Dialogue in Practice: 2001-2016

• Author: Kent Roach
• Pages: 335-382

335

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

336

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

337

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