Law and Public Policy

D13(a) - Courts’ Impact on Policy and Public Administration

Date: Jun 4 | Time: 01:45pm to 03:15pm | Location:

Chair/Président/Présidente : Charlie Buck (University of Toronto)

Discussant/Commentateur/Commentatrice : Danielle McNabb (Brock University)

Discussant/Commentateur/Commentatrice : Emmett Macfarlane (University of Waterloo)

Judicial salience patterns in Canadian cannabis policy: Marc Zanoni (University of Guelph)
Abstract: Despite courts being recognized as important policy actors and their potential to increase the issue salience of policies, Canadian political scientists have yet to systematically examine patterns of judicial salience to determine whether court involvement in policy disputes produces unique effects. This paper questions whether judicialization tends to increase or decrease issue salience of policy disputes. Do courts exacerbate or inhibit punctuations (i.e., intense periods of attention)? This paper is part of a broader research effort to examine agenda-setting and information processing across different venues for Canadian social policy, using Canadian cannabis law and policy as a case study. This paper compares courts to other political venues to identify the conditions in which courts make meaningful contributions to policy change, and to determine whether courts disrupt typical patterns of issue salience. News articles and parliamentary committee presentations will be used to assess issue salience and to determine whether judicialized policy disputes exhibit unique tendencies compared to non-judicialized policy disputes.

Charter Values at Work: The Impact of Dore and the Exercise of Statutory Discretion in Administrative Decision-Making: David Said (University of Guelph)
Abstract: In 2012, the Supreme Court of Canada established an analytical framework for tribunals to incorporate Charter values in their decision-making processes. The Court’s ruling in Doré v. Barreau du Québec, 2012 SCC 12, which expanded the Charter into the sphere of administrative justice, has raised significant questions surrounding the legitimacy and interpretative authority of administrative decision makers, and more broadly, concerns for the preservation of the rule of law. Despite these concerns, the Court has more recently reaffirmed the obligation of tribunals and other administrative decision-makers to consider Charter values in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment, 2023 SCC 31. The controversies surrounding Charter values and their application in Canadian administrative law has primarily been examined conceptually by legal scholars and from broader theoretical perspectives often situated in doctrinal debates. This paper aims to develop a better understanding about how administrative decision-makers understand and incorporate Charter values in their determinations. In in this regard, the paper makes an empirical contribution by examining the impact of the analytical framework established by Doré. The findings in this paper further contributes to a growing body of judicial impact scholarship in Canada by discussing the influence of judicial decisions on how public administration operates.

Assistant Professor: Andrew McDougall (University of Toronto Scarborough)
Abstract: This project asks what impact has R v. Comeau, 2018 SCC 15, the leading case on the constitutionality of Canada’s internal trade barriers, had on the country’s internal trade laws? Until Comeau, there was no clarity on the exact meaning of section 121 of the Constitution Act, 1867, which guarantees articles of manufacture from any one province shall be admitted “free” into all others. Following a number of ambiguous court decisions in the early 20th century on the meaning of that section, a number of non-tariff barriers were enacted hindering interprovincial trade which had a deleterious effect on the Canadian economy. In 2018, the Supreme Court had a chance to squarely address the question in Comeau, ultimately finding that “free” simply meant free of tariffs, leaving most trade barriers intact. Regardless, the case offered legal clarity on the rules, and even despite mostly upholding the status quo subsequent litigation has indeed opened new avenues to challenge protectionist provincial policies. Through a doctrinal review of subsequent cases and a scan of provincial legislation, this paper examines the legal situation of interprovincial trade in Canada since the decision came down and contributes to our understanding of how the courts have shaped the development of Canada’s economic union. In a time of rising global protectionism, the ongoing development of Canada’s internal market is of considerable public importance.

Federalism and Belonging in Canada: Legal Strategies for Managing Multicultural Tensions and Social Cohesion: Andrew McDougall (University of Toronto), Mahdi Baratalipour (University of Toronto)
Abstract: This study explores how Canada’s federal and provincial legal frameworks address the complex challenges of managing multiculturalism and promoting social cohesion within a diverse federation. The research specifically examines the effectiveness of legal structures in balancing the demands of linguistic, cultural, and Indigenous communities, highlighting the intersection between federalism and identity politics. The innovation of this study lies in its application of Natural Language Processing (NLP) to systematically analyze the Canadian Constitution, national legislation, and regional policies, offering a novel computational approach to understanding legal influences on socio-political cohesion. Through a mixed-methods approach, combining qualitative legal analysis with quantitative computational tools, this research uncovers how tensions between federal and provincial jurisdictions are navigated within Canada’s commitment to multiculturalism and equity. By identifying tailored legal and policy strategies that respect provincial autonomy while upholding national values of inclusion, the findings provide practical models for other multicultural democracies grappling with the challenges of belonging and diversity. The contribution of this research is to provide new insights into how Canada’s federal system can be optimized to promote social cohesion. By identifying legal and policy strategies that respect provincial autonomy while supporting national values of inclusion, this study advances legal scholarship on Canadian federalism and contributes to ongoing debates about managing multiculturalism within Canada. Keywords: Federalism, Multiculturalism, Social Cohesion, Indigenous Rights, Linguistic Diversity, Computational Analysis, Canadian Constitution, Policy Development.