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How do we keep the majority from trampling the rights of minorities?
In a democracy, the people rule. If the majority makes a demand, elected leaders have an obligation to seriously consider that demand. But sometimes the majority overlooks reason, and makes a demand that could trample the rights of minorities. This phenomena is known as ochlocracy, or mob rule.
To help keep ochlocracy at bay, liberal democracies spread power amongst several institutions. Each institution can act as a check on other ones. One of the most powerful checks, as discussed on pages six and seven, is the power of courts. They can determine whether or not the government is respecting the rule of law, the Constitution Act, and the Charter of Rights and Freedoms. So, for example, if a legislature passes a law that violates rights guaranteed in the Charter, the court can declare that the law must be changed.
The power of the courts to rule on whether or not laws are constitutional has led some people to suggest that there is a “tyranny” of the judiciary. They argue that it is unelected judges—not elected representatives—who ultimately determine Canada’s laws. This is not true.
If a court rules that a law violates the Charter, in many cases the government can invoke the Notwithstanding Clause. This clause permits a legislature to temporarily override the Charter. Thus, the Notwithstanding Clause gives legislatures higher authority than the courts.
There are other ways that power is kept in check in Canada.
The rule of law requires that there be open and established processes to guide law-creation.
The federal government cannot simply declare a law, without a debate and without that law being subjected to a thorough review. The rule of law requires that there be open and established processes to guide law-creation.
All federal legislation must be passed by both the House of Commons and the Senate of Canada. Sir John A. Macdonald described the Senate as the chamber of “sober second thought,” meaning that it would be the place where proposed laws—called bills—were given careful consideration. Today, only the federal government has a Senate. Many provinces once had Senates, but abolished them years ago.
The final check on legislation is Royal Assent, the Queen’s approval. Without Royal Assent, a bill cannot become law. In Canada, Royal Assent is given by the Queen’s representative: the Governor General for federal legislation, each province’s Lieutenant Governor for provincial legislation.
Refusal of Royal Assent is virtually unprecedented. The last time a British monarch refused Royal Assent in the United Kingdom was in 1707. Canada’s Governor General has never refused Royal Assent of parliamentary legislation. And only once has Royal Assent been refused provincially, in Prince Edward Island in 1945.
If history serves as a guide, it is very unlikely that Royal Assent would be refused today. Yet, Royal Assent gives the Monarchy the highest power in Canada. That said, it is difficult to know how Canadians would react if Royal Assent was refused.
Original draft of the Kitchen Accord, page 1.
Original draft of the Kitchen Accord, page 2.
Canada has other safeguards throughout the legislative process, such as legislative committees and multiple readings of bills, that help ensure laws are thoroughly reviewed. As well, there are a few archaic constitutional powers that the federal government could potentially use to halt runaway provincial legislation.
In the end, spreading power across several institutions makes Canada’s law-creation more reasoned and less mob-like. Because every law in Canada—including the constitution and the Charter—is created by and can be amended by elected representatives, it is vital to have opportunities to consider positions, consult experts, and ask questions. This helps temper emotions, protect minority rights, and promote reason.
When the Charter of Rights and Freedoms was proposed, there was a fear that it gave too much power to the courts. As the Charter was originally written, if a court overturned a law, legislatures would be powerless to act unless they amended the constitution.
Aware of this concern, Roy Romanow, Jean Chrétien, and Roy McMurtry met in the kitchen of Ottawa’s Government Conference Centre on the second-last day of the 1981 constitutional conference. They drafted the Kitchen Accord, which included the idea of adding a notwithstanding clause to the Charter. The Notwithstanding Clause allows legislatures to override the Charter’s sections granting fundamental freedoms, legal rights, and equality rights, regardless of court rulings.
Any use of the Notwithstanding Clause can only stay in effect for five years. The time limit helps preserve the rule of law, the role of reason, and the protection of minorities. If a government wishes to continue overriding the Charter, legislators and the public must re-visit the decision.
Because the Notwithstanding Clause allows for rights to be suspended, its use is controversial. Any government that overrides Charter rights almost always will face a public backlash.
