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

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may understate the ability of the court to make bold changes in the

common law. One factor that should not be ignored is that the nature

of adjudicative proceedings has changed since Fuller stressed the

bipolar orientation of adjudication. Although Salituro was a case

decided without interveners, the Supreme Court now hears from a

broad range of governmental and non-governmental interveners who

are well positioned to provide the Court with a wider view of how existing

or new rules would operate beyond the facts of the speciﬁc case.

Another factor that suggests that courts can be quite bold in changing

the common law is that legislatures have the ability, in light of further

research and democratic consultation, to change the common law.

Some of the examples cited by Justice Iacobucci of proper development

of the common law are quite complex and far-reaching. Two examples of

particular relevance to dialogue theory are the Court’s creation of new

procedures to govern the admissibility of the complainant’s prior sexual

activity in R. v. Seaboyer

and the Court’s creation of a procedure to

govern production and disclosure of the complainant’s private records

in R. v. O’Connor.

In both cases, the majority of the Court engaged in

a quasi-legislative process of developing new procedures and new substan-

tive tests in a controversial area, albeit one that was within the inherent

domain of the judiciary with respect to the administration of justice. To

my mind, the Court’s creation of bold new common law in these cases

was legitimate, in no small part, because the legislature retained the

option of conducting further research and consultation and enacting

its own legislation to govern these matters in the future.

In other

words, recognizing the common law as a site for dialogue between

courts and legislatures can lend support to judicial creativity in the devel-

opment of the common law.

IV Dialogue and statutory interpretation

Lon Fuller described the task of interpretation as revealing ‘the coopera-

tive nature of the task of maintaining legality’ because of ‘the reciprocal

dependence’ between those who draft legislation and those who must

administer it.

For Fuller, interpretation required ‘a respect for systematic

39 [1991] 2 S.C.R. 577.

40 [1995] 4 S.C.R. 1411. Another example would be the crafting of new common law

standards to restrict strip searches in R. v. Golden, [2001] 3 S.C.R. 679. In that case

Justices Cory and Iacobucci explicitly recognized that Parliament could intervene

and provide new procedures to govern this intrusive investigative technique.

41 For an account of how Parliament responded constructively to Seaboyer by expanding

the terms of the debate see Kent Roach, The Supreme Court on Trial (Toronto: Irwin

Law, 2001) at 268 – 73 [Roach, Supreme Court].

42 Lon Fuller, Morality of Law, supra note 24 at 91.

458 UNIVERSITY OF TORONTO LAW JOURNAL

structure and an understanding of social context’

that are not captured

in positivistic understandings of interpretation as the execution of the

command of the sovereign. Aharon Barak, who also sees law as part on

an ongoing dialogic enterprise between courts, legislatures, and

society,

has similarly argued that ‘a statute is not an island ...

Whoever enforces one statute enforces the whole legal system.’

Fuller and Barak, Justice Iacobucci stressed the role of the courts in assi st-

ing legislatures to implement the purposes of their statutes, but in light of

the broader legal and social context and the possibility of further dialo-

gue between courts and legislatures.

One of Justice Iacobucci’s most important judgments interpreting a

statute was his joint judgment with Justice Cory interpreting

s. 718.2(e) of the Criminal Code, which instructs judges at sentencing

to consider ‘all available sanctio ns other than imprisonment that are

reasonable in the circumstances for all offend ers, with particular atten-

tion to the circumstances of aboriginal offenders.’

This provision was

added to the Criminal Code in 1996 as part of a reform package that

included the introduction of the conditional sentence of imprisonment.

Section 718.2(e) was not the focus of this reform package and received

relatively little attention in Parliament; the minister of justice defended

it as a response to Aboriginal overrepresentation in prisons, while some

opposition members criticized it as a race-based discount in sentencing.

In R. v. Gladue,

however, the Court gave the provision a purposive

interpretation that placed it in a broader social and legal context.

43 Ibid. at 229.

44 Like Fuller, Barak conceives of the law as a collaborative enterprise involving the

interaction between courts and legislature, but he stresses that dialogue beneﬁts

democracy by ‘placing issues on the public and legislative agenda that would

otherwise remain within the conﬁnes of the executive branch in the absence of

judicial adjudication.’ Barak, ‘Judge on Judging,’ supra note 8 at 135. Like Bickel,

Barak recognizes that there will be a tension between the court and other branches

of government, but he does not counsel avoidance as a means of avoiding the

conﬂict. Rather, he argues that ‘[i]f the court’s rulings were always satisfactory to the

other branches, it would raise suspicion that the court was not properly fulﬁlling its

role in the democracy’ and that judges should be faithful to their judicial role in

times of tension. Ibid. at 117. Barak stresses the need for each institution to be true

to its institutional role and not to bend to the displeasure that the other institution

demonstrates with it. His embrace of a healthy tension between courts and

legislatures is also based on conﬁdence in a mature constitutionalism in which

courts and legislatures each understand and respect their distinct roles and where

basic procedures ensure that disagreements are resolved respectfully and in a

procedurally proper manner.

45 Barak, Judge, supra note 8 at 17.

46 Criminal Code, R.S.C. 1985, c. C-46, s. 718.2(e).

47 [1999] 1 S.C.R. 688. Note that I was counsel for Aboriginal Legal Services of Toronto in

this case.

A DIALOGUE ABOUT PRINCIPLE AND A PRINCIPLED DIALOGUE

459

Justices Cory and Iacobucci started from the proposition that the legis-

lation must be interpreted as remedial legislation designed to respond to

Aboriginal overrepresentation, as oppose d to a codiﬁcation of existing

sentencing principles. They recognized Aboriginal overrepresentation

as ‘a sad and pressing social problem’ and interpreted the section ‘as

Parliament’s direction to members of the judiciary to inquire into the

causes of this problem and to endeavour to remedy it, to the extent

that a remedy is possible within the sentencing process.’

They stressed

the duty of judges to examine the distinct background circumstances of

Aboriginal offenders and alternatives to imprisonment. As in Salituro,

the judgment pays attention to the larger context and suggests that the

provision is an ameliorative program under s. 15 of the Charter that ‘is

not unfair to non-aboriginal people’

in its consideration of the

unique circumstances of Aboriginal people. Justices Cory and Iacobucci

also stated that the provision would apply to all Aboriginal people, as

deﬁned in the Constitution Act, 1982, and took note of the contemporary

social context of Aboriginal people by arguing that the trial judge had

erred by disregarding the provision on the basis that the offender lived

in a city.

The Court’s judgment in Gladue is noteworthy not only for its attention

to social context and pressing concerns about Aboriginal overrepresenta-

tion but also for its attempt to integrate s. 718.2(e) in the context of the

broader legal framework that governs sentencing. Justices Cory and

Iacobucci attempted to integrate the sentencing process that they con-

templated for Aboriginal people with the newly codiﬁed principles and

purposes of sent encing. They stressed the new restorative purposes of sen-

tencing, which require greater use of alternatives to prison and are sup-

ported by Aboriginal traditions of justice, but they also did not ignore

other more punitive principles, such as denunciation and deterrence.

In addition, they integrated their new approach to the sentencing of

Aboriginal offenders with the traditional duty of the tria l judge to ﬁnd

a ﬁt sentence for each individual offender. They rejected the govern-

ment’s argument that they should focus only on s. 718.2(e) to avoid

pre-judging other cases and concluded that the section could not be

interpreted ‘in a vacuum.’

Even though the case did not involve a con-

ditional sentence, Justice Cory and Iacobucci stressed that s. 718.2(e),

with its reference to reasonable alternatives to imprisonment, should be

interpreted in the context of Parliament’s desire to reduce Canada’s

reliance on incarceration by introducing the new intermediate sanction

48 Ibid. at para. 64.

49 Ibid. at para. 87.

50 Ibid. at para. 91.

51 Ibid. at para. 30.

460 UNIVERSITY OF TORONTO LAW JOURNAL

of the conditional sentence of imprisonment.

In order to place

s. 718.2(e) in its broader legal and social context, they devoted equal

time in Gladue to the problem of over-incarceration in general and to

the problem of Aboriginal overrepresentation. They concluded that

Canada is ‘unfortunately ... a world leader in putting people in

prison,’ despite evidence that imprisonment does not advance the pur-

poses of sentencing.

Justices Cory and Iacobucci made these statements

not as critics of Canada’s penal policy but as judges who carefully exam-

ined the entire package of Parliament’s 1996 reforms to sentencing.

The Court’s judgment in Gladue was controversial. It was inaccurately

savaged in the press as a race-based disc ount for sentencing.

Parliament is considering steps to place limits on the use of conditional

sentences and increase mandatory sentences, and it could even repeal

s. 718.2(e) in the future. Such developments would be unfortunate, but

they are also part of democratic dialogue, as would be subsequent

attempts to challenge the repeal under the Constitution or to revive

the common law on the sentencing of Aboriginal people. Regardless of

future developments, this dialogue has been enriched by the Court’s dis-

tinctive contribution in implementing Parliament’s direction in

s. 718.2(e) in light of the broader legal and social context in which

Aboriginal people are sentenced by the courts.

Justice Iacobucci’s purposive approach to statutory interpretation was

also demonstrated in Bell ExpressVu v. Rex

when he interpreted the

Radiocommunications Act

to prohibit the decryption of US satellite tel-

evision signals except by lawful distributors in Canada. As he did in

Gladue, Justice Iacobucci examined the statutory provision being inter-

preted in its larger statutory context.

After surveying the entire legal

landscape, he concluded that prohibiting the grey marketing of

US sat-

ellite signals accorded with the overall purpose of the legislation to

ensure a single regulator of broadcasting that could act in Canadian cul-

tural and other interests. In interpreting the statute’s reference to lawful

distributors, Justice Iacobucci also adverted to broader concerns about

violation of copyrights in television signals.

He rejected arguments

that his broad interpretation of the prohibition would make hundreds

of thousands Canadians vul nerable to prosecution by noting the distinct

fault and lawful excuse requirements of the relevant regulatory offences.

52 Ibid. at para. 40.

53 Ibid. at paras. 52, 57.

54 Supra note 6.

55 R.S. 1985, c. R-2.

56 Bell ExpressVu, supra note 6 at para. 45.

57 Ibid. at paras. 50–2.

A DIALOGUE ABOUT PRINCIPLE AND A PRINCIPLED DIALOGUE

461

In Bell ExpressVu, as well as in Gladue, Justice Iacobucci situated the stat-

utory provision in the larger legal and social context.

V Dialogue and s. 1 of the Charter

Justice Iacobucci concluded in Bell ExpressVu that it was unnecessary to

examine the constitutionality of the law because no Charter challenge

had been brought at trial and there was no genuine ambiguity when the

statute was interpreted in a purposive and contextual status. In his view,

the court should look to the Charter only when there is a genuine ambi-

guity in the statute. At ﬁrst glance this may seem in tension with his willing-

ness to consider the Constitution when interpreting the common law in

Salituro. Justice Iacobucci explained, however, that while ‘the common

law is the province of the judiciary,’ the courts have a duty to interpret sta-

tutes according to the words and purposes provided by the legislature, at

least in the absence of an ambiguity.

Like Fuller, Justice Iacobucci was

attentive to the different roles played by courts in developing the

common law and interpreting statutes and to the idea that the courts

should act as the legislature’s good-faith partner by interpreting statutes

in a manner that accepts and internalizes the legislature’s purpose.

It could also be argued that Bell ExpressVu is at odds with Gladue

because in the latter case Justice Iacobucci looked to the broad deﬁnition

of Aboriginal peoples in the Constitution in deﬁning the Aboriginal

people who were affected by s. 718.2(e) of the Criminal Code, while he

did not resort to the Constitution in Bell ExpressVu. A closer inspection,

however, suggests that Justice Iacobucci’s unwillingness to resort to

Charter considerations in Bell ExpressVu was based on a deep appreciation

of the dialogic structure of the Charter and, in particular, of the central

role that governments have under s. 1 to attempt to justify limitations that

they place on rights. Justice Iacobucci reasoned that ‘a blanket presump-

tion of Charter consistency could sometimes frustrate true legislative

intent, contrary to what is mandated by the preferred approach to

statutory construction.’

He warned that

if courts were to interpret all statutes such that they conformed to the Charter, this

would wrongly upset the dialogic balance. Every time the principle were applied,

it would pre-empt judicial review on Charter grounds, where resort to the internal

checks and balances of s. 1 may be had. In this fashion, the legislatures would be

largely shorn of their constitutional power to enact reasonable limits on Charter

rights and freedoms, which would in turn be inﬂated to near absolute status.

58 Ibid. at para. 61.

59 Ibid. at para. 64.

60 Ibid. at para. 66.

462 UNIVERSITY OF TORONTO LAW JOURNAL

Section 1 and the ability of governments to justify limits on Charter rights

are a key part of the ‘dialogic balance’ implicit in the Charter.

Bell ExpressVu should be carefully considered by critics of dialogue

theory who assert that it is a bad-faith argument for a disguised form of

judicial activism or judicial supremacy. In a manner consistent with

Bickel’s advocacy of the passive virtues, Justice Iacobucci avoided the

Charter questions raised by this case.

Unlike Bickel, however, Justice

Iacobucci avoided the Charter in this case for principled reasons related

to the need for a person who makes a Charter challenge to give the govern-

ment notice and an opportunity to justify any limits on Charter rights

under s. 1. Far from the idea of rights as trumps that some critics associate

with judicial activism, Bell ExpressVu stands for the proposition that all

Charter rights are subject to limits that have been demonstrably justiﬁed

by the government. Section 1 of the Charter is the main engine of dialogue

between courts and legislatures and preserves its dialogic nature even if

legislatures are rarely willing to resort to s. 33.

VI Dialogue and s. 33 of the Charter

Justice Iacobucci’s decision in Bell ExpressVu demonstrates his respect for

the integrity of the s. 1 process of giving the government an opportunity

to justify limits on Charter rights. In turn, his decision in Vriend suggests

his respect for the ability of legislatures to use s. 33 to reject a Charter

decision. In Vriend, the Court held that the government of Alberta had

been unable to justify the omission of sexual orientation as a prohibited

ground of discrimination in their human-rights code, and as a remedy

Justice Iacobucci read in sexual orientation. He noted that the Court’s

remedy need not be the last word on the matter, explaining that

[w]hen a court remedies an unconstitutional statute by reading in provisions, no

doubt this constrains the legislative process and therefore should not be done

needlessly, but only after considered examination. However, in my view, the ‘par-

liamentary safeguards’ remain. Governments are free to modify the amended

legislation by passing exceptions and defences which they feel can be justiﬁed

under s. 1 of the Charter. Thus, when a court reads in, this is not the end of

the legislative process because the legislature can pass new legislation in

response, as I outlined above (see also Hogg and Bushell, supra). Moreover,

61 I disagree with Christopher Manfredi when he suggests that Justice Iacobucci employed

the dialogue metaphor for activist ends in Bell ExpressVu, supra note 6, when he made

reference to the possibility of the grey marketers’ challenging the law under the

Charter at a new trial. Manfredi, ‘Metaphor,’ supra note 1 at 111, 118. At most this

was a neutral use of the metaphor, because it preserved the ability of government to

make a s. 1 defence of the law as well as the ability of the grey marketers to

challenge the law.

A DIALOGUE ABOUT PRINCIPLE AND A PRINCIPLED DIALOGUE

463

the legislators can always turn to s. 33 of the Charter, the override provision, which

in my view is the ultimate ‘parliamentary safeguard.’

Christopher Manfredi has argued that the Court’s reference to s. 33 in

Vriend was ‘disingenuous’ because of the ‘political delegitimitization of

the notwithstanding clause.’

Manfredi may have been too quick to con-

clude that the override is politically out of bounds.

One of the reasons that the Alberta government did not use the over-

ride to reply to Vriend was that it had just got over a disastrous proposal

that the override could be used to limit the recovery of victims of

Alberta’s involuntar y sterilization program between 1928 and 1972.

Another reason that the override was not used was that the government’s

own human-rights commission, its premier, and two-thirds of its citizens

were opposed to its use.

In any event, the override was not a dead

letter in Alberta, as it was used a year later in an attempt to outlaw

same-sex marriage. For better or worse, s. 33 is part of the Canadian

Constitution, and dialogue proponents are correct in situating dialogue

within the possibility of the override. If Canadian governments have

been unwilling to use the override,

this suggests that they have not

been prepared to justify its use to the Canadian public. The fault, if

not using the override can be described as a fault, lies more with govern-

ment and the public than with the courts. Justice Iacobucci’s theory of

dialogue included the override.

F.L. Morton and Rainer Knopff argue that Vriend was an illegitimate

form of policy distortion because it took away the government’s ‘pre-

ferred choice .. . not to act at all. Prior to this ruling, the Klein govern-

ment could safely ignore this issue, upsetting only a small coalition of

activists, few of whom were Tory supporters in any case.’

Justice

Iacobucci offered an effective reply to such a majoritarian conception

of democracy when he argued that

the concept of democracy means more than majority rule ... a democracy

requires that legislators take into account the interests of majorities and min-

orities alike, all of whom will be affected by the decisions they make. Where

62 Vriend, supra note 2 at para. 178.

63 Christopher Manfredi, Judicial Power and the Charter, 2d ed. (Toronto: Oxford University

Press, 2001) at 5, 134 [Manfredi, Judicial Power].

64 Roach, Supreme Court, supra note 41 at 195–6; James Kelly, Governing with the Charter

(Vancouver: UBC Press, 2005) at 101–2.

65 Note, however, that not all uses of the override, especially in Quebec, have been subject

to close public scrutiny. Tsvi Kahana, ‘The Notwithstanding Mechanism and Public

Discussion: Lessons from the Ignored Practice of Section 33 of the Charter’ (2001)

41 Can.Pub.Admin. 255.

66 F.L. Morton & Rainer Knopff, The Charter Revolution and the Court Party (Peterborough,

ON: Broadview Press, 2000) at 165 [Morton & Knopff, Char ter Revolution].

464 UNIVERSITY OF TORONTO LAW JOURNAL

the interests of a minority have been denied consideration, especially where that

group has historically been the target of prejudice and discrimination, I believe

that judicial intervention is warranted to correct a democratic process that has

acted improperly.

Judicial review, for Justice Iacobucci, was a dialogue about principle, in

the sense that it requires legislatures to confront rather than avoid

issues of principle. The legislature, however, can take responsibility for

overriding principle once it has been brought to their and the public’s

attention by the judicial decision. In other words, the legislature can

engage in a principled as opposed to a majoritarian dialogue by explicitly

considering and rejecting the right of minorities through the use of the

override.

Jeremy Waldron has argued that the override is loaded against gov-

ernments because it forces them to declare that they are overriding

rights when, in his view, they are simply expressing reasonable disagree-

ment about rights.

Leaving aside the question of whether the exclu-

sion of gays and lesbians from basic protection against discrimination

in employment and housing can be classiﬁed as a reasonable disagree-

ment about the meaning of equality rights, had Alberta used the over-

ride to overrule Vriend, everyone would had recognized that it was

disagreeing with equality rights as they had been interpreted by the

Supreme Court. It was entirely open to the Alberta legislature to

support its use of the override with an interpretation of equality

rights that would allow people to be ﬁred from their jobs because

they are gay. The fact that such an interpretation of equality rights

would have been viewed as unjust by most does not discredit the over-

ride as a dialogic device; it only helps explain why the Supreme

Court’s interpretation of equality rights in Vriend was not rejected by

the elected representatives of Alberta. Despite its infrequent use, s. 33

remains a very real – and, indeed, for the truly unpopular among us,

a dangerous – part of the dialogue that can occur under the

Charter. In Vriend, Justice Iacobucci faced the real possibility that

Alberta might use the override to reject the Court’s ruling, but he

did not let this prospect deter him from making a principled decision.

VII Dialogue and judicial second looks at legislative replies

One of the most challenging aspects of dialogue under the Charter is

how the Court should approach legislative replies to its earlier Charter

67 Vriend, supra note 4 at para. 176.

68 Jeremy Waldron, ‘Some Models of Dialogue between Judges and Legislators’ (2004) 23

Supreme Court L.Rev. (2d) 7.

A DIALOGUE ABOUT PRINCIPLE AND A PRINCIPLED DIALOGUE

465

decisions. Judges should be careful to stick to their institutional role when

dealing with the legislative reply.

In the context of the Charter, this ﬁde-

lity to institutional role means that the judge must evaluate whether the

new legislation violates the Charter and, if so, whether the legislature

has justiﬁed the violation under s. 1 of the Charter or used the s. 33 over-

ride. Each second-look case should be decided on its own terms, and

without the Court’s consciously engaging in an institutional strategy con-

cerning its relation with either Parliament or the public. If such an

approach is taken, the government will win some second-look cases and

lose others. A loss by the government, however, will not end the

debate, as the government can go back to the drawing board and

devise new legislation that can be justiﬁed under s. 1 of the Charter. In

some cases, it may be appropriate to refer the new legislation to the

Court.

Alternatively, the government can generally re-enact its reply

legislation with the s. 33 override.

A use of the override will also not

end the debate, because the override expires in ﬁve years’ time and

there must be dialogue in the legislature to justify its renewal. In this

way, dialogue between courts and legislatures, consistent with both

Bickel’s and Fuller’s vision of law as an ongoing collaborative process,

encourages continued democratic deliberation. The dialogue model

allows society to work out some of its more difﬁcult problems in a fair pro-

cedural and institutional framework that respects the rights of both legis-

latures and litigants.

The judicial decision that is most likely to stop dialogue is a decision

holding new legislation to be consistent with the Charter. At that point,

litigants will lose their ability to challenge the new legislation, and the leg-

islature will often have little incentive to revisit a law that has been

declared consistent with the Charter.

My point is not that courts

should always strike down reply legislation – that would be an illegitimate

institutional strategy that would ignore the facts of the particular case –

but, rather, that striking down reply legislation should not be equated

with judicial supremacy and that under-enforcement of the Charter

may debilitate democracy more than over-enforcement.

Two of the most famous disputes over the constitutionality of reply

legislation were released by the Supreme Court over the course of one

month in 2002. The ﬁrst case was R. v. Hall, which dealt with

69 Barak, Judge, supra note 8 at 239–40; Hogg et al., ‘Dialogue Revisited,’ supra note 8.

70 For an argument that the reference procedure can be used as an instrument of

dialogue see Kent Roach, ‘Not Just the Government’s Lawyer: The Attorney General

as the Defender of the Rule of Law’ (2006) 31 Queen’s L.J. 598 at 635–7.

71 Use of the override is not, however, an option with respect to democratic, mobility, or

minority language rights.

72 There are some exceptions, such as legislative decisions to revisit mandatory retirement

and restrictions on Sunday shopping after both had been declared constitutional.

466 UNIVERSITY OF TORONTO LAW JOURNAL

Parliament’s reply to a 1992 Supreme Court decision

that struck down

the tertiary grounds for the denial of bail when necessary ‘in the

public interest’ as excessively vague and inconsistent with the right in

s. 11(e) not to be denied bail ‘without just cause.’ The new legislation

enacted in 1997, without much Parliamentary debate and after ﬁve

years without any tertiary ground for the denial of bail, authorized the

denial of bail ‘on any other just cause’ and, in particular, when necessary

to maintain conﬁdence in the administration of justice, having regard to

gravity of the offence, the apparent strength of the prosecution’s case,

and the circumstances surrounding the alleged crime. The majority of

the Court held that the reference to the denial of bail for any just

cause was excessively vague and struck down that part of the reply legis-

lation. This was an important decision because it indicated that the

Court would not always defer to reply legislation, even reply legislation

that cleverly turned the Charter’s due process protections into a sweeping

crime-control authorization of the denial of bail for any just cause.

At the same time, however, the majority upheld the public conﬁdence

arm of the reply legislation as a just cause for the denial of bail and as not

excessively vague. This latter decision drew one of the strongest and most

vehement dissents that Justice Iacobucci penned during his thirteen years

on the Court. Justice Iacobucci wrote that the reply legislation demon-

strates how

constitutional dialogue can break down ... . In my respectful view, by upholding

the impugned provision, at least in part, my colleague has transformed dialogue

into abdication. The mere fact that Parliament has responded to a constitutional

decision of this Court is no reason to defer to that response where it does not

demonstrate a proper recognition of the constitutional requirements imposed

by that decision ... . the role of this Court ... to staunchly uphold constitutional

standards is of particular importance when the public mood is one which

encourages increased punishment of those accused of criminal acts and where

mounting pressure is placed on the liberty interest of these individuals. Courts

must be bulwarks against the tides of public opinion that threaten to invade

these cherished values. Although this may well cost courts popularity in some quar-

ters, that can hardly justify a failure to uphold fundamental freedoms and liberty.

This eloquent passage reveals several important truths about institutional

dialogue. One is that each legislative reply must be judged on its own

merits: the government does not always win the second time around,

and it must still justify the legislation. Second, in justifying the reply legis-

lation the government should respect the Court’s previous rulings. If it

does not wish to respect that ruling, then the proper dialogic option,

73 R. v. Morales, [1992] 3 S.C.R. 711.

74 R. v. Hall, [2002] 3 S.C.R. 309 at paras 127–8.

A DIALOGUE ABOUT PRINCIPLE AND A PRINCIPLED DIALOGUE

467