby them, you can vote them out of office if they are not doing what they promised to do.
But how is a judge accountable for his or her decisions? It is true that many decisions by judges can be appealed and frequently are. And the system, by its very nature is built to place judges outside the cut and thrust of the political world, to provide sober thought – but this should be based on what the law actually says.
Politicians on the other hand, must make decisions that balance the many interests of many stakeholders in our complicated society, that reflect what they promised to do on the campaign trail.
Unfortunately, too many judges these days appear to be afflicted by the belief that they should be “filling in the gaps” as it were, offering interpretations that are not based on what the law says, but on what they think it should say.
Writing in the National Post, Ben Woodfinden described the approach this way:
“Identify a sympathetic group. Connect their circumstances to a Charter provision. Then tell elected officials what they may or may not do, or what they must affirmatively provide regardless of what voters and their representatives have decided.”
Their rationale is that a constitution is a “living tree” capable of infinite expansion, rather than a document fixed at the time of writing or passage. Under this argument, laws become mere suggestions rather than writings judges must follow.
This judicial activism is undermining the ability of governments to govern and to be accountable to the voters. There are three recent examples.
Late last year, the Ontario Superior Court ruled that the Ontario government’s removal of bike lanes on three busy downtown roads was unconstitutional and that the rights of cyclists – under Section 7 of the Charter’s right to “life, liberty and security of the person” – had been violated.
One commentator described it as “a de facto constitutional right to bike lanes, found by a single judge, against the explicit will of an elected legislature.”
In a second case, another judge from the Ontario Superior Court ruled that homelessness should be a protected characteristic alongside race, sex, religion and disability meaning that the municipality of Waterloo could not remove a homeless encampment in its downtown core, regardless of its impact on the surrounding neighbourhoods.
The third case had the Supreme Court deciding that the appointment of a unilingual Lieutenant-Governor in New Brunswick was unconstitutional because the province is officially bilingual. Three of the justices disagreed with the court, writing that bilingualism requires the state to ensure French and English speakers have equal access to services; it does not impose personal bilingualism on all politicians or appointments as this ruling now implies.
Checks and balances are a necessary part of any democratic government and have been an integral part of our democracy since the beginning of our nation. Section 7 of the Charter was supposed to be part of that balance. But it is now being weaponized through the courts by various stakeholders to override the express will of elected officials and the voters who put them there.
Politicians are not perfect but they are accountable to you, the voter. Our judges are not. A strong democracy requires a strong judiciary. But one that is focused on the law and what it says, not on what a judge wishes it said. That is the job of elected lawmakers.
Janet Ecker is a former Ontario Finance Minister, Minister of Education, Minister of Community and Social Services and Government House Leader in the governments of Premier Mike Harris and Premier Ernie Eves. After her political career, she served as the founding CEO of the Toronto Financial Services Alliance, a public-private partnership dedicated to building Toronto region into an international financial centre. She currently sits on a number of corporate and non-profit boards, agencies and advisory committees.
Ms. Ecker received the Order of Canada for her public service contributions and was recognized as one of the “Most Influential People in the World’s Financial Centres” by Financial Centres International. She also received a “Canada’s Most Powerful Women: Top 100 Award” from the Women’s Executive Network and the Richard Ivey School of Business, among other awards. She is also one of the founders of Equal Voice, a national, multi-partisan organization working to elect more women.
