SLT: Is the Canadian Charter of Rights and Freedoms Antidemocratic?

Point form summary of the opposing point of view

By Philip L. Bryden

  • People say that the charter is anti-democratic because “If non- elected judges are empowered to overturn the decisions of elected politicians, the document that gives them this power must be antidemocratic.”ß To clarify this, 2 myths underpinning this notion must be exposed!

1) “Decision of our elected legislators and the will of the majority of the electorate are one and the same.”à Not always true! We are not Ancient Greeks, so views of elected legislators may be different compare to general public. Therefore we should measure our judicial performance against reality of parliamentary government today and not to idealistic ancients.

2) “Majority rule is all that modern democratic government is about, therefore there is an inherent & irreconcilable tension b/w liberalism and democracy.” à Actually, democratic government, at least in Canada, has a complicated web of commitments to each other and only one of those reflect the will of the people.

  • Canadian government is a liberal conception of democratic government (unlike red Chinese Democracy). Canadians have accepted a liberal notion of democracy long before the Charter was adapted.
  • The real issue isn’t that constraint on legislator is antidemocratic, it’s rather “can judges use the charter to enhance the quality of our democracy.”
  • Professor Martin thinks the charter fundamentally undermined the power of elected representative to make law. However, the structure of that charter and history of judicial use doesn’t support that.
  •  Charter doesn’t affect our economic and foreign policy, which are still made by elected politicians.
  • The Charter’s impact on social policy are not negative, there are no history of judges using charter to undermine the democratic government of Canada
  • Martin also believe that charter undermine our sense as a collectivity, however diversity of interest was not created by the charter, and take it away doesn’t mean we can be “one” again.
  • The charter tend to the need of weak and minority, doesn’t that better our democracy?
  • The un-Canadian part:

1) The Charter is not a direct copy of American Bill of Right! The root of it may be American, but it’s created in Canada, by Canadian, to suit Canadian needs, just like how we adapted American federalism, English parliament and French civil law to suit our country‘s need.

2) Professor Martin seem to use “Americanization” as a short hand for the bad things in contemporary Canadian political life. It’s not fair to generalize the charter like that.

  • In conclusion, the charter representing is a special way of addressing a limited range of issues that politics may not pay much attention about, and this upholds our ideals such as justice and equality. It deserves a place in our democratic political life.

 

Glossary

Charter : a written grant of rights, by the sovereign or legislature

 

Democracy : a system of government by the whole population, usu. By the

                  elected representatives.

 

Liberalism: an idealism that favouring individual liberty, free trade, and

                 moderate political and social reforms.

 

Judiciary: the judges of a country collectively.

 

Inherent:  exist in something, esp. as a permanent or characteristic attribute.

 

Legislator: a member of legislative body i.e. a lawgiver

 

Parliament: the highest legislature (the highest law making body of a

                  country)

 

Caricature: a grotesque, a comic representation of something.

 

Litigation: go to law; be a party of law.

 

Americanization: a process of transforming into American, culturally.

 

Liberal democracy: a democratic system where individual and minority

                            rights and need are still respected and cared about. i.e.

                            majority cannot oppress the minority by “democracy”  

 

Federalism: a government system in which several states form a unity but

                  remain independent in internal affairs

 

Electorate: a body of electors (i.e., the voters)

 

American Bill of Right: A charter on which the American constitution was

                                   based on.


Guiding questions

1. What is the Canadian charter of right & Freedom? How much does u know about it?

 

2.The opposition argues that “ If non-elected judge are empowered to overturn decisions of elected politicians, the document that gives them this power must be antidemocratic.” Do you agree with this statement? Why or why not?

 

3. How do u think the charter can help to enhance the quality of our democracy?

 

4. Do you think that this charter has or will undermine our sense of ourselves as a collectivity?

 

5. Do you know what is the American Bill of Right?

 

6. Do you think that since the charter’s “roots” maybe American makes it un-Canadian?

 

7. Professor Martin thinks that the charter is distracting us from thinking about the real important problems in our society (eg unemployment), do you agree?

 

8. The charter can protect the freedom and interest of the minority or individual. Do you think this makes the charter undemocratic?