A view on the charter dialogue between the courts and legislatures

The fifth section examines the limits of the theory of institutional dialogue as conversation. Hirschl, supra note 2, at The Court's decision drew strongly worded dissents that argued that the majority had departed from the language of the Fifth Amendment 21 and from existing precedents, which only prevented the admission of an involuntary confession.

More generally, see Luc B. He seemed to think it was best for courts to anticipate what the legislature and the civil service would want.

My focus here will be on what John Willis identified as common law bills of rights that existed in Canada and Britain long before the enactment of formal bills of rights. Consequently, the normative character of institutional dialogue theory, as conceived thus far, is ultimately rhetorical.

They are usually commented on for a day or two in the media and then attention shifts to other issues. The reader will have noticed that I have catalogued the changes in the makeup of the Court since the Labour Trilogy.

Charter Dialogue between Courts and Legislatures

Opinion on these decisions appears to be hotly divided, largely along the lines of those who view the recent decisions as an inappropriate level of judicial activism involving the Court in socio-political judgments best left to lawmakers and those who believe that the Court was merely performing the task assigned to it.

This was completely new ground. This decision was rendered by a bench of nine justices, none of whom were part of the Court rendering the decisions in the Labour Trilogy. This phrase arose from the decision in Edwards v. The fundamental holding was that the right to freedom of association included the right to strike.

This was accompanied by editorial pieces, opinion columns and letters to the editor in newspapers and magazines throughout Canada. Rather, my claim is that the kind of dialogue that would be needed to confer legitimating force on the institution and practice of judicial review does not and cannot exist.

The Court identified three elements of freedom of association as being protected: It follows, then, that judicial review is democratically illegitimate in principle, and that the onus of showing it is legitimate necessarily rests on those who believe it desirable. Much judicial review, conducted under constitutional bills of rights, concerns claims that the accused has been treated unfairly.

Willis's insight about the common law presumptions, of course, did not mean that he was enthusiastic about the protection of rights or that he welcomed the procedures of constitutionalism.

See infra, section I. This observation, they said, called for judicial restraint. No credible argument can be made that changes in Canadian society occurring during the four year period between those cases justified further the reversal of field by the Court in SFL.

He proposed a constitutional amendment to reverse Miranda or to restrict the jurisdiction of appellate courts to consider Miranda claims.

Dialogue or compliance? Measuring legislatures’ policy responses to court rulings on rights

However, the risk of this approach to our constitutional values is clear. To that end, it situates the theory of institutional dialogue within the debate over the legitimacy of judicial review of legislation within democracy and introduces a distinction between two conceptions of dialogue—dialogue as deliberation and dialogue as conversation—and examines the limits of each theory.

There have been two main source-based strategies. While the courts may nullify legislation on the basis of their own formal or substantive understanding of constitutional principles and purposes, the legislatures may almost always reverse, modify, or avoid their decisions.

We encourage Congress and the States to continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws. The other, more recent, informing notion in Canadian constitutional law is the idea that Charter cases allow for a constructive dialogue between the legislative branch and the judiciary.

It ought not be forgotten that the historic decision to entrench the Charter in our Constitution was taken not by the courts but by the elected representatives of the people of Canada.

These strategies seem to require legislative supremacy even as they actually seek to legitimize judicial supremacy. A majority of five judges one of the judges signing the majority opinion in MPAO now shifting to support the dissenting justice from that case held that legislation to be unconstitutional.

This concept has been somewhat of a hallmark of Canadian jurisprudence, especially in the era of the Canadian Charter of Rights and Freedoms. Madison and Canadian Constitutionalism: Insofar as political legitimacy is a matter of democratic pedigree, it seems to follow that the legislatures, not the courts, should be morally entitled to make the final decisions with respect to constitutional interpretation and application—for the very reason that they best represent the people.

Consequently the countermajoritarian objection to judicial review cannot be sustained. This is not an attack on the integrity of the justices of the Supreme Court of Canada but, rather, a belated recognition that we appear to have asked too much of them in our expectation that they would be able to put aside their own views in the interest of the stability that comes with consistency in constitutional adjudication tied to developments in Canadian society.

While it may be arguable that there were significant societal changes in the approximately twenty year period between the Labour Trilogy and the Health Services case there is simply no commentary in Health Services about what those changes may have been, let alone any analysis of how they influenced the outcome in the Health Services case.


This version has been refined or endorsed by various scholars. While the theory of an institutional dialogue has been employed by the Supreme Court of Canada, 3 and the seminal article on the subject by Peter W.

However, it ought not to be too much to ask in an area like the elucidation of Charter rights reflecting the values of the nation.

The problem of legitimacy and the institutional dialogue theory The problem of legitimacy raised by the institution of judicial review is well known. This idea is expressed in the notion of popular sovereignty and requires that a democracy be continuous.Hogg and Bushell’s dialogue is characterized as the debate between Charter rulings by courts and democratic governance decisions by legislatures.

This dialogue promotes the view that courts should. Introduction. Although much has been written about judicial review under the Canadian Charter of Rights and Freedoms as a dialogue between courts and legislatures, much less has been written about judge-made common law as an earlier and still relevant form of dialogue.

The Dialogue Hogg and Bushell’s dialogue is characterized as the debate between Charter rulings by courts and democratic governance decisions by legislatures. This dialogue promotes the view that courts should legitimately undertake judicial review on Charter grounds, even rendering certain laws unconstitutional.

the view that the charter has created a dialogue between courts and legislatures rule of law the principle that individuals should be subject only to known, predictable and impartial rules, rather than to the arbitrary orders of those in governing positions.

The Charter Dialogue between Courts and Legislatures (Or Perhaps the Charter of Rights Isn't Such a Bad Thing after All) Abstract This article responds to the argument that judicial review of legislation under the Canadian Charter of Rights.

Hogg, P, Bushell, A () The Charter dialogue between courts and legislatures: (or Perhaps the Charter Of Rights isn’t such a bad thing after all).

Osgoode Hall Law Journal 35(1): 5 – Google Scholar: Hogg, PW, Bushell Thornton, AA, Wright, WK (a) Charter dialogue revisited – or ‘Much Ado About Metaphors’.

A view on the charter dialogue between the courts and legislatures
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