Charter Dialogue between Courts and Legislatures
Peter Hogg and Allison Bushell (reference below, p. 721) analyze the results of two decades of “charter dialogue” in Canada – the Charter-based judicial reviews and the subsequent responses by federal and provincial legislatures.
They write (page 79-80):
“Where a judicial decision is open to legislative reversal, modification, or avoidance, then it is meaningful to regard the relationship between the Court and the competent legislative body as a dialogue. In that case, the judicial decision causes a public debate in which Charter values play a more prominent role than they would if there had been no judicial decision. The legislative body is in a position to devise a response that is properly respectful of the Charter values that have been identified by the Court, but which accomplishes the social or economic objectives that the judicial decision has impeded.
“… Where a judicial decision striking down a law on Charter grounds can be reversed, modified, or avoided by a new law, any concern about the legitimacy of judicial review is greatly diminished. To be sure, the Court may have forced a topic onto the legislative agenda that the legislative body would have preferred not to have to deal with. And, of course, the precise terms of any new law would have been powerfully influenced by the Court’s decision. The legislative body would have been forced to give greater weight to the Charter values identified by the Court in devising the means of carrying out the objectives, or the legislative body might have been forced to modify its objectives to some extent to accommodate the Court’s concerns. These are constraints on the democratic process, no doubt, but the final decision is the democratic one.”
After reviewing 65 cases, they write:
“Our conclusion is that the critique of the Charter based on democratic legitimacy cannot be sustained. To be sure, the Supreme Court of Canada is a non-elected, unaccountable body of middle-aged lawyers. To be sure, it does from time to time strike down statutes enacted by the elected, accountable, representative legislative bodies. But, the decisions of the Court almost always leave room for a legislative response, and they usually get a legislative response. In the end, if the democratic will is there, the legislative objective will still be able to be accomplished, albeit with some new safeguards to protect individual rights and liberty. Judicial review is not “a veto over the politics of the nation,” but rather the beginning of a dialogue as to how best to reconcile the individualistic values of the Charter with the accomplishment of social and economic policies for the benefit of the community as a whole.”
Atlas topic, subject, and course
Peter Hogg and Allison Bushell (1997), 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):75-124, at http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1612&context=ohlj, accessed 7 November 2016.
Page created by: Ian Clark, last modified on 7 November 2016.