What is the relationship between law and politics? Are they synonyms? Is politics a manifestation of law? Or, is law a manifestation of politics? I argue that the answer to these questions centres on the idiosyncrasies of the reader. What is seemingly beyond question, however, is the increasing relevance of the law to politics—and the increasing use of the law to serve political ends. That is, litigants, often propounding the nebulous banner of the “public interest”, have brought forward cases seeking to in effect challenge electoral outcomes. Indeed, we have seen a string of cases brought to the courts asserting a legal basis for changing democratic outcomes. While several recent examples elucidate this point, two stand out.
As one prominent example, private citizen cum activist Paul Magder brought an action against Mayor Rob Ford, alleging that he breached a conflict of interest statute, thereby necessarily triggering removal from office. This canard was ultimately unsuccessful on appeal. The successful trial judgment was heralded by many as some sort of necessary application of the law required to uphold the integrity of public office. When Clayton Ruby’s arguments were rejected on appeal, the appellate judgment was characterized by some as justifiable only on the basis of a “technicality”. To the left, it seems, a legal victory against a conservative politician is a vindication of the rule of law—an apolitical application of statute. In contrast, when those same arguments fail, they are a mere technicality.
A similar outcome manifested in the failed re-election campaign of former Liberal MP Borys Wrzesnewskyj. Having narrowly lost the election in Etobicoke Centre, he sought to challenge the result in court – taking it all the way to the Supreme Court of Canada, at a reported personal expense of nearly $300,000. After the Supreme Court rejected his arguments, Wrzesnewskyj commented that “The law is outdated. It needs updating”, essentially dismissing the effectiveness of Canadian electoral law, at least insofar as it militated against conferring a second chance to his failed candidacy.
The foregoing suggests two troubling things. First, and with respect to Mr. Wrzesnewskyj, when the law is unfavorable to one’s partisan interests, it is “outdated” and requires reform. With respect to Mr. Madger and Mr. Ruby and their apparent vendetta against Mayor Ford, when an appellate decision refused to accept their submission, it was on the basis of a mere “technicality”. Sadly, both these positions delegitimize the purpose of the law and the role of the courts.
The purpose of the law is not to achieve that which you cannot achieve at the ballot box. Certainly, we have an evolving approach to constitutional analysis and Charter jurisprudence to ensure that our individual rights keep pace with societal change. But neither of these cases engaged Charter rights. Rather, both were attempts to circumvent the democratic will to achieve what was otherwise denied by voters. To be sure, independent courts must arbitrate political disputes to ensure a level playing field among candidates and to uphold the integrity of our democratic process. But to the extent that litigants view the courts as an instrument to achieve what was otherwise withheld at the ballot box, courts ought to defer to the will of the people.