Justice Shaina Leonard's recent ruling to dismiss the Stay Free Alberta independence petition drew predictable criticism from Premier Danielle Smith, who labeled the decision "undemocratic" and announced plans to appeal. However, this characterization misrepresents the role of Canadian courts within a democratic framework.
Understanding the Living Tree Doctrine
Canadian courts operate under the Living Tree Doctrine, a principle established in the 1929 Persons Case (Edwards v. Canada). This doctrine mandates that the Constitution be interpreted dynamically, reflecting evolving public values and opinions. Consequently, constitutional rules are not static; they adapt as societal views on permissible legislation shift. Judges, therefore, review laws and petitions with contemporary public sentiment in mind.
Deliberative Democracy in Action
This process exemplifies what political theorists call "deliberative democracy." Unlike minimalist views that confine public participation to periodic elections, deliberative democracy recognizes that everyday conversations among citizens shape government actions. Courts, as part of this system, are influenced by these deliberations. The late philosopher Jurgen Habermas argued that all complex social systems—including courts, legislatures, and executives—rely on citizens' ongoing discourse to maintain legitimacy and coherence. Without such input, institutions risk internal disintegration.
Contrary to Premier Smith's assertion, a judge striking down a law or petition is not anti-democratic. Rather, it is a democratic act that integrates public opinion into legal decisions. When courts assess whether a petition aligns with constitutional values, they are channeling the same democratic dialogue that occurs in town halls and living rooms across the country.
Respecting Judicial Independence
Politicians should respect the judiciary as an equal partner in democratic governance, not undermine it with accusations of being undemocratic. The courts provide citizens with a meaningful voice beyond the ballot box, ensuring that laws reflect the evolving conscience of the nation. Far from being a threat to democracy, this judicial role strengthens it by fostering continuous public engagement with constitutional principles.
In summary, the decision by Justice Leonard was a valid exercise of democracy, grounded in the Living Tree Doctrine and deliberative democratic theory. Rather than appealing in the name of "democracy," Premier Smith would do well to acknowledge the courts' vital role in giving ordinary Canadians a say in their governance.
