Section 33 Analysis

However, dialogue theory has faced a large amount of criticism from academics on a number of accounts. Firstly, many scholars have taken issue with the argument that Sections 33 and 1 of the Charter facilitate dialogue. In theory Section 33 does provide a way for legislatures to force through legislation that would otherwise be struck down due to being in violation of certain sections of the Charter, but in reality, Section 33 has rarely been evoked (Cameron, 2004, 148). The political fallout associated with a government publicly overriding the Charter is so great that Section 33 is of relatively little importance (Cameron, 2004, 152). The political difficulties associated with using Section 33 can be seen by looking at the fallout of Vriend
An example of this comes up in the case of Sauve v. Canada (Chief Electoral Officer). In an earlier case, the Supreme Court unanimously declared that government legislation that prevented inmates from voting was in violating of the Charter (Manfredi, 2007, 107). Parliament responded by amending the legislation so that only federal inmates convicted of indictable offences would be barred from voting (Manfredi, 2007, 107-108). The issue then came up again in Sauve v. Canada (Chief Electoral Officer). This case the court acknowledged that the legislature’s objectives in stripping inmates of the right to vote were legitimate (Sauve v. Canada, 2002, para. 19). The Federal Government asked the Court to defer to them, in the spirit of dialogue; the Court responded by saying that “the healthy and important promotion of a dialogue…should not be debased to a rule of ‘if at first you don’t succeed, try, try again’ (Sauve v. Canada, 2002, para. 17).” Thus, despite the fact that the government had a valid objective and responded to the Court’s suggestions in earlier cases surrounding disenfranchisement of inmates, the Court still refused to show any deference to the legislature. It is hard to see how Section 1 actually facilitates dialogue, as seen above, under Section 1 the judiciary is the sole authority for determine if something is a valid objective, and the judiciary is not required to show any amount of deference to the legislature. In fact, rather that facilitating dialogue, Section 1 works to enshrine the judiciary as the sole body capable of interpreting and applying the Charter; a form of judicial supremacy (Slattery, 1987,