Dialogue in Theory: A Response to Critics

AuthorKent Roach
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
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
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

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