POL214Issue 4 and 6
Is the Canadian Charter of Rights and Freedoms Antidemocratic?
• The BNA act of 1867 divided law making authority between Parliament and the
provincial legislatures and thereby limited authority
• Yet in 1982, this all changed. The federal division of powers remained, but for the
first time substantive limitations were placed on lawmaking authority.
• The judges were given power to strike down laws that in their opinion was
inconsistent with the charter. 211
• Difference between judges and legislators
o To become a judge in Canada, you must first be a lawyer, and you must
have been one for ten years. You are appointed to age seventyfive through
a closed process and you are made constitutionally accountable to no one.
o Judges can now overturn deliberate policy decisions made by the elected
representatives of the people where those decisions do not accord with the
way the judges interpret the charter.
• Liberalism is about individual rights, about the ability of the individual to do as
they please without the interference of the state.
• Democracy is about the interests of the collectivity the majority rule, about power
to the people.
• Interest group politics is antidemocratic in two ways.
It erodes citizenship, the essential precondition to democratic
Seeking to the courts as a means of short circuiting and bypassing
• We ought to ask whether Canadian judges using the charter can play a useful role
in enhancing the quality of our democracy
Is the Prime Minister too Powerful?
• One must consider
o Cabinet and the leading members of the prime ministers political party
o Public opinion and the constitutional requirement of periodic elections
o Parliament and its institutionalized opposition and feature