Judicial Review II - Roach

Judicial Review as a Dialogue

Dialogic Review

Dialogic judicial review: ongoing interaction between courts and legislatures over rights interpretation and application.

• Canadian constitutionalism operates on ongoing interaction

• courts interpret and enforce charter, but legislatures remain tools to respond by amending laws and so on

Mechanisms for Dialogue

Courts interpret and enforce charter, but legislatures remain tools to respond by amending laws and so on

Legislatures can respond to court decisions by:

• amending laws,

• re-enacting with modifications, or

• using s.33 to override certain rights temporarily.

Point being rights questions are worked out through an institutional back-and-forth

The Aim of Dialogue (achievement)

Roach’s model aims to balance:

• judicial oversight (rights protection), and

• democratic accountability (legislatures remain responsible decision-makers),
  through continuous discourse on rights.

  • Canada is a hybrid system: explicit overrride mechanism

This is described as an adaptive constitutional culture: laws can evolve with societal norms while protecting fundamental rights.

Canada in a Global Comparison

• Strong-form review: U.S. model — courts have supremacy and can override legislatures.

• Weak-form review: UK/NZ/Australia — legislatures retain ultimate authority even after court declarations.

• Canada hybrid: strong review + legislative override (s.33), trying to combine judicial independence and democratic accountability.

Strengths

Strengths

• keeps rights protection connect to democratic responsibility

• Courts can identify rights problems and force justification, while legislatures can refine policy and remain engaged rather than simply being “defeated” by a ruling. It also fits an adaptive constitutional culture where laws evolve alongside shifting social values.

• Legislatures retain final law-making authority and stay engaged after rulings.

• Flexibility: laws can adapt to evolving values over time.

• Rights protection: safeguards minority rights while allowing legislative input.

Weaknesses

• Judicial dominance/activism: courts may overshadow legislatures.

• Chilling effect: legislators may hesitate to legislate due to fear of invalidation.

• Dialogue can become “theoretical” because s.33 is rarely used.

• Marginalized voices can still be excluded (dialogue dominated by powerful interests).

A key criticism is that dialogue can be more ideal than real. Your lecture highlights worries about judicial dominance/activism, about a chilling effect where legislators avoid bold policy due to fear of invalidation, and about the fact that if s.33 is rarely used then the “legislative last word” component may be mostly symbolic. There is also the concern that even a “dialogue” can exclude marginalized voices if institutional participation is dominated by powerful actors.

Canada’s Model Expanded

• Canada’s hybrid model combines strong judicial review with legislative override if needed (notwithstanding clause); this balances judicial independence and democratic accountability. 

  • Roach argues that this is the perfect form of judicial review, as it is balanced perfectly with both sides having power, and because of the notwithstanding clause, we have another safeguard to protect dialogue between judges and legislation