Expanding the ‘Dialogue’ Debate: Federal Government Responses to Lower Court Charter Decisions

Abstract

The inter–institutional dynamics between courts and elected governments under the Canadian Charter of Rights and Freedoms have recently, and widely, been characterized as a "dialogue" over constitutional meaning. This article seeks to expand the systematic analysis of "dialogue" to lower courts of appeal, using Canadian federal government responses as a case study. In the process, the article clarifies the hotly debated operational definition of this metaphor, and develops two methodological innovations to provide a comprehensive measure of dialogue. The article's findings suggest that there is more dialogue with lower courts than with the Supreme Court of Canada. However, the evidence indicates that dialogue in the form of government appeals to higher courts–which explicitly signal the government's disagreement with the lower court–is as prevalent as legislative sequels, and the dominant form following judicial amendment.

Strategic Leadership and Political Change on the Canadian Supreme Court: Analyzing the Transition to Chief Justice

“…Intriguingly, this Charter impact disappears when one includes the McLachlin as chief interaction term, suggesting that the Charter is less likely to trigger dissenting behaviour by her than by her two predecessors~see the Charter coefficient in column two, b ϭ .08, not significant!. This makes intuitive sense, given Justice McLachlin's conscious effort to generate a more public, collegial "dialogue" between the Court and Parliament in prominent Charter litigation during her tenure as chief~for discussion of the dialogue, see Hogg and Bush- ell, 1997; Manfredi and Kelly, 1999;Hennigar, 2004a!. Her efforts on this behalf further strengthen the conclusion that Justice McLachlin has become a prominent social leader of her Court.…”

A Historical Institutionalist Understanding of Participatory Governance and Aboriginal Peoples: The Case of Policy Change in Ontario's Mining Sector*

“…Since 1982, the SCC has signaled its willingness to nullify or amend legislation it deems inconsistent with Charter principles. Some scholars argue that an active SCC coupled with parliamentary response represents a form of ongoing Charter “dialogue” between the two institutions (Hogg and Bushell, ; Hennigar, ; Hogg, Thornton, and Wright, ). For the legislative branch, this in turn has led to the development of a “Charter‐proofing” process within the Department of Justice that evaluates and changes proposed legislation so as to avoid SCC nullification (Hiebert, ; Kelly, ).…”

Beyond the Democratic Dialogue, and Towards a Federalist One: Provincial Arguments and Supreme Court Responses in Charter Litigation

“…Scholarly treatment of the Charter's purposes has focused instead on its relationship with parliamentary sovereignty. For the past decade in particular, this has assumed the form of a debate over the existence of a "democratic dialogue," according to which the representative branches may or may not, or should or should not, be capable of responding to judicial rulings of constitutional invalidity~see, for example, Hogg and Bushell, 1997;Manfredi and Kelly, 1999;Roach, 2001;Morton, 2001;Hiebert, 2002;Hennigar, 2004!. While this brief description fails to reflect the complexity of the metaphor and its rejoinders, the point to be made is that contemporary Charter scholarship has focused on the effects of the Charter on democracy, and democracy on the Charter. The "democratic dialogue" has thus sparked an important debate about the nature of Canadian democracy and the relative merits of judicial and legislative determination of rights.…”