Constitutional Conversations

This paper examines two cases that raise questions about the capacity to secure redress for the limitation of Charter rights through litigation. It gives expression to a certain litigation fatigue stemming from processes of litigation and then legislative or practice reform that at times feel dysfunctional. While the to and fro between the courts and state actors has sometimes been described as a “dialogue”, this paper does not weigh in on the question of whether dialogue theory legitimates judicial review. It focuses instead on a consideration of a prerequisite to a functional constitutional conversation. A functional constitutional conversation would build on the insights of both speakers and thereby lean towards rights recognition and access to justice