Pushing the Values of the Charter into the Heart of Politics in Canada

Political institutions provide the rules for the way the political game is played. Here in Canada, the rules were inherited from our colonial past and have evolved somewhat over our relatively short history as a nation-state.

The most significant change was the adoption of the Canadian Charter of Rights ad Freedoms in 1982. The Charter in my opinion is Canada's greatest cultural achievement. It distinguishes us from the Westminster Parliamentary tradition by displacing the supremacy of Parliament with a fundamental declaration based on the values of a free and democratic society. In our system, laws passed by Parliament and the provincial legislatures can be subjected to judicial review and may be struck down if they are found to contravene the equality guarantees of the Charter.

In some ways, it is as though our Westminster traditions that were born and conceived to serve the interests of a class-based society operated in parallel with a set of values that are conceived to serve a society that embraces equality. Occasionally, these two opposing value systems would clash as citizens who challenged the legitimacy of the nations laws sought to have the principles of equality enshrined in the Charter and the power therein applied against the powers of privilege supported by what was perceived to be offending legislation, for example, laws restricting abortion and prohibiting same sex marriage. In these two instances, the Charter prevented the ruling class from imposing their social values upon the entire population, but the political system that gave rise to their dominant position in the society remained untouched.

In the relatively short time that the Charter has been in place, we have developed and used the metaphor of the living tree and reference to a dialogue between the Courts and the legislative branch of government to describe the relation between them. This customary framing of the relation can exist only as long as the two opposing value systems only bump into each other occasionally.

However, what has emerged with Gibb v. the Attorney General of Quebec is the inevitable attempt to push the equality values of the Charter into the very heart of Canadian politics and its parliamentary traditions.

The British parliamentary tradition is a political system that concentrates political power in the executive branch where the Prime Minister embodies the power of the crown. Different factions within the society will seek to win the political contest that allows the transfer of monarch-like prerogatives to the leader of the political party that gains advantage in the greatest amount of territorial electoral districts. There is no attempt to seek out political representation on the basis of the popular vote. Such a democratic principle runs contrary to the operating logic of a system that is conceived to give socio-economic advantage to those who prevail in the electoral contest that is aptly named first-past-the-post, especially when we take into consideration how the spoils of victory are distributed. A winner-take-all electoral system is culturally appropriate for a winner-take-most society.

Essentially, by asking the Court to invalidate the discriminatory practices inherent to the voting system we inherited from the British Gibb v. the Attorney General of Quebec aims to replace the portion of Canada's political DNA that seeks to reward and maintain privilege with another set of operating instructions that promotes, and over time, will produce a more egalitarian society. Instead of pursuing a political agenda that serves to increase the distributional gains of the few, Canadians will become empowered to advance the well-being of the many.

Will this happen on the first attempt to do? Only time will tell. In any case, it is of the utmost importance that democrats continue to use the Courts in a similar manner that the corporate sector uses the Courts to put into place an institutional order that advances its interests.