Dialogue or defiance: Legislative
reversals of Supreme Court decisions in
Canada and the United States
Kent Roach*
This article examines dialogue between courts and legislatures in the context of
legislative attempts to reverse pro-accused Supreme Court constitutional decisions
in Canada and the United States. It focuses on a case study comparing Congress’s
unsuccessful attempt to reverse Miranda v. Arizona with the Canadian Parliament’s
so far successful reversal of Daviault v. The Queen, a similar due process decision in
favor of the rights of the accused. In the context of the Supreme Court of Canada’s
record in other cases where legislatures have reversed its decisions, the author explores
the hypothesis that the reasonable limitations clause and the override or derogation
clauses of the Canadian Charter of Rights and Freedoms, as well as the ability of
Canadian governments to refer abstract questions to the courts, provide more room
for dialogue between courts and legislatures than is available under the U.S. Bill of
Rights. The author concludes that Charter provisions offer a useful alternative to the
polar extremes of legislative and judicial supremacy.
Much can be learned about the role of judicial review by examining
confrontations between the judiciary and the elected branches of government. These confrontations involve what is increasingly described
throughout the world1 and especially in Canada as a dialogue between
courts and legislatures. The study of such interchanges between courts
and legislatures provides a rich vehicle for comparative analysis. It enables
* Professor of Law, University of Toronto. I thank Ran Hirschl for helpful and challenging comments on an
earlier draft. Mistakes and shortcomings remain my own. Email: [email protected]
1
Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 AM. J. COMP. L. 707
(2001); Aharon Barak, A Judge on Judging: The Role of a Supreme Court in a Democracy, 116
HARV. L. REV. 16, 133–136 (2002); Richard Clayton, Judicial Deference and Democratic Dialogue:
The Legitimacy of Judicial Intervention under the Human Rights Act, 1998, 2004 PUB. L. 33; Leighton
McDonald, Rights, Dialogue and Democratic Objections to Judicial Review, 32 FED. L. REV. 1 (2004);
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. See, e.g., ALEXANDER
M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR oF POLITICS (Yale Univ.
Press 1986); LOUIS FISHER, CONSTITUTIONAL DIALOGUES: INTERPRETATION AS POLITICAL PROCESS
(Princeton Univ. Press 1988); Neal Devins & Louis Fisher, Judicial Exclusivity and Political
Instability, 84 VA. L. REV. 83 (1998); Guido Calabresi, Anti-Discrimination and Constitutional
Accountability (What the Bork-Brennan Debate Ignores), 105 HARV. L. REV. 80, 124–125 (1991).
ª The Author 2006. Oxford University Press and New York University School of Law.
All rights reserved. For Permissions, please email: [email protected]
I·CON, Volume 4, Number 2, 2006, pp. 347–370 doi:10.1093/icon/mol008
347
348 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
K. Roach
researchers to compare judicial review under the United States Bill of
Rights with judicial review under so-called weaker bills of rights found in
many other countries, such as Canada, and to ask whether judicial
review in the U.S. is exceptional or whether there is a convergence
across countries with respect to judicial enforcement of rights and judicial
supremacy.2
While the theory of an institutional dialogue has been employed by the
Supreme Court of Canada,3 and the seminal article on the subject by Peter
W. Hogg and Allison A. Bushell has had considerable influence,4 critics
of the theory argue that it results in policy distortions because it presumes
judicial supremacy in articulating constitutional values.5 At the same time,
other critics have argued that, while the metaphor of dialogue has descriptive
force, it does not in itself justify judicial review.6 Thus, the notion of a dialogue
between court and legislator is not yet a universally accepted given. Nonetheless, in my own work, I have defended the idea of dialogue as a means of
reconciling judicial review with democracy and, in the pages to follow, will
assume its legitimacy.7
In this essay I will focus on the theory of institutional dialogue between
courts and legislatures in terms of the latter’s ability to respond to judicial
decisions regarding rights with new legislation seeking to limit or override
2
See Mark Tushnet, Judicial Review, in OXFORD HANDBOOK OF LEGAL STUDIES (Cane & Tushnet eds.,
Oxford Univ. Press 2003); RAN HIRSCHL, TOWARDS JURISTOCRACY (Harvard Univ. Press 2004).
See also AMERICAN EXCEPTIONALISM (Michael Ignatieff ed., Princeton Univ. Press 2005).
3
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).
4
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. 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); 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).
5
See CHRISTOPHER P. MANFREDI, JUDICIAL POWER AND THE CHARTER (Oxford Univ. Press 2001); JANET
HIEBERT, CHARTER CONFLICTS (McGill-Queens Univ. Press 2002); Andrew Petter, Twenty Years of
Charter Justification: From Liberal Legalism to Dubious Dialogue, 52 U.N.B. L.J. 187 (2003).
6
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).
7
See KENT ROACH, THE SUPREME COURT ON TRIAL: JUDICIAL ACTIVISM OR DEMOCRATIC DIALOGUE (Irwin
Law, 2001); Kent Roach, Constitutional and Common Law Dialogues Between the Supreme Court
and Canadian Legislatures, 80 CAN. B. REV. 487 (2001); Kent Roach, Dialogic Judicial Review and
its Critics, 23 SUP. CT. L. REV. (2d) 49 (2004); Kent Roach, Constitutional, Remedial, and
International Dialogues About Rights: The Canadian Experience, 40 TEX. INT’L. L.J. 537 (2005).
Dialogue or defiance
349
the rights as interpreted by the courts.8 My hypothesis is that there are more
opportunities for this sort of dialogue under the Canadian Charter of Rights
and Freedoms—because of its general clause, allowing reasonable limits on
rights, and its explicit derogation clause—than are available under the U.S.
Bill of Rights, which contains no such clauses.9 A further hypothesis is that
these features of the Charter give Canadian legislatures a greater ability to
reply to court decisions despite the broad convergence in the manner in
which each country’s court interprets its bill of rights. In the 1960s, the
U.S. Supreme Court, under the leadership of Chief Justice Earl Warren,10 led
a due process revolution that imposed new restraints on the crime control
activities of the state. In the 1980s and 1990s, the Court led by the chief
justices Brian Dickson and Antonio Lamer in Canada11 imposed a similar
revolution on a Canadian system that had previously accorded considerable
deference to the state.12 My focus is not on the broad areas of convergence
8
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, see Kent Roach, Common Law Bills of Rights as
Dialogue Between Courts and Legislatures, 55 U. TORONTO L.J. 733 (2005); Kent Roach, Remedial
Consensus and Dialogue under the Charter, 35 U.B.C. L. Rev. 211 (2002).
9
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); MICHAEL PERRY, THE CONSTITUTION IN THE COURTS: LAW
OR POLITICS? 192–204 (Oxford Univ. Press 1994); 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, see Mark Tushnet, Policy Distortion and Democratic
Debilitation: Comparative Illumination of the Countermajoritarian Difficulty, 94 MICH. L. REV. 245
(1995); Jeremy Waldron, Some Models of Dialogue Between Judges and Legislators, 23 SUP. CT. L.
REV. (2d) 7 (2004).
10
Warren served as chief justice from 1953–1969.
11
Dickson served as chief justice in Canada from 1984–1990; Lamer served as chief justice from
1990–2000.
12
KENT ROACH, DUE PROCESS AND VICTIMS’ RIGHTS (Univ. Toronto Press 1999); 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).
350 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
K. Roach
in the judicial imposition of limits on government but, rather, on the
legislative attempts to reverse two controversial pro-accused decisions of the
U.S. and Canadian Supreme Courts: Miranda v. Arizona13 and The Queen v.
Daviault, respectively.14
Although one should not make too much of any one case, Miranda and
Daviault are significant because they were focal points for each Court’s due
process revolution. In Miranda, the new right, or new aspect of a pre-existing
right, entailed an extension of the right against self-incrimination, from the
courthouse back to the stationhouse, as well as rights to have evidence taken
from the accused excluded from consideration at trial if the accused was not
given explicit warnings as to his or her rights to remain silent and to be
represented by counsel. In Daviault, the new right was the accused’s right to
plead the defense of intoxication when charged with such crimes as assault
and sexual assault. As in Miranda, the Court in Daviault abandoned common
law that was less protective of the accused and staked its prestige and power
on what would be a very unpopular and controversial constitutional decision.
Both cases generated swift legislative replies that did not conform to each
Court’s explicit suggestions as to how the legislature might respond within
the bounds of the Courts’ constitutional interpretations.15
Miranda was decided in 1966; in 1968, Congress enacted a new law stating that the presence of Miranda warnings was but one of many factors determining whether the accused’s statements were admissible in court. Daviault
was decided in 1994, and Parliament amended the Criminal Code in 1995
to provide that an accused who invoked a Daviault defense of involuntary conduct caused by extreme intoxication could still be convicted of assault or sexual assault on the basis of having breached a standard of ‘‘reasonable care’’
by becoming so intoxicated. In each case, the speedy legislative reply can be
seen as an attempt to reverse an unpopular and divided Supreme Court
decision. And both raise the issue of whether legislative reversals of
the constitutional decisions by apex courts constitute legitimate dialogue
or illegitimate defiance. The ultimately unsuccessful attempts by the
two Supreme Courts in both Miranda and Daviault to structure subsequent
legislative replies raise interesting issues about whether courts have a
monopoly on the interpretation of constitutional rights, and about the
13
384 U.S. 436 (1966).
14
[1994] 3 S.C.R. 63.
15
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). See Gregg v. Georgia, 428 U.S. 153 (1976)
(upholding Georgia’s new death penalty provisions as compliant with past decisions). 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).
Dialogue or defiance
351
legitimate role for legislative replies under both the U.S. and Canadian
constitutions.16
The fact that the legislature, in both cases, reversed unpopular Supreme
Court decisions favoring the rights of the accused also raises important issues.
Much judicial review, conducted under constitutional bills of rights, concerns
claims that the accused has been treated unfairly.17 The criminal justice
context is not only important empirically; it is theoretically challenging.
People accused of crime are emblematic of the powerless, the unpopular,18
and the disenfranchised. Minority groups—African-Americans and Latinos
in the United States and Aboriginal people and African-Canadians in
Canada—are overrepresented among those accused of crimes. The treatment
of the rights of the accused provides a difficult test for the theory of
institutional dialogue because those accused of crimes are among the most
unpopular and the most vulnerable in a majoritarian legislative process.
1. Miranda and Congress
1.1. The Supreme Court’s decision
In 1966, the United States Supreme Court, in a 5–4 ruling, decided Miranda v.
Arizona. The judgment of the Court, written by Chief Justice Earl
Warren, contained important and controversial findings about the nature
of interrogation at the police station. He cited interrogation manuals on the
psychological, secret, and police-dominated process of interrogation to
support his conclusion that ‘‘as a practical matter, the compulsion to speak
in the isolated setting of the police station may well be greater than in
courts.’’19 To counteract these pressures, the Court imposed new obligations
on the police to warn those subject to custodial interrogation that they have a
right to remain silent; that anything that they say may be used against them in
court; and that they have a right to a lawyer, including an appointed lawyer if
they cannot afford one. One of the reasons that these Miranda warnings
are so famous is that the Court made them ‘‘an absolute prerequisite to
interrogation’’20 and held that police questioning must cease if a suspect
indicated that he or she wished to remain silent or to consult a lawyer.
The Court’s decision drew strongly worded dissents that argued
that the majority had departed from the language of the Fifth
16
MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (Princeton Univ. Press 1999).
17
Two-thirds of Charter cases decided by the Supreme Court involve the rights of the accused.
Hirschl, supra note 2, at 67.
18
JOHN HART ELY, DEMOCRACY AND DISTRUST (Harvard Univ. Press 1980); 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).
19
Miranda v. Arizona, 384 U.S. 436, 461 (1966).
20
Id. at 445.
352 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
K. Roach
Amendment21 and from existing precedents, which only prevented the
admission of an involuntary confession. Justice Harlan warned that ‘‘the
Court is taking a real risk with society’s welfare in imposing its new regime
on the country. The social costs of crime are too great to call the new rules
anything but a hazardous experimentation.’’22 The disagreement within
the Court set the stage for subsequent intervention by Congress. As will be
seen, the dissent’s argument that all the Constitution required was that a
confession be voluntary inspired the legislative reply.
Legislation based on the dissent was not the only option open to Congress.
Chief Justice Warren stressed that ‘‘[o]ur decision in no way creates a
constitutional straitjacket which will handicap sound efforts at reform, nor
is it intended to have this effect. We encourage Congress and the States to
continue their laudable search for increasingly effective ways of protecting
the rights of the individual while promoting efficient enforcement of our
criminal laws. However, unless we are shown other procedures which are
at least as effective in apprising accused persons of their right of silence and
in assuring a continuous opportunity to exercise it, . . . [what we now know
as the Miranda requirements] . . . must be observed.’’23 In this crucial passage,
the Court recognized the legitimacy of subsequent legislative intervention but
attempted to structure it so that any new regime would be at least as effective
in protecting the rights of the accused as the Court’s default regime of
warnings.
1.2. Congress’s response
Congress’s reply to Miranda came in Title II of the Omnibus Crime Control and
Safe Streets Act, which became law in June 1968. The operative provision of
section 3501 provided that a confession would be admissible in any federal
prosecution ‘‘if it is voluntarily given.’’ It then provided:
The trial judge in determining the issue of voluntariness shall take into
consideration all the circumstances surrounding the giving of the
confession including . . . whether or not such defendant was advised
or knew that he was not required to make any statement and that
such statement could be used against him, whether or not such defendant had been advised prior to questioning of his right to the assistance of
21
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.
22
Miranda, supra note 13, at 517.
23
Id. at 467.
Dialogue or defiance
353
counsel; and whether or not such defendant was without the assistance
of counsel when questioned and when giving such confession.
The above passage acknowledges the concept of Miranda warnings
but merely includes it as one of the circumstances to be considered when
determining whether a confession was voluntary. The core of section 3501,
and its attempted reversal of Miranda, are contained in the following passage:
The presence or absence of any of the above mentioned factors to be
taken into consideration by the judge need not be conclusive on the
issue of voluntariness of the confession.
This was in defiance of Chief Justice Warren’s pronouncement that the
Miranda warnings were an ‘‘absolute prerequisite’’ for a confession to be
admitted.
Section 3501 was passed as part of the omnibus legislation by a 72–4 vote
in the Senate despite the fact that almost all legal scholars characterized it
as an unconstitutional defiance of the Court. Voting a few days after the
assassination of Robert Kennedy, the House of Representatives passed the
bill by a 369–17 vote.24 These overwhelming majorities underline how
vulnerable rights for the accused may be in the legislative process. Senator
Sam Ervin,25 for example, defended the bill not only as a response to ‘‘a
judicial oligarchy composed of five Supreme Court Justices’’ but on the even
more emotive basis that ‘‘enough has been done for those who murder and
rape and rob, and that something ought to be done for those who do not
wish to be murdered or raped or robbed. . . .’’26 The bill was signed into law
by President Lyndon B. Johnson but more enthusiastically endorsed by
Richard Nixon who was running a law-and-order campaign in the 1968
presidential election.
In 1968 Congress was not seriously interested in pursuing Chief Justice
Warren’s suggestion that it experiment with alternative ways of protecting
the rights of the accused during interrogations. It did not follow up on
Alexander Bickel’s suggestion that the Supreme Court might accept the
audiotaping of confessions as an equally effective protection for the accused
as the Court’s Miranda warnings.27 Instead, Congress sought to repudiate
the judgment of the majority of the Court. Some members of Congress, such
as Senator Ervin, supported such a repudiation but warned that it could not
be achieved through ordinary legislation. He proposed a constitutional
24
Yale Kamisar, Can (Did) Congress ‘‘Overrule’’ Miranda?, 85 CORNELL L.REV. 883, 889–894
(2000).
25
Senator Samuel James Ervin Jr. (1896–1985) was a Democratic member of the Senate from
1954–1974.
26
Kamisar, supra note 24 at 898.
27
Id. at 912.
354 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
K. Roach
amendment to reverse Miranda or to restrict the jurisdiction of appellate
courts to consider Miranda claims.28 Ervin recognized that changing the
Court’s remit by reducing its jurisdiction29 or changing the Constitution30
would be the most effective way to reverse Miranda. Nevertheless, Congress
proceeded with ordinary legislation.
1.3. The Supreme Court’s response to Congress’s response to Miranda
For nearly thirty years after its enactment, the legislative response to
Miranda was largely ignored by both justice officials and the courts. Although
no other reply legislation enacted by American legislatures has received the
same treatment, the fact that even one piece of legislation was effectively
ignored lends support to critics, such as Jeremy Waldron, who argue that
bills of rights enforced by the judiciary can undermine the ‘‘dignity of
legislation.’’31 In this sense, the refusal by the executive to enforce the
legislation effectively reduced Congress’s reversal of Miranda, though duly
enacted by both houses and signed by the president, to something of little
more significance than frequent and unsuccessful attempts in Congress to
propose constitutional amendments or to limit the jurisdiction of the federal
courts.32 Indeed, much congressional reaction to Court decisions can be
seen as a form of protest politics and posturing33 that diminishes the power
and dignity that elected legislatures should have in a democracy. The fact
that the executive could decline to enforce this law also underscores how
the separation of powers under the U.S. system may not only create the risk
of ineffective governmental responses to Court decisions but also can provide
more checks and balances than are found in parliamentary systems, where
the executive is responsible to the legislature.
The Supreme Court eventually considered the constitutionality of section
3501 in Dickerson v. The United States,34 a case in which the trial judge had
28
Id. at 889–893.
29
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, see PERRY, THE CONSTITUTION IN THE COURTS, supra note 9.
30
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.
31
JEREMY WALDRON, LAW AND DISAGREEMENT (Oxford Univ. Press 1999); JEREMY WALDRON, THE
DIGNITY OF LEGISLATION (Oxford Univ. Press 2000).
32
FISHER, CONSTITUTIONAL DIALOGUES, supra note 1, ch. 6; WALDRON, LAW
WALDRON, THE DIGNITY OF LEGISLATION, id.
33
GARY MCDOWELL, CURBING THE COURTS (LSU Press 1988).
34
Dickerson v. United States, 530 U.S. 428, 437 (2000).
AND
DISAGREEMENT, id.;
Dialogue or defiance
355
excluded the accused’s confession of a bank robbery on the basis that the
accused had not been read his Miranda rights. The U.S. Court of Appeals for
the Fourth Circuit, widely regarded as the most conservative of the eleven
federal appeals courts, raised the issue of section 3501 on its own initiative
because the federal executive had not raised it. The Fourth Circuit followed
post-Miranda precedents from the Supreme Court, which had characterized
the Miranda rules as prophylactic protections of the Fifth Amendment, and
concluded that ‘‘no longer will criminals who have voluntarily confessed
their crimes be released on mere technicalities.’’35 The Supreme Court
reversed the lower court, in a 7–2 judgment authored by Chief Justice
William Rehnquist, which upheld the principle of judicial supremacy as
settled law: ‘‘Congress may not legislatively supersede our decisions interpreting and applying the Constitution.’’ Even though the Court might not be
disposed, at the present time, to decide Miranda in the same way, ‘‘the
principles of stare decisis weigh heavily against overruling it now.’’36 He did
not reissue Chief Justice Warren’s invitation to legislatures to formulate effective alternatives to the Miranda warnings. This was a striking omission given
both the Court’s obvious unease with the warnings and the advent of technology making it feasible for all police interrogations to be recorded in order to
ensure that confessions were obtained lawfully and given on a voluntary
basis. Indeed, a number of commentators have criticized the majority opinion
for failing to recognize Miranda as a kind of constitutional common law
subject to legislative modification.37
In dissent, Justice Antonin Scalia, while also affirming the Court’s judicial
supremacy in articulating constitutional rules, concluded, nonetheless,
that Miranda warnings were not required by the Constitution. He reasoned
that the Fifth Amendment only precluded involuntary confessions, not
confessions without Miranda warnings, and that section 3501 was
thus consistent with constitutional requirements. He concluded that ‘‘by
disregarding Congressional action that concededly does not violate the
Constitution, the Court flagrantly offends fundamental principles of
separation of powers and arrogates to itself prerogatives reserved to the
representatives of the people.’’38
The result of the dialogue between the Court and Congress over Miranda
provides evidence of a deeply ingrained, bipartisan, and strengthening U.S.
35
United States v. Dickerson, 166 F.3d 667, 692.
36
Id.
37
See, e.g., Richard H. Fallon, Judicial Legitimacy and the Unwritten Constitution, 45 N.Y.L. SCH. L.
REV. 119 (2001); 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, see Erwin Chemerinsky, The Court Should
Have Remained Silent, 149 U. PENN. L. REV. 287 (2000).
38
Dickerson v. United States, 530 U.S. 428, 433.
356 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
K. Roach
tradition of judicial supremacy.39 All the members of the Supreme Court in
Dickerson accepted judicial supremacy in enforcing the Constitution; they
differed only as to what the Constitution required in this instance. Moreover,
Chief Justice Rehnquist displayed less interest in articulating acceptable
dialogic responses available to Congress than Chief Justice Warren had in
Miranda. The Court’s controversial decision in Miranda will remain the law
no matter what Congress says. It will only be overruled by changing the Court
or the Constitution.
2. Daviault and Parliament
2.1. The Court’s decision
In Daviault,40 in a 6–3 decision, the Supreme Court of Canada held that a
common law rule denying the defense of intoxication to those charged with
general intent offenses, including assault and sexual assault, violated the
guarantees of fundamental justice and the presumption of innocence under
sections 7 and 11(d) of the Charter. Justice Peter Cory, writing for the Court,
stressed that it would be unjust to convict a person of a crime if his conduct
was unconscious and involuntary due to extreme intoxication. He also
concluded that to substitute the fault of becoming extremely intoxicated for
the fault of the crime charged would also violate the presumption of
innocence and the requirement that the accused be at fault at the time the
crime was committed. He found that the state had not justified these
violations under section 1 of the Charter as reasonable limits on rights
because judge-made rules were subject to strict scrutiny, and the government
had not demonstrated why convicting an extremely intoxicated person who
acted in an involuntary manner was necessary for the protection of society.
For the dissent, Justice John Sopinka dismissed the argument that
convicting a person who had acted in an involuntary or unconscious manner
because of self-induced intoxication was fundamentally unfair. He reasoned
that ‘‘the requirements of the principles of fundamental justice are satisfied
by proof that the accused became voluntarily intoxicated.’’41 In other words,
those who chose to become extremely intoxicated were morally responsible
for their subsequent actions. As will be seen, the notions of moral responsibility expressed by the dissent inspired Parliament’s reply to the decision.
As in Miranda, the Supreme Court anticipated negative public and
legislative reaction to its ruling on behalf of the accused and sought to
39
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).
40
Supra, note 14.
41
Daviault v. The Queen, supra note 14, at 115–116, 120.
357
Dialogue or defiance
channel it in a manner that it regarded as consistent with the principles
articulated in the ruling. Justice Cory stated, ‘‘[I]t is always open to
Parliament to fashion a remedy which would make it a crime to commit a
prohibited act while drunk.’’42 This followed long-standing recommendations
that Parliament could legitimately respond to any gap in social protection—
caused by a wider intoxication defense—by creating a new criminal offense
of causing harm or danger while extremely intoxicated.43 Such a legislative
response would punish the accused not for sexual assault but for causing
harm while intoxicated.
Studies of institutional dialogue should take into account the ways
that courts may seek both to make their decisions more acceptable to
legislatures44 and to structure the legislative replies. At the same time, both
cases studied in this essay provide examples of legislatures declining to enact
reply legislation of the sort contemplated by the Court, even at the risk that
their replies would, in turn, be judicially invalidated. The legislative replies
in both cases challenge the role of the judiciary as the sole or final authority
on constitutional interpretation.45
2.2. Parliament’s response
Soon after Daviault, a private member’s bill46 was introduced that would have
made the commission of assaults and sexual assaults while intoxicated
punishable as a separate crime. This proposal, which responded to the Court’s
explicit invitation to Parliament to create a new intoxication-based offense,
would have increased the maximum penalty for sexual assaults and assaults
in cases in which the accused was extremely intoxicated. Such legislation
would have survived subsequent Charter challenge but was rejected by the
government.47
The minister of justice rejected the designation of a separate crime on the
basis that it raised ‘‘the spectre of having a drunkenness discount which
would give people who intoxicate themselves an option of having a lesser
42
Id. at 99–100.
43
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.
44
TERRI J. PERETTI, IN DEFENCE OF A POLITICAL COURT (Princeton Univ. Press 1999).
45
MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS, supra note 16.
46
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.
47
KENT ROACH, DUE PROCESS & VICTIMS’ RIGHTS: THE NEW LAW & POLITICS
178–179 (Univ. Toronto Press 1999).
OF
CRIMINAL JUSTICE
358 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
K. Roach
penalty for the same crime.’’48 The government’s decision was influenced by
women’s advocacy groups, which warned that the creation of a new offense
could facilitate plea bargaining and sanction a de facto ‘‘drunkenness
discount.’’ The government’s approach makes clear that the elected branches
of government may resist suggestions by the Supreme Court on how to
formulate legislative replies; similarly the U.S. Congress was uninterested in
the Supreme Court’s suggestion that it was free to devise alternatives to the
Miranda warnings, which might have been equally as effective in protecting
the rights of the accused. In cases in which the Court has ruled in favor of
the truly unpopular, the elected branches may place greater priority on
expressing their disagreement with the Court than on following the Court’s
suggestions. The legislature may be more concerned with distancing itself
from the Court’s position and expressing solidarity with the victims of crime
than with crafting a proportionate response that will enhance social
protection and, at the same time, survive subsequent constitutional
challenge.
Minister of Justice Allan Rock introduced a bill in Parliament in early
1995 that provided that the accused would not have a defense if, ‘‘by reason
of self- induced intoxication,’’ the accused ‘‘lacked the general intent or the
voluntariness required to commit the offence.’’ The bill’s premise was that
a person who became so drunk as to qualify for the Daviault defense had departed ‘‘markedly from the standard of reasonable care generally recognized in
Canadian society and is thereby criminally at fault.’’49 This bill codified the
common law substitution of the fault of becoming intoxicated for the fault of
the offense of assault or sexual assault.50 The difference was that Parliament,
rather than the courts, now deemed that the fault of becoming drunk was sufficient to convict a person of assault or sexual assault, and that the new law
applied only to crimes of violence, whereas the Court’s decision allowed a
defense of extreme intoxication to all crimes, including property crimes.51
The bill was enacted with support from all political parties in Parliament.
The new law was accompanied by a lengthy preamble stating
that intoxicated violence ‘‘has a particularly disadvantaging impact on
the equal participation of women and children in society and on the rights
of women and children to security of the person and to equal protection
and benefit of the law.’’52 Thus, Parliament used the preamble to articulate
48
Hansard 27 March 1995, 11037.
49
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’’).
50
Canada Criminal Code, s.33.1 (2).
51
Id. at s.33.1 (3).
52
Second recital of the preamable, Act to Amend the Criminal Code 1995, supra note 49.
Dialogue or defiance
359
to the public and to the courts its legislative rationale. Although preambles
may potentially facilitate dialogue between courts and legislatures, in this
case, the legislature and the court spoke different languages. The preamble
avoided the question that most concerned the judiciary, namely why
Parliament had chosen this approach rather the more proportionate
alternative of instituting a new intoxication-based offense. Instead, the preamble made general statements about Parliament’s aspirations for the
legislation and its solidarity with women and children victimized by drunken
violence.53
In addition to its focus on the equality rights of women and children, the
new law embraced the argument made by Justice Sopinka in dissent—that
an accused who voluntarily becomes so intoxicated that he acts in an
involuntary or unconscious manner nevertheless has a moral responsibility
for the commission of the offense. The law deemed that the act of
becoming so intoxicated constituted a marked departure from ‘‘the standard
of reasonable care generally recognized in Canadian society.’’54 Some
commentators have questioned whether legislative replies built on dissenting
judgments can be characterized as ‘‘positive’’ dialogue.55 Regardless of the
answer to the difficult question of what does constitute positive dialogue,
legislation patterned on dissent from the Supreme Court constitutes defiance
of the Court’s own majoritarian processes56 for deciding whose judgment
should prevail. Such legislation may be a sign of the legalization of
politics;57 it is also a sign that the legislature has rejected the merits of the
Court’s ruling.
Despite expressed concerns that it be enacted as soon as possible, the
bill was referred to committee so that expert evidence could be heard to
refute the Court’s conclusion that extreme intoxication could produce
involuntary behavior. A number of scientists testified that alcohol could
likely only produce involuntary and unconscious behavior if combined with
other pre-existing conditions, such as a brain disorder or low blood sugar.
Others cited the views of the Canadian Psychiatric Foundation that existing
defenses, including the mental disorder defense, were adequate to deal
with this issue. These concerns informed a decision to amend the bill, before
the third reading, to include a statement in the preamble that Parliament
‘‘is aware of scientific evidence that many intoxicants, including alcohol,
53
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).
54
Act to Amend the Criminal Code, supra note 49.
55
Manfredi & Kelly, Six Degrees of Dialogue, supra note 4.
56
WALDRON, LAW AND DISAGREEMENT, supra note 31.
57
MICHAEL MANDEL, THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS AND THE LEGALIZATION OF POLITICS
CANADA (Thompson 1994).
IN
360 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
K. Roach
may not cause a person to act involuntarily.’’58 This aspect of Parliament’s
reply raises the question of the comparative fact-finding abilities of
legislatures and courts. However, findings such as those of the Miranda
Court, about the inherently coercive nature of police interrogation, or
the Daviault Court’s findings, about the danger of convicting a person for
involuntary conduct, are not so much facts, which can be rebutted by
different legislative conclusions, as they are findings of law expressed in a
factual guise. Thus, the legislature’s conclusions that the Court had made
factual errors might well be interpreted by the Court as a rejection or defiance
of its legal reasoning.
Lawyers’ groups appearing before the committee requested that the
government refer the draft bill to the Supreme Court for an opinion on
its constitutionality,59 an option for which the Canadian system provides.
The government rejected the proposed procedure—which can constitute
a form of dialogue between the elected branches and courts—in favor of
immediate enactment of the bill.60 A referral would have treated the decision
with greater respect than was shown by simply enacting legislation based on
the minority judgment. It would have allowed the government to introduce
its scientific evidence—that intoxication could not produce involuntary
behavior—into court, where those claims could be tested. It also would
have allowed groups representing women, children, the disabled, and others
potentially threatened by intoxicated violence to make submissions to the
Court about the relevance of their equality rights. Finally, it would have
given the Court an opportunity to consider overruling Daviault on the
basis of new evidence and new arguments that could be presented in the
referral process. The ability of Canadian governments to refer abstract
questions of legality and to achieve European-style rulings on the constitutionality of legislation before it is officially enacted is an important difference
between the U.S. and Canadian Constitutions. Like the legislative limitation
and override clauses in sections 1 and 33 of the Charter, the referral
procedure can be used to promote dialogue between Canadian courts and
legislatures over the treatment of rights in a way that is not allowed under
the U.S. system, where the judiciary is restricted to deciding live cases and
controversies.
2.3. The judicial response to Parliament’s response to Daviault
As of this writing, the Canadian Supreme Court has yet to rule on the
constitutionality of Parliament’s response to Daviault. However, most of the
lower courts that have considered the issue have invalidated the section of
58
HIEBERT, CHARTER CONFLICTS, supra note 5, at 105.
59
ROACH, DUE PROCESS AND VICTIMS’ RIGHTS, supra note 12, at 180.
60
HIEBERT, CHARTER CONFLICTS, supra note 5.
Dialogue or defiance
361
the criminal code that the 1995 Act amended.61 On the basis of this evidence,
one might conclude that the differences between the U.S. Bill of Rights and the
Canadian Charter have been overstated and that there is a gravitational pull
toward judicial supremacy in both systems.62 The situation could also conceivably reflect a theory of judicial responsibility that does not equate dialogue with judicial deference.63 Still, the Supreme Court’s prior record of
general acceptance of similar legislative replies suggests that it may accept
Parliament’s response to Daviault. If so, this would suggest that the Canadian
Court is more deferential to the legislative reversal of its constitutional
decisions than the U.S. Court. Even if the Supreme Court follows the majority
of the lower courts and invalidates Parliament’s reply to Daviault, there would
still be a dialogic option left to Parliament under the Charter that would not
be available to Congress under the Bill of Rights—namely, the use of the
section 33 override.
The lower court judgment that was most receptive to the reply legislation
was made by a trial judge who found that, while the reply legislation violated
sections 7 and 11(d) of the Charter, these violations, nevertheless, were
justified under section 1 of the Charter. The judge held that Parliament had
engaged in a proportionate and justified restriction of the accused’s rights
because the new law only abolished the Daviault defense with respect to
violent crimes. The judge also held that the new law was entitled to greater
deference because it had been enacted by Parliament as opposed to the
judge-made common law that had been invalidated in Daviault.64 This
decision demonstrates how section 1 can serve as a dialogic device that allows
courts to preserve legal principles but also leaves room for governments to
justify proportionate exceptions in particular contexts.
Holding that Parliament’s reply violates sections 7 and 11(d) of the
Charter, although justified as a reasonable limit on those rights under
section 1, would allow the Court to maintain the point of legal principle
made in Daviault while recognizing that Parliament, after listening to a variety of groups and considering new evidence about the effects of extreme intoxication, had limited the Daviault defense. Such an approach has a certain
appeal because it recognizes that courts and legislatures have distinct and
complementary roles, and it does not concede to the legislature the ability
61
R. v. Brenton, [1999] 28 C.R. 5th 308 (N.W.T.S.C.); R. v. Dunn, [1999] 28 C.R. 5th 295
(Ont. S.C.J.).
62
Mark Tushnet, Judicial Activism in a Section 33 World, 53 U.TORONTO L.J. 89 (2002); CHRISTOPHER
P. MANFREDI, THE CANADIAN CONSTITUTION AND THE COURTS (Oxford Univ. Press 2001).
63
Tremblay, The Legitimacy of Judicial Review, supra note 6, at 636; 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. KENT ROACH, THE SUPREME COURT ON TRIAL, supra note 7.
64
R. v. Vickberg, [1998] 16 C.R. 5th 164 (B.C.S.C.).
362 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
K. Roach
to act on an interpretation of the rights of the accused that is more restrictive
than the Court’s interpretation of the same rights. As antimajoritarian
institutions, the courts have an important role in defending legal principles
with respect, for example, to the need to establish fault before convicting
the accused. At the same time, the legislature may have access to information
that is not readily available to the courts when hearing an individual case.
This was particularly true with respect to Daviault, which was heard as a
regular criminal appeal without interventions by other governments or
interest groups.65
One problem with the section 1 approach66 is that the Court has held
repeatedly that a violation of ‘‘the right to life, liberty and security of the
person and the right not to be deprived thereof except in accordance with
the principles of fundamental justice’’ under section 7 of the Charter cannot
be accepted under section 1 of the Charter, except perhaps in an emergency
situation.67 There is no textual justification for this restrictive approach
because the reasonable-limits provision of section 1 of the Charter applies to
all Charter rights. Allowing section 7 violations to be justified under
section 1, in appropriate cases, would increase the possibilities and range of
dialogue in this area.68 At the same time, the Court’s unwillingness to accept
section 1 limits on section 7 rights may reflect the criminal law context of
most section 7 cases. Judges are understandably reluctant to convict and
send to jail someone who has been treated in a fundamentally unfair manner.
Indeed, the one judge who upheld the reply to Daviault under section 1 found
a creative way not to apply the new legislation that called for him to convict a
person who had acted in an involuntary manner in the commission of an
assault. He held that the accused had become intoxicated involuntarily
because of prescription medication, and that the new law only applied to
voluntary intoxication.69 Thus he narrowed the scope of the legislation as a
matter of statutory interpretation in order to avoid an injustice. Similarly,
the House of Lords interpreted a rape shield law, under section 3 of the
Human Rights Act 1998, to ensure that the accused received a fair trial
65
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.
66
See note 9, supra, and accompanying text.
67
B. C. Motor Vehicle Reference, [1985] 2 S.C.R. 486; United States of America v. Burns & Rafay,
[2001] 1 S.C.R. 283; R. v. Ruzic, [2001] 1 S.C.R. 686; Suresh v. Canada, [2002] 1 S.C.R. 3.
68
Roach, Common Law Bills of Rights As Dialogue Between Courts and Legislatures, supra note 8.
69
R. v. Vickberg, supra note 64.
Dialogue or defiance
363
and could adduce all relevant evidence.70 In the area of criminal justice, the
desire of the judiciary to do justice in individual cases may produce
results that are not optimal for fostering dialogue between the court and the
legislature about the treatment of rights. Although this may be a drawback
for those primarily interested in institutional interaction between courts
and legislatures, it is also based on an admirable instinct to prevent injustice
to a person whose liberty is at stake.
Another obstacle to upholding the reply legislation under section 1 of the
Charter is the fact that Parliament rejected the Court’s suggestion that it
could respond to Daviault by creating a new intoxication-based offense.
Such an offense might have fulfilled social interests without violating the
Charter by convicting a person of assault or sexual assault if that person did
not have the necessary fault for such a crime. The legislation provides no
real answer as to why the Court’s suggested response was rejected, although
one may lie in concerns about the diminished stigma of a new intoxicationbased offense and its effects on plea-bargaining practices. The Supreme Court
may be unwilling to hold that Parliament has restricted proportionately the
accused’s rights when its own suggestions about a more proportionate
response in Daviault were rejected by Parliament without a full and adequate
justification.
3. The Canadian Supreme Court’s record on legislative
replies to pro-accused Charter decisions
Although trial judges have generally struck down Parliament’s reply as
an illegitimate defiance of the Court’s judgment in Daviault, they do not
face the same institutional pressures as the Supreme Court nor do they bear
its burden of finality. It is, therefore, difficult to predict the Supreme Court’s
ultimate response to Parliament’s reply to Daviault. Some clues may be found,
however, in the Court’s rulings in cases involving parliamentary replies to
other Charter decisions that concerned the rights of the accused, of which
there have been four. In three of the four cases, the Court upheld
Parliament’s reply.
The first and most controversial instance was the Court’s 1999 decision in
R. v. Mills to uphold a law that essentially reversed its own 1995 decision in
R. v. O’Connor,71 providing for a procedure to allow the accused to have
access to a complainant’s confidential records in a sexual assault case. The
impugned law conformed closely to a dissent in O’Connor that would
70
R. v. A (No. 2), [2000] A.C. 326. 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.
71
[1995] 4 S.C.R. 1411.
364 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
K. Roach
have required judges to balance the accused’s rights with both the
equality rights of complainants and the social interest in encouraging the
reporting of sexual assaults prior to a judge’s examination of the confidential
documents and before such documents were disclosed to the accused.
The Supreme Court upheld this legislative reversal of its decision, suggesting
that ‘‘if the common law were to be taken as establishing the only
regime, then we could not speak of a dialogue with the legislature. Such a
situation could only undermine rather than enhance democracy.’’72 This
approach, wherein the court characterized its prior decisions as a common
law rule that was not constitutionally required, was likewise open to the
U.S. Supreme Court in Dickerson because of the Court’s explicit refusal to
characterize Miranda as a constitutional rule.73 Common law presumptions
of a respect for rights facilitate the dialogue between courts and legislatures.
Nevertheless, the common law approach would not be available with
respect to the Daviault reply because the Court in Daviault clearly
indicated that the extreme intoxication defense was constitutionally
required.74
In Mills, the Court also flirted with deferring to the legislature’s authority
to act on its own interpretation of the Constitution when it stated that ‘‘courts
do not hold a monopoly on the protection and promotion of rights and freedoms’’75 and bowed to the legislature’s attempt to advance equality values
and balance them with the accused’s rights. Such a coordinate construction
approach will be available when the Court considers the reply legislation to
Daviault, given the latter’s emphasis on the equality rights of women and children. However, some Canadian commentators have criticized the Court’s
deference in Mills for not giving sufficient weight to the unique role of the
judiciary in interpreting the Constitution or the need to respect its precedents.76 The idea that legislatures can act on their own interpretation of a constitution even when it differs from the court’s interpretation has an ancient
lineage77 and is currently experiencing a renaissance through the work of
72
R. v. Mills [1999] 3 S.C.R. 668, at para 57.
73
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; Cassell, Alternatives to the Miranda Warnings, supra note 37.
74
The same may be said for the Court’s decision in R. v. Mills, id.
75
R. v. Mills, id.
76
Cameron, Dialogue and Hierarchy in Charter Interpretation, supra note 63; Roach, Constitutional
and Common Law Dialogues, supra note 7; Mathen, Constitutional Dialogue in Canada and the United
States, supra note 8. 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.
77
FISHER, CONSTITUTIONAL DIALOGUES, supra note 1, ch.2.
Dialogue or defiance
365
such scholars as Mark Tushnet and Larry Kramer.78 Whatever the merits of
this concept in other contexts, there is a real danger in the criminal law
context that legislatures will minimize or even trivialize the rights of the easily
demonized and politically marginal accused vis-à-vis the interests of virtuous
and politically influential victims and potential victims. The legislature’s
ability to interpret the Constitution in a manner that is opposed to the Court’s
interpretation is so problematic that it should be subject to the special
procedures and sober second thoughts of the override.79
In the second case in which it considered a legislative reply to its own
pro-accused decision, the Court upheld the reply by characterizing it as
complying fully with a controversial decision by which the Court had
invalidated a rape shield law.80 This approach—characterizing the legislative
reply as in compliance with the Court’s judgment—discounted the fact that
Parliament’s reply to the Court’s original decision constructively expanded
the debate beyond the rape shield issue by changing the substantive law of
sexual assault. In any event, in connection with Daviault, the suggestion
that Parliament’s reply complies with the Court’s earlier decision will not be
available given Parliament’s deliberate decision not to follow the Court’s
suggestion in that case regarding the creation of a new intoxication-based
offense.
A third approach used by the Court for the sake of compromise is to strike
down those parts of a legislative reply that most directly contradict its ruling
while upholding the rest. The Court employed this approach when considering a legislative reply to its decision that denial of bail, when required in ‘‘the
public interest,’’ was excessively vague, and thus impermissible.81 In a 5–
4 decision, the Court severed the denial of bail on the basis of any ‘‘just
cause,’’ again striking it down for excessive vagueness, while at the same
time upholding the new law’s provision for denying bail when required to
maintain public confidence in the administration of justice. The Court might
follow this approach by upholding Parliament’s compromise in reversing
Daviault with respect to violent offenses while leaving the decision untouched
78
MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS, supra note 16; LARRY
D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (Oxford Univ.
Press 2004).
79
Roach, Constitutional and Common Law Dialogues, supra note 7; ROACH, THE SUPREME COURT
TRIAL, supra note 7.
ON
80
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 in R. v. Seaboyer, [1991] 2 S.C.R. 577).
81
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).
366 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
K. Roach
with respect to other offenses. However, such a compromise in the Daviault
context would entail deferring to Parliament’s decision to invalidate part of
the Court’s previous decision, whereas in the bail context, the Court was
striking down part of Parliament’s reply as inconsistent with the previous
decision.
The fourth case in which the Supreme Court has considered a legislative
reply to a pro-accused Charter decision, however, suggests that the Court
may not always defer to legislative compromises. In Sauve v. Canada,82 the
Court, in a 5-4 decision, invalidated a federal law that prohibited prisoners
serving sentences of two years or more from voting. This law was a legislative
response to the Court’s prior decision invalidating the right of all prisoners to
vote.83 The majority in the second Sauve prisoner-voting-rights case rejected
appeals to dialogue theory, observing that dialogue cannot mean ‘‘if at first
you do not succeed, try, try again,’’84 and, at the same time, stressing the
fundamental importance in a democracy of the right to vote. When it comes
to deciding the constitutionality of Parliament’s reply to Daviault, it remains
to be seen whether the Court will reprise the more deferential position it
took in Mills or its more activist stance in Sauve.
If the Supreme Court adopts an activist approach and strikes down the
reply legislation as an unjustified defiance of Daviault, it will be criticized by
those who argue that courts should defer to Parliament’s reasonable interpretations of the underlying rights.85 Critics will also charge that the Court
is following in the U.S. tradition of judicial supremacy as exemplified in
Dickerson. In the context of legislative replies to pro-accused Court decisions,
however, there is much wisdom in the Dickerson approach, which suggests
that the legislature cannot simply override a judicial decision by enacting a
law based on the position of the judicial dissent in that case. A deferential
approach would diminish much of the value of Supreme Court adjudication,
especially in the criminal justice field, where legislation reversing pro-accused
decisions will often be supported by all political parties and swiftly enacted by
overwhelming majorities. The judicial activism implied in refusing to retreat
and by striking down reply legislation, as seen in Dickerson, seems most
appropriate in those cases where those whose interests are protected by the
court ruling will stand no chance in a majoritarian legislative process.86
82
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.
83
Sauve v. Canada, [1993] 2 S.C.R. 438.
84
Sauve, supra note 82, at para. 7.
85
WALDRON, LAW AND DISAGREEMENT, supra note 31; HIEBERT, CHARTER CONFLICTS, supra note 5.
86
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; Roach, Dialogic Judicial Review, supra note 7,
at 70–72.
Dialogue or defiance
367
But would not judicial invalidation of the Daviault reply reveal that all this
talk of dialogue under the Charter is nothing more than judicial supremacy
in disguise?
4. The override as an alternative to legislative or
judicial supremacy
If the choice is between legislative supremacy, which allows legislatures to
reverse pro-accused judicial decisions by a simple majority, and judicial
supremacy, which precludes such reversals, there are good reasons, as
outlined above, to prefer the type of judicial supremacy that motivated the
Court’s decision in Dickerson. There is, however, an alternative to the polar
extremes of legislative supremacy or judicial supremacy.87 Even if the
Supreme Court were to strike down the parliamentary reply to Daviault,
Parliament could still reenact the same law under section 33 of the Charter,
notwithstanding the Court’s interpretation of sections 7 and 11 of the
Charter. To be sure, Parliament would have to pay a political price for an
explicit override of rights, and the override would have to be renewed after
five years.88 The override would allow Parliament to prevail for a time but
would also commit it to revisiting the matter when the override expires.
This interval could produce the conditions for sober reflection on the
implications of overriding the Court’s decisions.
The use of the override already has given rise to constitutional
controversy, deliberation, and lessons. In 1988, Québec used it to respond
to a Supreme Court decision that invalidated a law prohibiting the use of
languages other than French on commercial signs. The use of the override
was controversial and caused some anglophone ministers to resign from the
government. Anglophone merchants subsequently made successful
complaints of discrimination to the United Nations Human Rights Committee,
illustrating that, in Canada, the dialogue between courts and legislatures is
not confined to the domestic level. In the end, Québec decided to allow the
override to expire in 1993 and now has legislation that generally allows the
commercial use of language other than French.89 In 1999, Alberta used
the override in an attempt to prevent gay marriage. The tactic was not
87
Gardbaum, The New Commonwealth Model of Constitutionalism, supra note 1.
88
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, see Roach, Dialogic Judicial Review and its Critics, supra note 7, at 61–62.
89
Ford v. Quebec, [1988] 2 S.C.R. 712. On the subsequent responses, see Roach, Constitutional,
Remedial and International Dialogues, supra note 7, at 556–558.
368 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
K. Roach
particularly controversial because it was a private member’s bill and not an
expression of government policy.90 In 2005, however, Alberta allowed the
override to expire and accepted a federal law recognizing marriage as a
union of any two persons, which had been enacted in large part due to an
unwillingness at the federal level to use the override to prohibit gay
marriage.91 In both the Québec and Alberta cases, the override triggered a
process of constitutional dialogue that may have strengthened acceptance
and understanding of the underlying constitutional norms. Although some
may attempt to dismiss such dialogue as ‘‘a ‘political dialogue,’ not a legal
or constitutional dialogue,’’92 it is, nonetheless, a form of dialogue available
under the Canadian Charter and one that is consistent with the normative
notion of a judicial responsibility to enforce the Constitution unless the
legislature clearly derogates from specific rights.93
As a predictive matter, courts may be more willing to enforce the rights of
the unpopular when they do not have the burden of finality and judicial
supremacy.94 At the same time, however, it is possible that courts may
want, for dubious strategic reasons, to avoid having their decisions overridden. Indeed, concerns about the possible use of the override may have been
a factor motivating the Supreme Court to uphold three of the four parliamentary replies to its pro-accused decisions.95 The Court may have been concerned that invalidation of a recent and popular parliamentary reply would
90
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.
91
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.
92
Tremblay, The Legitimacy of Judicial Review, supra note 6, at 637.
93
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.
94
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).
95
As discussed above, the Court upheld legislative replies to pro-accused Charter decisions in
R. v. Mills, supra note 72 and R. v. Darrach, supra note 80. 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, supra note 82.
Dialogue or defiance
369
have provoked Parliament to use the override. The Court may have a strategic interest in preserving the judicial power that stems from a reluctance
to provoke the parliamentary override, and it may sense that its rulings about
the rights of the accused are especially vulnerable to majoritarian overrides.
This hypothesis is also consistent with the one decision in which the Supreme
Court has struck down a parliamentary reply to a pro-accused decision. As
discussed above, the Court in Sauve struck down a federal law that denied
the vote to those serving terms of imprisonment for two years or more.
Although the Court’s rejection of Parliament’s reply was unpopular, the
Court and prisoners both were immune from a parliamentary backlash
and override because the Court was enforcing the right to vote, which,
unlike the legal rights in the other three cases, is not subject to the section
33 override. This theory would suggest that, as a matter of positive predictive
analysis, the Supreme Court will accept Parliament’s rejection of Daviault, in
part, because of concerns that a bolder decision will provoke the use of the
override against the Court and against the accused. This, of course, does
not answer the normative question of what the Supreme Court should do.
As suggested above, my view is that the Court should strike down the reply
as an attempt to reverse and defy Daviault. Such a result would not signal
judicial supremacy because Parliament could respond with the override.
The use of the override, in turn, would not signal legislative supremacy
because the override will expire in five years time, if not renewed. In short,
the override provides an alternative to the traditional categories of legislative
and judicial supremacy.
5. Conclusion
In Miranda and Daviault, the American and Canadian Supreme Courts both
anticipated that the legislature would want to intervene after their unpopular
decisions in favor of the rights of the accused, and they attempted to structure
the nature of the legislative reply. In Miranda, the Court suggested that
legislatures could adopt its own equally effective rules to protect the rights
of the accused during interrogations. In Daviault, the Court suggested that
Parliament could enact a new intoxication-based offense to cover the conduct
of those who might benefit from a new defense of extreme intoxication. In
both cases, judicial attempts to structure subsequent legislative replies failed.
Despite the striking similarities between the legislative replies to Miranda
and Daviault, the Canadian Constitution can facilitate dialogue between
courts and legislatures more easily than can the U.S. Constitution. Absent a
showing that its legislation was as effective in protecting the accused’s rights
as were the Court’s rules, Congress had few options (other than changing
the Constitution or overriding the Court) for responding to Miranda. The
legislative reversal of Miranda was never really enforced because the
370 Int’l J Con Law, Vol 4, No 2 (Apr 2006)
K. Roach
executive recognized that it defied the ruling of the majority on the Supreme
Court. In contrast, the Canadian government had the capacity to initiate a
proactive dialogue with the Court by referring the draft legislation and new
evidence in support of the legislation back to the Court. Furthermore, the
Supreme Court of Canada in three out of four cases has upheld Parliament’s
reply to its previous pro-accused Charter decisions and may well accept the
reversal of Daviault. And even if the Court strikes down Parliament’s
reply as a defiance of its judgment in Daviault, Parliament will still have the
opportunity to respond by re-enacting the law, subject to the override. The
override option provides space for continued constitutional dialogue,
offering a useful alternative to the dichotomy between legislative and judicial
supremacy.