The McRuer Report: Parliamentary majoritarian democracy and human rights

The McRuer Report: parliamentary majoritarian democracy and human rights DONALD V. SMILEY Volume IV of the Report of the Ontario Royal Commission of Inquiry into Human Rights1 contains some of the most sophisticated constitutional analysis that has ever appeared in a Canadian public document. The focus of the last part of this volume is the proposal for a Canadian Charter of Human Rights made by the federal White Paper on the subject published early in 1968.2 However, in his argument C h i e f Justice McRuer goes far beyond demolishing the superficial case for the constitutional entrenchment of rights made by Mr. Trudeau to an extraordinarily rigorous and subtle defence of the Anglo-Canadian tradition of parliamentary democracy. This more general analysis is particularly welcome in the present circumstances when the Prime Minister seems intent on introducing into the ongoing constitutional discussions a way of thinking derived from the American -French tradition of rationalism and natural rights while at the other end of the ideological spectrum the New Left advances the cry of "participatory democracy" in terms so vague and so full of passion as to defy reasoned debate. In its defence of legislative supremacy, the Report appeals both to fundamental political principle and to the Anglo-Canadian political experience. The combination of these two kinds of justification leads here and there to a somewhat idealized view of the Canadian political process. In fact, an uncritical reader could come away with the impression that the most important enactments of Canadian legislatures evolve through rational and informed debate within the legislature itself and among the public outside. Unfortunately such conditions are seldom completely realized. It is, however , possible in the Canadian context to make defence of the claims of legislatures as against courts in making basic decisions of public policy from a somewhat more realistic view of the political process. Such Journal of Canadian Studies a defence might proceed along these lines. Under normal circumstances policy decisions should effect some reconciliation of the claims of expert opinion, administrative practicality and public acceptability. The normal political process has at least the capacity for effecting such a reconciliation by allowing the interaction of a wide range of preferences, perceptions and interests in the making of policy. The procedures of judicial decision-making in the Anglo-Canadian tradition preclude the courts from explicitly taking into account more than a very restricted scope of facts and values.3 From one point of view, the McRuer Report destroys the federal White Paper with a single deft sentence: " ... as a matter of meaning and implementation, highly general propositions are neither self-defining nor self-executing".4 The Prime Minister seems to believe otherwise. In his remarks of the fall of 1968 about the St. Leonard dispute5 and more recently his reaction in the House of Commons to a question about the Montreal by-law regulating demonstrations6 Mr. Trudeau pointed to the efforts of his government in respect to the constitutional entrenchment of human rights with the clear implication that if such efforts had been successful these conflicts in Quebec would have been authoritatively resolved. It is perhaps unfair to make very much of these responses by the Prime Minister. However, my reading of the federal White paper and the later document The Constitution and the People of Canada? suggests that those who wrote these statements believed that the proposed Charter would in a sure and certain way safeguard those human rights regarded as essential. There are two alternative approaches one can follow in evaluating whether or not t h e re should be a constitutionally ent re n c h e d Charter of Human Rights in Canada. First, one can decide on the basis of whether courts or legislatures are likely to make policy decisions respecting human rights more in accord with his preferences.a Second, on the basis of some set of fundamental political principles one can decide whether courts or legislatures have a better claim to make the final and authoritative judgements about human rights. The McRuer Report opts squarely for the 3 second alternative. "The issue is plain. The question is not confined to whether appointed or elected parliamentarians can think...