Droit et analyse de politiques

D19 - Courts and Judicialized Policy Making 2.0: Taking the Policy Process Seriously (Policy Implementation)

Date: Jun 14 | Heure: 01:45pm to 03:15pm | Salle:

Chair/Président/Présidente : Christine Rothmayr Allison (Université de Montréal)

Co-Chair/Président/Présidente : Dagmar Soennecken (York University)

Discussant/Commentateur/Commentatrice : Martin Papillon (Université de Montréal)

Understanding Judicial Power and Policy Implementation in the Charter Era: James Kelly (Concordia University)
Abstract: A nuanced and an important scholarly debate in Canada has come to understand judicial power and the Charter. This debate has produced important findings on the counter-majoritarian difficulty that the Charter poses for Canadian constitutionalism, the reasons why bills of rights are adopted in advanced liberal democracies, and how the legislative process has changed within government. What the Charter debate has not fully understood, and perhaps, was not particularly concerned with, is the policy impact of judicial decisions. In many ways, the early debate assumed that the Supreme Court of Canada had policy influence because it ruled on important policy issues under the Charter of Rights and Freedoms, and that these decisions would be faithfully implemented by the responsible legislature. There is no denying that that the Supreme Court of Canada is a powerful institution. It would be folly to suggest otherwise. What is less clear is whether powerful judicial decisions have a clear and unfettered policy impact. This is particularly important when the policy stakes are high, and governments are opposed to the direction suggested by the Supreme Court of Canada. Courts can have policy impact. And they may not have any policy impact at all, if judicial decisions produce sustained legislative disagreements that structure a legislative response. In addition, if a complex implementation chain is present in a judicialized area of public policy, this can further diminish judicial impact, particularly in a federation such as Canada’s. The purpose of this paper is to understand judicial impact, and to map out when judicial decisions do not fundamentally change policy direction, despite the Court issuing powerful rebukes of government action. This paper conceptualizes the Supreme Court of Canada an ‘implementer-dependent’ institution when it invalidates statutes and requires a legislative response on the part of Parliament, a provincial or territorial assembly, or all three, when a collaborative response is needed. Three variable are identified that directly affect judicial policy impact in this implementer-dependent context: first, issue salience of the issue of public policy; second, the popularity of a judicial ruling and evidence of legislative disagreement; and finally, the implementation context. These variables can significantly reduce judicial impact in the post-agenda setting phase. By the popularity of a judicial decision, I am referring to its acceptance by either the government with statutory responsibility for an invalidated statute, or any of the governments or actors in the implementation chain, once the statutory framework is enacted into law. If any of these actors disagrees with judicial policy preferences, judicial impact is compromised, particularly if a government legislates in opposition to the judicial decision or invokes the notwithstanding clause in section 33 of the Charter of Rights. However, the popularity of a judicial decision and its importance is intensified in Canada because of a diverse implementation context, as a breakdown in the implementation chain reduces judicial impact. Although federalism is premised on divided jurisdictional responsibilities, many of the issues judicialized under the Charter of Rights, such as health care policy (abortion, medical assistance in dying, supervised consumption sites, etc.), are, from an implementation perspective, shared responsibilities between the two orders of governments – one to legislate (Parliament) and one to provide access (provincial and territorial legislatures). The paper will draw upon salient issues of public policy judicialized in the Charter era to understand the degree of policy impact of judicial decisions and whether these decisions are fully implemented.

Shaping Administrative Policies: Using Freedom of Information to Evaluate the Supreme Court of Canada’s Impact on Tribunals’ Discretionary Authority over Human Rights Codes in Canada: David Said (Guelph University)
Abstract: The influence of judicial decisions on the exercise of administrative tribunals’ discretionary powers is often overlooked in the public policy and public administration literature. Despite the interactive and dynamic relationship that takes places between courts and tribunals, there is a shortage of empirical work that evaluates the influence of judicial decisions on the legal instruments (i.e., softs laws, rules, and policy guidelines) that govern administrative agencies. This paper aims to address this gap in part through an analysis of these legal instruments and the impact the Supreme Court of Canada had on the application of human rights codes by tribunals in Canada. The aim of this study is to evaluate the impact of the Court’s Tranchemontagne decision on the exercise of tribunals discretionary authority over human rights codes by conducting a qualitative comparative case study involving the Ontario Landlord and Tenant Board and the Workplace Safety and Insurance Appeals Tribunal. The findings from this study, which relies on primary data collected through freedom of information requests reveals that the Supreme Court’s decision played an important role in shaping the tribunal’s policy guidelines on the application and interpretation of human rights codes. The findings further shed light on the dynamics of policy learning that is exhibited by tribunals when responding to judicial decisions in the absence of clear legislative interventions.

Judicial Review, Policy Capacity and the Scope of Accountability: The Impact of Courts on Administrative Tribunals after Vavilov: Greg Flynn (McMaster), David Said (Guelph)
Abstract: The 2019 Supreme Court of Canada’s decision in Canada v. Vavilov made fundamental changes to the common law guiding judicial review of administrative tribunals decisions. Vavilov instructed reviewing courts to apply the more deferential reasonableness standard of review and established exceptional circumstances where the correctness standard should be applied. Although the Court’s decision has received extensive attention by legal scholars interested in the doctrinal developments, it has yet to capture the attention of policy scholars and political scientists interested in the relationship between law and politics. We take an exploratory approach to develop a better understanding about the potential policy impact of the standard of review considerations conducted by courts post-Vavilov on the policy capacity and scope of accountability of administrative tribunals operating within a variety of policy spaces. We employ precedent tracing and content analysis approaches of all final court decisions in Ontario citing Vavilov to determine the potential impact on the policy capacity and the corresponding accountability constraints of administrative tribunals. Policy impact is assessed by accounting for a variety of variables including the policy area, nature of the tribunal and the issues contested. We anticipate finding that tribunal policy capacity has been broadened and accountability narrowed by reviewing courts’ interpretation of the appropriate standards of review. The findings further highlight the dynamic interinstitutional relationship between courts and tribunals in the policy process.

Testimony Variations and Post-Traumatic Distress among Trauma Survivors in Legal Proceedings: The Case of Transitional Justice: Mariana Pinzon-Caicedo (Simon Fraser University)
Abstract: The potential of retraumatization of victims in legal proceedings is a longstanding question in the study of legal systems. This paper provides a conceptual and theoretical framework to understand the ways in which participation in transitional justice prosecution trials enhances posttraumatic distress among trauma survivors. Through content analysis of victims’ testimonies before Colombia's transitional justice trial, I find that victim-witnesses of similar war-related traumatic events produce different forms of rhetorical structures that ultimately mediate their experience and perception of the transitional justice process. Two distinct types of testimonies emerge in these legal proceedings (i.e. spasmodic and intentional storytellers) that are a product of victims’ assimilation of the traumatic experience. In one of these structures, victims’ utterances seem to successfully fulfill the roles of witness and victim. In the second form, the storytelling style and language deviate from the norms and expectations of the trial, potentially placing victims at risk of reactivating traumatic distress as their narrative style collides with the genre of discourse of the tribunal. Acknowledging the presence of diverse rhetorical structures in victims' testimonies will improve our understanding of why some victims are ignored by legal proceedings even after providing testimonies. This recognition also highlights the need to revise studies on the effects of legal proceedings, especially transitional justice trials, on the emotional healing of victims. Many of these studies often treat survivors as a uniform or homogeneous group.