Suchergebnisse

AbstractIn Canada as elsewhere, representative democracy is under attack by both populists and rights advocates. The populist challenge comes mainly from Preston Manning's wing of the Reform party. The rights-based challenge is grounded on the Canadian Charter of Rights and Freedoms. These two challenges are different in obvious ways, but from the point of view of representative government—and ultimately of liberal democratic constitutionalism—what they have in common outweighs their differences. What they have in common is the appeal to a mystical being or icon beyond ordinary politics. In effect, the People or Rights become what God was to pre-liberal theocratic politics: a transpolitical trump on ordinary political division, a way of placing opponents "beyond the pale," a demand for unattainable purity in public life and policy. While bills of rights and populism appear to flow, respectively, from the liberalism and the democracy of liberal democracy, they are, in fact, vehicles for precisely the kind of politics liberal democracy was designed to overcome. Representative government, not populism or entrenched rights, was at the heart of the "new science of politics" designed to make liberal democracy possible. Representative institutions, properly arranged in a system of checks and balances, were a way of blending liberalism with democracy, giving each its due, but indirectly, so that neither would be taken to self-destructive extremes. Populism and the judicialized politics of rights threaten to dissolve this salutary blend, at the cost of liberal democratic constitutionalism.

AbstractIt is frequently argued that section 15 of the Canadian Charter of Rights and Freedoms should be interpreted to protect Canadians not only against intentional discrimination based on the prohibited grounds, but also against "systemic discrimination." Since systemic discrimination against one group can always be described as intentional discrimination against another, this approach seems redundant in the context of an open-ended list of prohibited grounds. It may be explained as a way of promoting discrimination against unlisted groups upward on the scale of scrutiny, thus expanding the range of policy-making in inherently contestable areas that is subject to judicial determination or oversight. This article explores the political and institutional ramifications of this interpretation.

Based on conference paper. Political and institutional aspects of interpreting Section 15 of the Charter of Rights and Freedoms to cover systemic as well as intentional discrimination.