Dialogue in Theory: A Response to Critics

• Author: Kent Roach
• Pages: 383-428

383

chapter seventeen

Dialogue in Theory: A Response

to Critics

If the dialogue debate has been plagued by disputes with respect to

the description and the degree of interaction between courts and gov-

ernment, there has been even more heated disagreement with respect

to its theoretical implications. Fundamental concerns have been raised

about whether the metaphor of dialogue is consistent with the judicial

function, and whether dialogue itself can justif y judicial review.

Some have argued that the dialogue metaphor undercuts judicial

review by failing to capture the fact that judges make enforceable deci-

sions and do not simply engage in casual conversations.1 Others argue

the converse — namely, that dialogue disingenuously disguises that

judges make enforceable orders.2 As will be seen, this is a recurring

pattern in the dialogue debate. Dialogue is a middle ground position,

and sometimes when you occupy the middle ground, you get shot at by

both sides. This seems especially tr ue in a polarized academic debate

that too often has simply pitted Charte r lovers against Char ter haters.3

The metaphor of dialogue may not easily capture the authoritative

nature of judicial decision making. Nevertheless, it does capture some

important elements of judicial review under the Charter, especially the

idea that governments can justify reasonable and proportionate limits on

rights to courts. One thread that seems to unite many crit ics of dialogue

is their disregard or skepticism about the central role of proportional-

ity analysis in most Char ter lit igation. I wil l suggest that proportionalit y

analysis is inherently dialogic or interactional in nature — it allows legis-

latures to articulate their regu latory ambitions and explain the practical

part three: beyond judicial activism

384

problems they face in achieving them, and it allows courts to focus on

the perhaps unintended adverse effects of laws in exceptional cases.

The concept of dialogue has roots in a legal process tradition of schol-

arship that recognizes that both courts and legislatures have different

strengths and different weaknesses (or “blind spots”

4) and that they

interact with and can learn from each other.

Another objection is that dialogue between courts and legislatures

does not justify judicial review. This critique sounds worse than it is.

In chapters 12 and 13, I drew on the work of a number of conventional

theories to justify the judicial role in dialogue. Andrew Petter has con-

fused my conclusion that no theories of judicial review produce reliably

right answers as a concession that they all are rubbish.5 The reasonable

disagreement between theories of judicial review and their indetermi-

nacy may fail to justify judicial supremacy, but this is not the same

as saying that the independent judiciary has no business in making

decisions about rights, provided that those decisions are subject to lim-

itation, override, or implementation through ordinary legislation.

Another related critique of dialogue, frequently made by political

scientists, is that dialogue is too “judicial-centric” — too dominated by

court decisions and lawyers.6 In some ways, this is the mirror opposite

to the criticism that dialogic judicial review is too casual, and as such,

threatens rule of law values. Dialogue proponents f‌ind themselves in

the unenviable position of being criticized by both defenders and skep-

tics of judicial review. This again suggests that dialogue is a middle

ground position.

A number of Canadian critics of dialogue have been inspired by the

inf‌luential work of Jeremy Waldron, a New Zealand-born theorist who

has defended the virtues of allowing legislatures, rather than courts, in

mature democracies to resolve what he sees as reasonable disagreements

about rights. Professor Waldron himself comes close to conceding that

judicial review might be justif‌ied if laws persistently violated the rights

of minorities. He, however, pulls back from this conclusion because of

his fears that judicial protection of minorities will be a “Trojan hors e” for

more expansive forms of judicial review.7 In my view, Waldron does not

pay enough attention to the danger that some unpopular groups — the

accused, offenders, and migrants — may consistently come out on the

short end of the legislative stick. He seems unconcerned that elected

politicians, especially in fearfu l and populist times, will have an incen-

tive to minimize or even reject rights claims by t he truly unpopular.

dialogue in theory: a response to critics

385

A surprisingly large number of Canadian commentators are also

attracted to “co-ordinate construction” (or sometimes called “depart-

mentalism” in the United States). This is the idea that the legislature

and the executive should each be able to interpret the Constitution and

act on its interpretation even when that interpretation differs from the

Court’s. As discussed in chapter 2, the most noble use of this idea was

Abraham Lincoln’s argument that he was not bound by the pro-slavery

Dred Scott decision.8 Less noble uses would include Andrew Jackson’s

def‌iance of Court decisions supportive of Indigenous rights, and as-

sertions of presidential prerogatives, such as President Bush’s dubious

claim that Guantanamo was a habeas corpus–free zone or President

Obama’s claim that executive review of targeted killing satisf‌ied due

process. Enthusiasm for this practice has led many Canadian commen-

tators to maintain that genuine dialogue only occurs when Parliament

essentially rejects Char ter decisions and acts on a different interpreta-

tion of the Charter. Not surprisingly, those who take this approach f‌ind

little evidence of dialogue in Canada.9

As suggested in chapter 11, I do not discount the idea that Parliament

can reject the Supreme Court’s interpretation of the Charter, especially

if the Court makes a gr ievous mistake such as Dred Sco tt. Nevertheless,

the dangers that legislative rejections of Chart er decisions present to

rights and minorities mean that legislatures should be required to use

the special signals and safegu ards of section 33 of the Charter. This still

leaves plenty of room for dialogue under section 1 and with respect to

remedies, including the government’s ability to widen the policy debate

beyond the parameters of specif‌ic court rulin gs. It also accepts that gov-

ernments still need to interpret the Ch arter when ex ante assessing the

legalit y of their conduct,10 t hough the available evidence suggests that

they employ a very low standard in that regard.11 It also accepts that cit-

izens have a right to demand much more from their governments than

compliance with the minimum standards of the Char ter.12

The fact that some Canadian commentators accept dialogue but

want one based on co-ordinate construction that allows legislatures

to interpret rights differently than the courts raises the question of

whether the fractious Canadian debate about dialogue is only an ex-

pression of the academic narcissism of small differences. The dialogue

debate might be such a minor skirmish if all the participants were

united in their rejections of both legislative and judicial supremacy and

were attempting to understand and improve the range of intermediate