Democratic Dialogue in Practice

AuthorKent Roach
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
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
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
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

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