In Search of Prophylactic Rules
23 Pages Posted: 1 Jun 2013
Date Written: January 1, 2004
Prophylactic rules are laws created by judges to prevent violations of the constitution. Unlike constitutional rules, prophylactic rules have no constitutional status of their own. Legislatures can repeal or alter prophylactic rules, provided they devise alternative strategies for meeting the requirements of the constitution. While the United States Supreme Court has recognized prophylactic rules, the Supreme Court of Canada has yet to do so. Nevertheless, the Supreme Court has created unacknowledged prophylactic rules. Examples include the Court’s requirement for a search warrant regime in Hunter v. Southam Inc. and its demand for independent provincial judicial salary commissions in R. v. Campbell. In both of these cases, the Court appears to have conflated prophylactic rules with constitutional requirements. By failing to distinguish between constitutional and prophylactic rules, the Court has introduced confusion into several areas of constitutional law. The Court has also denied the role of Parliament and the provincial legislatures as co-interpreters of the constitution. Recognition of prophylactic rules would allow for more meaningful “dialogue” between courts and legislatures – if only in the long term.
Keywords: Constitutional law, dialogue theory, Charter of Rights
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