A Dialogue About Principle and a Principled Dialogue: Justice Iacobucci’s Substantive Approach to Dialogue

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by  Roach K.

A Dialogue About Principle and a Principled Dialogue: Justice
Iacobucci’s Substantive Approach to Dialogue
Roach, Kent.
University of Toronto Law Journal, Volume 57, Number 2, Spring
2007, pp. 449-477 (Article)
Published by University of Toronto Press
For additional information about this article
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Kent Roach* A DIALOGUE ABOUT PRINCIPLE AND A
PRINCIPLED DIALOGUE: JUSTICE
IACOBUCCI’S SUBSTANTIVE APPROACH TO
DIALOGUE
I Introduction
FrankIacobucciplayedtheleadroleinintroducingthemetaphorofjudi-
cial review as a form of dialogue between courts and legislatures into
Canadianconstitutionallaw.1Hediscusseddialogueinreferencetointer-
pretingbothrightsandlimitationsundertheCanadianCharterofRights
and Freedoms,2 but also in relation to devising remedies under the
Charter3 and using the s. 33 override.4 Justice Iacobucci’s interest in dia-
loguewasnot,however,limitedtothesemanydifferentaspectsofCharter
adjudication. He recognized the importance of dialogue between courts
andlegislatureswithrespecttothedevelopmentofthecommonlaw5and
in the interpretation of statutes.6 One of the strengths of the dialogue
metaphor is that it can facilitate thinking about the respective roles of
courts and legislatures throughout much of the law.7 It also travels well
and is increasingly the focus of attention in many parts of the world
that seek to build on the traditions of common law, or what some call
Commonwealth constitutionalism.8 The dialogue metaphor illuminates
* FacultyofLaw,UniversityofToronto.
1 Christopher Manfredi, ‘The Life of a Metaphor: Dialogue in the Supreme Court,
1998–2003’(2004)23SupremeCourtL.Rev.(2d)105at112[Manfredi,‘Metaphor’].
2 Mv.H,[1999]2S.C.R.3.;R.v.Hall,[2002]3S.C.R.309;Vriendv.Alberta,[1998] 1
S.C.R.493.
3 Little Sisters Book Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120 [Little
Sisters];DoucetBoudreauv.NovaScotia,[2003]3S.C.R.3.
4 Vriend,supranote2.
5 R.v.Mills,[1999]3S.C.R.668.
6 BellExpressVuPartnershipv.Rex,[2002]2S.C.R.559[BellExpressVu].
7 Formyargumentsthatthedialoguemetaphorcasecanassistinunderstandingsome
forms of common and international law see Kent Roach, ‘Common Law Bills of
Rights as Dialogue between Courts and Legislatures’ (2005) 55 U.T.L.J. 733 [Roach,
‘Bills of Rights’]; Kent Roach,‘Constitutional, Remedial andInternational Dialogues
aboutRights:TheCanadianExperience’(2005)40Tex.Int’lL.J.537.
8 StephenGardbaum,‘TheNewCommonwealthModelofConstitutionalism’(2001)49
Am.J.Comp.L.7071;AharonBarak,‘AJudgeonJudging:TheRoleofaSupremeCourt
in a Democracy’ (2002) 116 Harv.L.Rev. 16 at 133–6 [Barak, ‘Judge on Judging’];
(2007),57UNIVERSITYOFTORONTOLAWJOURNAL
450 UNIVERSITYOFTORONTOLAWJOURNAL
therelationbetweencourtsandlegislaturesinanycommonlawsystemin
which legislatures can reply to the rights-protection decisions of courts
and under any bill of rights that leaves space for legislatures to justify
limits or derogations from rights.
Atthesametime,themetaphorofjudicialreviewasaformofdialogue
between courts and legislatures is controversial. There have been two
main forms of criticism. One is that actual dialogue does not, in fact,
occur very often between courts and legislatures; instead, what courts
and commentators call a dialogue is more often a monologue.9 A
second form of criticism is that the dialogue metaphor does not justify
the role that courts play in the dialogue.10 In this essay, I will deal only
with this second critique, arguing that in Justice Iacobucci’s hands,
dialogue had a substantive and principled core.
Justice Iacobucci engaged in a dialogue of principle in the sense that
he brought questions of principle, rights, and the protection of vulner-
able minorities to bear on his development of the common law, the
interpretation of statutes, and his Charter jurisprudence while recogniz-
ing that the legislature also retains the option of justifying limits or
even overriding such principles altogether. In this sense, much of the
substantive core of institutional dialogue about the place of principle in
governance can be found in the important work of Alexander Bickel. I
willalsoarguethat,forJusticeIacobucci,judicialreviewwaspartofaprin-
cipled dialogue in the sense that the dialogue should be conducted in a
fair and open manner that respects the distinct roles and abilities of
Aharon Barak, The Judge in a Democracy (Princeton, NJ: Princeton University Press,
2006) at 236–40 [Barak, Judge]; T.R.S. Allan, ‘Constitutional Dialogue and the
Justification for Judicial Review’ (2003) 23 Oxford J.Legal Stud. 563; Richard
Clayton, ‘Judicial Deference and “Democratic Dialogue”: The Legitimacy of Judicial
Intervention under the Human Rights Act’ [2004] Pub.L. 33; Leighton McDonald,
‘Rights, “Dialogue” and Democratic Objections to Judicial Review’ (2004) 32
Fed.L.Rev. 1; Tom Hickman, ‘Constitutional Dialogue, Constitutional Theories and
the Human Rights Act, 1998’ [2005] Pub.L. 306; Christine Bateup, ‘The Dialogic
Promise: Assessing the Normative Potential of Theories of Constitutional Dialogue’
(2006) 71 Brooklyn L.Rev. 1109. For an excellent review of the Canadian literature
on dialogue see Peter Hogg, Allison Bushell Thornton, & Wade Wright, ‘Charter
Dialogue Revisited’ (2007) 45 Osgoode Hall L.J. [forthcoming] [Hogg et al.,
‘DialogueRevisited’].
9 MarkTushnet,‘JudicialActivismorRestraintinaSection33World’(2003)53U.T.L.J.
89;ChristopherManfredi&JamesKelly,‘SixDegreesofDialogue’(1999)37Osgoode
HallL.J.513.
10 Andrew Petter, ‘Twenty Years of Charter Justification: From Liberalism to Dubious
Dialogue’ (2003) 52 U.N.B.L.J. 187; Keith Ewing, ‘Human Rights’ in Peter Cane &
Mark Tushnet, eds., The Oxford Handbook of Legal Studies (Oxford: Oxford University
Press, 2003) 306; Alan Hutchinson, ‘Judges and Politics: An Essay from Canada’
(2005) 23 Legal Stud. 464; Luc Tremblay, ‘The Legitimacy of Judicial Review: The
LimitsofDialogueBetweenCourtsandLegislatures’(2005)3Int’lJ.Const.L.617.
ADIALOGUEABOUTPRINCIPLEANDAPRINCIPLEDDIALOGUE 451
courts,legislatures,andtheexecutive.Inthissense,muchofthesubstan-
tive core of principled dialogue can be found in the important work of
Lon Fuller.
II The intellectual and substantive origins of dialogue theory
JusticeIacobucci’sfirstexplicitdiscussionofdialoguebetweencourtsand
legislatures was in Vriend v. Alberta,11 where he prefaced his decision to
‘read in’ sexual orientation as a prohibited ground of discrimination in
Alberta’shuman-rightscodewithageneraldiscussionoftherelationship
between courts and legislatures under the Charter. In that discussion he
cited the famous article on dialogue written by Peter Hogg and Allison
Bushell12 a year earlier, stating that
theCharterhasgivenrisetoamoredynamicinteractionamongthebranchesof
governance. This interaction has been aptly described as a ‘dialogue’ by some
(see e.g. Hogg and Bushell, supra). In reviewing legislative enactments and
executive decisionsto ensure constitutional validity, the courts speak to the leg-
islativeandexecutivebranches.Ashasbeenpointedout,mostofthelegislation
held not to pass constitutional muster has been followed by new legislation
designed to accomplish similar objectives (see Hogg and Bushell, supra, at
p.82). By doingthis, the legislature respondstothe courts; hence the dialogue
among the branches.
To my mind, a great value of judicial review and this dialogue among the
branches is that each of the branches is made somewhat accountable to the
other. The work of the legislature is reviewed by the courts and the work of
the court in its decisions can be reacted to by the legislature in the passing of
newlegislation(orevenoverarchinglawsunders.33oftheCharter).Thisdialo-
guebetweenandaccountabilityofeachofthebrancheshavetheeffectofenhan-
cing the democratic process, not denying it.13
In his discussion in Vriend, Justice Iacobucci recognized a need to
respond to what Bickel had described as the ‘counter-majoritarian diffi-
culty’ of unelected judges’ striking down democratically enacted laws.
In Vriend, Justice Iacobucci described Bickel’s The Least Dangerous
Branch: The Supreme Court at the Bar of Politics as an ‘outstanding work.’14
Bickel developed a nuanced and sophisticated theory of judicial review
under the American Bill of Rights as a form of dialogue between the
court and both legislatures and society. Bickel wrote about how many
11 Supranote2.
12 PeterHogg&AllisonBushell,‘TheCharterDialogueBetweenCourtsandLegislatures’
(1997)35OsgoodeHallL.J.75.
13 Vriend,supranote2atparas.138–9.
14 Ibid.atpara.133.
452 UNIVERSITYOFTORONTOLAWJOURNAL
Supreme Court decisions ‘are the beginnings of conversations between
the Court and the people and their representatives’15 and about how
the Court ‘interacts with other institutions, with whom it is engaged in
anendlesslyrenewededucationconversation...Anditisaconversation,
notamonologue.’16Bickelwaswellawarethat,undertheAmericanBillof
Rights, ‘the Court has the edge’17 in the dialogue, but much of his work
encouragedthecourttominimizefull-blownconstitutionaldecisionsand
insteadtouseavarietyofsub-constitutionaldevices,suchaspresumptions
of statutory intent and the creative use of delay, to engage ‘in a Socratic
colloquy with the other institutions of government and with society as a
whole concerning the necessity for this or that measure, for this or that
compromise.’18 In other words, Bickel struggled, within the confines of
the American Bill of Rights, to find functional equivalents to ss. 1 and
33 of the Canadian Charter of Rights and suspended remedies. Bickel
isafounderofamodern19theoryofdialogue betweencourtsandlegisla-
tures, and it is significant that Justice Iacobucci cited Bickel in introdu-
cing the theory of dialogue to Charter jurisprudence. Bickel also had a
substantive approach to judicial review in that he argued that courts
can, in appropriate cases, act on principles of fairness and non-discrimi-
nation that the executive and legislatures are inclined to neglect. Bickel
defended Brown v. Board of Education, but he also recognized the ability
of legislatures and society to resist that just decision.
Building on the work of Bickel, Guido Calabresi argued in 1991 that
the Canadian Charter is ‘Bickellian’ in its promotion of dialogue
between courts and legislatures.20 Calabresi’s observations were part of a
larger argument that American constitutionalism had been dominated
15 Alexander Bickel, The Supreme Court and the Idea of Progress (New Haven, CT: Yale
UniversityPress,1970)at91[Bickel,Progress].
16 AlexanderBickel,TheMoralityofConsent(NewHaven,CT:YaleUniversityPress,1974)
at111.
17 Bickel,Progress,supranote15at91.
18 AlexanderBickel,TheLeastDangerousBranch:TheSupremeCourtattheBarofPolitics,2d
ed. (New Haven, CT: Yale University Press, 1985) at 70–1 [Bickel, Least Dangerous
Branch].
19 BeforeBickel,ThomasJefferson,JamesMadison,andAndrewJacksonallappealedto
the strong dialogic ideathat the elected branches of government could act on their
interpretations even when they departed from the Court’s interpretation. For a
contemporary defence of this form of coordinate construction see Mark Tushnet,
Taking the Constitution Away from the Courts (Princeton, NJ: Princeton University Press,
1999).
20 Guido Calabresi, ‘Foreword: Antidiscrimination and Constitutional Accountability
(What the Bork Brennan Debate Avoids)’ (1991) 105 Harv.L.Rev. 80 at 124. Cass
Sunsteinisanotherscholar who,inspiredbyBickel,hasarguedforconstitutionalism
minimalism as a device to allow increased dialogue between courts and legislatures
under the American Bill of Rights. See Cass Sunstein, One Case at a Time
(Cambridge,MA:HarvardUniversityPress,1999).
ADIALOGUEABOUTPRINCIPLEANDAPRINCIPLEDDIALOGUE 453
bytheextremesofjudicialorlegislativesupremacy.InspiredbyBickel,as
well as by Paul Weiler’s defence of the override as an alternative to legis-
lative or judicial supremacy,21 Calabresi argued that there should be
increasedinterestinmiddle-groundpositionsinwhichcourtsrequireleg-
islatures to justify and, if necessary, reconsider their policy objectives in
lightofconcernsabouttheeffectsoflegislationonvulnerableminorities
and legal principles. Judicial review, for Calabresi, should be focused on
protecting ‘society’s outcasts’ and on ensuring that legislatures do not
hide but, rather, justify their attempts to limit a broader range of rights.
Calabresi’s concerns about anti-discrimination and constitutional
accountability well capture the essence of Justice Iacobucci’s comments
in Vriend.
BothBickel’sandCalabresi’swritingsonjudicialreviewemergedfrom
the legal process tradition of legal scholarship. This tradition is some-
times associated with a simple and stark separation of powers between
courts and legislatures and a positivistic view of law.22 Writing in the late
1950s, and without regard to developments such as Brown v. Board of
Education, Henry Hart and Albert Sacks somewhat complacently argued
for a principle of institutional settlement whereby ‘a decision which is
the duly arrived at result of a duly established procedure’ ought ‘to be
accepted as binding upon the whole society unless and until it has
been duly changed.’23 In the 1960s and 1970s, however, the legal
process evolved as scholars began to ask questions about whether all
groups in society were included in the ‘duly established procedures.’
Some of the most important and enduring work that emerged from
the legal process era was Bickel’s theory of judicial review, Lon Fuller’s
theory of the ‘internal morality’ of law24 and John Hart Ely’s theory25
that robust judicial protection of minorities can be justified on process
grounds.
Both Bickel and Fuller contemplated a principled dialogue that
rejected the positivist elements of the legal process tradition, and both
sawcourtsashavinganimportantanddistinctroleindemocraticgovern-
ance. For Bickel, the courts must fulfil a function that ‘differs from the
21 PaulWeiler,‘RightsandJudgesinaDemocracy’(1984)18U.Mich.J.L.Ref.51.
22 SeeWilliamEskridge&PhilipFrickey,‘AnHistoricalandCriticalIntroductiontothe
LegalProcess’inHenryHart&AlbertSacks,TheLegalProcess(NewYork:Foundation
Press,1994)li.SeealsoKentRoach,‘WhatIsNewandOldabouttheLegalProcess?’
(1997)47U.T.L.J.363.
23 HenryHart&AlbertSacks,TheLegalProcess(NewYork:FoundationPress,1994)at5.
24 LonFuller,TheMoralityofLaw,rev.ed.(NewHaven,CT:YaleUniversityPress,1969).
Forarecognition of therelevance ofFuller’stheoryto dialoguebetween courts and
legislatures see Mary Liston, ‘Willis, “Theology” and Rule of Law’ (2005) 55 U.T.L.J.
767at785.
25 JohnHartEly,DemocracyandDistrust(Cambridge,MA:HarvardUniversityPress,1980).
454 UNIVERSITYOFTORONTOLAWJOURNAL
legislative and executive functions; which is peculiarly suited to the
capabilities of the courts; which will not likely be performed elsewhere
if the courts do not assume it.’26 Courts would participate in a
dialogue by bringing points of principle to the attention of governments
andthepeople.Bickelbelievedthatnogoodsocietycanlivewithoutprin-
ciplesbutalsothatnofunctioningsocietycanfunctionsolelyonthebasis
of principle. The dialogue between courts and the elected branches of
government is the means to reconcile these tensions.
Fuller’sapproachtolawdifferedfromBickel’sinextendingtoalllawand
notonlytotheroleofcourtsbutalsotothatoftheexecutiveandthelegis-
lature.Atthesametime,however,theideaofdialoguebetweencourtsand
other branches of government, and between individuals and courts, is
implicitinFuller’s understanding of lawas acollective collaborative enter-
prise.Inotherwords,Fullerstressednotsomuchthedialogueaboutprin-
ciplepresentedbyBickelbut,rather,theideaofaprincipleddialoguethat
wouldoccurbetweenindividuals,courts,bureaucrats,andthelegislature.In
thejudicialarena,‘principleddialogue’meantthatthepartiesareguaran-
teedarighttoparticipateandaddressargumentstothejudgeinawaynot
guaranteedinthepoliticalarena.27Theparticipationofthepartiesincreases
thelegitimacyofjudicialdecisions.Fuller’sideasaboutprincipleddialogue
alsoapplytolegislaturesthroughhisargumentthatlegislatures,nolessthan
courts,shouldbeinfluencedbytheinternalmoralityoflaw.Thismeansthat
legislatures should rule through public, prospective, understandable, and
general rules. A legislature that fails to rule in this way fails to make law.
Finally, Fuller also extended his theory of law to the executive, stressing
that there should be congruence between law and the administration of
lawbytheexecutive.28
Fuller defined law as an ongoing ‘enterprise’ and a ‘complex,
collaborative effort’29 that requires participation and nurturing from
judges, legislators, bureaucrats, and citizens, as opposed to a positivistic
‘one-way projection of authority.’30 For Fuller, law and democracy was a
neverending dialogue that will best be conducted if citizens, legislatures,
administrators,andcourtsallrespectbasicproceduresoffairnessintheir
interactions, in other words, if all involved in democratic governance
conduct a principled form of dialogue.31 Some scholars inspired by
Fuller have articulated the idea of a culture of justification of all public
26 Bickel,LeastDangerousBranch,supranote18at24.
27 LonFuller,‘TheFormsandLimitsofAdjudication’(1978)92Harv.L.Rev.353.
28 Fuller,MoralityofLaw,supranote24at39etseq.
29 Ibid.at134.
30 Ibid.at192.
31 Onthe connection between Fuller’sview oflawand therule oflaw see T.R.S. Allan,
Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University
Press,2001)atc.3.
ADIALOGUEABOUTPRINCIPLEANDAPRINCIPLEDDIALOGUE 455
power32 that is consistent with the idea of dialogue in which individuals
can require the state to justify limits on rights in terms of both legality
and proportionality.
Althoughafullintellectualbiographymustbelefttoothers,itislikely
that Justice Iacobucci was influenced by legal process thought and
perhaps even by Bickel and Fuller. He was educated in law in the early
1960s, during the height of the legal process influence on scholarship.
Although he did not attend Harvard Law School, which was the centre
of legal process, his wife Nancy did, and she studied with both Hart
and Sacks. Iacobucci’s academic work in corporate law was concerned
with legal process questions such as the basic structures of cooperation
and legality in complex organizations.33 His subsequent experience as a
very senior administrator, first at the University of Toronto and later in
the federal government, made him keenly aware of the complexities of
governance, the important role of fair process, and the reality of back-
and-forth dialogue in any process of democratic governance. I would
alsosuspectthat,asafirst-generationCanadian,JusticeIacobucciwassen-
sitivetotheimportanceofprocessandofmoreinclusiveparticipationfor
thosewhoarenot normally inpower.Healso hadanaspirational viewof
lawas goalsto be pursued as opposed to rulesto be obeyed. By the time
hebecameajudge,healreadyhadextensiveexperienceinboththeinsti-
tutional and the human sides of governance.
Thisshortdiscussionoftheintellectualandsubstantiveoriginsofdialo-
gue theory has been designed to illustrate that dialogue theory did not
emergefromnowhereandthatitisnotsimplyapositivestudyoftheinter-
actions between courts and legislatures. Rather, dialogue theory emerges
from a legal processtradition that defined a distinct role for the indepen-
dent judiciary, with its commitment to fair adjudication, but situated that
role in an ongoing collaborative enterprise of democratic governance
involving legislatures, executives, and the people. Those who believe that
dialogue between courts and legislatures is simply a debatable empirical
proposition, or that it is devoid of any justification for the judicial role,
should more carefully examine its intellectual origins. Dialogue theorists
starting with Bickel and Fuller attempt to situate the judicial role in the
context of both democratically enacted governments and the endless
democratic quest to establish and re-establish the legitimacy of state
power and the broadest consent of the governed.
32 David Dyzenhaus, ‘Law as Justification: Etienne Mureinik’s Conception of Legal
Culture’ (1998) 14 S.Afr.J.Human Right 11. Foran argument inspired by Fuller that
the rule of law binds the executive and the legislature as much as the courts, see
David Dyzenhaus, The Constitution of Law (Cambridge: Cambridge University Press,
2006).
33 FrankIacobucci,‘TheBusinessCorporationsAct’(1971)21U.T.L.J.416&643.
456 UNIVERSITYOFTORONTOLAWJOURNAL
III Dialogue and the common law
Dialogue betweencourtsandlegislaturesisnotaproductoftheCharter.
It builds on longstanding traditions of development of the common law
and judicial interpretation of statutes. Justice Iacobucci recognized that
Parliament clearly can amend the common law when he stated in 1999
that ‘[i]f the common law were to be taken as establishing the only poss-
ibleconstitutionalregime,thenwecouldnotspeakofadialoguewiththe
legislature. Such a situation could only undermine rather than enhance
democracy. Legislative change and the development of the common
lawaredifferent.’34Courts,indevelopingthecommonlaw,arecommonly
respondingtolegislativeinertia,whichcanbeseenasatacitdelegationof
authority to the judiciary. This delegation of authority is revocable,
however, because the legislature can always reclaim the field through
the enactment of clear legislation. To my mind, this suggests that
courts can be quite creative when developing the common law. Indeed,
much of administrative law, evidence law, and criminal law have been
built on the judicial creativity that thrives in the absence of legislative
direction. If the judges become too creative for the legislature’s liking,
the legislature can enact reply legislation; reply legislation, however,
cannot simply undo common law. As Fuller reminds us, legislation
should, except in extraordinary circumstances, be prospective and
general, and this will mean that the Court’s application of the common
lawwillgovernalready-decidedcases.ForJusticeIacobucci,thissuggested
that courts should be quite cautious in developing the common law.
Justice Iacobucci considered the judicial role in developing the
common law in one of his first cases he decided on the Supreme
Court. The case involved the question of whether the common law rule
that a spouse is not a compellable witness should continue to apply in
a case where the spouse was irreconcilably separated from the accused.
Justice Iacobucci held for the Court that the common law rule should
evolve in light of social and legal acceptance of divorce and the values
of the Charter. He wrote,
Togiveparamountcytothemarriagebondovertherightofindividualchoicein
casesofirreconcilableseparationmayhavebeenappropriateinLordCoke’stime,
whenawoman’slegalpersonalitywasincorporatedinthatofherhusbandonmar-
riage, but it is inappropriate in the age of the Charter. As Wilson J. put it in
R.v.Morgentaler,[1988]1S.C.R.30,atp.166,theCharterrequiresthatindividual
choicesnot berestricted unnecessarily.35
34 Mills,supranote5atparas.57,60.
35 R.v.Salituro,[1991]3S.C.R.654at674.
ADIALOGUEABOUTPRINCIPLEANDAPRINCIPLEDDIALOGUE 457
In so holding, Justice Iacobucci placed the development of the common
lawintotheinstitutionalcontextofdialoguebetweenthecourtsandlegisla-
tures.Hecarefullyconsidered,butultimatelydidnotaccept,theargument
thatParliamenthadimplicitlyaffirmedtheoldcommonlawruleofspousal
incompetencebymakingonlylimitedexceptionstothatruleinrelationto
certainviolentandsexualcrimes.Thisdecisionrecognizedthespecialrole
ofcourtsinadvancinguniversalprinciples,incontrasttolegislatures,which
typically respond tospecificpolitical pressuressuch asdemandstoreform
lawsconcerning spousal abuse andsexual assault.Heappealedtogeneral
principles of free choice and autonomy to conclude that the separated
spouse should be competent to testify in her ex-husband’s forgery trial,
eventhoughforgerywasnotacrimethathadcommandedspecificattention
from the legislature. Consistent with the dialogue model, the legislature
couldalwaysreplywithnewlegislationaffirmingtheoldcommonlawrule
ofspousalincompetence.Thefactthatthiswasnotdone,however,should
beseenasevidencethattheCourt’sdecisionwasacceptabletothelegisla-
ture and to society, given our evolving social and legal values. When the
SupremeCourtdevelopsthecommonlaw,itisontrialbecausethelegisla-
turecanrejectthepremisesofitsruling.
Although Justice Iacobucci changed the common law in Salituro, he
struck a note of caution about how far courts should be prepared to
use the common law to achieve law reform. He defined the judicial
role as making ‘incremental changes to the common law to bring legal
rules into step with a changing society.’36 He also argued that
the court has before it a single case; majorchanges in the law should be predi-
catedonawiderviewofhowtherulewilloperateinthebroadgeneralityofcases.
Moreover, the court may not be in a position to appreciate fully the economic
and policy issues underlying the choice it is asked to make.... Finally, and
perhapsmostimportantly,thereisthelong-establishedprinciplethatinaconsti-
tutional democracy it is the legislature, as the elected branch of government,
which should assume the major responsibility for law reform.37
These statements follow Fuller’s warnings that the bipolar structure of
adjudication makes courts less adept at deciding multifaceted and poly-
centric issues, especially those concerning the distribution of scarce
resources.38 They also reflect an appreciation of what Bickel recognized
as the counter-majoritarian difficulty inherent in unelected courts’
making law in a democracy.
AlthoughJusticeIacobucci’snoteofcautionaboutthedevelopmentof
the common law in Salituro reflects aspects of legal process thought, it
36 Ibid.at666.
37 Ibid.at668.
38 Fuller,‘FormsandLimits,’supranote27.