Democratic Dialogue in Practice

• Author: Kent Roach
• Pages: 285-324

285

chapter fourteen

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

Chart er was a revolution in the relationship between the Supreme

Court and the legislatures. 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 C har ter.

The critics of judicial activism fear the revolutionary new powers of

judges under the C har ter, 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 reasons 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 under-active judiciary that leaves room for legislatures,

but frequently fails to protect fundamental values and the rights of

minorities, or an overactive judiciary that dictates some important and

contentious policy issues to the legislature — unless the Court or the

constitut ion could be changed.1

Those who see the Chart er 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 Ch art er,

part three: beyond judicial activism

286

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 Char ter or the continued

relevance of parliamentary government means that those who criticize

the Court for judicial activism and those who offer conventional de-

fences of judicial review run the serious risk of wrongly conf‌lating the

Chart er with t he particular problems of judicial supremacy under the

1791 Amer ican Bill of Rights. Canadians, and perhaps others who live

under a modern bill of rights, are quickly driving down a dead end to-

wards American-styles debates about whether the Court is too activist

or too restrained, all the time ignoring t he fact that their elected gov-

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 deci-

sions, which can often only be circumvented by the diff‌icult process of

changing the Cour t or the constitution. Understanding the common

law nature of the Chart er should ease concerns about judicial activism,

but it may raise alarms for those who are relying on the Court, as op-

posed to the legislature, as the ultimate protector of rights. The Char ter

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

democratic 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 C har ter. The common law allowed the Court to call the atten-

tion of society and the legislature to fairness values that were liable to

be neglected by politicians and bureaucrats, without giving the judges

the awesome 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 ordin-

democratic dialogue in practice

287

ary legislation that clearly displaced the Court’s common law presump-

tion. 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 Tod ay,

judges still use these presumptions, albeit updated to account for the

post–Second World War concern about human rights. They also recog-

nize 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 common law presumptions require legislatures to be candid about

their treatment of fundamental values. This approach should produce

conditions 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

reality of individual cases brought by aggrieved and often unpopular

litigants, the requirements of important values that might otherwise

have been ignored or f‌inessed in the legislative and administrative pro-

cesses. 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 Par-

liament 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

statements by legislatures about how they would treat the fundamental

values 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