Law and Public Policy

D04(a) - Government, Parliament, and the Supreme Court in Policymaking

Date: Jun 12 | Time: 01:45pm to 03:15pm | Location: 680 Sherbrooke St. West 1047

Chair/Président/Présidente : Danielle McNabb (Brock University)

Discussant/Commentateur/Commentatrice : Minh Do (University of Guelph)

Expanding the Scope of Section 3 of the Charter: Andrea Lawlor (McMaster), Greg Flynn (McMaster University)
Abstract: While the Supreme Court of Canada has clarified the core principles upholding the Charter’s democratic rights (section 3) in a wide variety of cases, several questions remain about the depth and scope of the section, particularly as they relate to its core dimensions of “meaningful participation” and “effective representation”. In two recent high-profile cases, Toronto City and Working Families, the courts have come to different conclusions about how far to extend the scope of these constituent elements of section 3, having the effect of both narrowing and broadening aspects of section 3 within a short time. The SCC’s decision Toronto City placed firm boundaries around effective representation, explicitly reading municipal governments out of section 3 and to the non-application of unwritten constitutional principles to take a more limited view of voting rights. The Ontario Court of Appeal, by contrast, took a progressive view, rejecting the government’s attempt to limit meaningful participation through restrictions on third party spending. This paper examines how section 3 jurisprudence has evolved considerably in this short time and how courts have addressed the risk of partisan self-dealing or agenda advancement through a clarification of the boundaries of pre-existing precedents while, at the same time, maintaining some strictness surrounding demands for broader institutional change. In doing so, we use existing case law to determine whether the courts, who have traditionally taken an egalitarian view toward section 3, will promote a more expansive or restrictive stance when faced with the potential of partisan interference and/or demands for broader institutional change.

Salient or non-salient? The Supreme Court of Canada’s engagement with policy disputes: Marc Zanoni (University of Guelph)
Abstract: Keywords: law and politics, judicial policymaking, issue salience, framing, legislative replies, policy process. The Canadian dialogue literature recognizes the policy potential of courts. Scholars have often focused on the policy effects of courts by tracing the formal legislative replies to court decisions. In doing so, policy disputes tend to be examined post-judicial involvement, with policy impact conceived as formal legislative replies. Fewer scholars have relied on issue salience and agenda-setting to determine the magnitude of influence. Do courts engage with salient policy disputes? Or do they operate on the periphery and resolve non-salient, secondary disputes? This paper examines issue salience by focusing on policy disputes that the Supreme Court of Canada has deemed unconstitutional and invalidated. Rather than tracing the post-court effects, however, policy disputes are assessed at the time of formulation and enactment – as Bills at committee in the Canadian House of Commons. Content analysis of public witness presentations at committee, which scrutinize proposed bills, will be conducted to determine which policy disputes (within broader legislative changes) receive additional attention. The disputes that eventually ended up in court will be compared to those that did not in order to see whether courts are contributing to salient or non-salient issues. Canadian social policy issues will be examined. In particular, the focus will be on complex issue areas, which tend to see policy disputes folded into broader legislative reforms, to provide a more complete picture of issue salience.

Parliamentary Constraints on the Constitutional Decisions of the Supreme Court of Canada: Brendan Dell (Queen's University), Geoffrey Sigalet (UBC-Okanagan)
Abstract: Scholarship on the Charter has often argued that SCC decisions act as constraints on Parliament which typically bows to the pronouncements of the SCC on rights issues (e.g. Roach 2001, Hiebert 2002, etc.). In contrast, American scholarship has increasingly recognized constraints placed upon the U.S. Supreme Court in its constitutional decisions; “institutional maintenance” encourages the Court to consider the preferences of other actors (e.g. Clark 2010, Harvey and Friedman 2006, Gardner and Thrower 2023). While Canadian political scientists have argued that Parliament fails to contest judicial review under the Charter, this dialogue debate focuses on legislative responses to cases (Macfarlane 2013). But case-based research may fail to identify legislative constraints on SCC decisions because decisions to review actions of Parliament are likely correlated with merits decisions. A statute-centred approach, however, can correct this selection bias enabling us to show Parliamentary constraints on the Court. We demonstrate that the SCC constrains its own behavior in response to parliamentary preferences and ideology. This study examines the likelihood of the SCC to invalidate federal statutes on constitutional grounds (including ultra vires and Charter invalidations) from 1949 to the present. We hypothesize that the SCC accommodates the policy preferences of Parliament in its constitutional decisions, though this relationship is tempered by the strength of the government in Parliament and the political salience of the policy at issue. By examining statutes and decisions both pre- and post-Charter, we may also contribute to the vast literature on the influence of the Charter on Canadian political institutions.