Democratic Dialogue in Practice
| Author | Kent Roach |
| Pages | 253-288 |
253
Chapter
14
Democratic Dialogue
in
Practice
Both
those
who
criticize
the
Court
for
judicial activism
and
those
who
offer
conventional defences
of
judicial review agree that
the
Charter
was
a
revolution
in the
relationship between
the
Supreme
Court
and the
leg-
islatures.
These
commentators
focus
on the
fact
that
the
Charter
allows
the
Court
to
strike down legislation that violates rights
as found by the
Court
in the
broad guarantees
of the
Charter.
The
critics
of
judicial
activism
fear
the
revolutionary
new
powers
of
judges under
the
Charter,
while defenders
of
judicial review
express
hopes
that
the
judges will
use
their
new
powers
in a
manner consistent with their
favoured
theory
of
judicial review.
If you
accept
the
widely held premise
that
the
Charter
was
a
revolution that gave
the
judges
the
last
word,
there
are
real rea-
sons
to
fear
judicial activism.
There
is no
agreement about
how
judges
should interpret
a
constitutional bill
of
rights
or how we can
ensure that
their
decisions
are
consistent
with democracy.
If the
Charter
were
a
northern version
of the
American
Bill
of
Rights,
Canadians, like
Americans, would
be
caught between
the
dangers
of an
underactive
judiciary that leaves room
for
legislatures,
but
frequently
fails
to
protect
fundamental
values
and the
rights
of
minorities,
or an
overactive judi-
ciary that dictates some important
and
contentious policy issues
to the
legislature
—
unless
the
Court
or the
constitution could
be
changed.1
Those
who see the
Charter
as
either
a
welcome revolution
or a
ter-
rible
one are not
paying enough attention
to the
ability
of
legislatures,
by
limiting
or
overriding rights under sections
1 and 33 of the
Charter,
to
sustain
the
type
of
dialogue that
has
always occurred between courts
and
legislatures under
the
common law. They also ignore what
the
Charter
did not
change
— a
parliamentary system
of
government that
has the
potential
to
produce legislative
activism2
to
counter judicial
activism.
Ignoring either
the
structure
of the
Charter
or the
continued
relevance
of
parliamentary government
means
that
those
who
criticize
the
Court
for
judicial activism
and
those
who
offer
conventional
defences
of
judicial review
run the
serious
risk
of
wrongly conflating
the
Charter
with
the
particular problems
of
judicial supremacy under
the
1791
American
Bill
of
Rights.
Canadians,
and
perhaps others
who
live
under
a
modern bill
of
rights,
are
quickly driving down
a
dead
end
towards American-styles debates about whether
the
Court
is too
activist
or
too
restrained,
all the
time ignoring
the
fact
that their elected gov-
254
PART
3:
BEYOND
JUDICIAL
ACTIVISM
ernments
can
always place limits
or
even override rights
as
interpreted
by the
Court.
The
ability
to
limit
and
override rights makes
the
vast
majority
of
Charter
decisions
closer
to
common
law
decisions, which
could
always
be
amended
or
abolished
by
ordinary legislation,
than
to
American
Bill
of
Rights
decisions
or
even
to
division
of
powers decisions,
which
can
often
only
be
circumvented
by the
difficult
process
of
chang-
ing the
Court
or the
constitution. Understanding
the
common
law
nature
of the
Charter
should ease concerns about judicial activism,
but
it
may
raise alarms
for
those
who are
relying
on the
Court,
as
opposed
to
the
legislature,
as the
ultimate protector
of
rights.
The
Charter
is not
the
revolution that many have hoped
for and
many have
feared.
It is,
rather,
a
continuation
and
enrichment
of our
common
law and
demo-
cratic
traditions.3
The
Common
Law
Approach
to
Protecting
Rights
Much
of
criminal, administrative,
and
Aboriginal rights
law
—
all
areas
that
now
dominate
the
so-called Charter Revolution
— was
made
by
courts reading concerns about fairness into
the
common
law
long
before
the
Charter.
The
common
law
allowed
the
Court
to
call
the
attention
of
society
and the
legislature
to
fairness
values that were liable
to be
neg-
lected
by
politicians
and
bureaucrats, without giving
the
judges
the
awe-
some responsibility
of
necessarily having
the
final
word.
If the
Court
applied
the
common
law
presumption
in a way
that society
found
to be
unacceptable
or
mistaken,
the
answer
was
simply
to
enact
ordinary leg-
islation that clearly displaced
the
Court's common
law
presumption.
In
1938
an
astute Canadian legal scholar,
John
Willis, recognized
that
courts used presumptions
of
statutory interpretation
to
enforce
"a
sort
of
common
law
'Bill
of
Rights'
or
'ideal
constitution.'"4
Today,
judges
still
use
these presumptions, albeit updated
to
account
for the
post-Second
World
War
concern about human rights. They also recognize that while
the
presumptions
may
protect important rights, they must yield
to a
clear expression
of the
legislative will.
"If the
legislation
is
clear,
of
course,
the
intent
of the
legislation
must
be
respected.
But
what
these
presumptions ensure
is
that
a law
that appears
to
transgress
our
basic
political
understandings
should
be
clearly expressed
so as to
invite
the
debate
which,
is the
lifeblood
of
Parliamentary
democracy."5
The
com-
mon
law
presumptions require legislatures
to be
candid about their
treatment
of
fundamental values. This approach should produce condi-
tions conducive
to
accountability
and
democracy.
The
best
of
what
the
independent
courts
did
before
the
Charter
was
to
engage legislatures
in a
dialogue
by
articulating,
in the
harsh
real-
DEMOCRATIC
DIALOGUE
IN
PRACTICE
255
ity of
individual cases brought
by
aggrieved
and
often
unpopular liti-
gants,
the
requirements
of
important values that might otherwise have
been ignored
or
finessed
in the
legislative
and
administrative processes.
At
the
same time,
the
Court
did not
insist that
it
would have
the
final
word.
It
often
invited,
and
sometimes dared,
the
legislature
to
depart
from
its
principled starting point.
It was
always open
to
Parliament
to
prescribe
by law its
intent
to
depart
from
the
values
of the
common
law
constitution
in
particular contexts. Common
law
judicial review
re-
enforced
democracy
by
requiring debate,
reflection,
and
clear state-
ments
by
legislatures about
how
they
would treat
the
fundamental val-
ues
identified
by the
court.
The
answer
to the
judicial activism
of the
common
law
presump-
tions
was
legislative activism
in
which
our
elected governments clearly
took
responsibility
for
rejecting
the
fairness concerns articulated
by the
Court.
It
simply
was not
necessary
to
attack
or
change
the
Court
or to
try to
amend
the
constitution. Ordinary legislation
would
do the
job.
COMMON
LAW
DIALOGUES ABOUT ABORIGINAL
RIGHTS
The
common
law
approach
to
protecting rights
was
democratic,
but it
should
not be
romanticized. Sometimes democracy
can be
ugly.
Our
shameful
treatment
of
Aboriginal rights
in the
past
may
explain
why
Aboriginal
and
treaty rights
are now not
only constitutionally protected
under
the
Constitution
Act,
1982
but
also
not
subject
to
either
the
section
33
override
or the
section
1
reasonable limits provision.
Before
1982
Parliament used
its
powers
of
legislative supremacy
to
override treaty
rights
and
extinguish Aboriginal title, even though
this
unjust result
did
not
accord with
the
honour
of the
Crown
or the
solemn promises made
in the
treaties.6
Before
1982, judges
had
limited tools
to
stop
this
assault,
but
they
did
have some tools. Some judges quickly accepted
the
unjust
proposition that Aboriginal rights
had
been extinguished simply because
Europeans
had
exercised sovereignty. Others, however, demanded
more.
Justice
Emmett
Hall, today best known
as the
founder
of
medicare,
ruled
in the
1973 Nishga land
claim
case
that
a
decision
of the
legislature
to
extinguish Aboriginal rights must
be
"clear
and
plain."
It
was not
sufficient
to
find
that
the
majority
had
exercised power incon-
sistent with Aboriginal title;
the
right
had to be
clearly extinguished
by
democratically debated
and
enacted
legislation.7
This
common
law
pro-
tection
of
Aboriginal rights
left
the
rights
vulnerable,
but at
least
it
ensured
that
the
legislature would have
to
prescribe
its
intention
to
extinguish
rights
in a
statute
and be
held accountable
for
that
act of
injustice
by the
people
and by
future
generations.
Chief
Justice Brian
Dickson,
who, like Justice Hall, came
from
the
Prairies
and was
adept
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