Expanding the ‘Dialogue’ Debate: Federal Government Responses to Lower Court Charter Decisions

Extract

The inter–institutional dynamics between courts and elected governments under the Canadian Charter of Rights and Freedoms have recently, and widely, been characterized as a "dialogue" over constitutional meaning. This article seeks to expand the systematic analysis of "dialogue" to lower courts of appeal, using Canadian federal government responses as a case study. In the process, the article clarifies the hotly debated operational definition of this metaphor, and develops two methodological innovations to provide a comprehensive measure of dialogue. The article's findings suggest that there is more dialogue with lower courts than with the Supreme Court of Canada. However, the evidence indicates that dialogue in the form of government appeals to higher courts–which explicitly signal the government's disagreement with the lower court–is as prevalent as legislative sequels, and the dominant form following judicial amendment.