Benefits of Dialogue Theory in Court and Legislature

Is the Dialogue Theory beneficial in the relations of the Court and Legislature?

The Post-Charter Canada has given the Courts “teeth” in the realm of the political atmosphere and started a dialogue with the government in regards to legislation. Due to the array of issues the Charter has dealt with, and how the courts interpret the writer’s intent; the Supreme Court of Canada’s involvement in public political matters has increased, empowering and having expectations of the courts to pass judgment on their merit and take on more of an activist responsibility in a position that traditionally was expected to be an unbiased enforcement of the written law. Upon reflection, it holds truth that the Dialogue Theory is an accurate measure of exchange between the courts and the legislature, especially under section 1 and section 7.

The Dialogue Theory is an abstract concept of reasoned dialogue between the courts and legislature on the application, interpretation of, and creation of laws. The Dialogue Theory is often seen as the Supreme Court of Canada interpreting, and the government following. However, as Peter Hogg and Allison Bushell outline in their article on Charter Dialogue, the reasoning can be justified as judicial decisions are open to legislative reversal, modification, or avoidance (Hogg, and Bushell, 1997, p. 79). As the Charter values are interpreted by judges, but were made in the interest of the public represented by the legislature, there needs to be meaningful regards for the relationship between these two powers. Hogg and Bushell go on to say that, “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” (Hogg, and Bushell, 1997, p.79). If the relationship between the Court and legislative bodies are congruent with one another then in an optimistic view society could be in more unison.

Scholarly debate over the relevancy of the Dialogue Theory comes with compelling arguments on both sides, those who disagree with the Dialogue Theory like F.L. Morton, who, and in their view, feel the relationship between Legislature and the Court is more on a monologue than a dialogue. Mortan believes real dialogue is not a legitimate means for changing laws, and the only way the legislature has grounds to put forth their voice is by S.33, the Notwithstanding Clause, as he scrutinizes the meaning of dialogue. He uses a sandwich methodology in comparison with what dialogue is, “If I go to a restaurant, order a sandwich, and the waiter brings me the sandwich I ordered, I would not count this as a “dialogue” (Mortan, 1999, p. 24). “What is described as dialogue is actually a monologue and judges making the rules and or changing them and legislature following their lead.” (Mortan, 1999. p. 26);

Creating judicial activism with no response paralyzes the legislature as an institutional character that is not in a position to legitimately interpret the Constitution. At the core, the debate over the legitimacy by those who oppose the Dialogue Theory is in theory the objective of the courts and the legislature that having a voice is healthy and is a morally sound idea. However, in practice, policies implemented may infringe on laws and affect cases; while Dialogue is an attractive theory, it fails in practice (Macfarlan 2012, p. 52).

Despite the reserves about the Dialogue Theory, the judicial decision struck down laws that infringed on individuals’ rights and the Constitution. S.33 or legislative override is relatively unimportant, due to political resistance. Further, the fact that S.33 is a “sunsets clause”, (only lasting five years) when it expires a new government may be in power effectively making the bill null and void if not reinstated. Quebec has made the only relevant use of S.33 and gained political acceptance at the time. Ford v. Quebec (A.G), in 1988 is when Quebec used S.33 to override the judicial decision. Quebec enacted a new sign law, Bill 101, that banned the use of any language but French in all outdoor sings (but still allowing bilingual indoor signs) (Thomas, Hiebert, Knopff, & Russell, 2017, p. 56).

The Supreme Court of Canada could acknowledge the importance of preserving the French language at a time when English is nationally predominant, however the courts argued that the position of balance should be struck as “freedom of expression” of a person’s language is part of an identity. The courts felt under Section 1, “maintaining the predominantly French character of Quebec could justify requiring the use of French on a joint-use basis and even a law requiring the “marked predominance” of the French language. However, it saw no evidence justifying the exclusive use of French.” (Thomas, Hiebert, Knopff, & Russell, 2017. P 57). The court’s response was not only respectful but informative, it provides documentation of the communication and understanding the courts have for political parties. Interestingly enough, no political body was in favour of the Notwithstanding Clause, PM Trudeau didn’t like it be because it violated his sense of justice, while PM Mulroney stated it was not worth the paper it was written on (2018). However, S.33 does provide protection for judicial decisions and encourages dialogue between legislature and the courts. While S.33 is used infrequently it is part of the Charter as well as part of the dialogue structure.

Another element of the Charter that encourages dialogue between legislature and the courts is Section 1 of the Charter, the “Reasonable Limits” clause. Section 1 allows for an expanded role for legislature, as the legislature can provide perspectives regarding competing social interest with pre-existing laws and could provide justification on infringement of a right. Carissima Mathen believes there are two reasons S.1 improves dialogue, “The first reason is that a Section 1 analysis requires information that the courts often will not possess, but the legislature will. The second reason is that the very existence of Section 1 means that the legislature has a unique role too.” (Mathen, 2007. p. 135).

In the case of R. v. Mills, it is evident that the use of Section 1 creates dialogue between legislature and the courts. The case is regarding Bill C-46, a legislative bill passed to amend the Criminal Code, including offences pertaining to sexual violence against women and children. The issue with the case was that the bill violates the principles of fundamental justice (Thomas, Hiebert, Knopff, & Russell, 2017, p. 176 Section 15). The fundamental justices infringed upon from the case included the right to answer and defend and the right to privacy, because a defense lawyer can cross examine an alleged sexual assault victim. However, no single principle is absolute and no principle can triumph over another, it is all dependent on the compelling claims. Section 1 of the Charter asks the question of whether a law passed infringes on any other section of the Charter and if the infringement is justified under a “reasonable limit”. This case used dialogue in regards to how the Parliament passed this bill and the courts said it infringed on certain rights. The courts told the legislature what to change in the bill in a very suggestive manner, and they did! Section 1 is a great representation of dialogue and compromise between the judicial and political sides of Canada, that can accomplish important objectives and sufficient understandings on limitations of the Charter. The Bill wasn’t justified under Section 1, and suggestion was made for a change.

Overall, the Charter is a unique constitutional right that provides democratic legitimacy and equality, the Supreme Court of Canada is a non-elected body that predicts the framer’s intent and interprets the law, it is a benefit for the legislators, who are elected and provide representation of citizens to have a voice and implement political interest and social interest into judicial decision with Dialogue between the two. Judges struck down statues and enacted politician’s bills that don’t infringe on the Charter, they enable responsibility and accountability on their own and in the representative legislative bodies; However, judges leave room for response and legislative opinions. The courts do not hold a monopoly on the protection and promotion of rights and freedoms. The Dialogue Theory not only encompasses the Charter and the intent of equality and moral standing, but accomplishes communication and understanding as well as dialogue, thereby enabling both elected and appointed representatives of Canada to fulfill their responsibility to its citizens.