THE JUDICIAL ROLE IN A DEMOCRATIC STATE 1999 CONSTITUTIONAL CASES CONFERENCE Keynote Address Osgoode Hall Law School York University April 7, 2000 Rosalie Silberman Abella Justice, Court of Appeal for Ontario Let me start a discussion about the judicial role in a democratic society by offering a theory of what democracy is. For me, the components of democracy are most starkly revealed in comparison to its antonym, totalitarianism. What democratic societies promote - and repressive ones do not - are the rights of its citizens and their participation in decision-making about the rules they will be governed by. Democracy promotes choice, voice and access to rights. Totalitarianism promotes none of those. The effectiveness of the rules or rule-makers any given democracy generates may vary, but their defining similarities will be a commitment to rights and to participation. And so it is somewhat ironic to find that in Canada today, the debate about the judicial role has, to a vocal extent, come to centre on the vigour with which courts are protecting rights, and the expanded participation we have promoted to those rights. The sources of this debate are the Charter of Rights and Freedoms and the institution responsible for implementing it - the judiciary. The criticism appears to be that rights should be distributed by legislatures, not courts, and that the enforcement of the Charter by courts has therefore resulted in judicial trespass on legislative supremacy, resulting in an impairment of democratic governance. What is for me odd about his