CONSTITUTIONAL AND COMMON LAW DIALOGUES BETWEEN THE SUPREME COURT AND CANADIAN LEGISLATURE
AbstractUnder both the common law and the Charter, the Supreme Court engages in dialogue with legislatures . This dialogue allows legislatures to respond to the Court's decisions with ordinary legislation without having, as under the division of powers or the American Bill of Rights, to change the Court or the Constitution. The first part of the paper examines three forms of dialogical judicial review, namely those under which both courts and legislatures have an equal right to interpret the constitution; those which focus on the ultimate accountability of the Court to legislatures and society: and those which envision the Court and the legislatures playing distinct and complementary roles. It is suggested that all three theories of dialogue find some support in recent Supreme Court judgments. The second part examines the dialogic nature of common law decisions such as presumptions of mens rea and suggests that common law decisions including presumptions of statutory interpretation resemble Charter decisions in their dialogical nature more than division of powers decisions. The third part examines dialogue under the Charter with a focus on search and seizure powers and sexual assault law. The author argues that ordinary dialogue should occur under section 1 with legislatures clarifying their objectives and alternatives in response to the Court's decisions. Extraordinary dialogue that involves legislatures reversing Charter decisions on the basis of their own interpretation of the Constitution or their claim to hold the Court accountable should only occur with the sober second thoughts and guarantee of continued dialogue inherent in the use of the section 33 override.
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