1. m arnold ‘dover beach’ in dover beach and other poems (new york: dover publications, 1994).

2. doucet-boudreau v nova scoria (minister of education) [2003] scc 62.

3. [2003] scc 62 at 28, per iacobucci and arbour jj, as joined by mclachlin cj, gonthier, and bastarache jj.

4. [2003] scc 62 at 45, per lebel and deschamps, as joined by major and binnie jj.

5. for a sampling of the responses, see gunter ‘judicial arrogance borders on monarchial’national post, 20 november 2003, p a18; makin ‘top court pursuing activism’the globe and mail, 13 november 2003, p a16; ‘judicial rule’ editorial national post, 8 november 2003, p a19; young ‘court gives our toothless charter sharp fangs’the toronto star 23 november 2003, p f07; and roach ‘do we want judges with more muscle?’the globe and mail, 13 november 2003, p a27.

6. see, for example, f morton and r knopff the charter revolution and the court party (peterborough: broadview press, 2000); and r martin the most dangerous branch: how the supreme court of canada has undermined our law and our democracy (montreal: mcgill university press, 2003).

7. see a hutchinson work-in-progress: evolution and the common law (toronto: university of toronto press, 2004).

8. doucet-boudreau v nova scotia (minister of education) [2003] scc 62.

9. [2003] scc 62 at 37, 41, 33. 37 and 41, per lebel and deschamps jj.

10. for a full and unimpeachable account of these developments, see a petter twenty years of charter justification: from liberal legalism to dubious dialogue (forthcoming, 2004).

11. k roach the supreme court on trial: judicial activism or democratic dialogue (toronto: irwin law, 2001) p 106. see also hogg and bushell the charter dialogue between courts and legislatures (or perhaps the charter of rights isn't such a bad thing after all) (1997) 35 0s hlj 75 (1997).

12. bell express vu limited partnership v r [2002] 2 scr 559 at paras 65–66. see also vriend v alberta [1998] 1 scr 493; and corbiere v canada (minister of indian and northern affairs) [1999] 2 scr 203.

13. doucet-boudreau v nova scoria (minister of education) [2003] scc 62 at 19, 20 and 25, per iacobucci and arbour jj.

14. doucet-boudreau v nova scoria (minister of education) [2003] scc 62 at 41, per lebel and deschamps jj.

15. see a bickel the least dangerous branch: the supreme court at the bar of politics (new haven: yale university press, 2nd edn, 1986) pp 14–18. for a more sophisticated approach, see e chemerinsky interpreting the constitution (new york: praeger publishers, 1988) pp 11–12; and chemerinsky ‘foreword: the vanishing constitution’ (1989) 103 harv lr 43.

16. doucet-boudreau v nova scoria (minister of education) [2003] scc 62.

17. see department for constitutional affairs constitutional reform: a supreme court for the united kingdom cp 11/03 (2003) p 5; and judges' council response to the consultation papers on constitutional reform (2003) p 26.

18. for a solid survey of the extensive literature and its present ‘dialogic’ turn, see poole ‘review article: dogmatic liberalism? t r s allan and the common law constitution’ (2002) 65 mlr 463; and clayton ‘judicial deference and “democratic dialogue”: the legitimacy of judicial intervention under the human rights act’ [2004] pl.

19. department for constitutional affairs, n 17 above, p 12.

20. r v dpp, ex p kebeline [2002] 2 ac 326 and parochial church council of the parish of aston cantlow v wallbank [2003] ukhl 37, [2003] 3 all er 1213 on the ‘freedom’ of the courts to adopt a more expansive interpretative role in order to avoid declaration of incompatibility under the hrs. there is a good discussion of this in t campbell incorporation through interpretation in t campbell, k d ewing and a tomkins (eds) sceptical essays on human rights (oxford: oxford university press, 2001) p 79.

21. see a hutchinson it's all in the game: u non-foundationalist account of law and adjudication (london: duke university press, 2000); and d kennedy a critique of adjudication: fin de siecle (cambridge, mass: harvard university press, 1997).

22. department for constitutional affairs, n 17 above, p 12; and judges' council, n 17 above, p 48.

23. see j a g griffiths the politics of the judiciary (london: fontana press, 5th edn, 1997).

24. department for constitutional affairs constitutional reform: a new way of appointing judges cp 10/03 (2003) p 20; and judges' council, n 17 above, pp 4, 28 and 31.

25. ‘no further delay on judicial system reforms’press association news, 6 january 2004.

26. as appointments to the supreme court of canada show, the performance of its women judges has been varied and far from uniform in their political commitments. see, for example, morgentaler v the queen [1988] 1 scr 30 at 161–184, per wilson j; lavallee [1990] 1 scr 852 at 856–897, per wilson; symes [1993] 4 scr 695 at 776–832, per l’ heureux-dube; r v seaboyer [1991] 2 scr 577 at 597–642, per maclachlin and at 643–713, per l'heureux-dube; and r v curosella [1997] 1 scr 88 at 114–155, per l'heureux-dube.

27. of course, there is no compelling reason why courts should remain at the centre of constitutional politics. for instance, mark tushnet has been developing a rich and provocative body of work on how best to develop non-judicial forums for constitutional decision-making. see, for example, taking the constitution away from the courts (princeton: princeton university press, 1999) and ‘non-judicial review’ (2003) 40 harv j on legis 453. see ewing ‘a theory of democratic adjudication: towards a representative, accountable and independent judiciary’ (2000) 38 aka lr 208.

28. department for constitutional affairs, n 17 above, p 33.

29. department for constitutional affairs, n 17 above, pp 34 and 38.

30. doucet-boudreau v nova scoria (minister of education) [2003] scc 62.

31. centre for research and information on canada the charter: dividing or uniting canadians? (2003) p 6.

32. see, for example, human development report deepening democracy in a fragmented world (2002).