Prof. Carver's phrase "an intriguing effort to expand the constitutional base for deliberative democracy in Canada." is...intriguing. For me the issue (and I raise this in a brief post on his blog) is what he means by "deliberative democracy". These days that term gets tossed about by many academics and activists who are not sufficiently clear, even to themeselves, about what they mean by it. Some seem to use it as a synonym for Habermas' "ideal speech situation". Some have in mind any kind of process (beyond mere elections & referendums) that allows "citizens" "input" into political decisionmaking. (In the sixties and seventies this would have been called "participatory democracy", but I guess a new term was needed to distance current idealists' projects from various failed communes, cooperatives, etc. )
I have great difficulty seeing how the "duty to consult", as currently being developed by the SCC, is a great development for "democracy", however that term is understood.
"A unilateral decision is not excluded..." Oh, good. It seems to me, then, that the "duty to consult" is an empty, nicey-nice, extremely... *effeminate* way to ensure that the self-esteem of "stakeholders" in every political/legal decision is propped up at public expense. This is Canada, right? -- where we listen very attentively to those who have nothing useful to say...?
"The goal must be to seek a mutually acceptable resolution to the dispute at hand, even if a solution is not found."
...Which adds to the building proof that too many professors, lawyers and judges are eager to govern and lousy at doing so. In the real world, the very notion of seeking "a mutual acceptable resolution" on legislation is a totally loaded pair of dice. Mutual between who? Acceptable to whom? When you consider who is often on the other end of that 'negotiation,' the idea of "mutual" policy is a bit rich.
Another example where the Supremes are pushing shamelessly beyond law and into government; why be a judge when you can be a cabinet minister, too?
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