Introduction

How Should Courts Respond to Political Questions? Exploring the Dialogical Turn in the Supreme Court of Canada’s Federalism and Indigenous Case Law

“…This is particularly the case after Canada entrenched the Charter of Rights and Freedoms in 1982, which gave the courts more power to strike down laws through judicial review. Many commentators have traced the growth of the Court’s impact following the advent of the Charter (see Snow and Harding 2015; Sigalet, Webber, and Dixon 2019). There is a healthy debate about whether the Charter has rebalanced power between the courts and legislature and whether more activist courts are threatening their own legitimacy and the democratic pedigree of the state (Morton 1999; Manfredi and Kelly 1999; Hogg and Bushell 1997; Roach 2001; Petter 2007; Hogg, Bushell, and Wright 2007; Macfarlane 2013).…”

“…One of the main contributions of this work is “dialogue theory.” Dialogue theory emerged from analysis of a trend in Charter cases where the Court would strike down legislation and then the legislature would respond by revoking or reintroducing amended laws (Hogg and Bushell 1997). From this analysis a theory developed about how this “dialogue” could ideally help address the democratic legitimacy challenge of judicial review by showing that elected legislatures ultimately have the final word in dealing with unconstitutional laws (Sigalet, Webber, and Dixon 2019, 3–5). While there is a varied and rich literature on dialogue theory, its core postulates include: that promoting legislative responses to judicial review (a dialogical process between courts and legislatures) helps address the democratic challenge of judicial review (for recent overviews, see Sigalet, Webber, and Dixon 2019; Sigalet et al 2021); that courts play a critical role in identifying and protecting rights (particularly for groups lacking political power) (Roach 2004); and that, while the democratic challenge to enforcing rights through judicial review in the first instance can be mitigated by legislatures responding, courts should ideally still act in a restrained manner (Dixon 2007).…”

“…Dialogue theory is clearly applicable to our enterprise. However, in the Canadian context and broader legal scholarship, dialogue theory has been almost wholly focused on civil rights cases and on the relationship between the courts and legislatures (Sigalet, Webber, and Dixon 2019, 1). We can draw lessons from this work and make linkages—particularly the normative position about the value of dialogue to address democratic challenges of judicial review and the call for a measure of judicial restraint, while not completely abrogating a role in checking political power.…”

Between Populism and Juristocracy: The Republicanism of Rainer Knopff

“…3This is not the first article to draw republican theory into the analysis of Canadian public law (see, for example, Kong, 2014; Schertzer, 2016; Sigalet, 2019). …”