Dialogue and Hierarchy in Charter Interpretation: A Comment on R. V. Mills

Abstract

This case comment focuses on two issues of methodology: the first concerns constitutional interpretation and the democratic process, or the dialogue issue; and the second, the relationship between Charter guarantees, or the hierarchy issue. To set the stage, an initial section provides an overview of the Stinchcombe/O'Connor/Mills trilogy, and is followed by a more detailed analysis of Mills that examines the tension between judicial and legislative decision making, before considering how Parliament and the Court altered O'Connor's model for balancing the rights of the accused and complainants. On the latter issue, though the article does not comment in detail on the mechanics of defence access to these records, some attention to particulars is necessary to show how the Court both eschewed and embraced a hierarchy among Charter entitlements. A final section returns to overriding questions of hierarchy. Beyond the substantive issue of ranking rights and interpreting s. 7 is the question of relations between institutions. There, Parliament's decision to negate O'Connor by ordinary legislation calls into question any concept of dialogue as a demonstration of mutual respect between courts and legislatures. In that regard, it is doubtful that dialogue's objective of keeping the institutional peace augurs well for constitutional rights. As the conclusion suggests, the concept is more likely to compromise entitlements and destabilize Charter jurisprudence.

Keywords: R v. Mills, Canadian Charter, s. 7, Charter Interpretation, Stinchcombe/O'Connor/Mills trilogy, judical decision making, legislative decision making

JEL Classification: K10