I am especially grateful for this occasion to discuss the much overlooked role of the legislatures in the interpretation of the Canadian Constitution. Indeed, courts are seen as the main – if not the only – interpreters of the Constitution, and often criticized for what is seen as expanding their role into “lawmaking” at the expense of legislatures. However, the balance between the two institutions is more subtle and it is in that quite intricate web of interrelations that constitutional interpretation must be understood. I begin by briefly debunking a prevalent myth by showing both that the interpretive role of the courts has not increased as much as many claim since the entrenchment of the Charter, and that such a role is not now or ever has been exercised in a totally discretionary manner. I will then put the role of the legislatures in proper theoretical perspective by showing that far from only having the last word through the notwithstanding clause, they always have the first and most often the only word in a scenario where their interpretation prevails in the vast majority of instances, as they engage democratically in an altogether different dialogue than the institutional one.

DEBUNKING A MYTH

It is widely held, not only in the general public but unfortunately also in parts of the legal community, that the courts, and especially the Supreme Court of Canada, have dramatically increased and changed their role and their relationship to legislatures since the entrenchment of the Charter in 1982.