Droit et analyse de politiques

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

Date: Jun 4 | Heure: 01:45pm to 03:15pm | Salle: SJA-337E

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.

Revisiting R v. Comeau during a Trade War: 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.