Democracy After the Charter

The adoption of the Canadian Charter of Rights and Freedoms has marked a revolutionary change to our legal and political institutions and practices. While parliament used to have the final say in defining the details and limits of the rights of Canadians, the Supreme Court is now the ultimate arbiter of our rights as it has the authority to determine the meaning of the Charter and decide when legislation contradicts the letter and spirit of the Charter. The question of whether the entrenchment of the Canadian Charter of Rights and Freedoms and the subsequent practice of Charter-based judicial review are beneficial developments to our political culture is the topic of this dissertation. I argue that entrenched Charters of rights in general, and the Canadian Charter of Rights and Freedoms in particular, are unnecessary in mature democracies which already have adequate institutions and practices which protect rights. My central claim is that Charters of rights and judicial review are not only unnecessary, but they are also fundamentally undemocratic; Charters and judicial review limit the ability of citizens, acting through their democratic representatives, to make important decisions concerning rights. First I explore Jeremy Waldron's rights-based critique of Charters of rights and judicial review to argue that Charters and judicial review are undemocratic and then defend Waldron's critique against three major arguments which claim that Charters and judicial review do not necessarily conflict with our commitments to democracy and might also be mandated by our democratic principles. Then I explore two major consequentialist arguments supporting Charters of rights and judicial review: the "tyranny of the majority" argument, and the institutional argument. I critique these two influential arguments and conclude that the fear of the "tyranny of the majority" is an exaggerated fear based on simplistic conceptions of "majorities" and "minorities" which does not recognize the limits of majority rule within a parliamentary democracy, while the institutional argument is based upon questionable assumptions of voter and legislative motivations and behaviour. Finally, I argue that Charters of rights and judicial review might subtly undermine our commitments to democracy by reinforcing unrealistic attitudes concerning rights and cynicism toward democratic politics. Furthermore, I argue that Charters of rights and judicial review imply that there are "correct answers" and moral expertise concerning rights debates which also undermine our commitment to democracy. Finally, I offer some democratic alternatives to Charters of rights and judicial review which could help protect rights without having the democratic illegitimacy of Charters and judicial review.

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