The Charter and Its Critics

Here are some arguments of Charter critics:
-The Charter undermines legislative supremacy & therefore democracy
    Mandel:  elected legislators are closer to the needs of the poor and oppressed.  Judges are business-oriented.  No Charter decision has/will benefit the disadvantaged
    Morton-Knopff:  Judges may be  “captured” by special interest groups, mostly on the left.  This subverts democracy.
-Charter erodes participatory democracy.  Human rights can only be protected by the vigilance of citizens
-Cost of litigation compared to the political process
    Lavigne case:  NCC spent $500,000; unions $400,000 +
    OFVAS (Ont Film and Video Appreciation Society) case:  why didn’t artists use political process to change Ont censorship law?  Didn’t know how.
    But think of cost of lobbyists
-Charter litigation focuses attention on cases that happen to get to court, not necessarily most imp issues for society (Monahan).
    Cts should interpret Ch to promote democracy (Monahan)
-Courts are inappropriate for making policy on human rights
-Stare decisis is backwards looking, compared with the possibility of forward-looking policy formation processes in public service/legislature
    eg. Appropriate procedure for determination of refugee cases
    Schachter case (changes to parental leave policy)
-Adversary system
    gov’t lawyers argue for a narrow interpretation of Charter, whether or not this is gov’t policy
    courts rely on arguments from counsel.  Sometimes, no section 1 arguments
    Do judges get a complete analysis of the issues?
-Backgrounds of judges
    older than av adult
    disproportionately married with children
    predominantly male
    New Canadians and Aboriginals under-represented on bench
    most from business or professional family
    tend to be successful
    appointment process for Prov Courts and prov. Superior courts improving.  Elevation procedure, and SCC secretive
    Similar problems with lack of representation in legal profession
    Why do we tend to trust judges more than elected politicians?
Was the Charter worth the upheaval it took to get it?  Will revisit this question last week of class

Michael Mandel & the Legalization of Politics
    Judges are supposed to decide based on principle, and avoid policy.
    Hard to separate neatly
    Judges tend to be conservative on social and economic questions
    Judges tend to be “active” to support interests of business and capital, and “restrained” in relation to advancing the cause of the disadvantaged
    American precedents tend to support the advantaged
    Our legal system assumes all litigants are equal in ability to defend positions.
    This is why U.S. courts are reluctant to find affirmative action programs constitutional
    Charter is supposed to defend the socially weak against majority rule.    But the socially strong have more to gain
    Elected govts can act to advance the cause of the disadvantaged.  Charter allows them to avoid some issues.
Knopff & Morton:  Charter politics
    Agree with Mandel that Charter allows legislatures to pass difficult issues to courts
    Charter is a “two edged sword” -- can slash to the right or the left, depending on the judges
    Do we want judges to be the “official public philosopher?”
    Should judges be
        -“non-interpretivists” (will of framers -- a straight jacket) or
        -“interpretivists”  (creative, but perhaps against democracy)
The Charter Revolution (1999):   groups with axes to grind have used Charter to subvert democratic process
    feminist groups
    special interest groups (eg. Canadian Civil Liberties Assoc, gay and lesbian organizations, the gun lobby, NCC)
    groups representing “Charter” Canadians (the handicapped, seniors, new Canadians, Aboriginals)
Other Charter commentators
    Christopher Manfredi
        s. 33 makes Charter more democratic
        s. 33 became unpopular because of signs case
    Alan Cairns
        Charter has empowered “Charter Canadians”
    Peter Russell:
        Charter is here to stay, so how can we make sure it works well?
            better system of judicial appointment
            better judicial training
My view:  basic principle behind democracy is mutual respect.  Mutual respect leads to:
    democratic institutions
    respect for minority rights
    rule of law
    respect for freedom
    respect for integrity
    What is important is how well courts perform discretionary functions, not whether they have discretion.  Do judicial decisions promote mutual respect?