The principle of separation of powers has been one of the fundamental aspects of federal governance in the Western world ever since democratic nations emerged. Undoubtedly a reaction to the absolute authority wielded by tyrants, oligarchs, plutocrats and the like in times prior, as well as an attempt to protect democracy from being threatened by such authority’s return, this principle – first identified by 18th-century French political thinker Baron de Montesquieu and expounded by early liberals such as John Locke – posited that a state should have three branches of governance, each with its own powers and areas of responsibility.
These three branches are the executive, legislative and judicial. In more recent times, as freedom of the press came to be recognized as an important bulwark against threats to democracy, the “fourth estate” – the media – came to be informally added to the equation. Although democracies with a presidential system of governance, such as the U.S., came to have a more pronounced separation of powers than those with a parliamentary system, such as Canada, even in the latter case it has been understood that concentrating power in one branch or institution increases the temptation to abuse power arbitrarily.
Although the principle of separation of powers has sometimes been regarded as overly simplistic, idealistic and tending to work better in theory than reality – some speak of a “fusion of powers,” wherein one branch (the legislative) is dominant, rather than equal, and the others are subservient to it – alarm has often been expressed whenever one branch has exhibited signs of overt dominance or overweening control.
One can witness this reaction in, for example, the fretting over what have been seen by some as authoritarian measures instigated by the Bush administration in the U.S. to address real or imagined terrorist threats. (Indeed, as these words are being written, it has emerged that the Bush administration is approving increased domestic spying by giving law enforcement officials and others the ability to view data obtained from satellite and aircraft sensors.)
Canadians, meanwhile – perhaps because we have never had to suffer under a totalitarian regime – have been generally indifferent about the dominance of one branch of government over the others. This is in face of the fact that a disturbing seizure of powers has been executed by both the executive (Prime Minister’s Office) and judicial (judicial activism) branches of Canadian federal government at alternating times, to the detriment of the legislative (House of Commons and Senate) branch – which, even in the more tepid fusion-of-powers model, should reign supreme.
Very troubling about the current situation in Canada is the lack of real debate among the citizenry, and even among political analysts, over this turn of affairs. In addition, the unofficial “fourth branch” (the media) has been particularly negligent in identifying this development and in alerting the public as to its dangers and ramifications. There are some exceptions, particularly among social conservatives. We can point to contributions including the books Judicial Activism: A Threat to Democracy and Religion, published by the Life Ethics Educational Association, Against Judicial Activism: The Decline of Freedom and Democracy in Canada, authored by Rory Leishman and The Most Dangerous Branch: How the Supreme Court of Canada Has Undermined Our Law and Our Democracy, authored by Robert Ivan Martin, as positive offerings that have honed in on the question of judicial supremacy.
Paul Tuns’s book Jean Chrétien: A Legacy of Scandalor Stevie Cameron’s On the Take: Crime, Corruption and Greed in the Mulroney Years, meanwhile, along with the same-sex “marriage” episode as staged by Chretien and his successor Paul Martin, in addition to the concentrating of power in the prime minister’s office as started by the late Pierre Elliott Trudeau, have illustrated what can happen when the executive branch of government flexes its authoritarian muscles.
Another aspect of the larger issue of the nature of democracy is the circumvention of the democratic will through party discipline. Although not directly relevant to our discussion here, it is worth pointing out that no less a figure than the great Russian author and gulag survivor Alexander Solzhenitsyn, who knows more than a little about authoritarianism and related issues, had these cogent words to say about political parties in a recent interview with the German Der Spiegelmagazine:
“I am a convinced and consistent critic of ‘party-parliamentarism.’ I am for non-partisan elections of true people’s representatives who are accountable to their regions and districts and who, in case of unsatisfactory work, can be recalled … I see nothing organic in political parties. Politically motivated ties can be unstable and quite often they have selfish ulterior motives …
“We are talking about seeking benefit for the party itself at the expense of the rest of the people. This can happen whether the takeover is peaceful or not. Voting for impersonal parties and their programs is a false substitute for the only true way to elect people’s representatives: voting by an actual person for an actual candidate. This is the whole point behind popular representation.”
Perhaps this question of the value of political parties, and whether they contribute or detract from real democracy, bears further examination in a future issue of The Interim.
For now, we can say that the phenomenon in which the judicial branch of government exercises supremacy has resulted in numerous deleterious consequences for this nation’s social and moral fabric. This became especially so with the patriation of the Constitution and the adoption of the Charter of Rights and Freedoms in 1982. Courts were, by design or accident, effectively bestowed with the power to liberally interpret, vet and even formulate legislation according to individual judges’ perceptions of what the Constitution said or meant to say. Perhaps the most odious outgrowth of this was current Supreme Court Chief Justice Beverly McLaughlin’s (centre front) observation that the Constitution is “a living tree,” which can be ominously shaped, mangled and moulded into just about anything she or her cohorts on benches across the land want it to be.
We witnessed a perfect example of the consequences of this thinking as judges gradually “read in” to the Charter of Rights and Freedoms the undefined term “sexual orientation,” even though the term was consciously and deliberately excluded from the document when it was proclaimed in 1982. Ostensibly intended to further homosexual and lesbian rights, the magical addition of that term to the Charter has led to the overturning of the longstanding definition of marriage and moves to grant rights to other, increasingly bizarre sexually oriented groups, such as trans-sexuals, swingers and the like.
This has turned into an ideal state of affairs for power-hungry judges, special-interest lobbies and leftist social reformers – particularly those in the abortion industry and homosexuals – who have seen in it an avenue to advance their narrow agendas and visions for what Canada should be. However, it has not been so good for Canadian citizens holding to Judeo-Christian social and moral values or for the health of Canadian democracy and society at large.
In effect, our legislatures can now go to the trouble, expense and effort of crafting pieces of legislation, holding committee hearings and debates followed by votes among elected representatives in chambers, only to find it all negated and made meaningless by a handful of unelected and unaccountable individuals in robes. Remarkable.
What is even more extraordinary, however, is the minute amounts of controversy this has generated within the Canadian polity. Although the situation calls into question the essential nature of our democracy, little has been done to force debate, let alone set in motion measures to rectify a circumstance in which the common people have become powerless and are made to kowtow to the will of their self-appointed masters.
How has this played out in real life? Some of the most notorious manifestations include the 1988 Supreme Court’s striking down of Canada’s abortion law, such as it was, which threw open the floodgates – or, perhaps better stated, the bloodgates – of unrestricted abortion on demand right until birth. Although there was a veneer of democracy splashed on by then-prime minister Paul Martin, who permitted a free vote – but onlyof his MPs outside cabinet – on the same-sex “marriage” question, there is little doubt that the Supreme Court of Canada, with the liberal ideology of its judges and the power to put that ideology into effect, would have imposed such “marriage” upon Canada as a Charter right, had the effort not been successful through the legislative branch.
We can also recall how former Ontario chief justice Roy McMurtry “ordered” the provincial government to enact same-sex “marriage” rights immediately in the province upon ruling on a case before him with respect to that issue. There is perhaps no episode that has better epitomized the death of the principle of separation of powers and of democracy in Ontario, and Canada, than this one.
When the judicial branch of government has not cast its authoritarian spells over the governmental order, the executive branch has been only too happy to step in and fill the gap. Giuseppe Gori, leader of Ontario’s Family Coalition Party, once analyzed the amount of power concentrated in the Prime Minister’s Office and concluded that the head of our country wields more control than the late Iraqi dictator, Saddam Hussein, did at the height of his rule.
This is chiefly a product of the prime minister’s ability to name people to virtually every government, judicial and Crown corporation entity in this country, let alone within his own ministry. The PMO itself already consisted of 80-100 people by the mid-1980s. Notably, the prime minister’s power of appointment can intersect with judicial supremacy, in that the PM can put forth judges of his ideological bent to the Supreme Court and other high courts in the land, then slough off controversial issues onto them in order to avoid the political price that would have to be paid for taking a stand on such issues. All the while, he would know that “his” judges would likely rule in accordance with his wishes.
Party discipline and cabinet solidarity further help ensure this racket runs smoothly. “As long as the followers of the prime minister in the House of Commons vote as directed, then executive and legislative powers are combined or fused, rendering the separation of powers ineffectual as a check,” note Mark O. Dickerson and Thomas Flanagan in their book, An Introduction to Government and Politics: A Conceptual Approach. “The principle of cabinet solidarity prevents members from criticizing government policy in public, even though they may have private reservations.”
When Joe Comuzzi was forced out of Paul Martin’s cabinet for openly opposing same-sex “marriage” legislation, even though Comuzzi had the approval of his constituents, we saw this anti-democratic phenomenon being played out in real life.
The final piece in our sad puzzle is provided by the “fourth branch,” the media. Both the U.S. Constitution and the Canadian Charter of Rights and Freedoms enshrined freedom of the press as a fundamental freedom. This was because the drafters of these documents understood that, even if there was an ideal governmental system that had a real and effective separation of powers, someone or something had to be present to act as a watchdog on, and counterweight to, the whole mélange.
Joseph Farah has ably written on this topic in his recently published book, Stop the Presses! The Inside Story of the New Media Revolution. His chapter on “A Brief History of the Free Press” traces the news media from a time when they essentially fulfilled their function as an essential part of the polity – and the citizenry had an understanding of that function – to the current day, in which fewer than 20 per centof U.S. citizens now comprehend that the central role of a free press in a free society is to serve as a watchdog on government.
There is little reason to believe, given what can be seen of Canadian news coverage, that the situation is any different in Canada. Indeed, it is likely far worse. Personality-driven and horse-race political coverage is the order of the day, at the expense of the real mission of the media.
In conclusion, the failure to uphold the principle of separation of powers among the branches of government in Canada, in tandem with the abdication of responsibilities by the media and possibly the very existence of political parties, have for all intents and purposes destroyed the foundations of democracy in Canada. At the very least, they have taken supremacy out of the hands of the legislative branch, which most closely represents the will of the people and where it should lie even under a fusion-of-powers model, to the far-less-accountable judicial and executive branches.
The lack of vigorous discussion and debate over this state of affairs, save from the social conservative sector, must not continue. Canadians needs to engage in a serious examination of whether they are truly committed to democracy. They also need to determine what has gone off the rails and what needs to be done to return power to the people.
This discussion must start immediately. Already, credible reports are emerging of plans to integrate Canada into a North American Union, along the lines of the European Union. A big step in this process occurred behind closed doors August 20-21 at the “Security and Prosperity Partnership” meeting at Chateau Montebello, Quebec. This took place within a 25-kilometre security perimeter.
Political leaders and financial elites from Canada, the U.S. and Mexico, including Paul Desmarais, Jr of Power Corporation and representatives of Canadian National, Bell Canada and Scotiabank, among others, were reported to be present. Counterparts attended from the U.S. and Mexico. Reports have also arisen that designs for a North American coin, the “Amero,” have been developed.
The time is late. Let us act now.