Methinks the amicus doth protest too much: adjudicating Canada's polygamy policy

Abstract

This thesis uses the 2011 polygamy reference to examine the institutional capacity of the Canadian judiciary to make policy, especially under the Charter of Rights and Freedoms. The literature predicts that policymaking in Canada's still largely adjudicative courts is likely to suffer from an "adversarial difficulty," namely, a tendency to distort the "social facts" judges need to make policy. Under the Charter, the adversarial difficulty occurs especially in the proportionality component of the test used to determine whether a rights-infringing law is nevertheless justified as a "reasonable limit" on Charter rights. The polygamy litigation amply confirms the problematic presence of the adversarial difficulty. Given the inevitability of judicial policymaking, the solution lies in the kind of interaction between courts and legislatures known as "coordinate dialogue" - i.e., dialogue that accords legislatures a legitimate voice in constitutional interpretation.