ISSN 1062-7421
Vol. 12 No. 8 (August 2002) pp. 398-403
THE SUPREME COURT ON TRIAL: JUDICIAL ACTIVISM OR DEMOCRATIC DIALOGUE by Kent Roach. Toronto: Irwin Law, 2001.
352 pp. Paper CDN$ 29.95. ISBN 1-55221-054-5.
Reviewed by Roy B. Flemming, Department of Political Science, Texas A&M University.
A Canadian pundit, Jeffrey Simpson, recently proclaimed Canada had become a "Chartocracy" (Simpson 2002).
Simpson's sarcasm reflects the tone of criticism leveled at the Charter of Rights and Freedoms since it became
part of Canada's Constitution in 1982. Critics gripe the Charter expanded the powers of the judiciary at the
expense of parliamentary sovereignty or "responsible government," the keystone of Canada's system of
governance. Moreover, although Charter skeptics from both the political left and right are at odds on most things,
they agree that no good is likely to come from the Charter (Sigurdson 1993). Fans of the Charter either have
pooh-poohed the seriousness of this concern or defended judicial intrusions into ostensibly parliamentary domains
on various grounds. Neither reaction, though, has squarely met the issue of judicial activism head-on.
A provocative response from the ranks of Charter supporters emerged in 1997 with the publication of an article
coauthored by Peter Hogg, one of Canada's leading constitutional scholars (Hogg and Bushell 1997). The article's
empirical data revealed what the authors felt was the inherent dialogic character of Charter litigation. The Supreme
Court did not have the last word on the meaning of the Charter after all. Instead there were "legislative
sequels" or parliamentary replies to Court rulings that reshaped the law as pronounced by the justices. Following
a critique of the article (Manfredi and Kelly 1999) and a rejoinder by its authors (Hogg
and Thornton 1999), work or commentary by Kelly (1999, 2001), Smith (2000), Hiebert (2001), and Morton (2001)
added further assessments of the idea
and what contribution it might make to the Charter debate. Equally as significant, references to the notion began
to surface in Supreme Court opinions, e.g., Vriend v. Alberta (1998).
In THE SUPREME COURT ON TRIAL, Kent Roach presents the first book-length argument supporting the dialogic conception
of the Charter and the Court.
Roach is a professor of law and criminology at the University of Toronto. He clerked for former Justice Bertha
Wilson, one of the Court's most activist liberal judges, and does pro bono work for aboriginal and civil liberties
groups before the Court. Although Charter skeptics include him as a member of the "Court Party," a
cluster of repeat players involved in Charter litigation (Morton and Knopf 2000, 112), Roach feels, if his own
experiences can be trusted, that the concept grossly exaggerates the cohesiveness of the groups and certainly their
lawyers' clout. In this book, Roach hopes to counter these and other criticisms of judicial activism under the
Charter.
Roach's argument rests on the foundation of an earlier study in which he
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traced how the movement for victims' rights acting through Parliament challenged the due process and Charter-based
decisions of the Supreme Court, making it clear at least to him that the Court did not have the final say over
criminal procedure (Roach 1999). In his new book Roach expresses his fear that the current zeitgeist about judicial
activism promoted by professors, politicians, and the chattering classes is making the justices unnecessarily
deferential to Parliament. As he concludes
in his final chapter, "The greatest danger of the judicial activism debate is that it may produce excessive
judicial deference. If this happens…then the democratic and dialogic potential of the Charter will be squandered
by the unnecessary importation of an American-style judicial activism debate based on a false dichotomy of judicial
supremacy or legislative supremacy" (p. 296).
Roach organizes his book into three parts. The positions he develops in the first two mimic the attitudes of other
defenders of the Charter and the Supreme Court. In the first part, he argues that critics, displaying a "branch-plant
mentality" vis-à-vis their large neighbor to the south, have mistakenly imported into Canada the "endless"
but ultimately "dead-end" American debate over judicial activism. In the process, he claims, fundamental
differences between the U. S. Bill of Rights and the Charter of Rights and Freedoms that structure relations between
courts and legislatures have been shoved into a corner and ignored. This error has led to troubling consequences
as the Court seems to have heard the murmurs of critics and has trimmed its sails, even though many of these critics
either opposed the Charter from the start or are political descendents of these early opponents. In other words,
grumbles about judicial activism are echoes of the skeptics' underlying Charterphobia. By listening to them, the
Supreme Court risks shirking its responsibility for developing the full potential of the Charter. Skeptics also
seem a bit amnesic about Canada's legal history as their commentary often implies that Canada was free of judicial
activism and rights litigation before the Charter. Not so, Roach reminds critics. A glance backward to the years
before the Charter reveals many instances of Canada's aboriginal and Francophone minorities turning to the courts
for protection as well as the deep impact of decisions made by Great Britain's Judicial Committee of the Privy
Council on the powers of the federal government and its economic policies during the Thirties.
Roach stresses the point that when the Charter was drafted, its framers were fully aware of the Judicial Committee's
actions and knew about the Lochner and Warren Court eras in America as they grappled with provincial opposition
to the Charter based on the grounds of preserving parliamentary sovereignty. For these reasons, the framers included
opportunities in the Charter for Parliament to constrain the Court. If skeptics would remove their ideological
blinders, they would see, as Roach does, that Charter litigation looks much like the familiar common law system
with its democratic give-and-take between courts and legislatures. Roach's view, however, may seem distorted to
critics who remember cases, like R. v. FEENEY (1997), where the Court overturned a judicially-created common law
rule and then rushed on to directly revise Canada's criminal code, thereby encroaching on Parliament's turf.
To still others, Roach's common law perspective may bring to mind the Court's less than deferential remarks about
deference to Parliament in RJR-MACDONALD INC v. CANADA (1995).
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Whatever reservations these or other cases arouse among skeptics, Roach nevertheless feels they fret and worry
needlessly, for they have constructed a bogeyman using an American model that is ill suited to Canadian realities.
Roach admits that judicial activism exists under the Charter, but the problem, if it is one, has been blown out
of proportion, as there are either usually good reasons for activism in Charter cases or the Court generally has
exercised its authority with tact and diplomacy. Roach lays out his case for the Court in the middle section
of his book where the chapters correspond to his own four-part definition of judicial activism. For Roach, judicial
activism emerges in a cumulative fashion when (1)
judges write their personal preferences into the law; (2) extend their judgments beyond what is needed to settle
a dispute; (3) use rights as trump cards; and (4) displace the legislature's role by having the final word. Roach
takes each condition in order and concludes at the end that opportunities for judicial activism are far more limited
than critics allow or alternatively that the Court has sought ways of engaging Parliament or accommodating it.
In these discussions, Roach fends off accusations of overweening judicial activism. Picking his way through various
decisions, he agues with regard to the first condition that judges are constrained by the need to justify their
choices as "good-faith interpretations of the text and the precedents" (p. 141), a defense that takes
judicial opinions at face value and presumes a great deal about the justices' intentions. He then points out
that the Court has created new and flexible remedies. It has delayed declarations of invalidity to allow Parliament
time to respond to its decisions (p. 200) and has "read in" or "read down" remedies so that
laws are modified rather invalidated in their entirety; these are non-dictatorial remedies that for Roach show
that "Canadian judges have been careful to craft gentle, patient, and flexible remedies" (p. 152). Moreover,
the Court through its actions and opinions recognizes that democracy is enhanced when Parliament and legislatures
respond to its decisions (p. 176). Indeed, the Court invites these responses, which blunts reproaches that it
has the last word. If there is fault to be found in Charter litigation, Roach tells critics to look to the legislatures
for failing to participate appropriately in the dialogue facilitated by the Charter and cheered on by the Court.
Canada's Charter encourages dialogue because it incorporates two provisions that are absent from the American Bill
of Rights: section 1 which recognizes that rights are not absolute by allowing legislatures to limit some of them
and section 33 which permits legislatures to adopt laws notwithstanding certain Charter rights. According to
section 1, rights or freedoms may be subject to "such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society." When a law is challenged for restricting a right, the government
bears the burden of explaining to the Court the reasonableness of its actions and why the
restriction was the least restrictive option. The notwithstanding authority of section 33 may remain in force
for up to five years after which a legislature may reenact the legislation for another five years. Dialogue emerges
out of these two sections of the Charter.
For Roach, though, section 1 is the "true engine" of Charter dialogues. He explains how this engine
works in the chapters making up the third part of his
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book. He begins by exposing several "myths" about judicial activism, which rehearses some earlier points,
and, of course, he takes aim at the mostly American-made theories of how judges should interpret texts, which
supposedly lead to "right answers" and that reconcile judicial review with democracy, claiming they
also are myths. He then reviews various conceptions of dialogic theories of judicial review, such as coordinate
construction, before turning to the "democratic dialogue in practice."
This discussion is refracted through Roach's vision of Charter litigation as an extension or continuation of Canada's
common law tradition; the corollary of which is that there was no Charter "revolution" giving judges
the final say on Charter questions. Section 1 fosters "an expanding and constructive conversation" because
Parliament can explain to the Court the whys and the wherefores of a law that limits a freedom or right. The
Court decides whether this explanation is adequate; and if the Court finds it insufficient, Parliament corrects
the law accordingly. The dialogue ideally should be open and robust with each actor vigorously arguing its
case while remaining civil with one another and respectful of the other's responsibilities. Parliament may not
abide by these Queensbury rules as it has given the Court "lip" and made "in your face" replies
by revising offending laws to conform with the dissenting, not majority opinion; in effect, overturning the Court's
decision.
Roach mixes large doses of hortatory rhetoric into his argument. This rhetorical style verges on hyperbole with
his depictions of the Court and Parliament. He describes the Supreme Court as earnest and Socratic (p. 247) when
it interprets the Charter while Parliament, lacking the Court's interpretative skills, is one of its "stubborn
students." At numerous points, Roach makes it clear that Parliament is supposed to accept how the Court
frames issues and not to challenge the parameters of decisions. Moreover, Parliament has an electoral bias as it
has "an interest in maximizing the rights of popular groups while minimizing the rights of
unpopular citizens" (p. 280). These political interests, Roach feels, demand a "fearless" Court
willing to speak the truth of rights to parliamentary power. This is a broad caricature that brushes over the
fact that Parliament prior to the Charter passed a statutory Bill of Rights, created a far from impotent Canadian
Human Rights Commission, and financially supported organized interests promoting rights causes.
At another point Roach stipulates that effective legislative replies, which are supposed to stop the Court from
having the final word on the Charter, require a "well-functioning" parliamentary system. A well-functioning
parliament, he claims, has "Cabinet domination and tight party discipline" (p. 194), which, of course,
are the current features of Canada's version of the Westminster system. Strong legislatures are needed to balance
strong courts to create democratic dialogues. Therefore, Roach dismisses suggestions that Canada's appointed
Senate should be elected and given greater legislature authority or that party discipline in the
Commons be relaxed to allow free votes (two prominent items on the conservative agenda for parliamentary reform,
it should be noted) as these changes would
enfeeble legislative sequels to Charter decisions.
So, for Roach, the issue boils down to judicial activism or democratic dialogue; the decision, though, is Parliament's
to make. The Charter compels judicial activism if the Court is to be true to its
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obligations to minorities and the unpopular. Roach, it should be clear by now, is a fan of the Charter and applauds
the Court when it extends the Charter's reach. At the same time, he recognizes the political liabilities of activism
and the counter-majoritarian difficulty the Court faces. Roach clearly believes the dialogic notion offers a
way of squaring this circle, but the way he develops his argument fails to make the solution convincing. Instead
of exploring interactions between the Canada's Supreme Court and its Parliament in sufficient depth to make sense
of the intricacies of these interactions and what they mean for a normatively constructed dialogic theory, Roach
skips over too many unanswered empirical questions for his book to be taken as the final word in the Canada's
conversation
about its Supreme Court and the Charter.
REFERENCES:
Hiebert, Janet L. 2001. "Wrestling with Rights: Judges, Parliament, and the Making of Social Policy."
In JUDICIAL POWER AND CANADIAN DEMOCRACY, eds. Paul Howe and Peter H. Russell. Montreal and Kingston: McGill-Queen's
University Press, 165-213.
Hogg, Peter W. and Allison A. 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: 75-124.
Hogg, Peter W. and Allison A. Thornton. 1999. "Reply to 'Six Degrees of Dialogue." OSGOODE HALL LAW
JOURNAL 37: 529-536.
Kelly, James B. 1999. "The Charter of Rights and Freedoms and the Rebalancing of Liberal Constitutionalism
in Canada, 1982-1997." OSGOODE HALL LAW JOURNAL 37: 625-696.
Kelly, James B. 2001. "Reconciling Rights and Federalism during Review of the Charter of Rights and Freedoms:
The Supreme Court of Canada and the
Centralization Thesis, 1982-1999." CANADIAN JOURNAL OF POLITICAL SCIENCE 34: 321-355.
Manfredi, Christopher P. and James B. Kelly. 1999. "Six Degrees of Dialogue: A Response to Hogg and Bushell."
OSGOODE HALL LAW JOURNAL 37:
513-528.
Morton, F. L. 2001. "Dialogue or Monologue?" In JUDICIAL POWER AND CANADIAN DEMOCRACY, eds. Paul Howe
and Peter H. Russell. Montreal and Kingston: McGill-Queen's University Press, 111-117.
Morton, F. L. and Rainer Knopff. 2000. THE CHARTER REVOLUTION AND THE COURT PARTY. Peterborough, ON: Broadview
Press.
Roach, Kent. 1999. DUE PROCESS AND VICTIMS' RIGHTS: THE NEW LAW AND POLITICS OF CRIMINAL JUSTICE. Toronto: University
of Toronto Press.
Sigurdson, Richard. 1993. "Left- and Right-Wing Charterphobia in Canada: A Critique of the Critics."
INTERNATIONAL JOURNAL OF CANADIAN STUDIES 1993: 95-117.
Simpson, Jeffrey. 2002. "When You Live in a Chartocracy," GLOBE AND MAIL, 3 July 2002, A13.
Smith, Miriam. 2000. "Political Activism, Litigation, and Public Policy: The Charter
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Revolution and Lesbian and Gay Rights in Canada, 1985-99." INTERNATIONAL JOURNAL OF CANADIAN STUDIES 21: 81-110.
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Copyright 2002 by the author, Roy B. Flemming.