Law and Public Policy

D14 - Canadian Constitutionalism

Date: Jun 13 | Time: 03:30pm to 05:00pm | Location: 680 Sherbrooke St. West 1085

Chair/Président/Présidente : Andrea Lawlor (McMaster University)

Discussant/Commentateur/Commentatrice : Christa Scholtz (McGill University)

Judicial Legitimacy in Turbulent Times: Erin Crandall (Acadia University), Andrea Lawlor (McMaster University), Shauna Hughey (McMaster University)
Abstract: There is longstanding public support for the Supreme Court of Canada. However, the sources of this support and how vulnerable it may be to political factors or scandals are not as well understood in contexts outside of the US. In February of 2023, Supreme Court Justice, Russell Brown, took a leave of absence from the Supreme Court following a conduct complaint under review by the Canadian Judicial Council. He stepped down in June of that year. We take advantage of this natural experiment to assess whether perspectives toward Brown’s actions hurt (even temporarily) perceptions of the Court’s legitimacy. To do so, we provide initial findings from an original two-wave survey experiment (n=2000) from May and November of 2023 that measures public perceptions of the Court and court support more broadly. This work contributes to the growing body of literature that looks at attitudes toward apex courts and how shifting ideological and political landscapes may undermine the longstanding and broad-based support for the Supreme Court of Canada.

The Federal ‘Principle’ and Unwritten Constitutionalism: Emmett Macfarlane (University of Waterloo)
Abstract: Unwritten constitutional principles are said to provide fundamental guidance explaining and underpinning our system of government. The Supreme Court has drawn from a set of principles, including but not limited to federalism, the rule of law, minority rights, and democracy, to ‘fill gaps’ in the constitutional text. While a majority of the Court recently determined that unwritten principles could not be applied independent of textual provisions of the Constitution to invalidate legislation, they remain of considerable interpretative significance, including in the creation of new constitutional rules. The principle of federalism is arguably the one that sits most uncomfortably as an ‘unwritten’ principle, or even as a principle. Federalism is a structure literally embodied in the constitutional division of powers, and much of the very purpose of the Constitution Act, 1867 was to entrench its various features in text-based law, not only in the division of powers itself but also in design features of national institutions and various entrenched ‘bargains’ of Confederation. This paper will examine the federal principle and argue that it ultimately should not be regarded as a principle at all. This is because it does not serve to coherently embody underlying constitutional norms. Instead, it is a device that arises in contexts where fundamental disagreements about the nature of Canadian federalism are brought to the fore, one ultimately employed politically and strategically by courts, and in an inconsistent fashion.

The Fragmented State and Crown Immunity in Ontario: Dennis Baker (University of Guelph), Byron Sheldrick (University of Guelph)
Abstract: A basic precept of the Rule of Law is that it applies universally, even against those who make the law. This principle gives normative support to statutes, like the Proceedings Against the Crown Act, that willingly exposes the state to liability when it would otherwise be immune by common law. However principled, the post-war development of expanded state liability can also be understood as a function of the increasing complexity of the state. If the state were a simple unitary entity, the surrender of immunity might be seen as contrary to obvious self-interest. The fragmentation of the state – with its multiple actors often working against each other’s interest internally – facilitated the legislative curtailment of immunity. Understanding state fragmentation – and distinguishing between state actors holding legislative power from those that do not – helps reveal the legal-political dynamics of controversies over state liability in Ontario, including recent attempt to enhance or restore immunity with the 2019 Crown Liabilities and Proceeding Act (found wanting in Francis v. Ontario, 2021 ONCA 197, but successfully used in Bowman v. Ontario, 2022 ONCA 477). It also helps explain why governments might seek to define and expand “core policy immunity” (Marchi 2021 SCC 41) in some contexts and why they might be reluctant to do so in others. Further expansion of statutory Crown immunity could encourage courts to regulate the power constitutionally. This prospect, along with other potential outcomes, will be surveyed.