Breakdowns in the Democratic Process and the Law of Canadian Democracy

Abstract

In this article I seek to develop a theoretical framework through which to view the law of democracy in Canada. Such a framework has been largely absent from the jurisprudence of the Supreme Court of Canada. I argue that a defining problem in the law of democracy is the existence of incentives for political actors to manipulate election laws to ensure self-serving ends. I summarize and critically evaluate the main competing theoretical approaches to the law of democracy in the United States, namely structural theory and rights theory. I conclude that structural theory provides a more accurate descriptive understanding of the law of democracy than rights theory and a more convincing normative framework through which to evaluate existing democratic institutions. Applying structural theory to Canadian democracy, I find ample reason to be concerned about self-interested manipulation of the democratic process. I develop a preliminary typology of breakdowns in the democratic process, which I label partisan, incumbent, and interest entrenchment breakdowns, and provide examples from Canadian law and politics. I conclude by suggesting future directions for research, particularly on judicial doctrine and the role of intervening institutions.