10 - Dialogue in Canada and the Dangers of Simplified Comparative Law and Populism

Summary

The first part of this chapter argues that the death of dialogue in Canada has been greatly exaggerated. Dialogue offers a good explanation of proportionality analysis under ss. 1 and 7 of the Canadian Charter of Rights and Freedoms and suspended declarations of invalidity. Legislative replies to recent Charter decisions on labour relations, supervised injection sites, sex work and assisted dying affirm the reality of dialogue. The second part argues that binary models that contrast weak form or Commonwealth review to strong form judicial review simplify and distort comparative law. The drafting of the Charter and its Parliamentary government, tight party discipline, weak pre-enactment review, and other contextual factors help make Canada’s form of judicial review distinct. Although it has influenced Canadian critics of dialogue, the third part argues that Jeremy Waldron’s defence of majoritarian democracy downplays the problem of persistent minorities fuelled by the growing reality of penal and anti-migrant populism. Dialogue can be rescued from criticisms that it undermines the judicial role but this requires courts to reject symbolic and populist legislative objectives and automatic deference to legislative replies. It also requires courts to pay attention to the need for effective remedies.