A Dialogue About Principle and a Principled Dialogue: Justice Iacobucci's Substantive Approach to Dialogue

A Dialogue about Principle and a Principled Dialogue:

Justice Iacobucci's Substantive Approach to Dialogue

I Introduction

Frank Iacobucci played the lead role in introducing the metaphor of judicial review as a form of dialogue between courts and legislatures into Canadian constitutional law.¹ He discussed dialogue in reference to interpreting both rights and limitations under the Canadian Charter of Rights and Freedoms,² but also in relation to devising remedies under the Charter³ and using the s. 33 override.⁴ Justice Iacobucci's interest in dialogue was not, however, limited to these many different aspects of Charter adjudication. He recognized the importance of dialogue between courts and legislatures with respect to the development of the common law⁵ and in the interpretation of statutes.⁶ One of the strengths of the dialogue metaphor is that it can facilitate thinking about the respective roles of courts and legislatures throughout much of the law.⁷ It also travels well and is increasingly the focus of attention in many parts of the world that seek to build on the traditions of common law, or what some call Commonwealth constitutionalism.⁸ The dialogue metaphor illuminates the relation between courts and legislatures in any common law system in which legislatures can reply to the rights-protection decisions of courts and under any bill of rights that leaves space for legislatures to justify limits or derogations from rights.

At the same time, the metaphor of judicial review as a form of dialogue between courts and legislatures is controversial. There have been two main forms of criticism. One is that actual dialogue does not, in fact, occur very often between courts and legislatures; instead, what courts and commentators call a dialogue is more often a monologue.⁹ A second form of criticism is that the dialogue metaphor does not justify the role that courts play in the dialogue.¹⁰ In this essay, I will deal only with this second critique, arguing that in Justice Iacobucci's hands, dialogue had a substantive and principled core.

Justice Iacobucci engaged in a dialogue of principle in the sense that he brought questions of principle, rights, and the protection of vulnerable minorities to bear on his development of the common law, the interpretation of statutes, and his Charter jurisprudence while recognizing that the legislature also retains the option of justifying limits or even overriding such principles altogether. In this sense, much of the substantive core of institutional dialogue about the place of principle in governance can be found in the important work of Alexander Bickel. I will also argue that, for Justice Iacobucci, judicial review was part of a principled dialogue in the sense that the dialogue should be conducted in a fair and open manner that respects the distinct roles and abilities of courts, legislatures, and the executive. In this sense, much of the substantive core of principled dialogue can be found in the important work of Lon Fuller.

II The Intellectual and Substantive Origins of Dialogue Theory

Justice Iacobucci's first explicit discussion of dialogue between courts and legislatures was in Vriend v. Alberta,¹¹ where he prefaced his decision to 'read in' sexual orientation as a prohibited ground of discrimination in Alberta's human-rights code with a general discussion of the relationship between courts and legislatures under the Charter. In that discussion he cited the famous article on dialogue written by Peter Hogg and Allison Bushell¹² a year earlier, stating that

the Charter has given rise to a more dynamic interaction among the branches of governance. This interaction has been aptly described as a 'dialogue' by some (see e.g. Hogg and Bushell, supra). In reviewing legislative enactments and executive decisions to ensure constitutional validity, the courts speak to the legislative and executive branches. As has been pointed out, most of the legislation held not to...