The Courts/Parliament Trade-off: The View from the Canadian Election Study (original) (raw)
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Law, courts and democracy in Canada
International Social Science Journal, 2010
Judicial power is not a concept with which Canadian judges have long been comfortable, or one on which Canadian social scientists have long cut their teeth. In large part, this stems from the way that most lawyers and judges understood the judicial process for most of the country's first century. The mechanical approach to jurisprudence highlights professionalism, objectivity and technical expertise; and by the same token it severely down-plays (if it does not altogether preclude) judicial discretion as an appropriate dimension of the judicial role. If lawyers and judges see decision-making as a purely technical exercise, then there is not much that can be discussed with nonexperts; and if social scientists accept that description, then there is not much that can usefully be studied. And if courts are considered this way, then they are no threat to democracy, and no part tual approach (Bushnell, 1992). For another, Canadian political scientists finally began to follow the lead of scholars like the University of Toronto's Peter Russell, who had long argued that there was a politically relevant dimension to what courts did and how they did itsomething that American social scientists had known for decades. Thirdly, the entrenchment of the Canadian Charter of Rights and Freedoms in 1982 gave the Supreme Court of Canada a new
2017
The purpose of this essay is to gain a greater understanding of judicial reasoning and strategic judicial behaviour through analysing Charter cases in one of its major subfields: democratic rights. While many authors have previously sought to address democratic rights cases dealing with judicial reasoning, none have offered a unified and comprehensive theory of democratic rights litigation that addresses all of the field's major subcomponents, including prisoners' voting rights, referendum and election campaign finance restrictions, party subsidies, and electoral boundaries. This essay will seek to provide a unified and comprehensive theory through looking at democratic rights cases involving all four major areas. It will ultimately argue that democratic rights litigation can best be understood as a product of tensions between two major lines of judicial reasoning, remedial egalitarianism and procedural libertarianism, over the constitutional meaning of equality. This essay will begin by exploring the nature of judicial reasoning and strategic behaviour, and then turn to defining and explaining the two major lines of judicial reasoning that characterize democratic rights litigation. Next, it will seek to apply the theoretical concepts of remedial egalitarianism and procedural libertarianism to explain judicial rulings involving the intersection between democratic rights on the one hand and freedom of expression and representation on the other. This essay concludes by speculating about where democratic rights litigation is likely to go in the future and how Canada's experiences might be relevant to scholars abroad.
Not a New Constitutional Court: The Canadian Charter, the Supreme Court and Quebec Nationalism
The Political Origins of Constitutional Courts: Italy, Germany, France, Poland, Canada, United Kingdom (Adriano Olivetti Foundation), 2009
Why have political actors throughout the world adopted systems of judicial review that empower courts to assess legislation enacted by democratically elected legislatures for compliance with a constitutionally entrenched bill of rights? As Tom Ginsburg has argued, political actors have adopted systems of rights-based judicial review as a form of political insurance, to hedge against the possibility of losing political power in the future. Ginsburg’s thesis has substantive and institutional limbs. The substantive limb is the adoption of a constitutionally entrenched bill of rights to enable constitutional drafters to insure against the future loss of political power through rights-based adjudication, in challenges brought either by themselves or individuals, institutions or organizations with aligned interests. The institutional limb is the creation of a new constitutional court as part of a constitutional transition to enforce this bill of rights. Does the political insurance thesis fit the Canadian story? In this chapter, I argue that it does not. Canada adopted a constitutionally entrenched bill of rights, the Canadian Charter of Rights and Freedoms, in 1982. But the principal political objective behind the adoption of the Charter was not to insure against the potential loss of political power by threatened political elites, but rather, to combat sub-state nationalism in the province of Quebec, through the imposition of rights-based limits on the ability of Quebec to engage in linguistic nation-building, and through the creation of a pan-Canadian constitutional patriotism that would compete with, and eventually overwhelm Quebec nationalism. Ultimate responsibility for enforcing the Charter was vested not in a new constitutional court specifically created for that purpose, but in the existing Supreme Court of Canada. Prior to the entrenchment of the Charter, the Supreme Court had ultimate responsibility for enforcing Canada’s federal division of powers. It was viewed by political and legal elites in Quebec as systematically favouring federal over provincial jurisdiction, and indeed, sided with the federal government against Quebec in important cases that challenged the adoption of the Charter itself and turned on the location of constituent power in the Canadian constitution. The decision to empower the Supreme Court to enforce the Charter should therefore be viewed through the lens of this Court’s pre-existing place in the constitutional politics of Canadian federalism.
The Role of Constitutional Courts, A Comparative Perspective: The Supreme Court of Canada
European Parliament Research Services, Brussels, 2019, 44 pp., 2019
This study is part of a wider project investigating, from a comparative law perspective, the role of constitutional courts of different states. This article examines Canada’s highest court, the Supreme Court. Canada practices a form of “decentralized” constitutional review. Basically all administrative tribunals and courts of justice in Canada have jurisdiction to decide constitutional matters. In a sense, all Canadian judges are constitutional judges. Yet the Supreme Court of Canada, sitting at the apex of the judicial hierarchy, is uniquely positioned to shape the development of constitutional law. It is the ultimate arbiter of the Constitution and has the final word with respect to constitutional interpretation. It thus plays a central role in Canada’s federal democracy. The report is divided into eight (8) sections and follows the general outline developed in the context of the comparative exercise designed by the Comparative Law Library Unit of the European Parliament. Section I offers a brief introduction and history of the Supreme Court. Section II discusses the composition of the Court as well as mechanisms by which judges may be removed from the bench. Section III deals with the principle of judicial independence and sketches the Court’s organization. Section IV outlines the Supreme Court’s jurisdiction, particularly in constitutional matters. Section V addresses the issue of ‘standing’ and of the actors who may seize the Court. Section VI describes the procedures applicable both in appeal and in the context of the Court’s advisory opinion role. Section VII analyses the effect and execution of judgments. Finally, Section VIII offers summary conclusions, underscoring the remarkable degree of legitimacy enjoyed by the Supreme Court of Canada, despite significant challenges in terms of access to justice, given the tremendous cost of bringing a case to the Court. This study is available on the European Parliamentary Research Service's website: http://www.europarl.europa.eu/RegData/etudes/STUD/2019/640134/EPRS\_STU(2019)640134\_EN.pdf.
The Supreme Court of Canada, Charter Dialogue and Deference
SSRN Electronic Journal, 2000
Part of the Constitutional Law Commons Article This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons.
Reflections on the Twentieth Anniversary of the Canadian Charter of Rights and Freedoms: a Symposium
2002
Canada formally amended its written Constitution by adding the Canadian Charter of Rights and Freedoms,' which "explicitly authorized judicial review and the power of all courts to declare offending statutes void." ' 2 This event was a turning point for the Canadian legal and political system and culture, prompting much speculation and a great deal of debate about what the effect of the Charter would, and should, be. Over the past two decades, the Osgoode Hall Law Journal has provided a forum for scholarly discussion and analysis of some of the crucial questions arising out of this debate. The appropriate relationship between the courts and legislatures in a liberal democracy has been a recurring theme in the debate surrounding the Charter that has been taken up in the pages of the Osgoode Hall Law Journal. The normative question about what the relationship between these two institutions should be 3 and the empirical question of the actual impact of the Charter on the relations between courts and legislatures have been considered. 4 Political scientists and legal academics have attempted to answer these questions, promoting a dialogue between the disciplines in the Osgoode Hall Law Journal.
Osgoode Hall Law Journal, 2013
Competing theories regarding the development of a “rights revolution” in Canada have appeared in the judicial and constitutional literature in recent years. On the one hand, scholars argue that the profound effects often attributed to the Charter of Rights and Freedoms are substantially overstated, and conventional analyses have overlooked the more important role of changes in what is called the “support structure” for rights. Others have advanced a competing theory that the Charter created an expansion of civil liberties. We take advantage of an extensive dataset on the decisions of the Supreme Court of Canada to provide a more systematic test of these competing theories. We conclude that the adoption of the Charter had effects on both the rights agenda and the constitutional issues agenda of the Court, which were both substantively large and statistically significant. There was some indication that changes in agenda control mattered, but the effects were not consistent across our ...