Dialogue or defiance: Legislative reversals of Supreme Court decisions in Canada and the United States

International Journal of Constitutional Law

Volumn 4, Issue 2, 2006, Pages 347-370

  Roach, Kent ^a  

^a UNIVERSITY OF TORONTO   (Canada)

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[No Author keywords available]

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EID: 33745955597     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mol008     Document Type: Article

References (150)

1. Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 Am. J. Comp. L. 707 (2001)
2. Aharon Barak, A Judge on Judging: The Role of a Supreme Court in a Democracy, 116 Harv. L. Rev. 16, 133-136 (2002)
3. Richard Clayton, Judicial Deference and Democratic Dialogue: The Legitimacy of Judicial Intervention under the Human Rights Act, 1998, 2004 Pub. L. 33
4. Leighton Mcdonald, Rights, Dialogue and Democratic Objections to Judicial Review, 32 Fed. L. Rev. 1 (2004)
5. Tom Hickman, Constitutional Dialogue, Constitutional Theories and the Human Rights Act, 1998, 2005 Pub. L. 306. There is a rich dialogue literature in the United States.
6. Pub. L. 306. There is a rich dialogue literature in the United States.
7. See, e.g., Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court At The Bar Of Politics (Yale Univ. Press 1986)
8. Louis Fisher, Constitutional Dialogues: Interpretation As Political Process (Princeton Univ. Press 1988)
9. Neal Devins & Louis Fisher, Judicial Exclusivity and Political Instability, 84 Va. L. Rev. 83 (1998)
10. Guido Calabresi, Anti-discrimination and Constitutional Accountability (What the Bork-Brennan Debate Ignores), 105 Harv. L. Rev. 80, 124-125 (1991).
11. See Mark Tushnet, Judicial Review, in Oxford Handbook Of Legal Studies (cane & Tushnet eds., Oxford Univ. Press 2003)
12. Ran Hirschl, Towards Juristocracy (Harvard Univ. Press 2004).
13. See also American Exceptionalism (Michael Ignatieff ed., Princeton Univ. Press 2005).
14. The Court has adopted the idea of judicial review as dialogue in a number of its decisions. See Christopher P. Manfredi, The Life of a Metaphor: Dialogue in the Supreme Court, 1998-2003, 23 Sup. Ct. L. Rev. (2d). 105 (2004).
15. See Peter W. Hogg & Allison A. Bushell, The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn't Such a Bad Thing at All), 35 Osgoode Hall L.J. 75 (1997), which argues that Canadian legislatures responded to decisions invalidating laws under the Charter in two-thirds of cases. This conclusion has become a matter of empirical dispute.
16. See, e.g., Christopher P. Manfredi & James B. Kelly, Six Degrees of Dialogue: A Response to Hogg and Bushell, 37 Osgoode Hall L.J. 529 (1999)
17. Sujit Choudhry & Claire E. Hunter, Measuring Judicial Activism on the Supreme Court of Canada: A Comment on Newfoundland (Treasury Board) v. NAPE, 48 McGill L.J. 525 (2003).
18. See Christopher P. Manfredi, Judicial Power and the Charter (Oxford Univ. Press 2001)
19. Janet Hiebert, Charter Conflicts (McGill-Gueens Univ. Press 2002)
20. Andrew Petter, Twenty Years of Charter Justification: From Liberal Legalism to Dubious Dialogue, 52 U.N.B. L.J. 187 (2003).
21. See Luc Tremblay, The Legitimacy of Judicial Review: The Limits of Dialogue Between Courts and Legislatures, 3 Int'l J. Const. L. (I·Con) 617 (2005).
22. See Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Irwin Law, 2001)
23. Kent Roach, Constitutional and Common Law Dialogues Between the Supreme Court and Canadian Legislatures, 80 Can. B. Rev. 487 (2001)
24. Kent Roach, Dialogic Judicial Review and its Critics, 23 Sup. Ct. L. Rev. (2d) 49 (2004)
25. Kent Roach, Constitutional, Remedial, and International Dialogues About Rights: The Canadian Experience, 40 Tex. Int'l. L.J. 537 (2005).
26. Some federalism decisions, such as United States v. Lopez, 514 U.S. 549 (1995) (invalidating legislation enacted under Congress's powers over interstate commerce), may be amenable to a subsequent dialogic response through the enactment of new or similar legislation under another head of federal power, but consideration of such responses is outside the scope of this essay. See Carissima Mathen, Constitutional Dialogue in Canada and the United States, 14 Nat'l J. Const. L. 403 (2003). Also, I will not discuss dialogue that can occur when courts interpret statutes in light of constitutional norms or dialogue that can occur when courts craft remedies for constitutional violations. On these forms of dialogue,
27. see Kent Roach, Common Law Bills of Rights as Dialogue Between Courts and Legislatures, 55 U. Toronto L.J. 733 (2005)
28. Kent Roach, Remedial Consensus and Dialogue under the Charter, 35 U.B.C. L. Rev. 211 (2002).
29. Section 1 of the Canadian Charter of Rights and Freedoms provides: "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms subject to such reasonable limits presribed by law as can be demonstrably justified in a free and democratic society." Section 33 allows federal or provincial legislatures to enact legislation for renewable five-year periods notwithstanding the fundamental freedoms, legal rights, or equality rights protected in the Canadian Charter. For support of section 33 as an innovative response to the countermajoritarian difficulty of judicial review, see Paul C. Weiler, Rights and Judges in a Democracy: A New Canadian Version, 18 U. Mich. J.L. Reform. 51 (1984)
30. Michael Perry, The Constitution In The Courts: Law Or Politics? 192-204 (Oxford Univ. Press 1994)
31. Jeffrey Goldsworthy, Judicial Review, Legislative Override and Democracy, 38 Wake Forest L. Rev. 451 (2003). For arguments that the section 33 override and the reluctance of goverments to use it underestimates the staying power and the policy distortion caused by judicial decisions,
32. see Mark Tushnet, Policy Distortion and Democratic Debilitation: Comparative Illumination of the Countermajoritarian Difficulty, 94 Mich. L. Rev. 245 (1995)
33. Jeremy Waldron, Some Models of Dialogue Between Judges and Legislators, 2 3 Sup. Ct. L. Rev. (2d) 7 (2004).
34. Warren served as chief justice from 195 3-1969.
35. Dickson served as chief justice in Canada from 1984-1990; Lamer served as chiefjustice from 1990-2000.
36. Kent Roach, Due Process and Victims' Rights (Univ. Toronto Press 1999)
37. Ran Hirschl, Constitutional Rights Jurisprudence in Canada and the United States: Significant Convergence or Enduring Divergence?, in Constitutional Politics in Canada and The United States (Stephen L. Newman ed., Suny Press 2004).
38. 384 U.S. 436 (1966).
39. [1994] 3 S.C.R. 63.
40. In this sense, the cases are distinct from the legislative replies that many states enacted in response to the Supreme Court's invalidation of random or arbitrary impositions of the death penalty in Furman v. Georgia, 408 U.S. 238 (1972).
41. See Gregg v. Georgia, 428 U.S. 153 (1976) (upholding Georgia's new death penalty provisions as compliant with past decisions).
42. But see Coker v. Georgia, 433 U.S. 584 (1977) (holding that a death penalty handed down under the new Georgia, legislation in a rape case was cruel and unusual punishment).
43. Mark Tushnet, Taking the Constitution Away from the Courts (Princeton Univ. Press 1999).
44. See Mark Tushnet, Judicial Review, in Oxford Handbook Of Legal Studies (cane & Tushnet eds., Oxford Univ. Press 2003); Two-thirds of Character cases decided by thesed. Hirschl, supra note 2, at 67.
45. John Hart Ely, Democracy and Distrust (Harvard Univ. Press 1980)
46. Donald A. Dripps, Criminal Procedure, Footnote Four, and the Theory of Public Choice; or, Why Don't Legislatures Give a Damn about the Rights of the Accused, 44 Syracuse L. Rev. 1079 (1994).
47. Miranda v. Arizona, 384 U.S. 436, 461 (1966).
48. Id. at 445.
49. The Fifth Amendment to the U.S. Constitution provides: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." U.S. Const. amend. V.
50. 384 U.S. 436 (1966). Miranda, supra note 13, at 517.
51. Id. at 467.
52. Yale Kamisar, Can (Did) Congress "Overrule" Miranda?, 85 Cornell L. Rev. 883, 889-894 (2000).
53. Senator Samuel James Ervin Jr. (1896-1985) was a Democratic member of the Senate from 1954-1974.
54. Kent Roach, Constitutional, Remedial, and International Dialogues About Rights: The Canadian Experience, 40 Tex. Int'l. L.J. 537 (2005). Kamisar, supra note 24 at 898.
55. Id. at 912.
56. Id. at 889-893.
57. For an argument that dialogue can occur when Congress restricts the jurisdiction of the federal courts, see Michael J. Perry, The Constitution, The Courts and Human Rights (Yale Univ. Press 1982). For a subsequent argument that favors the use of explicit legislative limitation and override clauses,
58. Section 1 of the Canadian Charter of Rights and Freedoms provides: "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms subject to such reasonable limits presribed by law as can be demonstrably justified in a free and democratic society." Section 33 allows federal or provincial legislatures to enact legislation for renewable five-year periods notwithstanding the fundamental freedoms, legal rights, or equality rights protected in the Canadian Charter. For support of section 33 as an innovative response to the countermajoritarian difficulty of judicial review, see Paul C. Weiler, Rights and judges in a Democracy: A New Canadian Version, 18 U. Mich. J.L. Reform. 51 (1984); see Perry, The Constitution in the Courts, supra note 9.
59. See Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Irwin Law, 2001); For an argument that changing the Court or the Constitution is often necessary to respond effectively to a constitutional decision in the United States, see Kent Roach, The Supreme Court on Trial, supra note 7.
60. Jeremy Waldron, Law and Disagreement (Oxford Univ. Press 1999)
61. Jeremy Waldron, The Dignity of Legislation (Oxford Univ. Press 2000).
62. Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 Am. J. Comp. L. 707 (2001); Fisher, Constitutional Dialogues, supra note 1, ch. 6; Waldron, Law and Disagreement,
63. id.; Waldron, The Dignity of Legislation,
64. id.
65. Gary Mcdowell, Curbing the Courts (LSU Press 1988).
66. Dickerson v. United States, 530 U.S. 428, 437 (2000).
67. United States v. Dickerson, 166 F.3d 667, 692.
68. Id.
69. See, e.g., Richard H. Fallon, Judicial Legitimacy and the Unwritten Constitution, 45 N.Y.L. Sch. L. Rev. 119 (2001)
70. Paul G. Cassell, Alternatives to the Miranda Warnings: The Paths Not Taken, 99 Mich. L. Rev. 898 (2001). For an argument that the Court should not have decided the case because the executive was not enforcing the law,
71. see Erwin Chemerinsky, The Court Should Have Remained Silent, 149 U. Penn. L. Rev. 287 (2000).
72. Dickerson v. United States, 530 U.S. 428, 433.
73. For another example of the Court's embrace of judicial supremacy even with respect to the ability of Congress to enforce the Fourteenth Amendment, see City of Boerne v. Flores, 521 U.S. 516 (1997).
74. [1994] 3 S.C.R. 63. Supra, note 14.
75. [1994] 3 S.C.R. 63. Daviault v. The Queen, supra note 14, at 115-116, 120.
76. Id. at 99-100.
77. In Leary v. The Queen, [1978] 1 S.C.R. 29, Justice Dickson held: "If sanctions against drinking to excess be thought necessary then, in my view, they ought to be introduced by legislation-as in a crime of being drunk and dangerous-and not by the adoption of a legal fiction which cuts across fundamental criminal law precepts and has the effect of making the law both uncertain and inconstant. If the point is deterrence from drink, then such deterrence ought to be specific and precise, in the form of a legislative command." Leary, para. 68.
78. Terri J. Peretti, In Defence of a Political Court (Princeton Univ. Press 1999).
79. Mark Tushnet, Taking the Constitution Away from the Courts (Princeton Univ. Press 1999). Mark Tushnet, Taking The Constitution Away From the Courts, supra note 16.
80. In the Westminster parliamentary system, private members' bills are bills that are introduced not by the government but, rather, by MPs who hold no position in government or their parties.
81. Kent Roach, Due Process & Victims' Rights: The New Law & Politics of Criminal Justice 178-179 (Univ. Toronto Press 1999).
82. Hansard 27 March 1995, 11037.
83. Act to Amend the Criminal Code, 1995 S.C., ch. 32, s.1 (Can.). As incorporated into the code, the act's operative provisions are known as Canada Criminal Code, ss.33.1 (1)-(3), R.S. 1985, c. C-46 (hereinafter, "the bill" or "Parliament's reply/response to Daviault").
84. Canada Criminal Code, s.33.1 (2).
85. Id. at s.33.1 (3).
86. Second recital of the preamable, Act to Amend the Criminal Code 1995, supra note 49.
87. On the increased use of symbolic preambles in legislation, see Kent Roach, The Uses and Audiences of Preambles to Legislation, 47 McGill L.J. 129 (2001).
88. Act to Amend the Criminal Code, 1995 S.C., ch. 32, s.1 (Can.). As incorporated into the code, the act's operative provisions are known as Canada Criminal Code, ss.33.1 (1)-(3), R.S. 1985, c. C-46 (hereinafter, "the bill" or "Parliament's reply/response to Daviault"). Act to Amend the Criminal Code, supra note 49.
89. See Peter W. Hogg & Allison A. Bushell, The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn't Such a Bad Thing at All), 35 Osgoode Hall L.J. 75 (1997), which argues that Canadian legislatures responded to decisions invalidating laws under the Charter in two-thirds of cases. This conclusion has become a matter of empirical dispute. Manfredi & Kelly, Six Degrees of Dialogue, supra note 4.
90. Jeremy Waldron, Law and Disagreement (Oxford Univ. Press 1999); Waldron, Law And Disagreement, supra note 31.
91. Michael Mandel, The Canadian Charter of Rights and Freedoms and the Legalization of Politics in Canada (Thompson 1994).
92. See Christopher P. Manfredi, Judicial Power and the Charter (Oxford Univ. Press 2001); Hiebert, Charter Conflicts, supra note 5, at 105.
93. Kent Roach, Due Process and Victims' Rights (Univ. Toronto Press 1999); Roach, Due Process And Victims' Rights, supra note 12, at 180.
94. See Christopher P. Manfredi, Judicial Power and the Charter (Oxford Univ. Press 2001); Hiebert, Charter Conflicts, supra note 5.
95. R. v. Brenton, [1999] 28 C.R. 5th 308 (N.W.T.S.C.)
96. R. v. Dunn, [1999] 28 C.R. 5th 295 (Ont. S.C.J.).
97. Mark Tushnet, Judicial Activism in a Section 33 World, 53 U.Toronto L.J. 89 (2002)
98. Christopher P. Manfredi, The Canadian Constitution and the Courts (Oxford Univ. Press 2001).
99. See Luc Tremblay, The Legitimacy of Judicial Review: The Limits of Dialogue Between Courts and Legislatures, 3 Int'l J. Const. L. (I·Con) 617 (2005). Tremblay, The Legitimacy of Judicial Review, supra note 6, at 636
100. Jamie Cameron, Dialogue and Hierarchy in Charter Interpretation: A Comment on R. v. Mills, 38 Alta. L. Rev. 1051 (2001). I have also criticized the idea of dialogue as deference in cases in which Parliament reverses Supreme Court decisions without using the override.
101. See Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Irwin Law, 2001); Kent Roach, The Supreme Court on Trial, supra note 7.
102. R. v. Vickberg, [1998] 16 C.R. 5th 164 (B.C.S.C.).
103. The evidence before Parliament, however, dealt with probabilities and not individual cases. The preamble reflects this fact in its statement that Parliament "is aware of scientific evidence that many intoxicants, including alcohol, may not cause a person to act involuntarily." This is not to say that involuntary conduct could never occur or that no intoxicant could cause such conduct. Legal principles such as the presumption of innocence are designed to ensure justice in rare or odd cases, and judges may thus be reluctant to preclude the defense on the basis of the probabilistic evidence used by Parliament.
104. Section 1 of the Canadian Charter of Rights and Freedoms provides: "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms subject to such reasonable limits presribed by law as can be demonstrably justified in a free and democratic society." Section 33 allows federal or provincial legislatures to enact legislation for renewable five-year periods notwithstanding the fundamental freedoms, legal rights, or equality rights protected in the Canadian Charter. For support of section 33 as an innovative response to the countermajoritarian difficulty of judicial review, see Paul C. Weiler, Rights and judges in a Democracy: A New Canadian Version, 18 U. Mich. J.L. Reform. 51 (1984); See note 9, supra, and accompanying text.
105. B. C. Motor Vehicle Reference, [1985] 2 S.C.R. 486
106. United States of America v. Burns & Rafay, [2001] 1 S.C.R. 283
107. R. v. Ruzic, [2001] 1 S.C.R. 686
108. Suresh v. Canada, [2002] 1 S.C.R. 3.
109. Some federalism decisions, such as United States v. Lopez, 514 U.S. 549 (1995) (invalidating legislation enacted under Congress's powers over interstate commerce), may be amenable to a subsequent dialogic response through the enactment of new or similar legislation under another head of federal power, but consideration of such responses is outside the scope of this essay. See Carissima Mathen, Constitutional Dialogue in Canada and the United States, 14 Nat'l J. Const. L. 403 (2003). Also, I will not discuss dialogue that can occur when courts interpret statutes in light of constitutional norms or dialogue that can occur when courts craft remedies for constitutional violations. On these forms of dialogue, Roach, Common Law Bills of Rights As Dialogue Between Courts and Legislatures, supra note 8.
110. R. v. Vickberg, [1998] 16 C.R. 5th 164 (B.C.S.C.). R. v. Vickberg, supra note 64.
111. R. v. A (No. 2), [2000] A.C. 32 6. Under the Human Rights Act 1998, the alternative would have been a declaration that the law was incompatible with the right to a fair trial, which would have given Parliament an opportunity to reform the law but not necessarily to provide a remedy for an accused who had been convicted under an unfair law.
112. [1995] 4 S.C.R. 1411.
113. R. v. Mills [1999] 3 S.C.R. 668, at para 57.
114. See, e.g., Richard H. Fallon, Judicial Legitimacy and the Unwritten Constitution, 45 N.Y.L. Sch. L. Rev. 119 (2001); Indeed, many commentators criticized the majority of the Court in Dickerson for not recognizing that Miranda was a form of constitutional common law that could be reshaped by the legislature. See e.g., Fallon, Judicial Legitimacy and the Unwritten Constitution, supra note 37
115. See, e.g., Richard H. Fallon, Judicial Legitimacy and the Unwritten Constitution, 45 N.Y.L. Sch. L. Rev. 119 (2001); Cassell, Alternatives to the Miranda Warnings, supra note 37.
116. See, e.g., Richard H. Fallon, Judicial Legitimacy and the Unwritten Constitution, 45 N.Y.L. Sch. L. Rev. 119 (2001); Cassell, Alternatives to the Miranda Warnings, supra note 37. The same may be said for the Court's decision in R. v. Mills, id.
117. id.
118. See Luc Tremblay, The Legitimacy of Judicial Review, supra note 6, at 636; Cameron, Dialogue and Hierarchy in Charter Interpretation, supra note 63
119. See Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Irwin Law, 2001); Roach, Constitutional and Common Law Dialogues, supra note 7
120. Some federalism decisions, such as United States v. Lopez, 514 U.S. 549 (1995) (invalidating legislation enacted under Congress's powers over interstate commerce), may be amenable to a subsequent dialogic response through the enactment of new or similar legislation under another head of federal power, but consideration of such responses is outside the scope of this essay. See Carissima Mathen, Constitutional Dialogue in Canada and the United States, 14 Nat'l J. Const. L. 403 (2003). Also, I will not discuss dialogue that can occur when courts interpret statutes in light of constitutional norms or dialogue that can occur when courts craft remedies for constitutional violations. On these forms of dialogue, Mathen, Constitutional Dialogue in Canada and the United States, supra note 8.
121. See also Keith E. Whittington, Herbert Wechsler's Complaint and the Revival of Grand Constitutional Theory, 34 U. Rich. L. Rev. 509 (2000), for similar criticisms.
122. Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 Am. J. Comp. L. 707 (2001); Fisher, Constitutional Dialogues, supra note 1, ch.2.
123. Mark Tushnet, Taking the Constitution Away from the Courts (Princeton Univ. Press 1999). Mark Tushnet, Taking the Constitution Away from the Courts, supra note 16
124. Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford Univ. Press 2004).
125. See Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Irwin Law, 2001); Roach, Constitutional and Common Law Dialogues, supra note 7
126. See Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Irwin Law, 2001); Roach, The Supreme Court On Trial, supra note 7.
127. R. v. Darrach, [2000] 2 S.C.R. 443 (upholding a reconstituted rape shield law that allowed open-ended judicial balancing of competing factors to determine whether evidence of the complainant's prior sexual activity was admissible, after more categorical restrictions were invalidated
128. in R. v. Seaboyer, [1991] 2 S.C.R. 577).
129. R. v. Hall, [2002] 3 S.C.R. 309. Four judges in dissent would have struck down the entire law on the basis that it defied the Court's judgment in R. v. Morales, [1992] 3 S.C.R. 711 (holding that the denial of bail in the "public interest" was unconstitutional).
130. Sauve v. Canada, [2002] 3 S.C.R. 519. I acted as counsel for an intervenor in this case who argued that the restrictions on prisoner-voting rights should be invalidated.
131. Sauve v. Canada, [1993] 2 S.C.R. 438.
132. Sauve v. Canada, [2002] 3 S.C.R. 519. I acted as counsel for an intervenor in this case who argued that the restrictions on prisoner-voting rights should be invalidated. Sauve, supra note 82, at para. 7.
133. Jeremy Waldron, Law and Disagreement (Oxford Univ. Press 1999); Waldron, Law and Disagreement, supra note 31
134. See Christopher P. Manfredi, Judicial Power and the Charter (Oxford Univ. Press 2001); Hiebert, Charter Conflicts, supra note 5.
135. See Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Irwin Law, 2001); For my own prior support of a robust antimajoritarian role for the Court, see Roach, The Supreme Court on Trial, supra note 7, ch. 12
136. See Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Irwin Law, 2001); Roach, Dialogic Judicial Review, supra note 7, at 70-72.
137. Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 Am. J. Comp. L. 707 (2001); Gardbaum, The New Commonwealth Model of Constitutionalism, supra note 1.
138. Jeremy Waldron has criticized section 33 because it requires Parliament to say it is overriding rights whereas, in his view, Parliament is only expressing reasonable disagreement with the Court's views on rights. See Jeremy Waldron, Some Models of Dialogue Between Courts and Legislatures, 23 Sup. Ct. L. Rev. (2d) 7, at 36-37. For arguments that this dismisses the ability of the public to understand what is at stake, especially when the Parliament uses the override in response to a Supreme Court decision,
139. See Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Irwin Law, 2001) see Roach, Dialogic Judicial Review and its Critics, supra note 7, at 61-62.
140. Ford v. Quebec, [1988] 2 S.C.R. 712. On the subsequent responses,
141. See Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Irwin Law, 2001) see Roach, Constitutional, Remedial and International Dialogues, supra note 7, at 556-558.
142. S.A. 2000 c. 3. Two years earlier, the Supreme Court had effectively dared Alberta to use the override in response to its decision recognizing sexual orientation as a protected ground of discrimination under its human rights legislation. Vriend v. Alberta, [1998] 1 S.C.R. 493.
143. See Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Irwin Law, 2001) S.C. 2005 c. 33. On the same-sex marriage disputes, including the use of immediate declarations of entitlement and a reference to the Supreme Court, see generally Roach, Dialogic Judicial Review, supra note 7, at 77-89.
144. See Luc Tremblay, The Legitimacy of Judicial Review: The Limits of Dialogue Between Courts and Legislatures, 3 Int'l J. Const. L. (I·Con) 617 (2005). Tremblay, The Legitimacy of Judicial Review, supra note 6, at 637.
145. See Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Irwin Law, 2001) Article 4 of the International Covenant on Civil and Political Rights provides a comparable mechanism that allows legislatures to derogate from rights to the extent necessary in emergencies. Such mechanisms allow rights, as enforced by the courts, to be preserved even while the legislature takes responsibility for their derogation. See Roach, Constitutional, Remedial and International Dialogues, supra note 7, at 569-576.
146. For an example of a court boldly declaring rights in the post 9/11 environment, when it did not have the burden of finality, see A. v. Secretary of State for the Home Department, [2005] 2 A.C. 68 (U.K.H.L.) (holding that the indefinite detention of noncitizen terrorist suspects who could not be deported - owing to concerns about torture, or other inhuman and degrading treatment, in the receiving state - was disproportionate and discriminatory).
147. R. v. Mills [1999] 3 S.C.R. 668, at para 57. As discussed above, the Court upheld legislative replies to pro-accused Charter decisions in R. v. Mills, supra note 72
148. R. v. Darrach, [2000] 2 S.C.R. 443 (upholding a reconstituted rape shield law that allowed open-ended judicial balancing of competing factors to determine whether evidence of the complainant's prior sexual activity was admissible, after more categorical restrictions were invalidated and R. v. Darrach, supra note 80.
149. R. v. Hall, [2002] 3 S.C.R. 309. Four judges in dissent would have struck down the entire law on the basis that it defied the Court's judgment I also count R. v. Hall, supra note 81, as upholding a legislative reply because the majority of the Court severed only a small part of the reply, over a strong dissent holding that the entire law should be struck down. The only clear case where the Court has invalidated a legislative reply to a pro-accused Charter decision is Sauve,
150. Sauve v. Canada, [2002] 3 S.C.R. 519. I acted as counsel for an intervenor in this case who argued that the restrictions on prisoner-voting rights should be invalidated.supra note 82.