The Supreme Court of Canada, Charter Dialogue, and Deference

Abstract

For those concerned about the democratic legitimacy of Charter review by Canadian courts, the idea of dialogue offers a promising middle path between the extremes of judicial and legislative supremacy. Current dialogue theory, however, largely fails to live up to this promise of compromise. Instead of distinguishing democratic worries associated with US style, strong-form judicial review, it largely endorses the legitimacy of such review. For dialogue to live up to its original promise, a new theory that more clearly distinguishes Canada from the United States is required. This article offers a new theory of dialogue in which the willingness of the Supreme Court of Canada (SCC) to defer to reasonable legislative sequels will be the key to success. As a result, section 33 of the Charter will play a valuable, but largely background role in promoting dialogue. The advantage of this approach, compared to rival approaches that would weaken judicial review, is that it is more realistic and more in line with existing SCC practice. Moreover, this approach is normatively desirable when judged from the perspective of the courts' capacity to counter blockages in the legislative process that might otherwise impair the enjoyment of Charter rights.