The Elected and the Appointed

In “Sitting on the Bench,” a sketch from Beyond the Fringe, the British comedy review of the 1960s, Peter Cook played a character named E.L. Wisty, a miner. Wisty claims that he could have been a judge but “never had the Latin for the judgin’.” One reason he regrets his fate is that sitting on the bench would have been safer than mining, because of “the absence of falling coal.” True, perhaps, but as Andrew Petter demonstrates in The Politics of the Charter: The Illusive Promise of Constitutional Rights, judges may be exposed to a metaphorical pummelling, in this instance strong criticism of how they have interpreted the Canadian Charter of Rights and Freedoms and the adverse effect this interpretation has had upon Canadian politics.

Because of the structure of the book, that assessment is offered more than once. The first five of its ten chapters appeared (one each year) as journal articles between 1985 and 1989; the second five (again, one per year) as articles or book chapters between 2003 and 2007. Two of the first five were co-authored with Allan Hutchinson of Osgoode Hall Law School. The hiatus is explained by Petter’s career as a Cabinet minister in the NDP governments of British Columbia led by Mike Harcourt and Glen Clark between 1991 and 2001. During this decade he held an array of portfolios—aboriginal affairs, forests, health, finance, intergovernmental relations, attorney general—as well as serving as parliamentary secretary to the premier. He never sat in opposition or as a government backbencher.

The thesis of the book is revealed in its subtitle, “The Illusive Promise of Constitutional Rights.” While in the author’s opinion that promise is illusive, his own argument is anything but reticent: the Charter is “a setback in the struggle of ordinary people to attain democracy”; as well, it is a “potent political weapon … used to benefit vested interests in society and to weaken the relative power of the disadvantaged and underprivileged.” Occasionally, the similes startle: “Like a snake that outgrows and sheds its skin, the Court has shed one theory of judicial review to take on another that met its requirements.” This strength of feeling Petter ascribes to his political philosophy, which appears as the first sentence of the book’s introduction. There he describes himself as “a democrat who desires social equality and opposes political privilege.” What troubles him most is “the power of the few to hold sway, without popular direction or accountability, over the welfare of the many.” Possessing such views, he rejects any arrangement that would place “democracy … [in] servitude to academic scribblers or imperial judges.”

This is a passionate but not altogether compelling indictment. Although Petter quotes from the judgements of the current and recent chief justices of the Supreme Court of Canada, he says very little specifically about characteristics of individual judges or the act of judging. Instead, he offers this blanket observation: “There is nothing about the Canadian judiciary to suggest that they possess the experience, the training, or the disposition to comprehend the social impact of the claims made to them under the Charter.” In light of the central role Petter assigns them, the analysis that follows is curiously flat. For instance, when talking about “horribly unrepresentative” political institutions, the author notes that “women … make up more than 50 per cent of the Canadian population but in 2008 [just over 22] per cent of the Members of Parliament.” But a year later and admittedly after this manuscript went to press, the Office of the Commissioner for Federal Judicial Affairs Canada reported that the proportion of female federal judges on the bench exceeded 30 percent (on the Supreme Court of Canada it was over 40 percent).

No doubt for those who believe that representatives should be “one of us,” that is, that they should mirror the represented, neither of these percentages is acceptable. Nonetheless, courts are less a male bastion than they once were, and their gender complexion has changed faster than that of legislatures. This is because judges in Canada are appointed. That same manner of selection explains why there are more women in the Senate than the Commons. What, if anything, do these respective data say about the performance of national institutions in the Canadian system of government? Is it subversive to ask whether representation is about something more than numbers? Or, even, perhaps to suggest that in some instances the concept of representation does not apply: in January 2010, on the tenth anniversary of her appointment as chief justice, Beverley McLachlin remarked that “we just don’t think in terms of gender on this court.”

Petter informs the reader that “the attitudes of lawyers and judges tend to reflect the values of the legal system in which they were schooled and to which they owe their livelihood.” In fact, this depiction of homogeneity is surprising. How to explain Canada’s difference from the United States? There the Senate recently confirmed Sonia Sotomayor’s appointment as the first Hispanic justice to the Supreme Court of that country, and a celebrated biography appeared of its most controversial member (whose father arrived at Ellis Island unable to speak English), American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia? What is one to make of Canada—a bilingual and multicultural federation, half the population of its largest city born in another country, a continental country as well, with a growing and constitutionally recognized aboriginal population—what is one to make of its being so different, so uniform, so … bland?

Petter does not really deal with this intriguing question. What he does do is aver that, homogeneous though the legal and judicial community may be, what takes place there is anything but bland. On the contrary, the “needs of the economically privileged in Canadian society” shape Charter interpretation; “reverence for property rights” drives all else before it. It is in this context that he cites, in several of the book’s chapters, cases such as Dolphin Delivery (where the Supreme Court unanimously held secondary picketing not to be a protected activity under the Charter’s guarantee of freedom of expression) and Hunter v. Southam (where, again unanimously, the Court found that the privacy right “to be secure against ‘unreasonable search and seizure’” extended to corporations). In light of his desire to promote social equality and mindful of the lesson he learned from the speeches of Tommy Douglas, that “democratic mobilization of ordinary people offered the best hope of attaining social justice,” it is no exaggeration to say that he despairs of the courts as the path to that goal.

Nor do the “scribblers” hold out an alternative hope. For the purposes of this discussion law professors are held up as representatives of that disparaged group. At one time, Petter says, they were “academic mortals like all others … Now law professors are exalted interpreters of constitutional rights, second only to judges—and a close second at that.” The source of his ire is the hubris “constitutional authorities” manifest when they caution, counsel and even tell elected members of legislatures how to deal with public policy. Their error, like the error of the courts, is to encroach on what is fundamentally the prerogative of the legislature.

In Petter’s view, responsible decision-making structures must be as close as possible to citizens, for only then can those who make decisions be effectively held to account. This is what democracy requires. (A prescription so plainly stated raises doubt as to its accuracy, if only because it ignores the fact, which British historian Colin Kidd has noted, that “responsibility is a compound term within which might be detected shades of answerability, accountability and culpability.”) And yet, democracy is not what Canadians have. Parliamentary government, the reader is told, is undemocratic: power is concentrated in the hands of the first minister; the plurality of the electoral system assures that the legislature is unrepresentative of those who vote (a number itself that continues to fall); and party discipline inhibits responsiveness and distorts accountability. How, then, “to maximize opportunities for citizen participation and deliberation”? As important as these questions appear to be and as central as they are to the book’s thesis, the examination they receive is less than searching. While there are few who would dispute that parliamentary government in Canada is in need of improvement, the scrutiny preliminary to that enterprise is not to be found here. As an example, the 2004 report of the Law Commission of Canada, Voting Counts: Electoral Reform for Canada, is cited, presumably with approval, and yet that report’s discussion of electoral reform is less than adequate.

Nowhere, for instance, does the report specify which theory of representation should inform the design of the electoral system, or how it might be implemented. Should my MP look like me? Is it enough that I believe she works for me? Should I have voted for her (and, if I have not, is my vote wasted)? Petter also speaks approvingly of British Columbia’s experiment in “deliberative engagement,” the Citizens’ Assembly on Electoral Reform, an initiative of the Campbell government in 2003, to explore change to the electoral system. A similar exercise was followed in Ontario. Both assemblies agreed on a reform of the respective plurality electoral systems that would have introduced an element of proportionality. This proposal was then submitted to the electorate in referenda. In both provinces it was rejected. How to explain rejection after so much attention to deliberation? How can such a disconnection occur between the two, not only once and not only in one jurisdiction? The answer to that question may not be germane to an exploration of the politics of the Charter, but failure to win popular acceptance of reform after intensive examination by members of the public is a matter for serious study by those who seek reform of political institutions and, more to the point, who are looking for an effective means of accomplishing that object.

Petter’s preoccupation is with the courts and their contribution to making the Charter what he describes as “a regressive political instrument.” Democratic politics, which he believes is the essential tool for social betterment, is not given equal attention. Perhaps such selectivity was inevitable since the essays that make up the book were written over more than two decades. In the mid 1980s the long-term and adverse effects on traditional politics of the deterioration of Parliament, the fragmentation of the party system and the explosion of the electronic media had yet to be appreciated. After 1982 the Charter (and discussions about mega-constitutional reform) dominated. Yet one cannot help wondering whether there is an inverse relationship between the two—the decline of Parliament, the rise of the Court. To what extent does the politics of the Charter contribute to the concentration of power in the hands of first ministers and their advisors? In the index to the authoritative Governing from the Centre: The Concentration of Power in Canadian Politics by Donald Savoie, there is only a single entry for the judiciary. Evidence in Petter’s chapters nonetheless supports this supposition—concern in the ministries to make legislation Charter-proof, irritation in the House when members are told that amendments they wish to propose conflict with the Charter.

Frustration on all sides and yet the Charter remains apparently unassailable, except by scribblers and politicians. Why is that? In the discussions leading to the Constitution Act, 1982, the Charter was a pre-eminent part of what the federal government called the “people’s package,” and it has remained popular with Canadians, especially in Quebec. In a survey conducted in 2007, and reported in The Globe and Mail by Kirk Makin, 53 percent of respondents said the Charter “has had a positive, or very positive, impact on Canada over the past 25 years … Respondents from Quebec viewed the Charter in the most positive light, with 61 per cent rating its impact as positive or very positive.” How to explain this rapport between the public, the Charter and the courts, especially when, as maintained in this book, the public’s social interests are not being served? Petter puts the onus on “supporters of the Charter” to answer a slightly different question: “In Actonian terms, why is it that, while power tends to corrupt, the absolute exercise of judicial power not only fails to corrupt but actually guards against the corrupt exercise of legislative power?”

One answer, paradoxical as it might first seem, is offered in Stealth Democracy: Americans’ Beliefs about How Government Should Work, a study by John Hibbing and Elizabeth Theiss-Morse: “People’s desire to increase the influence of ordinary people” and are willing to achieve this end by increasing “the influence of … unelected experts.” This is the same rationale that explains Ipsos Reid’s finding in 2004 that the current auditor general is “immensely trusted” by Canadians because “she has no vested interest and is viewed as being above politics.” As painful as it may be for their critics, Canadian judges fall into the same trusted category. Petter, of course, dissents from that view and says that judges most definitely have a set of interests they believe they must protect.

Still, there is evidence to support the Stealth Democracy argument when applied to Canada. The Charter provides an additional dimension to Canadian politics. This is particularly significant because it is occurring at the same time that words and concepts once identified with the conduct of parliamentary politics—policies, platforms, discipline, party loyalty and more—now have lesser, in some cases even discredited, meanings. Here, along with the sense that the courts operate in accordance with predictable rules, especially rules of perceived fairness binding on all sides, is why the public might trust judges more than they do politicians.

Anointment of the expert may be explicable, but it is troubling to those, such as Petter, who are committed to the ideal of government by the people. Who will watch the watchmen? Or, in the Latin Mr. Wisty never had: Quis custodiet ipsos custodies? For Mr. Wisty and many others today, that phrase might freely be translated as “Who will throw the custard pie?” In this instance, the answer is: Professor Petter.