Democracy - is it the 'will of the majority'?

Advocates of direct democracy tend to argue that laws should be formed by the will of the majority of the voters. Since we elect representatives to sit in our legislative houses, they own the job of reflecting that will.

Therefore, they argue, it is quite legitimate for the rights of minority groups to be circumscribed in law. After all, if a majority of people "were like _that_", then it wouldn't be an issue, would it?

However, life is seldom so 'black-and-white'. Our legislators are bound by the foundation laws that our nation is built upon - in Canada's case, the Constitution, but backed up by a broad range of supporting law that draws the boundaries between a myriad of different topics.

All of these things become factors in how our legislators must define their works. Canada's Constitution is relatively young by Western standards. Signed into being in 1982, and in full force by 1985, it's only had a little over 20 years as the foundation upon which laws are written, and only 20 years of case law based upon it.

Fortunately for Canada's population, the authors of our Constitution, and in particular the Charter of Rights, wrote in guarantees of some very fundamental rights that all Canadian citizens enjoy. These includes rights to freedom of religion, freedom from discrimination, mobility, and many other key rights that now form the bedrock against which new laws must be tested.

The danger that emerges is that the 'will of the majority' can be subverted by very small minority groups. Where pure majority rule can result in the "Tyranny of the Majority", a counter position is that the "Tyranny of the Minorities" can take over. Essentially, we swing from a situation where the rights of the minorities could be compromised at the hands of an uncomprehending - or unaware - majority to one where the legitimate rights and will of the majority are thwarted entirely by the rights of the minority.

It's hard to disagree with the voiced concern that minority rights are overriding the "common sense" of the greater body politic in our land. At times, it's very easy to say that - after all, the list of issues is as long as your arm - whether it is the issue of allowing turbans to be part of the RCMP uniform or pension benefits for same gender couples, it seems as though an issue that affects a very small percentage of the population is taking precedence over the traditions and beliefs of the so-called "majority".

However, I would be remiss in failing to point out that the Constitution was authored by the elected leaders of that time. In other words, the very principals that "direct democracy" advocates demand be obeyed are in fact being obeyed. When the courts strike a law down as being "unconstitutional", it means that the law in question has failed to meet the test of being sustainable in the light of that foundational law. Although the "will of the majority" may lean one way or another on a given day, constitutional laws tend to remain relatively constant. Wording may be interpreted differently from time to time, but not substantially.

In any reasonably sophisticated society, democracy cannot be simply the will of the majority. The fact is that there are far too many considerations in our world that preclude such a simplistic view. Laws must not only apply "equally to all", but there is a subtle second test to be added - that of ensuring that the laws of our land are examined and applied in a manner that protects not just the majority, but all of our citizens.

That makes the task of authoring laws a difficult, and complex task. Not only must laws reflect the democratic will of the people, but the words cannot abrogate the rights that individuals hold either.