Chief Justice misunderstands meaning of democracy

Friday, June 20, 2003

Re: Courts haven't usurped power of politicians, top justice says, June 18.

A new democracy?

In a speech yesterday, Chief Justice Beverley McLachlin attacked those seeking judicial reform as leading the courts towards a dangerous majoritarianism at the expense of democracy. My dictionary defines democracy as “government by the people; especially : rule of the majority”. Her remarks illustrate the urgent need for reform; she either does not understand or is intent on overturning the meaning of democracy.

“Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of government except all those other forms that have been tried from time to time.”

- Sir Winston Churchill, Hansard [transcripts of parliament], November 11, 1947

Freedom of ideas threatened

If any of us feels that we have ideas and insights that might benefit others, it is public spirited to act on this and tell others. For example, while I do not agree with many beliefs of the Mormons or the Jehovah Witnesses, I admire them for going from door to door and I defend their right to so do. They are invariably courteous, respectful and non-threatening. One of the great benefits of Canada is the freedom of thought and ideas, the right to listen and the right to try to persuade, coupled with the fact that we are not forced to listen, read, watch or keep anything given to us. 

I am therefore alarmed to read in the Ottawa Citizen several letters from individuals and groups who label as “insulting” the reception of mailed materials expounding different religious philosophies and who equate the sending of such materials with “enforcement”. These people seem to want to enforce a freeze on such discussions, insult our capabilities to make up our own minds and threaten the commonwealth of ideas that we now enjoy.  .

ON BILL C-250

Supporters of Bill C-250 preach pluralism but promote censorship. This is hypocrisy. Free speech may be divisive, aggravating and even offensive. So be it. Freedom of speech is a cornerstone of a healthy society. Long may we retain the right to trade in the marketplace of ideas.  Parliament must reject this Bill.

The Church, the State and public morality standards

The Citizen editorial of July 31^st reminds us that we have no constitutional separation between the (Christian) church and the state. In fact, history shows a close connection although it has been greatly weakened in modern times.

In the English tradition of jurisprudence, before the advent of parliamentary democracy, laws were both set and applied by the Lord Chancellor, an office dating back to AD 605 that still exists in Britain at the head of the judiciary. Originally, this role was carried out by the king’s chaplain, and later by prominent churchmen appointed by the king.

Henry VIII was served by Cardinal Wolseley who was followed by Sir Thomas More, a lawyer and a firm Christian. When Henry broke from Rome, he made himself the head of the English church and successive English monarchs have kept this role. The Queen therefore appoints the Archbishop of Canterbury, the leader of the worldwide Anglican communion.

Her official title in Canada is “Elizabeth the Second, by the Grace of God of the United Kingdom, Canada and Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith". All this shows the formal reality of the historic connection at the highest level between the state and the church.

Of course, the practical reality in Canada today is very different. Until recently, public morality standards were defined by the laws of Parliament and reflected the values of a largely Christian electorate. 

Today, we see the standards being set by our judiciary. Parliament continues to pass laws but defers to the opinions of judges rather than the other way around. Like the Lord Chancellors of mediaeval times, our judges are appointees of the ruler. However, they do not generally base their decisions on the Bible or Christian traditions.

Their “Holy Writ” is the 1982 Canadian Charter and their overriding value is that of equality. Equality is a good objective, but whether it should always trump rights to life, liberty, health, property, free speech and traditional values is debatable.

Less debatable is that in giving up on parliamentary democracy to set the standards, we regress five centuries to a mediaeval justice arrangement.