Dialogue between Courts and Legislatures
| Author | Kent Roach |
| Pages | 175-204 |
175
Chapter
10
Dialogue
between
Courts
and
Legislatures
Every
time
a
government loses
a
Charter
case,
which happens
in the
Court
approximately one-third
of the
time,
it
boosts
the
popular idea
that rights
are
absolute trumps
and
that
the
Court,
not the
legislature,
has the
final
word.
The
same pattern
can be
seen
in the
United States,
where
the
only response
to
many controversial decisions under
the
Bill
of
Rights
has
been
a
frustrated attempt
to
change either
the
constitution
or
the
Court.
These
types
of
responses
are
even more
difficult
to
achieve
in
Canada,
given
the
seeming impossibility
of
amending
the
constitu-
tion
and the
prime minister's more
or
less unilateral ability
to
decide
who
sits
on the
Court.
The
much vaunted section
33
override
is
hardly
better.
It has
been used
a few
times
to
respond
to
Charter
decisions,
but
it
is
intensely
controversial
and
thought
to
carry
a
huge
political
price.
The
Court
had the
last word when
it
struck down
the
abortion
law or
read protection against discrimination
on the
basis
of
sexual orientation
into Alberta's human rights code. Critics
of
judicial activism
on the
left
argue
that
any
dialogue between
the
Court
and the
legislatures
is
elitist
and
undemocratic, while those
on the
right contend that
the
dialogue
is
usually
a
monologue
as the
Court
orders
the
government
around.1
This
is the
crux
of the
judicial activism problem: nine unelected judges
in
Ottawa telling elected governments
from
coast
to
coast
what
they
must
or
must
not do. The
fear
is
that
the
Court
will have
the
last word
and
that legislative supremacy will
be
replaced with judicial supremacy.
In
other words, rule
by our
elected representatives
in
Parliament will
be
replaced with rule
by
unelected judges.
The
dangers
of
judicial supremacy have been grossly exaggerated
by the
critics
of
judicial activism.
In
almost every case
in
which
the
Court
strikes down state action,
its
decision need
not be, and
often
has
not
been,
the
final
word.2
When
the
Court does have
the
last
word,
the
reason
is
usually more
a
failure
of
governmental
and
public will than
a
failure
of the
Court
or the
Charter.
The
Charter
rejects
the
idea
found
in
the
American
Bill
of
Rights
of
judicial supremacy over matters that
affect
rights
and
freedoms.
The
Supreme
Court
has
recognized that
the
struc-
ture
of the
Charter
means
that
its
decision
need
not be the final
word
in
democratic
debates about
how
society will treat rights
and
freedoms.
It
has
acknowledged that
its
most controversial decisions "can
be
reacted
to
by the
legislature
in the
passing
of new
legislation
(or
even overarch-
176
PART
2: THE
EXTENT
OF
JUDICIAL ACTIVISM
ing
laws under
s. 33 of the
Charter).
This dialogue between
and
account-
ability
of
each
of the
branches have
the
effect
of
enhancing
the
demo-
cratic process,
not
denying
it."3
The
Court
has
also suggested that
if its
decisions
"were
to be
taken
as
establishing
the
only possible constitu-
tional regime,
then
we
could
not
speak
of a
dialogue with
the
legislature.
Such
a
situation could only undermine rather
than
enhance democra-
cy."4
The
Court itself accepts
that
democracy would
be
undermined
in
Canada
by the
type
of
judicial supremacy
found
in the
United States.
Rather,
it
recognizes
that
democracy
is
enhanced
when
legislatures
respond
to and
even reverse
Court
decisions under sections
1 and 33 of
the
Charter.
A
common mistake made
by
many
who
pronounce dialogue
to be
dead
is to
focus
on the
reluctance
of
legislatures
to use the
section
33
override
in the
Charter.
Section
33 is an
important
safeguard
— the
equivalent
of
shouting
to win an
argument
—
but
section
1 is the
vehi-
cle for
the
normal conversations
and
interchanges
that
regularly occur
between courts
and
legislatures
in
Canada.
In
most cases where
the
Court
has
struck
down laws
or
illegal
state
activity, section
1
allows
the
government
to
respond
by
enacting
new
legislation
to
advance
the
gov-
ernment's
former
objectives
and by
justifying
it to the
Court
as a
rea-
sonable limit
on the
right that
the
Court
has
recognized.
One of the
rea-
sons
why
concerns about judicial activism
are so
off
the
mark
is
that
the
available
evidence suggests that
the
strong legislatures produced
by the
Canadian parliamentary system have
the
upper hand
in
dialogue with
the
courts, even without pulling
out the big gun of
section
33.
Dialogues
about
Police
Powers
The
Supreme Court's
frequent
restrictions
on
police powers raise some
tough questions.
The
justices
on the
Court
are
somewhat remote
from
what
happens
on the
streets
and in the
squad cars. There
is a
danger
that their idealistic views about what
the
police should
do
will
be the
last
word.
The
Canadian Court
has
interpreted
the
right against unreason-
able
searches
and
seizures
in a
generous fashion that
has
gone
further
in
protecting
the
accused than
the
Warren
Court
did in the
United
States. Predictably, critics
of
judicial activism
on the
left
have expressed
fear
that
the
Court
will impede "the prosecution
of
business
crime,"
while
those
on the
right
are
concerned about
the
"significant
effect
on
law
enforcement
practices."5
Parliament's response
to
almost every
search
and
seizure case, however, demonstrates
that
it is
quite capable
of
ensuring that
the
police have ample powers
to
control crime.
For
good
reasons,
the
police take care
in
dealing with potentially
dangerous criminals.
As in the
movies, they sometimes wear
a
wire
or,
better still, have their informers wear one, when talking
to the bad
guys.
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