Dialogue in Practice: 2001-2016

AuthorKent Roach
chapter sixteen
Dialogue in Practice: 2001–2016
Despite occupying quite different ends of the political spectrum,
former Alberta Conservative Minister Ted Morton and former British
Columbia NDP Minister Andrew Petter agree that dialogue between the
courts and legislatures under the Char ter is the opposite of what it claims
to be: it is a monologue based on judicial supremacy.1 The late American
judge, Robert Bork, in his 2002 Frum Lecture, reached similar conclu-
sions. He acknowledged that the common law has been the arena of
judicial innovation, subject to the superior power of the legislature to re-
vise the results” but concluded even with the Canadian notwithstanding
claus e,” Charter decisions were almost immune to legislative revision.”2
This chapter will examine whether dialogue f‌its the practice of ju-
dicial review under the Char ter. The next chapter will address norma-
tive questions about whether dialogue is good for the law and politics.
The fact that I will discuss dialogue in this chapter as primarily a de-
scriptive matter and in the next chapter at a more normative level is
not a sign that dialogue is a “conceptua l chaos”3 as some have argued.
Rather, such an approach roots dialogue in the actual practice of judi-
cial review while examining its normative implications.4
The Wrong Turn of Quantitative Studies
starting with the seminal article by Peter Hogg and Allison Bushell,
much of the empirical or descriptive debate about the existence of dia-
part three: beyond judicial activism
logue has been conducted in quantitative terms. Professor Hogg has
claimed that the existence of legislative replies in two-thirds of the
cases he studied established the existence of dialogue.5 Christopher
Manfredi and James Kelly replied that the rate of “genuine dialogue
was closer to a third, and Emmett Macfarlane concluded in 2011 that it
was below 20 percent.6 The latter conclusions were, however, premised
on controversial assumptions that the only true form of dialogue was
when the legislature interpreted the Chart er differently than t he Court.
In other words, they assumed that legislative departures from judicial
interpretations of rights, a practice that I critically examine in both
chapters 14 and 17, were always legitimate and desirable. Agreement
was not genuine dialogue.
Quantitative studies of dialogue used simplistic and often binary
categories based on the idea that legislatures would either comply or
reject judicial decisions under the Chart er. For Professor Hogg and his
co-authors, any legislative reply was classif‌ied as dialogue. For others,
legislative replies were classif‌ied as either “compliance” that simply
followed the court decision, or “true dialog ue,” in which Parliament
interprets the Char ter. Such approaches can miss dialogic features of
legislative replies. For example, Professor Macfarlane classif‌ies Que-
bec’s legislative reply to the controversial Chaoulli7 med icare decision
as compliance presumably because Quebec followed the Court in al-
lowing people to try to purchase private health insurance. Neverthe-
less, such a classif‌ication misses that Quebec expanded the debate by
improving its mechanisms for managing wait times, thus dampening
the demand for private insurance. Similarly, he classif‌ies the exten-
sion of parental leave benef‌its in Schachter8 as compliance, even though
Parliament lowered the benef‌its it extended.9 The richest form of dia-
logue often involves the legislature using its institutional advantage
over courts by expanding the policy debate. This form of dialogue is
best captured by contextual and qualitative analysis.
The quantitative debate led Grant Huscroft to assert that “dialogue
theory makes no attempt to assess things qualitatively” before conclud-
ing that it “really has little to offer the study of judicial review. Its main
function is to rationalize judicial supremacy over the interpretation of
the Char ter, and it does so by exaggerating the power of the democratic
branch of government to respond to judicial supremacy.”10 This i gnored
my own explanation in the f‌irst edition of this book that the issue of
whether courts are usurping democracy . . . are far too value laden to
dialogue in practice: 2001–2016
be resolved by a battle over numbers,11 and both Professor Hogg’s and
my narrative discussion of numerous examples of dialogue. Simplis-
tic binary categories of compliance or rejection are not well-suited to
understanding the complex relationship between courts and legisla-
tures. It has resulted in claims that dialogue is a fraudulent monologue
that are not based on the actual evidence.
The Need for a Contextual and Qualitative Approach
my qualitative approach to understanding d ialogue requires attention
to multiple variables that enter into both judicial decisions and govern-
mental responses to t hose decisions. Propor tionality-based reasoni ng,
whether conducted under sections 1 or 7 of the Charter, facilitates d ia-
logue by basing judicial decisions on acceptance of most of the govern-
ment’s objectives, but then requiring the court to determine whether
the government could have achieved these objectives just as well while
violating rights less. Such decisions allow the legislatures to respond by
clarifying, ref‌ining, or changing their objectives and by demonstrating
why certain means are necessary to achieve their legitimate objectives.
Judicial decisions that make pronouncements well beyond the facts
of the case may leave less room for legislative replies than more min-
imalist decisions more closely tied to the facts of the particular case.12
Other factors relevant to dialogue include the remedy employed by the
court. Suspended declarations of invalidity encourage dialogue by giv-
ing legislatures an opportunity to enact a new constitut ional law before
the old one is declared in whole or in part of no force and effect.13 In
contrast, interpretative remedies that read down a law to make it con-
sistent with the Char ter leave mu ch less room for conti nued interaction
between the court and the legislature.
Politics also inf‌luences dialogue. Canada has a parliamentary sys-
tem characterized by tight par ty discipline, an unelected Senate that
does not generally exercise much power, and a f‌irst-past-the-post elec-
toral system that often produces majority governments. A change in
any of these judicial or political factors may alter the dialogic balance
between courts and legislatures.
Critics worry that a judicial decision will create a new political
status quo” that will remain in place.14 Responding to a Chart er deci-
sion may not be a priority for the government, especially if the reply will

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