RSS FeedOn democratic legitimacy of the courts
My last post talked about how judges work with each other’s decisions. Today, I’d like to take a bird’s eye look at the relationship between the judiciary and Parliament. Unelected judges handle laws passed by elected legislatures such as Parliament of Canada or provincial parliaments. How they do it helps understand why it’s ok for judges to be unelected and why we need an independent judiciary.
In Canada, judges do really only two things with laws legislatures pass (also known as acts of legislature or statutes). They apply them or strike them down as unconstitutional.
When judges apply statutes, they interpret them. Legislatures often cannot or do not want to spell out every detail in rules of law they include in statutes. But the only way a law can work is by affecting conduct of specific people in a myriad specific life situations. If somebody believes you violated their legal rights or broke the law, they can sue you or charge you with a crime. You can quickly give in if you know you have nothing going for you. In that case, you will apply the law yourself. You will adjudicate your own case in favour of the other side. You can also dispute the other side’s reading of the law. You will claim that in that particular situation, the law means something different, and you neither broke it nor violated anyone’s rights. Now a judge will have to adjudicate this dispute and impose his or her reading of the law on both sides.
For example, Parliament of Canada defines “invention” as “any new and useful art, process, machine, manufacture or composition of matter” in a statute called Patent Act. Harvard University created a gene making mice susceptible to cancer. A mouse with a gene like that can help identify carcinogens. Harvard University tried to patent the mouse in Canada, failed, and sued the government. Harvard believed that its cancer mouse was an “invention” under Patent Act, but the patent office didn’t. So it was up to a federal court judge to adjudicate this dispute, which basically came down to interpreting the language of the statute.
One reason it was ok for an unelected judge to impose his reading of the law is because the elected legislature implicitly allowed him to do so. Our Parliament chooses broad language for its statutes in full knowledge that some disputes over their interpretation will end up in the courts. The elected Parliament accepts that unelected judges will interpret its acts. If our elected politicians didn’t want the courts to interpret legislative acts, they would use more specific language or create special tribunals to interpret statutes. It happens all the time and is also known as ousting the courts’ jurisdiction. Basically, our elected politicians can shield entire areas of law from the courts, and when they choose not to they essentially delegate some of their democratic mandate and legitimacy to the courts.
Even when the courts do have the power to interpret a democratically created statute, provincial legislatures and Parliament always have an option of overriding the courts’ reading by clarifying or changing the statute. The term “dialogue” is used to describe this relationship between the courts and the legislators. When the courts ultimately decided that the cancer mouse was not an invention, they did their best, very democratically, to divine the will and intention of Parliament. They did not try to make their own ethical or political judgment, and they knew perfectly well that if they got it wrong, Parliament can always correct them by clarifying the Patent Act. Parliament didn’t.
So one huge responsibility of the courts—interpreting legislative will—is far more democratic and legitimate than some think. Of course, the courts’ other responsibility—striking down laws as unconstitutional—is a lot more controversial, but this topic is better left for its own blog post.
Pulat Yunusov is a Toronto litigation lawyer.
(Post sponsored by AdviceScene)
Are we Legally Required to Have an Election on October 19?
One of Stephen Harper’s first acts as Prime Minister was to enact Bill C-16, An Act to Amend the Canada Elections Act, which purported to establish the principle of fixed election dates in federal law. As it was sold to the public (and particularly to Conservatives of Reform-Alliance heritage), the law was supposed to curtail the power of the Prime Minister to unilaterally trigger an election at a time politically convenient to governing party. Harper would go on to betray his supporters by unilaterally triggering an election at a time politically convenient to the governing party. Recently, the Federal Court of Canada threw out a challenge to the legality of that decision which had been filed by Democracy Watch.
Bill C-16 essentially contains three parts. The first part says that we will have elections every 4 years on the third Monday of October. The second says that there will be federal election on October 19, 2009. The third part says that nothing in the first two parts affects the power of the Governor General to call an election. The specific wording of these provisions appears below:
56.1 (1) Nothing in this section affects the powers of the Governor General, including the power to dissolve Parliament at the Governor General’s discretion.
(2) Subject to subsection (1), each general election must be held on the third Monday of October in the fourth calendar year following polling day for the last general election, with the first general election after this section comes into force being held on Monday, October 19, 2009.
[Emphasis added.]
In the Federal Court’s decision, Justice Michel Shore emphasized that s. 56.1(1) essentially overrides the other provisions insofar as the Governor General is not prevented from calling an early election on the advice of the Prime Minister. However, the ruling in that case is limited in scope to the calling of an early election and does not specifically deal with the refusal of the Governor General to call an election on 19 October 2009, as mandated in the Elections Act.
In their apparent zeal to bring down the Harper government and trigger a federal election, it might be reasonable for the Liberal Party to raise the issue of the legal effect of s. 56.1(2) of the Elections Act, either privately with the Governor General or in the federal court system. In all likelihood a legal challenge would fail, given that s. 56.1(1) seems to undercut all of s. 56.1(2). However, raising this challenge in a public way might have strategic political benefits for the Liberals, regardless of the outcome.
If successful, the Liberals would get the federal election for which they have so much enthusiasm. If unsuccessful, the Liberals would have concrete proof of something that most legal scholars and political observers have long suspected: that Stephen Harper’s fixed election date law is a complete sham that is of no legal force whatsoever. That might give the Liberals an opportunity to regain a much-needed foothold in Western Canada, where Harper’s popularity is largely predicated on his Reform-Alliance credentials. The West, after all, wants in (or so I have read).
Besides, it would be a nice change of pace for the Liberals to take the Conservatives to court for once.
How to Get Big Money Out of Political Campaigns
Liberal blogger Jeff Jedras (A BCer in Toronto) alerted me to Winnipeg Free Press article about the Conservatives’ latest plan to eliminate public financing of federal political parties. While both the article and Jeff’s reaction to it focus on the strategic implications (which parties will be harmed and which will be helped by removing public financing), I want to talk about whether such a move would make our society more or less democratic.
The rules governing donations, public financing, spending limits, and other facets of a political party’s finances were brought in during the dying days of the Chrétien government and were designed to limit the influence of corporate and union donations (which hurt rival Paul Martin) while also ensuring that personal donations are subject to a cap. It’s no coincidence that it took an outgoing Prime Minister at the end of his career to implement such a change: Liberals and Tories had thrived under the old rules, benefiting from large corporate donations as the barrier to prevent insurgent populist parties from joining their exclusive club. The Liberals, in particular, were so heavily dependent on corporate donations that they have yet to recover from the blow they dealt themselves by introducing the new rules.
Prior to the new regime, the Liberals were financially healthy. In 2003, the Liberals received $10.8-million in business donations, compared to $1.1-million for the Canadian Alliance and $1.0-million for the Progressive Conservatives. Today, the Liberals run about neck and neck with the much smaller New Democratic Party when it comes to fundraising. The Conservatives, on the other hand, have found ways to win by collecting large numbers of smaller personal donations.
On the other side of the Chrétien reforms, a new system of public campaign financing was introduced. Under this system, political parties would receive a small annual sum of money from the federal government based on the number of votes the party received in the previous election. The per-vote amount comes to $1.95, paid in quarterly installments and adjusted for inflation.
Today, Minister of State for Democratic Reform Steven Fletcher wishes to eliminate the publicly-financed portion from the Chrétien reforms. “We believe that political parties should support themselves with people who voluntarily donate to whichever party they wish to support,” he is quoted as saying in the Free Press. The last time the Conservatives attempted to remove public financing, the opposition parties agreed to coalesce to topple the government, triggering a constitutional crisis that bitterly divided Canadians. It is not clear in the article whether the Conservatives would also re-introduce corporate and union donations in their proposed reform.
Rather than focus on which parties would stand to benefit or be harmed by such a change, I want to talk about the impact on Canadians and our institutions of democracy. I have said before and I will say again that I am firmly in support of the public financing system. In fact, I would support a ban on all donations to political parties in favour of a fully public-funded model of party financing.
My reasoning comes down to a simple proposition of democratic equality: is every voter equal or do we believe that some voters should count for more than others? Our balloting laws suggest that our national values favour democratic equality; that’s why we have a one person, one vote electoral system. Yet anyone who understands how a political campaign works will understand that money, as well as votes, can substantially determine the outcome of an election. If one voter is capable of donating a large amount of money to a political party, that voter will have a much bigger effect on the outcome of the election than those who cannot afford to make donations. This is one of the major reasons that a small minority of wealthy individuals exert a greater influence on government policy than the large majority of those who have comparatively little to give.
Fletcher claims that the private donations model is preferable due to the voluntariness of donations. At first blush, it seems odd that taxpayers should be asked to foot the bill for the activities of political parties. Yet a public financing system is every bit as voluntary as private donations: I can direct where my $1.95 will go simply by exercising my right to vote. Political parties compete to earn my financial support just as they do under a private donations system. Moreover, the capacity to financially support a party is normalized among citizens: rich and poor alike have exactly $1.95 each that they can contribute to the party of their choosing. Simple. Fair. Equal. What’s not to like?
The only areas where public financing becomes a little tricky is in the case of independent candidates or new candidates. Not being members of a political party, independents can’t point to an electoral record as the basis for their public financing. The same situation occurs where a new political party has been created as has not yet run in an election. However, these issues can be ironed out. For example, independents and new parties could be allowed to raise money based on a capped donation system and then have the donors reimbursed to the extent of the candidate’s support once the election is over.
The risks of a abandoning a public financing system are very real. The United States has earned its reputation as a haven for lobbyists and special interest groups precisely because of its election financing laws. Corporations, unions, lobby groups, and non-profits all contribute directly to candidates south of the border. Although a public financing option is available for Presidential candidates, no winning candidate has ever taken the public option (which limits the candidate’s ability to raise money through donations). The result is a deeply corrupt environment in which government is handcuffed from setting good public policy. Although the vast majority of Americans support health care reform along the lines of a public option, the single biggest barrier to such reform is the Democratic caucus in the Senate which receives millions of dollars in contributions form insurance and pharmaceutical companies.
In the interests of a healthy, vibrant, and open democracy, I urge all of my readers to support public campaign financing.
Green Party Barred from Election Debates
Déjà vu.
Though political support for the party continues to grow, a consortium of Canadian broadcasters has yet again decided not to allow the Green Party to participate in the leaders’ debates.
This is despite the fact that the Green Party, which is headed by Elizabeth May, recently acquired its first Member of Parliament when Independent (former Liberal) Blair Wilson decided to don the party colours.
Previously, the need to have at least one MP was put forth by the consortium as a prerequisite for participation in the debates.
As of last week, the Greens have an MP, but their request for participation was denied anyway.
Public interest – defined as having more than 5% support in a recent national poll – was another requirement.
According to the latest Strategic Council poll (PDF), the Greens have about 9% support across Canada. Out west, this number is as high as 12%, compared to just 18% for the Liberals.
Indeed, the Greens are ahead of the Bloc Québécois in nation-wide support. The Bloc is a separatist party with the explicit goal of tearing the fabric of Canada apart, and one which does not even field candidates outside of Québec. Nevertheless, while Bloc leader Gilles Duceppe will be appearing in the debates, Elizabeth May will not.
Michael Byers, the NDP candidate for Vancouver-Centre, supported the decision of the consortium. He is quoted calling May the leader of a “single-issue party:”
“My leader, Jack Layton, is running to be prime minister and so are the leaders of the other parties,” Byers told CBC News on Monday from Vancouver. “This is a leaders’ debate. It’s not an environment ministers’ debate.”
(Source: CBC)
The wholly incorrect perception of the Greens as a single-issue party is precisely the problem that Elizabeth May is unable to address now that she has been denied access to the debates.
May said in a statement that she is considering pursuing legal action against the TV networks. Not that I have much (read: any) knowledge of election law, but unfortunately I doubt that there’s a case here.
As undemocratic as it seems, the televised leaders’ debates are produced by private TV networks. Though the CBC is a Crown corporation – with the mandate to foster Canadian unity and promote the expression of diverse ideas - there is good case law suggesting that any legal action on May’s part would fail.
It’s been tried before.
In National Party of Canada v. Canada Broadcasting Corp. (1993), 106 D.L.R. (4th) 568 (Alta. Q.B.), the court decided that the CBC was not subject to Charter scrutiny when it denied the National Party the opportunity to participate in the leadership debates. The Supreme Court of Canada refused to grant expedited leave to appeal.
Along these same lines, in Natural Law Party v. Canada Broadcasting Corp. (T.D.), [1994] 1 F.C. 580, the Federal Court held that:
“In my view, the CBC is acting as a broadcaster and not as an agent of the government in its participation in the Broadcasters’ Consortium.”
and further that
“It is not the function of the government or indeed the courts to dictate to the news media what they should report. The broadcasters are exercising a function that is very central to the democratic process. But it is a function that they perform quite independently of government.
…
What the applicants are really asking this court to do is to dictate the content and the agenda of the political debate in the forthcoming federal general election. It is for the leaders of the various political parties to decide of their own free will and accord, without any coercion from this court, whom they want to debate and when and on what terms such debates should take place. It is not for this court to dictate the agenda of political debate.
The Green Party has retained Toronto lawyer Peter Rosenthal to spearhead the legal fight.
