Dialogue Theory and the Canadian Alternative to Judicial Supremacy

Anxieties over judicial review under a constitutional bill of rights were an important element of the debates preceding adoption of the , because of the new element it introduced into Canada’s pre-existing system of constitutional supremacy, hitherto confined to the federal division of powers. The experience of the United States- especially the constitutional crisis over the New Deal, and the liberal legal agenda championed by the Warren Court-loomed large, especially to Canadian legal elites who increasingly receive their graduate training in the United States.The federal government’s proposals were clearly alert to the risks that judicial review under the Charterposed, no more so than with section 7. That provision was drafted to prevent the libertarian legacy of the era from coming to Canada, by excluding “property” and substituting it with “security of the person”, with the goal of orienting the provision around corporeal interests and protecting the redistributive, regulatory state from constitutional challenge. It was also designed to preclude the activist legacy of Lochner, rooted in the doctrine of substantive due process, by requiring that the deprivation of protected interests accord with “the principles of fundamental justice”, not “due process”, ironically in order to limit the scope of the provision to procedural fairness.

But the biggest constitutional concession to the fears of the growth in judicial power under the Charter was the inclusion of the legislative override or notwithstanding clause, section 33. That provision allows the federal Parliament and provincial legislatures to enact laws that would otherwise be unconstitutional because they unjustifiably limit certain Charter rights-the fundamental freedoms, legal rights, and equality rights-but not the democratic rights, mobility rights, or language rights. An exercise of the override expires at the end of five years. The override is a distinctive, made-in Canada constitutional innovation, and is at the heart of the global interest in the Charter, because it combines a form of judicial review of legislation with the retention of ultimate legislative supremacy. Mark Tushnet has helpfully termed the Canadian model of rights- based judicial review “weak-form”, to contrast it with “strong-form” judicial review built around judicial supremacy, whether wielded by a generalist apex court (as in the United States) or a specialist, Kelsenian constitutional court (as in Germany and most countries).It offers a “third way” in between legislative supremacy and judicial supremacy that broadens the scope for constitutional choice, and in particular, another option for countries with legislative supremacy that wish to adopt judicial review but which have misgivings about it.

However, because the override was added to the Charter during the final, closed-door round of negotiations in November 1981, there is little in the way of a contemporaneous legislative record that sets out the justification of constitutional actors for its adoption- unlike for section 7, for example. What is indisputable is that the override was a political

compromise that enabled nine provinces (not Quebec) and the federal government to come to agreement over the 1982 constitutional package, which included the Charter, the Aboriginal rights provisions of the Constitution, and domestic procedures for constitutional amendment. In the years since its enactment, two main theoretical justifications for the override have emerged, which I term the negative and positive justifications. The negative justification is that the override provides a constitutional safety-valve in the event of prolonged conflict between the courts, on the one hand, and executives and legislatures, on the other.In the absence of an override, the political branches would eventually prevail over the courts, through abusing the power of judicial appointment (court-packing) and/or publicly attacking the court (court-bashing), which could severely damage and perhaps destroy the institution of judicial review itself. The

override is an institutional mechanism for channelling this disagreement into a transparent, public process governed by the rule of law through a self-terminating legislative enactment that must be express in its intention to set aside the Charter. It thereby preserves the institution of judicial review while allowing the political branches to ultimately prevail. The override, on this view, is a constitutional conflict avoidance mechanism designed to provide a means to avert a crisis such as the one that occurred in the United States on the constitutionality of the New Deal.

The negative justification of the override suggests this mechanism’s principal target is the behaviour of political institutions; it is noticeably silent on the impact that the override could have on how courts conceptualize and execute judicial review under the Charter. By contrast, the positive justification for the override offers such an account. The most fully-worked out theory has been offered by Stephen Gardbaum, initially in an article published in 2001.Gardbaum argued that the override lies at the heart of a constitutional model of rights-protection whereby judges and legislatures perform distinct functions or roles. Judges should interpret bills of rights without fear of the consequences of judicial over-enforcement, because judges are not supreme. The reasons for deference that arguably follow from judicial supremacy no longer exist. Judges can interpret rights broadly, and apply every stage of the proportionality analysis in a stringent manner to impose a very high burden of justification. Should a court hold that legislation contravenes rights in a manner that cannot be justified, the legislature could disagree and respond to the court by re-enacting its previous legislation.

What judicial review coupled with an override adds to a system of pure legislative supremacy is a mechanism to correct several well-known defects in the legislative process: the failure to anticipate the consequences of general legislation which sets out abstract standards when applied to individual cases, especially in circumstances where the legislature lacks representation by the socially disadvantaged or marginalized who would have been alert to the disproportionate impact of legislation on their rights (e.g., women, the poor); the discounting of the rights of those who completely lack the political power to protect themselves in the political process (e.g., non-citizens, children); the prejudice or indifference toward the rights of discrete and insular minorities who may

wield the right to vote and who-in Jeremy Waldron’s helpful formulation-are not just topical, but decisional minorities because they are persistently on the losing side of legislative votes and rights-violating political decisions; the making of decisions under panic in response to concerns about national security, and so on.

One or more of these pathologies serve as a basis for most contemporary justifications of strong-form judicial review, which presuppose that courts are less likely than legislatures to fall prey to them. However, strong-form review is subject to two well-known democratic objections: that it debilitates democracy by dulling the habits of self-government

through the removal from the political agenda of the most controversial and important questions of political morality, and that it distorts policy choices because political institutions must work within the constitutional framework laid down by the court, either ex post (if a law is struck down), or ex ante (in anticipation of a finding of unconstitutionality). At its heart, weak-form review aspires to capture some of the upsides of judicial review while lowering the risk of the downsides. The principal role of a court under weak-form review is to serve as an institutionalized forum for highlighting rights- based issues to lower the risk they will be ignored in subsequent legislative debates.

The task of legislatures in responding to court judgments under weak-form review is not simply to recapitulate the exercise engaged in by the reviewing court-that is, not to re- run the legislative process but to give concerns about rights priority over all other competing considerations. Rather, the role of legislatures is to make an all-things considered judgment in which rights-related considerations occupy an important and perhaps even a central place, but are by no means the only relevant or most important factor on the table. If the legislature sets aside the court’s judgment, and either proceeds with its initial course of action or modifies it to adopt measures that impair the right to a lesser extent but which are not necessarily the least rights-infringing measures, this disagreement does not mean that the legislature has made a legal error in interpreting and applying the bill of rights. Rather, it reflects the legislature’s judgment that a broader range of considerations can outweigh the rights-related reasons advanced by the court that may be entirely correct on their own terms. The value of judicial review is that it forces the legislature to reconsider the legislation in light of the views of a body expert in questions of rights-protection, as expressed through a thoughtful, detailed judgment, to respond to those views, and to be held politically accountable for any decisions to disagree. Judicial review with an override neither debilitates democracy nor distorts policy choice. On the contrary, it enhances both.

It is the positive case for the override that has captured comparative attention. Canadian scholars have been central participants in this global conversation, although their preoccupations have been domestic, and have arisen out of local concerns over judicial activism. Canadian debates about judicial activism have in fact come in waves. The first critics of the Charter came principally from the Left, and focused on the concern that notwithstanding the exclusion of rights of contract and property from the Charter, the courts would erect constitutional obstacles to the interventionist, regulatory state.Oddly, the override was absent from these debates, despite its origins precisely as a

Instead, Canada’s constitutional Left trained its fire at the Court’s broad interpretation of rights, and the demanding version of the proportionality test it adopted in Oakes. The Supreme Court responded to these criticisms not, as it could have, by insisting on the use of the override, and maintaining its stringent approach to justification under section 1.

Rather, it crafted a series of doctrines of deference that made it far easier for governments to meet the burden of justification under section 1.

The mantra of judicial activism in Canada was then taken up by the Right, who charged that under the cloak of judicial review, the Supreme Court was foisting a left, progressive political agenda upon the Canadian public, especially on questions of same sex rights, gender, and criminal justice. The most prominent right-wing academic critics were Ted Morton and Rainer Knopff, whose views gained great currency in the Reform Party, a right-wing political party (which later merged with the Progressive Conservative Party to form the Conservative Party of Canada, which for nearly a decade governed Canada led by Stephen Harper).The central response to this critique from Canadian legal scholars is “dialogue theory”, which captures distinct yet related institutional and interpretative claims. The institutional claim is that the Supreme Court does not in fact have the “last word”, because its judgments finding laws unconstitutional are in many cases followed by legislative “replies” that largely achieve the same objectives, albeit by different means.

However, one of the notable features of Canadian constitutional practice is that these legislative replies are enacted without the use of the override. Rather, as Peter Hogg and Alison Bushell-the academic originators of dialogue theory-explained, the principal mechanism of “dialogue” is section 1, whereby legislation is usually struck down because it fails to use the least restrictive means, as opposed to pursuing an illegitimate goal.The ability to pursue the same goal through modified means signifies that to characterize the balance of judicial and legislative power under the Charter as judicial supremacy tout court is an over-simplification. Thus, the response to the right-wing critics of the Charter was to mobilize empirics to throw into question the inference of judicial dominationof the political branches from the institution of judicial supremacy. The Hogg and Bushell article was highly influential, not only as a piece of scholarship, but as a domestic political intervention that reconfigured debates in Canada over the Supreme Court. Dialogue quickly emerged as the dominant metaphor in scholarly, legal professional and political discourses for conceptualizing judicial review in Canada and to contrast it with judicial supremacy, especially in the United States. Notably absent from Hogg and Bushell’s analysis is the override, which for them played only a minor role in dialogue. This was likely due to the fact that the override has been sparingly used in Canada- approximately a dozen times-arguably because it was delegitimized through its use by Quebec in the late 1980s to protect legislation mandating French commercial signage after the Supreme Court’s decision in Ford.Nonetheless, dialogue in a different form has emerged, through section 1.

Kent Roach extended the institutional claims of dialogue theory considerably in a manner that linked up Canada to transnational discussions of the Commonwealth constitutional model.Institutionally, Roach analogized between judicial review under the Charter and statutory interpretation against the backdrop of common law rights, which could be overridden through express statutory language. These so-called clear statement rules anticipate weak-form judicial review, as legislatures must expressly override rights that apply presumptively; however, the absence of a proportionality analysis applicable to such statutory derogations of common law rights makes the analogy imperfect.

Nonetheless, as a rhetorical matter, Roach’s linkage of the Charter and its common law antecedents had the effect of tying Canada to debates over the establishment of rights- based review of legislation in the United Kingdom and New Zealand, which he also saw as growing out of the common law tradition of rights-protection. For Roach, what these systems shared is that, like the common law, legislative supremacy was retained. To be sure, there are important differences among these systems; the New Zealand Bill of Rights Act only creates an interpretative obligation for legislation that can be overridden by clear legislation, and therefore represents the least of a break from the common law; the United Kingdom Human Rights Act incorporates the European Convention of Human Rights into domestic law, and grants courts both an interpretative power and the authority to issue declarations of incompatibility for legislation but not invalidity; the Charter alone among these three instruments grants courts the power to strike down legislation for unconstitutionality, along with interpretive authority. But there is a clear domestic politics to Roach’s argumentative move. On his account, the Charter is not a constitutional revolution; rather, it is an incremental development from Canada’s common law constitutional past, which combined judicial rights-protection with legislative supremacy-as does the Charter. Moreover, by grouping the Charter with systems of weak-form review in other advanced industrial democracies within the Commonwealth with which Canada shares a common law tradition and fidelity to Parliamentary democracy, and which provide for a lesser degree of judicial power and a greater degree of legislative supremacy than does the Charter, Roach further sought to deflect domestic political criticism.

What does dialogue theory say about the interpretative question of how the different branches of government should conceptualize their relationship to, and functions under, a constitutional regime of rights protection, such as that established by the Charter? This first question arose with respect to the courts, in the narrow context of Charter challenges to legislative replies that do not strictly conform to the court’s prior judgment. Under a system of strong-form review, such legislation should be unconstitutional. Courts could approach this kind of situation in precisely the same way under the Charter, compelling the use of the override, even if the deviation from the prior judgment is minor, thereby forcing a public debate and democratic accountability for this legislative decision. Judicial practice under the Charter, however, has been inconsistent. The Supreme Court has asserted the supremacy of its interpretations of the Charter in Sauvé (2), whereas seemingly allowing Parliament to overrule it without recourse to the override in Mills, Hall, and JTI MacDonald.Arguably, Mills can be explained on the basis

that the reply legislation overruled a prior common law ruling of the Court, O’Connor, and that the Court merely showed deference to a statute which itself had not sought to re-enact a legislative provision previously struck down. The rationale for Hall and JTI MacDonald could possibly be that Parliament adduced new social science evidence to justify the reply legislation at issue in both cases, shifting the minimal impairment analysis under section 1 to uphold measures it had previously struck down because of a lack of an evidentiary foundation. Neither rationale would distinguish the Charter from strong-form judicial review. But the Court-and Canadian legal scholars who advocate dialogue theory-have thus far failed to offer a coherent account of these cases, which should be rooted in an underlying account of how courts should orient themselves to reply legislation.

Political scientists, notably Janet Hiebert, have taken up this task, by arguing that dialogue theory should be extended to embrace coordinate construction by Parliament with respect to the interpretation and application of rights.She later broadened this research agenda comparatively, initially to the United Kingdomand more recently, in collaboration with James Kelly, to New Zealand.This comparative turn served as the basis for the original and more radical claim that bills of rights in Westminster-style parliamentary democracies (including Canada) disperse responsibility for rights protection beyond courts to the Executive and to the legislature. As a consequence, instead of taking place only during the process of judicial review, rights review takes place at three different stages: (1) pre-enactment political rights review of primary legislation by the Executive and the legislature, (2) judicial rights review, and (3) legislative reconsideration of court judgments which have held primary legislation to be inconsistent with the bill of rights. These claims about interpretative authority have important institutional implications. In addition to recasting the relationship between courts, on the one hand, and executives and legislatures, on the other, they also reconfigure the relationship between the legislature and the Executive-or more precisely, the government backbench and Cabinet. Clothing the legislature with the responsibility to engage in rights-review has the goal of empowering the government backbench relative to the Cabinet, in alliance with opposition MPs, by providing it with a legal tool to challenge party discipline in limited yet important circumstances involving rights-infringing legislation. Gardbaum’s most recent work has taken on board these claims.

This most recent turn in dialogue theory-encompassing in Canada, the United Kingdom, and New Zealand-is a significant departure from its initial formulation, which conceptualized courts and legislatures as performing distinct functions within a system of rights-protection. It squarely raises the empirical question of how political institutions actually reason with rights. In dialogue theory’s first iteration, pre-enactment review takes the form of legal risk management in the shadow of constitutional doctrine, whereas post-judgment legislative replies are rooted in all-things-considered judgments where rights are one consideration among others. In its second iteration, dialogue theory posits that political institutions have the opportunity and perhaps even the responsibility to offer their independent good faith interpretations and applications of bills of rights,

which at times may be at odds with those of the courts, at both the pre-enactment and post-judgment legislative stages. However, the facts do not fit the theory. Kelly has shown that prior to the introduction of legislation, internal analysis by federal and provincial government legal advisors in Canada is largely confined to risk analysis.Hiebert and Kelly have recently extended this observation to the United Kingdom and New Zealand.

Moreover, they also show that the anticipated impact on backbench behaviour has not materialized either in Canada, the United Kingdom, or New Zealand. This is true even in the United Kingdom, where the Joint Committee on Human Rights of the UK Parliament has special responsibility to scrutinize legislation for compliance with the Human Rights Act, making the United Kingdom the most highly developed and transparent system of pre-enactment political rights review in the Commonwealth. However, the Committee’s reports consist largely of highly sophisticated legal analysis of European Court of Human Rights and United Kingdom Supreme Court jurisprudence, as opposed to counter- interpretations of the Human Rights Act. Although there have been important exceptions, the Committee has rarely frontally challenged the government and forced it to change course. In New Zealand, electoral reform (shifting from first past the post to mixed member proportional) has enhanced the power of political parties relative to MPs, dampening the potential for legislative accountability for rights-protection even further.

The empirics do not match the normative ambitions of the most recent version of dialogue theory. Why is this the case? Hiebert and Kelly argue that two of the core features common to Westminster democracies-cabinet dominance of the legislature in situations of majority government, and strongly disciplined political parties which do not provide much scope for legislators to stray from party positions-are so deeply rooted that the dispersal of authority for rights protection, even with creative institutional design,

cannot overcome them. By situating Canada comparatively, their analysis gains considerable power by highlighting explanatory factors shared with New Zealand and the United Kingdom. The next move in this global scholarly conversation should be to bring it full circle back to its origins in Canada, as a further spur to comparative reflection. If the original version of dialogue theory is the more realistic one, it is important to ensure that judicial decisions holding that legislation contravenes bills of rights do in fact receive a legislative response. A large factor is which institution bears the burden of legislative inertia. In cases where courts possess the power to issue a declaration of invalidity (Canada), or to interpret legislation to be compatible with rights (Canada, New Zealand, and the United Kingdom), a judicial ruling stands absent a legislative response. The legislation is thrust back onto the legislative agenda, and the legislature must affirmatively act if it is to have the final say, which increases the likelihood that there will be a political debate on how to respond to the court’s judgment. Of these two, a declaration of invalidity is more transparent and hence the best tool for cuing political debate and accountability. In the United Kingdom, the practice of legislative replies to declarations of invalidity is almost entirely a function of the contingent fact that cases under the Human Rights Act may ultimately come before the European Court of Human Rights, which has the power to issue legally binding judgments to which the United

Kingdom Parliament must respond. As a matter of institutional design, the Canadian version of weak-form review has comparative advantages over its counterparts in New Zealand and the United Kingdom.

However, the development of a rich jurisprudence of doctrines of deference under section 1 has had the effect of diminishing the need to deploy the override, and undermined the potential of the uniquely innovative aspect of Canada’s constitutional design. Those doctrines are far more developed in Canada than in the United Kingdom or New Zealand. What is striking is that these doctrines-which have generated an immense jurisprudence that cuts across particular rights under the Charter, and has been a flashpoint of conflict on the Supreme Court-read as if the Charter created a system of judicial supremacy, and that it therefore falls to the Court to calibrate the intensity of judicial review. The override is entirely absent from the Court’s conceptualization and doctrinal operationalization of the idea of deference. What needs to occur is the integration of institutional and interpretive analysis. In its purest form, dialogue theory posits that courts should not defer under section 1, because of the possibility of the override. An alternative would be to differentiate among different kinds of Charter violations, requiring only some to trigger the use of the override. I defer the full elaboration of this argument for another day.