The Separation of State Powers in Liberal
Polity: Vriend v. Alberta
Frederick C. DeCoste”
This comment criticizes the Supreme Court of
Canada’s view of the separation of powers and its un-
derstanding of the proper place of the judicial branch in
the liberal State, as both were recently expressed in
Vriend v. Alberta. Against the Court’s claim that both
the separation of powers and the role of the courts must
now be understood in terms of the political sea change
occasioned by the adoption of the Canadian Charter of
Rights and Freedoms in 1982, the author argues that the
Court not only mistakes recent Canadian legal history,
but does so on grounds which fundamentally miscon-
ceive and diminish the singular achievement of Anglo-
North American legal history, namely, the rle of law.
Against the Court’s other claim that democratic objec-
tions to judicial review are predicated on an unaccepta-
bly narrow conception of democracy, the author sub-
mits that, while the Court is right not to confine democ-
racy to majoritarian politics, the expanded conception
of democracy which it offers is itself unacceptable on
democratic grounds. The comment concludes with the
author’s views on the minimal requirements of any the-
ory which would take seriously the democratic ac-
countability of the judicial branch.
Cette chronique prdsente une critique h la fois de
l’opinion de la Cour suprbme du Canada sur la sdpara-
tion des pouvoirs et de sa comprdhension de ]a place
appropri6e de l’organe judiciaire dans un ttat libral,
exprim6es rcemment dans l’arrt Vrend c. Alberta.
Contrairement A la prtention de la Cour que Ia s6para-
tion des pouvoirs et le r6le des tribunaux doivent
maintenant 8tre compris A ]a lumire du changement
politique occasionn6 par l’adoption en 1982 de ]a
Charte canadienne des droits et libertis, l’auteur sou-
met que la Cour confond la rcente histoire Idgale ca-
nadienne et que cette confusion se base sur des primis-
ses qui d6valorisent et con oivent de faqon erronde les
surprenants accomplissements de l’histoire lgale nord
amdricaine, dont notamment Ia rgle de droit. Contrai-
rement A l’autre pretention de la Cour que les objec-
tions d~mocratiques t l’examen judiciaire sont bas6es
sur une conception trop 6troite de la ddmocratie,
l’auteur soumet que, meme si la Cour a raison de ne
pas limiter la d6mocratie aux politiques majoritaires, la
conception 61argie qu’elle offre de Ia d6mocratie est in-
acceptable d’apr s les principes d6mocratiques. La
chronique se termine avec l’opinion de l’auteur sur les
exigences minimales de toute thorie qui prendrait au
s6rieux la responsabilit d6mocratique de l’organe ju-
diciaire.
“Professor of Law, Faculty of Law, University of Alberta.
McGill Law Journal 1999
Revue de droit de McGill 1999
To be cited as: (1999) 44 McGill L.J. 231
Mode de r6f6rence: (1999) 44 R.D. McGill 231
232
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 44
Introduction
I. The Arguments
II. The Supreme Court’s View of the Separation of Powers
Ill. Toward a Truly Democratic Theory of Judicial Review
Conclusion
1999]
FC. DECOSTE – VRIEND V. ALBERTA
Introduction
Though unremarkable’ in its result,2 the majority judgment of the Supreme Court
in Vriend v. Alberta does provide a rare and significant glimpse into the present
Court’s understanding of its place in Canadian democracy.! In the opinion delivered
by Iacobucci J., the Court seems intent on articulating and defending a self-
conception which accords with what it perceives as the jurisprudential sea change oc-
casioned by the adoption in 1982 of the Canadian Charter of Rights and Freedoms!
Unhappily, the position which the Court finally adopts is premised upon a profoundly
mistaken view of legal history and upon a largely unattractive-and indefensible-
understanding of the legal present.
Part I of this comment will present the arguments out of which the Court fashions
its proposal concerning the separation of powers. Part I will criticize that proposal. In
D.L.R. (4th) 609 and Schachterv. Canada, [1992] 2 S.C.R. 679, 93 D.L.R. (4th) 1.
‘Unremarkable in light of the Court’s prior decisions in Egan v. Canada, [1995] 2 S.C.R. 513, 124
2Cory and lacobucci JJ. were joined by Lamer C.J. and Gonthier, McLachlin, and Bastarache JJ. in
holding that the exclusion in the Alberta Individual’s Rights Protection Act, R.S.A. 1980, c. 1-2
[hereinafter the Act] of sexual orientation as a prohibited ground of discrimination violated s. 15 of
the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B
to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter], that the violation was not saved by
s. 1, and that the proper remedy was to read “sexual orientation” into the relevant sections of the Act.
L’Heureux-Dub6 J. delivered a concurring opinion, and Major J. wrote in dissent.
‘ [1998] 1 S.C.R. 493, 156 D.L.R. (4th) 385 [hereinafter Vriend cited to S.C.R.].
4The judgment is noteworthy in several other respects, only one of which will be pursued here.
Firstly, though it expressly declines to decide the matter, on several occasions the Court comes very
close to asserting that legislatures are not merely bound by the Charter, but bound to it as well: see
Vriend, ibiL at 532-33, 566-67, 577-78. This would mean that the Constitution is more than a limita-
tion on State power since it would also comprise an instruction to the State on how it ought to exercise
its power. Such a novel view raises, of course, a requirement of legislative integrity which, without
more, would appear to be at loggerheads with majoritarian rule. The implications of this view, as it
regards the issue of accountability, will be discussed elsewhere in this comment. Secondly, the judg-
ment is praiseworthy in proceeding on the view that legislation carries real sociological significance,
and may indeed, as did the legislation at issue in Vriend, constitute “a strong and sinister message …
of condoning or even encouraging discrimination” (ibid. at 550-52). Finally, the judgment should be
marked for the Court’s painstaken bowdlerization of the views of McClung J.A. of the Alberta Court
of Appeal, views so provocative that one intervener prayed the Supreme Court to admonish them: see
Vriend, ibid (Canadian Association of Statutory Human Rights Agencies (CASHRA), intervener’s
factum at 12). This careful sanitization of McClung J.A.’s judgment is all the more remarkable given
the Court’s considered assessment of the impact of legislative speech. For other of McClung J.A.’s
views, see R. v. Ewanchuk (1998), 212 A.R. 81, 13 C.R.. (5th) 324 (C.A.) (on male-female erotic rela-
tions); and R. v. J.TS. (1996), 193 A.R. 35 at 39, (1996) 112 C.C.C. (3d) 184 (C.A.) (on the Reign of
Terror and on the Third Reich). For my commentary on his Lordship’s judgment in Vriend v. Alberta
(1996), 181 A.R. 16, 132 D.L.R. (4th) 595 (C.A.), see “Sexual Orientation and Liberal Polity” (1996)
34 Alta. L. Rev. 950.
5 Vriend, supra note 3 at 563-67.
234
MCGILL LAW JOURNAL/REVUE DE DROITDE MCGILL
[Vol. 44
light of the Court’s decision in Vriend, Part II of this comment will conclude with an
inquiry about the nature of judicial accountability.
I. The Arguments
Iacobucci J. frames the Court’s proposal about the role of the judicial branch, and
about the separation of powers more generally, in terms both of legal history and po-
litical morality. The historical argument is directed against the view-forcefully ar-
gued by McClung J.A. of the Alberta Court of Appeal-that “under the Charter,
courts are wrongfully usurping the role of the legislatures.”‘ According to Iacobucci
J., any such view “misunderstands what took place and what was intended when our
country adopted the Charter in 1981-82″‘ In adopting the Charter, Canada was forg-
ing “a new social contract” in which “our constitutional design was refashioned as
part of a redefinition of our democracy.”‘ Individual rights and freedoms were the ba-
sis of this new model of governance. Through the Charter, “each Canadian was given
individual rights and freedoms which no government or legislature could take away.”
Hence in 1982, Canada “went … from a system of Parliamentary supremacy to con-
stitutional supremacy.”‘ Judicial power to declare unconstitutional legislation invalid is
democratically legitimate, according to this argument, because it was the will of the
Canadian people to grant courts that power.
The other defence against the charge of judicial illegitimacy is an argument based
on political morality. The Court’s intent under this argument is to rebut what Alexan-
der Bickel long ago termed “the countermajoritarian difficulty” which attaches to ju-
dicial review, i.e., the objection to unelected judges invalidating legislation and
thereby negating the will of the people.'” The Court attempts to do this by redefining
the requirements of democratic rule, claiming that “the concept of democracy is
broader than the notion of majority rule, fundamental as that may be” and that this
wider conception contemplates intervention by courts “to protect these democratic
values as appropriate:”
The Court’s views of the role of the judiciary and of the separation of powers de-
volve from these arguments. The historical argument concerning the redefinition of
“governance” in 1982 forms the basis for its view that courts thereupon became the
“interpreters”, “arbiter[s]”, and “trustee[s]” of the rights and freedoms enshrined in
the Charter.” This is so, the Court reasons, not only because sections 52 and 24 of the
6Ibid.
at 562-63. See also 577-78.
comment.
7 Ibid at 563. The intentionalist part of his Lordship’s argument will be explored in Part II of this
‘Ibid. at 564.
‘Ibid. at 563. His Lordship cites Dickson C.J. when talking about this shift.
‘0 A.M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (New York:
Bobbs-Merrill, 1962) at 16-23.
“Vriend, supra note 3 at 566-67. See also 577-78.
‘, Ibid. at 563-64.
1999]
EC. DECOSTE – VRIEND V. ALBERTA
235
Charter impliedly so declare, but more importantly because “disputes over the
meaning of the rights and their justification would have to [inevitably] be settled” by
the judiciary.’3
The Court’s wider views concerning the separation of powers build upon its ar-
gument derived from political morality. Since democratic governance subsequent to
the Charter exceeds simple majority rule, the Court is led to articulate what it takes to
be the revised relationship between the judicial, legislative and executive branches of
the Canadian polity. This is a revision in two parts. First, since the Charter requires
the judiciary to uphold “[d]emocratic values and principles” and “to intervene … as
appropriate,”‘ whatever may have been the relationship between the branches-prior to
1982, the relationship is now “more dynamic”,’5 and may be “aptly described as a
‘dialogue’ * “” Though the relationship continues to be predicated upon “mutual re-
spect,” under the dialogue compelled by the Charter’s refashioning of democracy,
“courts speak to the legislative and executive branches,” and “the legislature responds
to the courts.”” This dialogue, in turn, compels accountability. Because “[t]he work of
the legislature is reviewed by the courts and the work of the court in its decisions can
be reacted to by the legislature’ each of the branches is made somewhat accountable
to the other.” The first part of the Court’s separation of powers proposal is, therefore,
” Ibid. at 563.
t4,bid. at 566-67.
‘5IbkL at 565.
Ibid The Court adopts the term “dialogue” from P.W. Hogg & A.A. Bushell, “The Charter Dia-
logue Between Courts and Legislatures” (1997) 35 Osgoode Hall L.J. 75. To the considerable extent
that that essay elides engaging theory and, on other purely descriptive grounds, proposes a relation-
ship of near equality between the legislative and judicial branches, the Supreme Court could not have
chosen an adoption less wise. Incidentally, Dicey long ago offered a more realistic take on the de
facto “dialogue” which, independent from any constitutional instrument such as the Charter, occurs
between courts and legislatures:
In studying the development of the law we must allow at every turn for the effect exer-
cised by the cross-current of judicial opinion which may sometimes stimulate, which
may often retard, and which constantly moulds or affects, the action of that general
legislative opinion which tells immediately on the course of parliamentary legislation
(A.V. Dicey, Lectures on the Relation Between Law and Public Opinion in England
during the Nineteenth Century (London: MacMillian, 1905) at 396 [hereinafter Lec-
tures]).
In any event, the aftermath in Alberta of the Court’s decision to read “sexual orientation” into the Act
has been anything but dialogic. Instead of the democratic discourse which would in all likelihood
have followed a decision to strike down, with time to amend-a course wisely counselled by Major J.
in his dissent–the Court’s decision has led to the formation of a special Cabinet committee (chaired
by two of the government’s leading ministers) whose mission it is to confine the effects of Vriend in
each and every statute and regulatory regime in Alberta. Rather than dialogue, then, Vriend provides a
stem lesson on the political significance and social futility of such judicial over-reaching.
‘ Vriend, supra note 3 at 565.
“Iba
9/bi at 566.
236
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 44
that the post-Charter relationship among the branches of government is one of com-
municative responsiveness and not one of antagonism.
The second part of the Court’s proposal deals with the obligations of the branches
beyond their accountability to each other. Because the Charter “is concerned with the
promotion and protection of inherent dignity and inalienable rights”-Li.e., because it
is both a limitation and a prescription’L-the Charter’s “[d]emocratic values and prin-
ciples … demand that legislators and the executive take these into account’ ‘” When,
for example, they fail the democratic requirement of “tak[ing] into account the inter-
ests of majorities and minorities alike, … judicial intervention is warranted to correct a
democratic process that has acted improperly” The Charter draws the branches of
government into a common value system by obliging the legislature and the executive
to toe a line drawn by principles interpreted and enforced by the judiciary.
Such, then, are the justifications Iacobucci J. provides for judicial review in a de-
mocracy. The validity of each of the two arguments, the arguments derived from his-
tory and political morality, will now be considered in turn.
The Court makes two historical claims: (i) that the Charter ended one regime,
parliamentary supremacy, and ushered in another, constitutional supremacy, and (ii)
that, through this foundational change, the judicial branch became charged-as trus-
tee, arbiter, and interpreter-with safeguarding constitutional rights from legislative
and executive encroachment. The historical veracity of this familiar story is best tested
by asking what this view presumes regarding the conditions of governance generally,
and of judicial governance in particular, prior to 1982. If these background assump-
tions themselves prove to be historically unsound, then the arguments which they in-
form must fail as well.
What must the Court mean by “parliamentary supremacy”? What must it think
were the obligations of judges prior to the Charter? With regard to the first question,
the Court must be taken to mean that-sections 91 and 92 of the Constitution Act,
1867’ competencies aside-legislatures could enact whatever laws they wished, on
‘0 Ibid. at 570.
, It is at just this point that the Court comes closest to declaring that the legislative and executive
branches are bound both by and to the Charter (see supra note 4). Though Cory J. is careful in his
part of the majority judgment to indicate that the Court is not “decid[ing] … whether the Charter
might impose positive obligations on the legislatures or on Parliament,” he does leave the matter
“open in some cases” (ibid. at 534). However, when lacobucci J. articulates, in his part of the judg-
ment, the Court’s view of the significance of the Charter and of the separation of powers, he appears
very much to be declaring that the Charter must not merely limit, but inform, legislative power. While
in the final analysis the argument in this comment does not depend on the matter, the text of lacobucci
J.’s judgment will be taken at face value and as establishing a view of the Charter as a source of posi-
tive duties on the legislative and executive branches. See infra notes 54, 86 and accompanying texts.
22 Vriend, supra note 3 at 566.
Ibid. at 577.
, (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5.
1999]
9EC. DECOSTE – VRIEND V. ALBERTA
whatever grounds they wished. As regards judges, the Court’s meaning must be that
prior to the Charter, their exclusive burden was to follow the rules laid down by the
sovereign. These must be the assumptions, since otherwise the Court’s contrast be-
tween the pre- and post-1982 regimes is meaningless. In any event, though, the
Court’s argument from history necessarily fails, since these assumptions drastically
misrepresent-indeed they are an affront to-the achievements of Anglo-Canadian
legal history.
The rule of law predates the Charter and the rule of law, not legislative suprem-
acy, defined the substance of democratic governance prior to the Charter.’ Dicey de-
scribes the rule of law as characterized by “the predominance of the legal spirit” from
which flow certain institutional requirements.” Law exists in those societies moved by
a desire to constrain power, the power of the State and the power of persons. In the
Anglo-legal world, it is this very spirit which has, over the centuries, developed the
institutional and moral requirements of governance by law. Institutionally, the rule of
law demands both the separation of powers as between the legislative, executive, and
judicial branches, and a regime of rights.” Morally, it requires that governance serve
the good of the governed.’ These requirements combine, as Dicey again points out, to
comprise the constitution of free societies.”
‘ For an intellectual history of the rule of law, see FA. Hayek, The Rule of Law (Menlo Park, Cal.:
Institute For Humane Studies, 1975). For a political and social history, see J.G.A, Pocock, The An-
cient Constitution and the Feudal Law (Cambridge: Cambridge University Press, 1957); and J.
Brewer & J. Styles, eds., An Ungovernable People: The English and Their Law in the Seventeenth
and Eighteenth Centuries (London: Hutchinson, 1980). For a philosophical inquiry, see W.E. Scheu-
erman, Between Norm and Exception: The Frankfurt School and the Rule of Law (Cambridge, Mass.:
M.I.T. Press, 1994); I. Shapiro, ed., The Rule ofLaw, NOMOS XXXVI (New York: New York Univer-
sity Press, 1994); R.L. Cunningham, ed., Liberty and the Rule of Law (College Station, Tex.: Texas
A&M University Press, 1979); and G. Dietze, Two Concepts of the Rule of Law (Indianapolis: Liberty
Fund, 1973).
2 A.V. Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. (London: MacMillan,
1915) at 185, 189, 191 [hereinafter Law of the Constitution]. According to Dicey, the legal spirit re-
quires “the absence of arbitrary power,” “legal equality,” and the separation of powers.
27 Blackstone offers a wonderful codification of these requirements: see Sir William Blackstone,
Commentaries on the Laws of England (Philadelphia: Rees Welsh, 1898) at 34, 242. See also Sir Ed-
ward Coke, Institutes of the Laws of England, 4th ed. (London: M.F.I.H. and R.T. Assignes, 1639);
Lord Acton, The History of Freedom and Other Essays (London: MacMillan, 1907); and F.W. Mait-
land, The Constitutional History of England (Cambridge: Cambridge University Press, 1913).
‘ See Blackstone, ibid at 42-45; and C.H. Mcllwain, “Government By Law” in C.H. Mcllwain, ed.,
Constitutionalism and the Changing World (Cambridge: Cambridge University Press, 1939) 266.
9Law of the Constitution, supra note 26 at 197. This is not to imply that the rule of law is exclusive
to English legal history. Though the English case is primary and dominant, other legal cultures have
produced comparable conceptions of the idea. For a discussion of the German notion of Rechtsstaat,
see Dietze, supra note 25.
238
MCGILL LAW JOURNAL /REVUE DE DROITDE MCGILL
[Vol. 44
The rule of law has fallen on hard times.” The diminishing popularity of the rule
of law is due in part to a general loss of faith in law, a phenomenon especially wide-
spread among members of the legal community.” This “decline of law” is, however,
the intellectual companion of a more powerful force ranged against the rule of law,
namely, legal instrumentalism, which would reduce the law to function, and the rule
of law to sovereign will. According to this view-which in English law can be traced
from Hobbes through Austin to Dicey”‘–the law is an empty vessel into which are
poured the products of power, and the rule of law is simply “whatever the state dic-
tates.”‘ In consequence, rights at law exist at the sufferance of the State and “the state
cannot … violate the rule of law, because it appears as its embodiment.” Governance
by law, of course, requires something different from, and more than, anything per-
mitted by this silly positivist monism. It requires, first of all, that law be seen as
“something permanent, uniform, and universal”‘ something which, by its very nature,
conceives of authority in terms other than power.” Furthermore, it demands, through
the separation of powers, that judges be more than the State functionaries which legal
instrumentalism requires them to be. It demands, rather, that they be “regulated only
… by … fundamental principles of law; which, though legislatures may depart from
them, yet judges are bound to observe.””
In contrasting the ancien rdgime of legislative supremacy to the post-Charter re-
gime of constitutional supremacy, the Supreme Court appears to be subscribing to
some version of these corrupted views of the rule of law; and, in doing so, it over-
looks the “unqualified human good” which is the “true and important cultural
achievement” of Anglo-Canadian legal history.” This oversight has important conse-
quences because the Court’s impoverished view of legal history prevents it from con-
ceptualizing any relationship beyond cleavage between our legal inheritance and the
legal present. The Court is conceiving the present by abandoning the good of the past
For Hayek’s insightful analysis of “the decline of the law,” see supra note 25 at 19-34. For an al-
together too accurate view of the rule as “a football in a game between friends and enemies of free-
market liberalism:’ see J.N. Shklar, “Political Theory and the Rule of Law” in A.C. Hutchinson & P.
Monahan, eds., The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987) 1 at 16.
” See H.J. Berman, ‘The Crisis of Legal Education in America” (1985) 26 Boston Coll. L. Rev.
347; and H.L Berman, “Religious Foundations of Law in the West: An Historical Perspective” (1983)
1 J. of Law & Relig. 3 at 39-43.
” See WE. Scheuerman, ‘The Rule of Law at Century’s End” (1997) 25 Political Theory 740; J.
Hampton, “Democracy and the Rule of Law” in Shapiro, supra note 25 at 13; and C.H. Mcllwain,
‘The Reconstruction of Liberalism” in Mdllwain, supra note 28 at 290-93.
” B. Fine, Democracy and the Rule of Law: Liberal Ideals and Marxist Critiques (London: Pluto
Press, 1984) at 173.
i4lbid. at 174.
“Blackstone, supra note 27 at 34.
“See Mcllwain, supra note 28 at 291-92.
“Blackstone, supra note 27 at 242.
“E.P. Thompson, Whigs and Hunters: The Origin of the Black Act (Middlesex: Penguin, 1975) at
265-66.
1999]
EC. DECOSTE – VRIEND V. ALBERTA
239
in a number of very significant ways.” More particularly, the Court’s view of an un-
connected past of boundless sovereignty makes possible the sorry view it adopts of
the separation of powers, as will later be shown.
The Court’s argument derived from political morality also has significant ramifi-
cations for the separation of powers. As was discussed above, in seeking to defend the
democratic credentials of the judicial branch, the Court here argues that “the concept
of democracy is broader than the notion of majority rule, fundamental as that may
be”” It then proceeds to identify the requirements, in excess of majority rule, of this
expanded conception of democracy. “[A] democracy,” the Court explains, “requires
that legislators take into account the interests of majorities and minorities alike, all of
whom will be affected by the decisions they make'”‘ The Court is less precise re-
garding any remaining requirements. Although it thinks it “[un]necessary to articulate
the complete list of democratic attributes,” 2 the Court does say that it approves of
Dickson C.J.’s enumeration of the matter in R. v. Oakes,3 which it cites at length.
There, Dickson C.J. named “a few” of
the values and principles essential to a free and democratic society: respect for
the inherent dignity of the human person, commitment to social justice and
equality, accommodation of a wide variety of beliefs, respect for cultural and
group identity, and faith in social and political institutions which enhance the
participation of individuals and groups in society.”
These democratic principles are seen to set limits to legislative and executive action.
Accordingly, the Court argues that when governmental action exceeds the limits of
democratic principle, judicial invalidation is not undemocratic.
This argument-both as it regards the notion of democracy and as regards its in-
terpretation of liberal political morality-is unconvincing. By using liberal values to
impart democratic legitimacy to judicial review, the argument confuses political liber-
alism with democratic practice and, in the process, distorts and diminishes both.
Though democracy and liberalism in the modem period are historical bedfellows, the
two are far from synonymous as political doctrines. Indeed, the politics required by
” For a view of the American legal present based on the Anglo-American past, see N.F. Cantor,
Imagining The Law: Common Law and the Foundations of the American Legal System (New York:
Harper Collins, 1997).
, Vriend, supra note 3 at 566. Neither its general attitude towards democracy nor the “may” which
qualifies “majority rule” prevents the Court from invoking majority rule to buttress its historical ar-
gument for the legitimacy of judicial power (ibid. at 564). The significance of this argument for leg-
islative intention will be considered in Part H, below.
41 Ibid. at 577.
42 Ibid. at 566.
41 [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200 [hereinafter Oakes cited to S.C.R.]. The enumeration is
reproduced in Vriend, supra note 3 at 566.
” Oakes, ibid. at 136.
240
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 44
liberalism is famously in tension with democratic politics.” To claim then-as does
the Court-both that democracy serves wider “liberal” values, and that those values
somehow serve to legitimate judicial review, is straightaway suspect. Nothing that the
Court further says manages to resolve these suspicions. Indeed, its views of both lib-
eralism and democracy tend instead to worsen matters.
Consider first the “[in]complete list of democratic attributes”‘ which, if it is
taken-as it must”–as an inventory of liberal values, simply misrepresents liberal
politics. Liberal politics is, indeed, about “respect for the inherent dignity of the hu-
man person” if by that is meant respect for the moral equality of persons in spite of,
and beyond, difference.” Liberal politics, however, is not about-nor can it ever be
about—-“social justice” (whatever that might mean),” or “respect for cultural and
group identity” (whatever that might require),’ or “enhanc[ing] the participation of
individuals and groups in society,” or any other such positive endorsement of views,
including one which would seek a place for a “wide variety of beliefs.”‘ This is so be-
cause liberal politics serves moral equality through negative, not positive, toleration”3
and because the regime of rights which is its mark constructs tolerance out of nega-
tive, not positive, liberty. The values which the Court claims for liberalism and the
liberal State exceed these liberal boundaries; were they ever to be taken seriously as a
45 See e.g. N. Bobbio, Liberalism and Democracy, trans. M. Ryle & K. Soper (London: Verso,
1990); P. Manent, An Intellectual History of Liberalism, trans. R. Balinski (Princeton: Princeton Uni-
versity Press, 1994); and J.H. Hallowell, The Moral Foundation of Democracy (Chicago: University
of Chicago Press, 1954) at 68.
4 Vriend, supra note 3 at 566.
4” These values must be taken as an inventory of liberal values, not only because the text otherwise
demands it–the Court does, after all, identify them as “the values and principles essential to a free
and democratic society” (ibid.)-but also because any claim that they devolve independently from
democracy as such would require a theory of democracy which, as will be discussed, the Court fails
to provide. This is not to say that such a theory is impossible. Dworkin, for one, has constructed what
he terms “the constitutional conception of democracy” which makes liberal values a part of demo-
cratic rle. See R. Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Cam-
bridge, Mass.: Harvard University Press, 1996) at 15-20, 70-71 [hereinafter Freedom’s Law].
” Oakes, supra note 43 at 136; quoted in Vriend, supra note 3 at 566.
41Cakes, ibid; Vriend, ibid. See T.W. Simon, “A Theory of Social Injustice” in D.S. Caudill & S.J.
Gold, eds., Radical Philosophy of Law: Contemporary Challenges to Mainstream Legal Theory and
Practice (Atlantic Highlands, N.J.: Humanities Press, 1995) 54.
” Oakes, ibid.; Vriend, ibid For cautions regarding enthusiasms of this kind, see S.P. Mohanty, “Us
and Them: On the Philosophical Bases of Political Criticism” (1989) 2:2 Yale J. Criticism 1; C. Ku-
kathas, “Liberalism and Multiculturalism: The Politics of Indifference” (1998) 26 Political Theory
686,
Oakes, ibid.; Vriend, ibid.
32 See I. Lazari-Pawlowska, “Three Concepts of Tolerance” (1987) 14 Dialectics & Humanism 133.
On the concept of toleration more generally, see D. Heyd, ed., Toleration: An Elusive Virtue (Prince-
ton: Princeton University Press, 1996).
” See 1. Berlin, Four Essays on Liberty (Oxford: Oxford University Press, 1969) at c. 4, “Two Con-
cepts of Liberty”. See also J.N. Shklar, “The Liberalism of Fear” in N.L. Rosenblum, ed., Liberalism
and the Moral Life (Cambridge, Mass.: Harvard University Press, 1991) 21.
1999]
EC. DECOSTE – VRIEND V. ALBERTA
source of law and politics, they would entail violating the most fundamental of liber-
ties and, in a significant measure, abandoning our commitment to moral equality.’
Matters do not improve when the Court turns its hand to “the concept of democ-
racy.'” Now, “the ideal of democracy,” it is true, “is complex and contested, as are its
justifications and practical implications”” Yet, despite that contestability, the concept
of democracy-as opposed to the various conceptions of what that concept requires-
is itself uncontroversial, readily accessible, and easily stated. “Democracy means gov-
ernment by the people.”‘ Unaccountably, the Court misses this core meaning and
fails, in consequence, to recognize that the various theories of democracy-including
its own-are but conceptions of it. It does this by adopting the view that democracy is
essentially a matter of majoritarian rule.” Under this view, whatever else democracy
may demand, it demands it in addition to majority rule. To conceive of democracy in
this fashion may accord with the dominant (and clearly correct) view that “majori-
tarian decision-making … cannot be a sufficient democratic standard “‘5’ Nonetheless,
by placing majoritarianism, rather than rule by the people, at the centre of matters, the
court misses the fundamental moral force of democracy, and misconstrues the place
of majoritarianism in any proper view of democratic requirements. Not only is de-
mocracy not exhausted by majority rule, majoritarianism carries no independent
moral force in, nor is it a freestanding end of, the democratic ideal. This is so because
democracy means rule by the people and because its end and force is accountability to
the people. Under this view, the hallmark of democratic procedures is not statistical
‘, Though it is very nearly impossible to tell from the text of the judgment, the Court’s enthusiasm
for positive toleration and liberty might have compelled its enthusiasm for positive constitutional du-
ties on the State: see supra notes 4, 21. For a definitive statement of the paternalism courted by posi-
tive liberty, see Berlin, ibid See also I. Berlin, ‘The Pursuit of the Ideal” in I. Berlin, The Crooked
71mber of Humanity: Chapters in the History of Ideas (London: Fontana Press, 1991) 1.
“Vriend, supra note 3 at 566.
A. Gutmann, “Democracy” in R.E. Goodin & P. Pettit, eds., A Companion to Contemporary Po-
litical Philosophy (Oxford: Blackwell, 1993) 411 at 411. After claiming, rightly, that though
“[mlajoritarian decision-making may be a presumptive means of democratic rule, … it cannot be a
sufficient democratic standard” (ibid.), Gutmann goes on to identify and discuss the “six types of de-
mocracy”-Schumpeterian democracy, populist democracy, liberal democracy, participatory democ-
racy, social democracy, and deliberative democracy-which have “gained currency in contemporary
political theory” (ibid. at 412-18). Remarkably, the Supreme Court’s list of democratic values reso-
nates, but only in part, in five of these models.
“- Freedom’s Law, supra note 47 at 15. Dworkin is expressing an ancient view. Montesquieu, for in-
stance, put the matter thus: “when the people as a body have sovereign power, it is a democracy”
(A.M. Cohler, B.C. Miller & H.S. Stone, eds., Montesquieu: The Spirit of the Laws (Cambridge:
Cambridge University Press, 1989) at 10 (Book II, c. 2)).
5’ This must be the Court’s view, not only because of its proclamation that “democracy is broader
than the notion of majority rule, fundamental as that may be” but also, and more importantly, because
it elsewhere presents its “democratic values” as qualifications to majority rule (Vriend, supra note 3 at
566).
” Gutmann, supra note 56 at 411.
242
MCGILL LAW JOURNAL /FREVUE DE DROITDE MCGILL
[Vol. 44
plurality but the morality of consent. ‘ The ideal of government by the people consists
of a commitment to the supremacy of the governed over the government,” and it
compels, at its very core, the principle that “no government is legitimate which does
not derive its powers and functions from the consent of the governed.”‘ By miscon-
struing the concept of democracy, the Supreme Court misses this essential moral re-
quirement. By resorting instead to its peculiar list of qualifiers to majority rule, the
Court diminishes the point of democracy, and, as will be discussed, provides itself
with a reason (in addition to its view of legal history) to take the legislative function as
a matter of will that must be contained through an appropriate separation of powers.
II. The Supreme Court’s View of the Separation of Powers
No less than rights, the separation of powers is foundational to democratic poli-
tics. Whereas rights limit governmental (and private) power by protecting each person
within a sphere of inviolability founded on justice, the separation of powers ensures
that State power is not exercised arbitrarily. By thus prohibiting tyranny-which is to
say, a government whose “end [is] the good of the government, not of the gov-
emed”-both rights and the separation of powers serve government by the people by
rendering power accountable to the people. It is the purpose of this Part of the com-
ment to argue that the view of separation of powers which the Supreme Court articu-
lates in Vriend fundamentally diminishes the value of democratic accountability
which the doctrine of separation of powers, both historically and in principle, is
pledged to serve. More particularly, it will be argued that the Court’s theory of the
separation of powers is premised upon a view of the legislative branch as inherently
despotic, and leads to a view of judicial obligation as aristocratic. However, in order to
make that argument it will be necessary briefly to review the doctrine of separation in
finer detail.
Since at least the time of Locke,’
the chief problem for democratic theory and
practice has been to prevent abuse of authority. Locke himself proposed the separation
of powers as the answer to this problem. Though his overall democratic sentiment is
clear-the end of “choos[ing] and authoriz[ing] a legislative is that there may be laws
made, and rules set … to limit the power and moderate the dominion of every part and
For a telling criticism of statistical views of democracy, see Freedom’s Law, supra note 47 at 19-
6 And, for reasons which will appear, it must be added that “government” here includes the State in
20.
all of its manifestations, judicial as well as legislative and executive.
6, Hallowell, supra note 45 at 49.
63 Mcllwain, supra note 28 at 267.
For a discussion of the ancient and medieval sources of the doctrine, see Hayek, supra note 25 at
5-10. For an excellent analysis of its place in a more general theory of constitutionalism, see MJ.C.
Vile, Constitutionalism and the Separation of Powers, 2nd ed. (Indianapolis: Liberty Fund, 1998).
1999]
FC. DECOSTE – VRIEND V. ALBERTA
member of that society” 5– it fell to others to conceptualize the doctrine more fully.
Montesquieu’s contribution, in particular, remains seminal in this regard.’
Montesquieu claimed that “political liberty … is present only when power is not
abused,” and that for power not to be abused, “power must check power by the ar-
rangement of things”
“In order,” he thought, “to form a moderate government, one
must combine powers, regulate them, temper them, make them act; one must give one
power a ballast, so to speak, to put it in a position to resist the other”7 These insights
led Montesquieu to distinguish between the legislative, executive, and judicial powers
of the State and to propose that “liberty is formed by a certain distribution of the
three powers” “When legislative power is united with executive power in a single
person or in a single body of the magistracy, there is no liberty. … Nor is there liberty
if the power of judging is not separate from the legislative power and from the execu-
tive power.” This is so, he thought, because power will inevitably be abused, unless
one power “is chained to the other by their reciprocal power of vetoing” or unless
they are “counter-balanced’ 3
According, then, to the classic, agonistic view of the separation of powers, the
proper relationship between the powers of a State devoted to liberty is one of struggle
and resistance. Each of the powers should, therefore, be a centre of resistance-one
against the other7–to the power of the State to serve its own good rather than the
good of the people. This view of matters alone permits the doctrine of separation of
powers to inform a practice of democratic accountability, since it alone makes it pos-
sible to conceive of the branches of the State as serving the people’s good and not
their own.
However, conceiving the democratic credentials of the judicial branch becomes
difficult when particulars are demanded in the place of abstraction. Clearly, an ap-
J. Locke, The Second Treatise of Civil Government, ed. by J.W. Gough (Oxford: Basil Blackwell,
1946) at 107, s. 222.
“According
to Hayek, supra note 25 at 15, David Hume’s views-especially his view that “the
history of England was the evolution from a ‘government of will to a government of law”–were
“the most influential” of English views on the matter.
67 The Spirit of the Laws, supra note 57 at 155 (Book XI, c. 4).
“Ibid. at63 (Book V, c. 14).
69 Notably, Montesquieu offers this conclusion in the context of discussing “the one nation in the
world”–England–“whose constitution has political liberty for its direct purpose” (ibid. at 156
(Book XI, c. 5)).
70 Ibid. at 187 (Book XII, c. 1).
71 Ibid. at 157 (Book XI, c. 6).
1 IbiL at 164 (Book XI, c. 6).
‘ Ibid. at 182 (Book XI, c. 18).
7, The oppositional imagination and practice which this requires does not preclude respect. How-
ever, the respect exhibited by the branches will be fundamentally different from the “mutual respect”
which the Supreme Court thinks proper (Vriend, supra note 3 at 565). Under the separation of pow-
ers, rather, the branches must have respect for the constitutional whole, namely, government by the
people under the conditions of liberty and in service to moral equality.
7
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 44
pointed judiciary lacks the easy correspondence that prevails between elected gov-
emnment and rule by the people. This disparity has been a concern since the beginning
of modem democratic rule. Montesquieu, for instance, thought “the power of judging
so terrible among men” that he recommended it “should not be given a permanent
estate, but should be exercised by persons drawn from the body of the people at cer-
tain times of the year in the manner prescribed by law to form a tribunal which lasts
only as long as necessity requires.”” Though this sort of optimism has not weathered
the complexities of the modem State, the issue of judicial legitimacy has, of course,
not only endured, but served as perennial cause for seemingly endless views and theo-
ries. The point, for present purposes, is however not those details of intellectual his-
tory but rather the essential requirements of any acceptable view of the separation of
powers. Such a view must not only take seriously the constitutive tension between the
branches, it must also provide some further account of judicial legitimacy which ac-
cords with democratic principles. ‘
The Supreme Court in Vriend presents a very different view of the matter. Not
only does its conception of the separation of powers fail both of these conceptual re-
quirements, it fails in a fashion which compromises the democratic credentials of the
whole of the State. In the Court’s version of the doctrine, the legislative branch is por-
trayed as despotic while the judicial branch is portrayed as an aristocracy of final re-
sort. Each matter will be considered in turn.
Recall the first part of the Court’s proposal concerning the separation of powers:
that the relation between the branches consists of a dialogue and reciprocal account-
ability. Under this conception-in which the State converses with, and accounts to, it-
self-the tension which defines the separation of powers is displaced by joint sover-
eignty as between the legislative/executive branch and the judicial branch. This sur-
prising debasement of the core of the doctrine is the consequence of the Court’s mis-
taken views of legal history and democracy; and it is those very views which finally
compel what appears to be the Court’s view of the legislative branch as a forum of
rule by will.
As was noted above, according to the Court, legal history prior to the Charter was
characterized on the legislative side by boundless sovereignty and on the judicial side
by endless deference. This view of the past inevitably led to the Court’s view of the
legal present. Since the legislative branch was purely sovereign prior to 1982, the ef-
fect of the Charter was to somewhat limit that sovereignty in favour of the judicial
branch. Yet, if this explains the Court’s view that the separation of powers means co-
sovereignty under the Charter, it also implies a view of the content of that sover-
75 The Spirit of the Laws, supra note 57 at 158 (Book XI, c. 6).
76 For a view which takes both requirements seriously, see B.A. Ackerman, We the People, vol. 1
(Cambridge, Mass.: Harvard University Press, 1991) at c. 1. Ackerman offers what he terms a “dual-
ist” conception of constitutional democracy, according to which constitutional politics-including
those which take place in the judicial branch-serve as a radically democratic, though extraordinary,
alternative to the “normal” interest group politics.
1999]
FC. DECOSTE – VRIEND V. ALBERTA
eignty, i.e., of what the legislature, at least,’ possessed when it had full sovereignty.
This understanding of legislative sovereignty is further reinforced by the Court’s view
of democracy.
The Court’s understanding of legislation in a democracy makes clear its concep-
tion of the content of sovereignty. At one point in his judgment, Iacobucci J. com-
ments that “by definition, Charter scrutiny will always involve some interference with
the legislative will”‘ This choice of words is part and parcel of a view of legislation
as wilful power-i.e., despotic—that inheres in the whole of the judgment as a prod-
uct of the Court’s view of legal history. If sovereignty means supremacy of will’-as
the Court (with Hobbes, Austin, and Dicey) believes”-then the view that legislation
is itself an expression of will cannot be far behind. Dicey himself puts the matter well.
Legislation, he tells us, “is the work of legislators who are much influenced by the
immediate opinion of the moment, who make laws with little regard either to general
principles or to logical consistency, and who are deficient in the skill and knowledge
of experts.”82 By virtue alone of its view of the legal past, the Court is stuck with some
such view of legislation. That the Court then takes democracy statistically as majori-
tarian power, rather than morally as rule by the people, simply confirms this view of
legislation. If democracy-at least in its legislative precincts-means the will of the
majority, then democratic legislation too is purely a matter of will.”
The Court considers the content of its own share of sovereignty in a fundamen-
tally different light. Whereas legislative sovereignty is wilful, judicial sovereignty is
moral. Where, therefore, legislative will happens not to sound in moral principle, the
courts, as “the trustees” and “interpret[ers]” of political morality, will intervene “to
correct a democratic process that has acted improperly.'” The locus for this transfigu-
ration of sovereignty from wilful power into moral principle is the Court’s theory of
constitutional obligation. As indicated earlier,” despite its stated intentions to the’con-
As will soon be noted, through its conception of positive constitutional obligations, the Court
claims that its share of sovereignty alone is principled.
7′ Vriend, supra note 3 at 574.
A despotic form of government is one in which its will is supreme. See McIlwain, supra note 28
at 266, 272; and The Spirit of the Laws, supra note 57 at 63 (Book I, c. 14): “only passions are
needed” for despotic government.
“0 Austin’s view of the matter-that sovereignty means supreme will, because sovereignty means
the absence of obedience or submission to the will of another-is typical. See J. Austin, The Province
of Jurisprudence Determined (London: Weidenfeld & Nicholson, 1954) at 193-200 (Lecture VI).
” For Dicey’s view of “legal” and “political” sovereignty as expressions of will, see Law of the
Constitution, supra note 26 at 424-26.
82 Lectures, supra note 16 at 395-96.
” Ever the crude, yet consistent, realist, Dicey argues that, though “the opinion of the governed is
the real foundation of all government’ “the public opinion which governs a country is the opinion of
the sovereign, whether the sovereign be a monarch, an aristocracy, or the mass of the people” (ibid. at
3, 10).
,Vriend, supra note 3 at 564, 563, 577.
8″ Supra notes 4,21, 54 and accompanying text.
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 44
trary,” the Court appears to impose a positive constitutional obligation on the legisla-
tive and executive powers to “take … into account” the “[d]emocratic values and prin-
ciples under the Charter”” Indeed, the Court’s theory of the legitimacy of judicial re-
view turns entirely on there being just such an obligation.”
According to the Supreme Court, the judicial branch’s moral authority to review
the conduct of the other branches is democratic in substance and in purpose. Because
the Charter imposes positive democratic obligations on the legislative and executive
branches, and because the judicial branch is the “trustee” of those “[d]emocratic val-
ues and principles,” and, especially, of the democratic obligations of the other
branches, judicial review in fact and in theory “promotes democratic values.” 9 This
solution to the riddle of judicial review comes, however, at the cost of contradiction.
By casting itself in the role of defender of final resort of democratic values, the Court
is also, perforce,” assuming for itself the mantle of the benevolent aristocracy of the
Canadian polity.
“When sovereign power is in the hands of a part of the people, it is called an ar-
istocracy.”” By claiming itself sovereign over the other branches-no matter, for the
present, that the nature of sovereignty is declared democratic, or that its exercise is de-
feasible at the Court’s pleasure-the Court is designating itself as that portion of the
people which is singularly seized of aristocratic power.” Absent a convincing view to
the contrary, this alone weakens the accountability on which the democratic morality
of government by consent depends. Before proceeding in the conclusion to pursue the
possibilities of such a view, it will be necessary to pause to consider the manner of,
and reason for, the Court’s failure in this regard in Vriend.
Democracy is “essentially the political dogma of popular sovereignty.”3 This is
so, not because political morality is mindlessly joined to a somehow brutish majori-
tarianism, but rather because democratic morality requires popular rule. This in turn is
so because the morality of government by consent, which is democracy, requires that
” Vriend, supra note 3 at 534, Cory J.: “It has not yet been necessary to decide … whether the
Charter might impose positive obligations on the legislatures or on Parliament”
“Ibid. at 566.
“This is to put aside, for the moment, the Court’s curious argument based on the historic intention
attending the adoption of the Charter. Whether, assuming it to be true, such an intention can found
the democratic legitimacy of judicial review will be considered in Part 1I of this comment.
‘9 Vriend, supra note 3 at 564, 565.
“Perforce”, that is, absent a theory which countervails the aristocratic implications by arguing that
appointed judges can yet be democratically accountable. This will be pursued in Part I, below.
9’ The Spirit of the Laws, supra note 57 at 10 (Book II, c. 2). See also Austin, supra note 80 at 217ff.
” In Vriend, the Court simply presumes its aristocratic credentials. For a view of the judicial branch
as aristocracy, which is candid and explicitly argued rather than inferred and presumed, see R.
Dworkin, Law’s Empire (Cambridge, Mass,: Harvard University Press, 1986) at 407: “The courts are
the capitals of law’s empire, and judges are its princes.”
“‘ Manent, supra note 45 at 105.
1999]
EC. DECOSTE – VRIEND V. ALBERTA
247
“each person obeys only himself or his representative””4 All of this is to say that ac-
countability (or responsible government, as we used to say) is the foundation and
mark of democratic politics.
This foundation establishes the measure of theories of judicial review. The suc-
cess of these theories-in terms of democratic morality-then turns on their capacity
to persuasively argue that judges, despite their not being subject to popular rule, are
nonetheless democratically accountable, that they nonetheless are somehow repre-
sentatives of the people.” The Supreme Court in Vriend not only fails to live up to this
measure, it also presents a theory of the separation of powers that would fundamen-
tally diminish the morality of accountability across the whole of politics.
There is a great difference, morally as well as practically, between government by
the people and government for the people.” Neither notion exhausts democratic mo-
rality in majoritarian rule. The first notion, for instance, compels a commitment to
equality before the law and to equality of rights,9′ and the second, whatever practical
requirements happen to prevail, largely dismisses majority rule as being moral. How-
ever, the two notions differ markedly in their respective understandings of what gov-
ernment for the good of the governed requires. Government by the people is an in-
strument for individual liberty through the twin requirements of consent and account-
ability. On the other hand, government for the people serves the people’s good in a
thicker sense; it does not require consent, but accountability to whichever higher ab-
stract principles are declared to be the people’s good by those who govern. The for-
mer produces a politics of popular sovereignty; the latter compels a view of a politics
which Foucault aptly describes as “pastoral power”! According to this understand-
ing, the good of the governed is served not when the people consent to government,
but when government acts for the “good” of the people.
The Supreme Court in Vriend appears to subscribe to the view that government
for the good of the governed requires government for the people. In general terms, the
Court’s adoption of this view of “governance” is a consequence of its aristocratic pre-
sumptions, if only because those presumptions permit it to avoid the difficult task of
articulating a view premised upon democratic accountability. More particularly, how-
ever, the Court is led to this result because of its view of the relations between the
94 Ibid
” Part m of this comment will suggest that a transparent appointment process is a necessary ingre-
dient in any acceptable theory of democratic accountability in the judicial branch.
9 For a discussion which identifies government by the people with the liberal project, see Bobbio,
supra note 45 at 31-35.
9′ Ibid. at 33.
9′ See M. Foucault, Power/Knowledge, ed. by C. Gordon, trans. C. Gordon et al (New York: Pan-
theon Books, 1972). See also Z. Bauman, Legislators and Interpreters: On Modernity, Post-
modernity, and Intellectuals (Ithaca: Cornell University Press, 1987) at 19-20 describing pastoral
power as power “exercised for the benefit of the dominated, in their interest, for the sake of the proper
and complete conduct of their life business”. See also Berlin’s discussion of the politics of paternalism
associated with positive liberty in “Two Concepts of Liberty”, supra note 53 at 131-34, 141-62.
248
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[/o1.44
branches which it offers in place of a democratic account. As was noted earlier, the
Court thinks that accountability in politics prevails as between the branches and that,
therefore, the relations between the branches are properly collegial because it thinks
the branches are co-sovereign. Neither view
is acceptable democratically. The
branches cannot be accountable to one another because, in a democracy, the whole of
government must account, and account only, to the people. The branches cannot
serve, corporately, as a college about the public good because, in a democracy, oppo-
sition between the branches and not their collaboration is a public good. It is only
possible to think otherwise under a view of governance which confuses government
for the people with government by the people. If this is the case, then one is confusing
with democracy something which, though it has credentials in political thought, is
something other than democracy. Whatever else may be claimed about the matter,
democracy is government by the people and not ever government according to some
version of what is good for them.
The erosion of democratic principle and accountability does not end there. As
was discussed above, the Court constructs its view of governance in part out of a view
of sovereignty, according to which sovereignty is empowered will. Yet to define leg-
islative and executive authority as “wilful” is in a democracy not merely to denigrate
standing practices of accountability, but to dismiss or diminish the democratic capa-
bilities of citizens. If governance is in the final analysis a matter of will, not only are
standing practices and procedures of popular rule robbed of moral authority, but by
inference, the people are reduced to a source of will and cease to be the source of le-
gitimacy which democracy requires. Furthermore, unless, per impossible, majoritari-
anism without more counts morally, these results are compelled once sovereignty is
conceded to will.
Ill. Toward a Truly Democratic Theory of Judicial Review
The view of the separation of powers offered by the Supreme Court in Vriend, es-
pecially its view of the judicial branch, is unacceptable on grounds of democratic
principle. Any adequate account of judicial authority and obligation must conceive of
judges not as aristocrats who wield principle to cleanse legislative will of majoritarian
mistakes, but democratically as representatives of the people. This comment will now
seek to set the requirements of such a democratic view of judging in finer relief. First,
however, it will be salutary to canvass the one argument which the Court musters in
the direction of democracy, namely, its argument derived from historic intention. The
Court’s argument here, though mistaken, does shed further light on what a democratic
theory might look like.
The Court thinks that a certain intention with respect to the authority of the judi-
cial branch was part and parcel of what it takes to have been the legal transformation
occasioned by the adoption of the Charter in 1982. Expanded judicial authority “was
the deliberate choice of our provincial and federal legislatures in adopting the Char-
1999]
EC. DECOSTE – VRIEND V. ALBERTA
ter.’99 Also, “our Charter’s introduction and the consequential remedial role of the
courts were choices of the Canadian people through their elected representatives as
part of a redefinition of our democracy”” Finally, we are told that the “courts in their
trustee and arbiter role must perforce scrutinize the work of the legislature and the ex-
ecutive, not in the name of the courts, but in the interests of the new social contract
that was democratically chosen” This curious argument will not do. Its confession
and avoidance-the judicial branch now sometimes defeats democratic will, but, re-
member, it was democratically “invited”, indeed, “command[ed]” to do so’–neither
satisfies the democratic objection to judicial authority, nor has it anything to offer to a
theory of judicial review.”‘ Whatever were the intentions of the framers of the 1982
Constitution,”‘ and whatever, if anything, might be inferred about the intentions of the
Canadian people at the time, those intentions, even if they could ever be conclusively
settled, can make no difference to the question of the legitimacy of the judicial branch.
This is so simply because that question concerns political morality and because the
intentions, real or imagined, of fleeting historical actors carry no force with respect to
political morality. What is required, rather, is a normative theory of the judicial branch
which, as put by Dworkin, makes “law belong to the community, not just passively,
because its members hold certain views about what is right and wrong, but as a matter
of active commitment, because its officials have taken decisions that commit the
community to the rights and obligations that make up the law.”” What a theory of
judging must provide are reasons why the decisions made by judges, and especially
those decisions which nullify popular preference, nonetheless bind the people and be-
come their decisions. This is again to say that what is required is a view of judges as
political actors who are bound to and by the people as their representatives.
Any theory of the separation of powers which would take democracy seriously
must begin not with apocrypha about national founding”‘ but with a thorough under-
standing and appreciation of the rule of law. This is so, not just because the happen-
stance of founding is immaterial to issues of political morality, but also because acts
of national founding, at least those which take liberal democratic form, are simply in-
” Vriend, supra note 3 at 563.
“o Ibid. at 564.
10o Ibid.
“‘Ibid. at 565, 563.
‘Nor, incidentally, does the Court’s other argument derived from democracy-its invocation of the
s. 33 override provision as the final solution to democratic challenges-either satisfy those challenges
or constitute an acceptable defence of judicial review. Whether or not s. 33 is “the ultimate ‘parlia-
mentary safeguard’ as the Court thinks, simply has nothing at all to do with the democratic legiti-
macy of the judicial branch. Indeed, to argue s. 33 would seem straightaway to concede illegitimacy.
See ibiL at 578.
,o Furthermore, from the federal perspective at least, the undertaking appears to have had more to
do with pan-Canadian unity than with any arcane niceties such as the separation of powers.
“‘Law’s Empire, supra note 92 at 97.
“‘Such apocrypha have, since 1982, been fed, in large anti-democratic doses, to several generations
of law students.
250
MCGILL LAW JOURNAL / REVUE DE DROITDE McGILL
[Vol. 44
stantiations of a larger phenomenon which is intelligible only with reference to the in-
heritance of the rule of law.’ 7 The most that can be offered in this brief comment is an
outline of the attitude such a theory would have to take as regards judicial appoint-
ment, judicial accountability, and judicial attitude to the legislative and executive
branches.
Appointment is a critical variable in such a theory because, however democratic
accountability might finally be conceived, it can only be conceived on the basis of a
transparent appointment process; otherwise, of course, accountability is negated at the
start on the most elemental of democratic grounds. Canadian citizens do not, nor can
they, participate in determining whom it will be who governs them judicially. In con-
trast to the American practice-which constrains executive power by subjecting judi-
cial nominees, in open democratic forum, to tests of “jurisprudential integrity and
commitment”‘–appointment to Canadian superior courts is entirely a matter for the
federal executive, which has pursued its untrammelled power in a process and on
grounds distinguished, above all else, by secrecy.'” In consequence, the “constitu-
tional convictions””‘ of our superior court judges are accessible only after their ap-
pointment, but by then, of course, the matter is closed and citizens are simply stuck
with whatever quality of governance happens to ensue for the term of the appoint-
ment. This situation not only affronts the rule of law, it renders otiose in the Canadian
context any proposal which would prescribe democratic obligations for judges.
That-in defending the democratic credentials of the judicial branch-the Supreme
Court manages to miss the democratic significance of the process of appointment is,
to understate the matter, remarkable. That this omission alone fundamentally com-
promises the Court’s proposal, whatever otherwise might have been its merits, should
be obvious.
Assuming the threshold of transparency has been met, how, then, might a doctrine
of democratic accountability be conceived? Two kinds of answers have been tendered
to this question.”‘ The first answer-what may be termed, following John Hart Ely,”2
“7T.C. Halliday & L. Karpsk, eds., Lawyers and the Rise of Western Political Liberalism (Oxford:
Clarendon Press, 1997) at 13.
“‘j Freedom’s Law, supra note 47 at 331.
9 This concealment is in no way diminished by the executive’s voluntary vetting of nominees
through a committee which itself is appointed and deliberates in secret.
‘o Freedom’s Law, supra note 47 at 263.
.This, of course, is to categorize an abundance of views, any one of which may diverge, in its par-
ticulars, from the ideal types which are being described. The answer first offered by Bickel, supra
note 10, and more recently renewed and amended by Ackerman, supra note 76-what Philip Bobbitt
terms “the prudential argument”–might constitute a third type of reply. Since, however, that answer
appears simply to mix what will be here termed the “substantive values and representation” ap-
proaches, it will not be considered further. For the prudential approach, see P Bobbitt, Constitutional
Fate: Theory of the Constitution (New York: Oxford University Press, 1982) at 59-73. For Ely’s claim
that the prudential approach mixes the values and representation approaches, see J.H. Ely, “Toward a
Representation-Reinforcing Mode of Judicial Review” (1978) 37 Maryland L. Rev. 451 at 487 [here-
1999]
FC. DECOSTE – VRIEND V. ALBERTA
the “substantive values proposal”–seeks legitimacy in abstract political morality and
is perhaps best exemplified by Dworkin’s view of law as integrity.”‘ According to this
view, though they are not elected and though they have authority to countermand
popular preference, judges are still representatives of the people, because, unlike the
legislative and executive branches which account to the empirical people, judges ac-
count to the people morally considered, or more precisely, to the higher principles of
the people as a political community devoted to moral equality through personal and
political liberty. This understanding answers the democratic challenge with sophisti-
cated abstraction, and though in many ways attractive, it tends both to denigrate de
facto democratic procedures and preferences and to compel an aristocratic view of the
judicial branch.”‘ Indeed, as Bickel once pointed out, in “the heavenly city” of ab-
straction, which is this answer’s natural home, “the democratic ideal” tends not
merely to get lost, but to be viewed as somewhat of “a necessary evil.”‘ 5
Though no less an expression of political morality than the fundamental values
answer, the second answer to accountability is, at first blush, more modest in its aspi-
rations and more concrete in its proposals.”‘ Typified by John Hart Ely’s theory of ju-
dicial review,”‘ this answer seeks to reconcile the judicial branch “with the underlying
democratic assumptions of our system'”” by confining judicial supervision of the
other branches to matters having to do with the proper functioning of the democratic
system. As Ely puts it, because “appointed and life-tenured judges are [not] better re-
flectors of conventional values than elected representatives” they had better “devot[e
themselves] instead to policing the mechanisms by which the system seeks to ensure
that our elected representatives will actually represent”‘ 9 This approach, then, piles
inafter “Representation-Reinforcing Mode”]. Incidentally, Bobbitt identifies the representation ap-
proach as “structural” (ibid. at 231).
See “Representation-Reinforcing Mode”, ibid.
‘3See Law’s Empire, supra note 92.
” For instance, in Law’s Empire, ibid., Dworkin largely fails in his attempt to articulate a theory of
legislative integrity, and concludes with an aristocratic view of judging. It appears that a correspon-
dence prevails between premising judicial legitimacy on an abstract conception of the people and ele-
vating the judiciary above an invariably degraded legislative branch.
“.. A.M. Bickel, The Supreme Court and the Idea of Progress (New York: Harper & Row, 1970) at
16.
116 At first blush, this appears to be the case because the answer’s claim to comparative precision
may be less certain a virtue in practice than in theory. For an argument along these lines, see C. Wolfe,
Judicial Activism: Bulwark of Freedom or Precarious Security? (Lanham, Md.: Rowman & Little-
field, 1997) at 111-18 (arguing that, in practice, the two views produce much the same results).
‘” See J.H. Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, Mass.: Harvard
University Press, 1980) [hereinafter Democracy and Distrust]; and “Representation-Reinforcing
Mode”, supra note 111.
Democracy and Distrust, ibid, at vii.
“Representation-Reinforcing Mode”, supra note 111 at 485. Or, as alternately put at ibid. at 453:
The Warren Court’s role was not “to vindicate particular substantive values [which] it had determined
were important or fundamental, but rather … to ensure that the political process (which is where such
252
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 44
accountability on accountability: judges are democratically accountable because, even
when they countermand legislation enacted by the people’s representatives, they are
reinforcing the representatives’ accountability to the people. Though this understand-
ing has the considerable merit of intellectual precision, when it comes to the nuts and
bolts of judicial governance, things appear considerably less tidy. More particularly,
as applied to actual cases, the results compelled by the representation approach either
do not differ from the results produced by the values approach or, if they do, appear to
be otherwise unacceptable.’0
In Vriend, the Supreme Court offers a hodgepodge of the two standing views of
democratic accountability. At certain points, it takes what is clearly a representational
stance. We are told, for instance, that “democracy requires that legislators take into
account the interests of majorities and minorities alike;” where they then fail to do so,
“the interests of a minority have been denied consideration, [and] judicial intervention
is warranted to correct a democratic process that has acted improperly'”2 At other
points, of course, the Court invokes substantive values.'” Intellectual rigour and integ-
rity aside, in the final analysis, the Court’s floundering in this fashion really does not
matter, since neither of the views of accountability offered are democratically accept-
able. An acceptable view, rather, must depend upon, and devolve from, the rule of law.
Though we cannot dwell upon the matter here, informed by the rule of law, account-
ability would turn on legal morality, upon those “fundamental principles of law” of
which Blackstone spoke;’ accountability would not, therefore, be based upon any
particular expression of law (at least not initially), and especially not on any constitu-
tional instrument.
The “legal spirit” would also inform the attitude of the judicial branch toward the
legislative and executive branches. ‘ Because the relation between the branches would
then be known as agonistic, and quite different from the collegiality envisioned by the
Court in Vriend,’ all the empty talk about deference and “mutual respect”‘2 would be
replaced by articulate speech about “institutional constraint” on power.'” Under the
rule of law, each branch, including the judicial branch, would question and test the
values are properly identified, weighed, and accommodated) was open to those of all viewpoints on
an equal basis” [emphasis in original].
‘0 This over- and under-inclusiveness is nowhere better demonstrated than in Ely’s criticism of the
United States Supreme Court decision on abortion in Roe v. Wade, 410 U.S. 113,93 S.Ct. 705 (1973).
See Democracy and Distrust, supra note 117 at 2ff., 15ff., 21ff. But see A. Cox, Book Review of
Democracy and Distrust, ibid (1981) 94 Harv. L. Rev. 700.
1’ Vriend, supra note 3 at 577. Though, even here, the Court fudges its approach with substantive
values-by adding that judicial intervention will be particularly warranted where the minority “has
historically been the target of prejudice and discrimination” (ibiL).
222 Ibid. at 566-67, especially the enumeration, at 566, of “democratic values”.
.. Supra note 27.
124 Ibid.
‘ Vriend, supra note 3 at 565-66.
26 Ibid. at 565.
..7 Law’s Empire, supra note 92 at 401.
1999]
FC. DECOSTE – VRIEND V. ALBERTA
253
limits of its authority as against the boundaries of legitimacy set by the very existence
of the other branches, and out of this constitutive tension would perhaps flow the
law’s promise of liberty under the conditions of political equality.
Conclusion
In Vriend v. Alberta, the Supreme Court took the opportunity to speak about its
place in the Canadian polity. Unhappily, as appears so often to be the case, the Court
spoke on the basis of much too little reflection. Whereas it should have offered in-
formed history and theory, it instead offered a discourse impoverished by clich6s and
disfigured by misinformation and misunderstanding. The rule of law minimally re-
quires that each branch understand its proper place in democratic politics. It is the Su-
preme Court’s failing in this regard that, in the final analysis, renders Vriend an op-
portunity lost, and the Court’s decision a matter for so much regret.
