Osgoode Hall Law Journal Volume 45, Number 1 (Spring 2007) Article 5 Charter Dialogue: Ten Years Later The aD y the Dialogue Died: A Comment on Sauve v. Canada Christopher P. Manfredi Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohlj Part of the Constitutional Law Commons Commentary Citation Information Manfredi, Christopher P.. "The aD y the Dialogue Died: A Comment on Sauve v. Canada." Osgoode Hall Law Journal 45.1 (2007) : 105-123. http://digitalcommons.osgoode.yorku.ca/ohlj/vol45/iss1/5 This Commentary is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons. The aD y the Dialogue Died: A Comment on Sauve v. Canada Abstract In Sauvé v. Canada (2002) a sharply divided Supreme Court of Canada nullified the inmate disenfranchisement provision of the Canada Elections Act. One of the more important aspects of the majority decision by Chief Justice McLachlin is her refusal to let the concept of dialogue take her down the path of judicial deference. This commentary examines the chief justice's reasons for not taking this path and explores how these reasons reveal the limitations of the dialogue metaphor as originally articulated by Peter Hogg and Allison Bushell. The ommec ntary concludes that any meaningful concept of legislative-judicial dialogue must recognize a coordinate legislative authority to interpret a constitution. Keywords Canada; Canada. Canadian Charter of Rights and Freedoms; Judicial review; Prisoners--Legal status, laws, etc. This commentary is available in Osgoode Hall Law Journal: http://digitalcommons.osgoode.yorku.ca/ohlj/vol45/iss1/5 Commentary THE DAY THE DIALOGUE DIED: A COMMENT ON SAUVE V CA NADA© CHRISTOPHER P. MANFREDI * In Sauvd v. Canada (2002) a sharply divided Supreme Dans l'affaire Sauvd c. Canada (2002), la Cour Court of Canada nullified the inmate supreme du Canada, .prement partag6e, rendait nulle disenfranchisement provision of the Canada Elections la disposition de la Loielectoraledu Canada, relative A Act. One of the more important aspects of the majority l'incapacit6 6lectorale d'un d6tenu. L'un des volets les decision by Chief Justice McLachlin is her refusal to plus importants de la d6cision majoritaire de Mme let the concept of dialogue take her down the path of McL-achlin, juge en chef, est son refus de laisser le judicial deference. This commentary examines the concept de dialogue l'emmener sur la voie de la chief justice's reasons for not taking this path and retenue judiciaire. Ce commentaire examine les motifs explores how these reasons reveal the limitations of pour lesquels la juge en chef na pas voulu suivre cette the dialogue metaphor as originally articulated by voie, et explore en quoi ces motifs r6vlent les Peter Hogg and Allison Bushell. The commentary limitations de la m6taphore du dialogue, comme l'ont concludes that any meaningful concept of legislative- 6 l'origine formul6e Peter Hogg et Allison Bushell. Le judicial dialogue must recognize a coordinate commentaire conclut que tout concept significatif de legislative authority to interpret a constitution. dialogue legislatif-judiciaire doit reconnaitre une autorit6 -16gislative coordonn~e pour interpr6ter une constitution. I. THE ROAD TO THE SUPREME COURT ......................................................107 II. THE DIALOGUE QUESTION .................................. 110 III. SAUVt2AND THE LIMITS OF DIALOGUE ...............................................116 IV. CONCLUDING REM ARKS ...............................................................................122 On 31 October 2002 the Supreme Court of Canada delivered its decision in Sauv6 v. Canada (Chief ElectoralOfficer). 1 At issue was the constitutionality of section 1(e) of the Canada Elections Act,2 which disenfranchised individuals "imprisoned in a correctional institution ©2007, C.P. Manfredi. Dean of the Faculty of Arts and Professor of Political Science, McGill University. Sauv6 v. Canada (ChiefElectoral Officer), [2002] 3 S.C.R. 519 [Sauv6 No. 2 ]. Canada ElectionsAct, R.S.C. 1985, c. E-2, s. 51(e), as am. by S.C. 1993, c. 19, s. 23. OSGOODE HALL LAW JOURNAL [VOL. 45, NO. I serving a sentence of two years or more."3 In an unusually acrimonious set of opinions, the Court nullified the provision by a single vote. Two aspects of the judgment stand out in particular. The first aspect is Chief Justice Beverley McLachlin's openly hostile attitude toward the state of U.S. jurisprudence on the question. She did not cite-even to reject- the controlling U.S. decision on the matter, and she dismissed the practice of criminal disenfranchisement in other jurisdictions in terms that questioned whether such jurisdictions could even be called democracies.4 The second aspect is her refusal to allow the concept of dialogue to take her down the path of judicial deference. Both of these elements of the judgment merit closer analysis, but in this commentary I focus on the second: the concept of dialogue. Since 1999, either alone or in collaboration with James Kelly, I have been a participant in the debate generated by Peter W. Hogg and Allison A. Bushell's original dialogue article "Charter Dialogue."5 The essence of that participation has been to argue that the "Charter Dialogue" argument about legislative-judicial dialogue is normatively flawed and empirically problematic. I suggest in this commentary that these weaknesses are strikingly apparent in Sauv6 No. 2, which effectively brought an end to the short history of the dialogue metaphor as a useful guide to judicial decision making. This commentary begins by describing the path that brought criminal . disenfranchisement to the Supreme Court in Sauv6 No. 2. It then turns its attention to a general discussion of the dialogue question, revisiting many of the arguments I have advanced in other contexts. Finally, it turns to the Sauv6No. 2judgment itself, in order to explore what it reveals about the limitations of the dialogue concept. Ibid., s. 51(e). In effect, this meant that only inmates of federal penitentiaries would be affected by the voting restriction, since sentences of less than two years are served in provincial prisons and/or jails. ' Supra note 1 at 548, per McLachlin C.J.C. ("that not all self-proclaimed democracies adhere to principles of inclusiveness, equality and citizen participation, ... says little about what the Canadian vision of democracy embodied in the Charterpermits"). ' 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 After All)" (1997) 35 Osgoode Hall L.J. 75 [" CharterDialogue"]. 2007] The Day the DialogueDied I. THE ROAD TO THE SUPREME COURT In contrast to the United States, where the U.S. Supreme Court upheld the plenary power of states to disenfranchise convicted persons,6 prisoners' rights advocates in Canada during the 1980s and 1990s were successful in challenging provincial and federal voting restrictions. Constitutional challenges to the Canada Elections Act began in earnest in 1988 and produced mixed results until a Supreme Court decision in 1993.' Prisoners' rights advocates achieved trial court victories in 1988 and 1991, but also lost one case in 1988.' At the appellate level, they lost one case in 1988,1" but won two cases in 1992.11 As a result, by the end of 1992, prisoners' rights advocates had secured decisions from the Ontario Court of Appeal and the Federal Court of Appeal declaring the relevant provisions of the Canada Elections Act unconstitutional. Indeed, the Ontario court refused even to acknowledge the legitimacy of the federal government's reasons for criminal disenfranchisement, and the federal appellate court found the restriction to be "arbitrary, unfair, 12 and based on irrational considerations., On 27 May 1993 the Supreme Court delivered its unanimous judgment in the companion cases Attorney General of Canada v. Sauvd (Sauv No. 1) and The Queen v. Belczowski' 3 The Court found the lower court judgments in these cases so compelling as to require only a two-paragraph oral judgment affirming that the act disenfranchised prison inmates and thus violated the right to vote guaranteed by section 3 of the Charter.Parliament responded to the Sauvd No. 1 decision by redrafting the Canada Elections Act to narrow the affected class of persons to inmates of federal penitentiaries who have been convicted of indictable offences. Predictably, prisoners' rights advocates reacted to 6 Richardson v.Ramirez, 418 U.S. 24 (1974). 7[1993] 2 S.C.R. 438. ' Badger v.Canada (1988), 55 Man. R. (2d) 198 (Q.B.); Belczowski v.Canada, [1991] 3 F.C. 151 (T.D.) [Belczowski1991]. 9 Sauvd v.Canada (Attorney General) (1988), 66 O.R. (2d) 234.(H.C.J). '°Badgerv. Canada (1988), 55 Man. R. (2d) 198 at 204-05 (C.A.). " Belczowski v. Canada, [1992] 2 F.C. 440 (C.A.) [Belczowski 1992]; Sauv6 v. Canada (AttorneyGeneral) (1992), 7 O.R. (3d) 481 (C.A.). '2 R. v.Oake, [1986] 1 S.C.R. 103 at 138-39 [Oakes], cited in Belczowski1991, supranote 8 at 165. 3 ' Sauv6 v.Canada (Attorney General), [1993] 2 S.C.R. 438 [Sauvi No.1]. OSGOODE HALL LAW JOURNAL [VOL. 45, NO. I the amended legislation by filing new constitutional challenges to the Canada Elections Act. A challenge was once again filed on behalf of Richard Sauv6, while another was filed on behalf of a group of Aboriginal inmates in Manitoba led by Sheldon McCorrister 4 In addition to the standard voting rights arguments, these challenges also advanced two novel equality rights arguments. 5 First, they argued that prisoners, as a group, constitute a discrete and insular minority that has been historically subjected to social, legal, and political discrimination. Second, they argued that the criminal justice system is riddled with systemic discrimination, as reflected in the disproportionate representation of Aboriginal Canadians in the federal inmate population.