Subordinate Interpretation In Canada

If dialogue theory is nothing more than a thin cover for judicial supremacy, than how should Canada model the relationship between the legislature and the judiciary? The answer lies in coordinate interpretation. Coordinate interpretation envisions that every branch that interacts with the Charter (the judiciary, the executive, and the legislative) will have equal responsibilities in upholding and advancing the values in the Charter (Slattery, 1987, 707). Under coordinate interpretation, the executive and the legislative branches would have “first order” duties, which means they would be expected to scrutinize legislation that they intend to pass in order to ensure Charter compliance; likewise, they also have a duty to scrutinize legislation

For example, in the case of Reference re Manitoba Language Rights the Court stated that the Manitoba Act established certain Constitutional duties that the legislature was responsible for upholding (1985). A more concrete example comes from the two cases of O’Connor and Mills. In the O’Connor case the Court dealt with the release of medical records in sexual assault cases, the Court split five to four over how stringent the requirements surrounding introducing victim medical records into court should be (1995). In authoring a legislative response, the legislature choose to base their response not off the majority opinion, but off the strong dissent authored by justice L’Heureux-Dube (Baker, 2010, 22). The legislature’s response, Bill C-46, was challenged in the Mills case; remarkably the Court upheld the Bill C-46 in a 7-1 decision (1999). The Court even stated that “the courts do not hold a monopoly on the protection and promotion of rights and freedoms (R. v. Mills, 1999, para. 3).” Although this should not be taken as a full endorsement of coordinate interpretation, the Court’s decision in Mills shows that the idea of coordinate interpretation is not alien to the Canadian judiciary, and that it is capable of seeing the legislature as having its own valid interpretation of the

Cameron argued in his case commentary on Mills that the Court’s decision to recognize the legislature’s interpretation of the Charter would have a “destabilizing effect on precedent and protection of rights (2001, 1068).” The idea that coordinate interpretation leads to destabilization is a common critique. For example, Hogg also argues that if the judiciary is not given final authority over Charter interpretation then there is a risk of “interpretive anarchy (Hogg and Bushell, et. al, 2007, 31). These claims of anarchy are misplaced; Baker notes that critics of coordinate interpretation act as if the only choice is between rigid judicial supremacy and anarchy, a position that ignores the fact that several other common law countries (Australia, New Zealand, and the UK) also maintain Constitutions without the rigid judicial supremacy that characterizes the Canadian system (Baker, 2010,