Dialogue between Courts and Legislatures

AuthorKent Roach
Pages197-230
197
chapter ten
Dialogue between Courts and
Legislatures
Every time a government loses a Chart er 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 legis-
lature, has the f‌inal word. The same pattern can be seen in t he United
States, where the only response to many controversial decisions under
the Bill of Rights has been a frustrated attempt to change either t he con-
stitution or the Court. These ty pes of responses are even more diff‌icult
to achieve in Canada, given the seeming impossibility of amending the
constitution 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 bet ween the Court and the
legislatures is elitist and undemocratic, while those on the right con-
tend that the dialogue is usually a monologue as the Court orders the
government a round.1 This is t he 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 represent-
atives in Parliament will be replaced with rule by unelected judges.
part two: the extent of judicial activism
198
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 C hart er. T he 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 structu re of the Charter means that its decision need not be the
f‌inal word in democratic debates about how society will t reat 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 overarching laws under s. 33 of the Chart er). This dialogue
between and accountability of each of the branches have the effect of
enhancing the democratic process, not denying it.”3 The Court has also
suggested that if its decisions “were to be taken as establishing the only
possible constitutional regime, then we could not speak of a dialogue
with the legislature. Such a situation could only undermine rather than
enhance democracy.”
4 The Court itself accepts that democracy would
be undermined in Canada by the ty pe 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 Ch ar te r.
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 Char ter. Section 33 is an important safeguard the
equivalent of shouting to win an argument but section 1 is the
vehicle for the normal conversations and interchanges that regularly
occur between courts a nd legislatures in Canada. In most cases where
the Court has struc k down laws or illegal state activity, section 1 allows
the government to respond by enacting new legislation to advance the
government’s former objectives and by justifying it to the Court as a
reasonable limit on the right that the Court has recognized. One of
the reasons why concerns about judicial activism are so off the mark
is that the available evidence suggests that the strong legislatures pro-
duced by the Canadian parliamentary system have the upper hand
in dialogue with the courts, even without pulling out the big gun of
section 33.
dialogue between courts and legislatures
199
Dialogues about Police Powers
the supreme cour t’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 dan-
ger that their idealistic views about what the police should do will be
the last word. The Canadian Court has interpreted the r ight against un-
reasonable 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 wil l 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. In the 1970s Parliament provided a complex warrant procedure
for electronic surveillance, but exempted the police from getting a war-
rant so long as one party to the conversation, such as the undercover of-
f‌icer or the informer, consented. Even the Warren Court in the United
States had agreed to such a procedure on the basis that criminals had to
accept the risk that people they spoke with could betray them. Accused
were no worse off if a recording, as opposed to the undercover opera-
tive’s testimony, was used against them. In 1990 the Supreme Court
of Canada disagreed and struck down t he statutory exemption that al-
lowed people to wear wires without warrants. Justice La Forest, usually
a deferential judge when the state had reasons for acting, but one who
was passionate about privacy, warned that “a society which exposed us,
at the whim of the state, to the risk of having a permanent electronic
recording made of our words every time we opened our mouths might
be superbly equipped to f‌ight crime, but would be one in which privacy
no longer had any meaning.” He reasoned that Parliament had struck
the appropriate balance between the state’s interest in crime control
and the individual’s interest in privacy when it required the state to
obtain a warrant, on the basis that there were reasonable and probable
grounds to believe an offence had been or was being committed, the

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