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Adjudication, Policy-Making and the Supreme Court of Canada: Lessons From the Experience of the United States*

Published online by Cambridge University Press:  10 November 2009

Christopher P. Manfredi
Affiliation:
McGill University

Abstract

This article explores the relevance of studies of judicial policy-making in the United States to the decision-making of the Supreme Court of Canada under the Canadian Charter of Rights and Freedoms. The article suggests that literature concerning the political legitimacy of judicial policy-making is minimally relevant, since a broad form of judicial review appears to be well established in Charter jurisprudence. The literature on institutional decision-making capacity has greater relevance, since the Canadian Court faces the same information-processing constraints as its American counterpart. The article concludes by suggesting that attempts to overcome problems of institutional capacity may produce additional questions of political legitimacy.

Résumé

Cet article examine la pertinence des études sur l'elaboration des politiques judiciaires aux États-Unis par rapport aux décisions prises par la Cour Suprême du Canada en vertu de la Charte des droits et libertés. Les ouvrages portant sur la légitimité politique de l'élaboration des politiques judiciaires ne présentent guère d'intérêt dans la mesure où un vaste éventail de révisions semble passablement institué par la jurisprudence de la Charte. Les ouvrages sur la capacité de prendre des décisions au niveau institutionnel ont par contre beaucoup plus de valeur, étant donné que la Cour Suprême du Canada est aux prises avec les mêmes contraintes de traitement de l'information que son homologue américain. En conclusion, l'auteur suggère que les tentatives visant à surmonter les problèmes de capacité décisionnelle au niveau institutionnel peuvent engendrer d'autres questions de légitimité politique.

Type
Research Article
Copyright
Copyright © Canadian Political Science Association (l'Association canadienne de science politique) and/et la Société québécoise de science politique 1989

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References

1 Morgentaler, Smoling and Scott v. The Queen, [1988] 1 S.C.R. 30.

2 Ibid., 161–84.

3 Morgentaler v. The Queen, [1976] 1 S.C.R. 616, at 672 (accepting Parliament's judgment that “the desire of a woman to be relieved of her pregnancy is not, of itself, justification for performing an abortion”).

4 Morgentaler, Smoling and Scott v. The Queen, [1988] 1 S.C.R. at 46.

5 Article VI of the United States Constitution, however, implicitly gives state courts the power to review state legislation for conformity with the federal Constitution.

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10 See Fletcher v. Peck, 6 Cranch 87 (1810); Martin v. Hunter's Lessee, 1 Wheaton 304 (1816); Cohens v. Virginia, 6 Wheaton 264 (1821).

11 See, for example, Commager, Henry Steele, “Judicial Review and Democracy,” in Levy, Leonard (ed.), Judicial Review and the Supreme Court (New York: Harper and Row, 1967), 73Google Scholar; and Commager, Henry Steele, Majority Rule and Minority Rights (New York: Oxford University Press, 1943).Google Scholar

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25 Miller, Toward Increased Judicial Activism, 247. One should note that even if Miller is correct it does not necessarily follow that judges have the sole, or even primary, responsibility to write this fundamental law.

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33 Ref. re s. 94 (2) of the Motor Vehicle Act (B.C.) [1985] 2 S.C.R. 486. The Court held that “fundamental justice” prohibited provincial legislatures from establishing absolute liability offences.

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38 R. v. Oakes, [1986] 1 S.C.R. 103. These criteria are examined below.

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55 Re Singh and Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at 218–19.

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63 Ibid., 454.

64 Morgentaler, Smoling and Scott v. The Queen, [1988] 1 S.C.R. 30, at 63; emphasis added.

65 Ibid. For Justice Wilson's argument on this point, see Ibid., 162–72.

66 Ibid., 72–73.

67 Ibid., 70 (citing [1985] 2 S.C.R. 486, at 503).

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71 Morton, “The Political Impact of the Canadian Charter of Rights and Freedoms,”53. See also Monahah, Politics and the Constitution, 37–38. Charter decisions in this area include Therens v. The Queen, [1985] 1 S.C.R. 613; Dubois v. The Queen, [1985] 2 S.C.R. 350; R. V. Oakes, [1986] 1 S.C.R. 103; and Hunter v. Southam Inc, [1984] 2 S.C.R. 145.

72 See, for example, Horowitz, The Courts and Social Policy, 171–254. One should not forget that it was in a case concerning provincial penal law that the Court first articulated a substantive interpretation of the “principles of fundamental justice.” Indeed, Justice Wilson warned in that case against the artificial separation of substance and procedure. See Ref. re s. 94 (2) of the Motor Vehicle Act (B.C), [1985] 2 S.C.R. 486, at 531.

73 The judicially created exclusionary rule in the United States is a case in point. The purpose of the rule is to deter law enforcement authorities from engaging in illegal searches and seizures. It operates most directly, however, on prosecutors and thus assumes a certain type and level of communication between prosecutors and law enforcement officials. This communication varies widely among jurisdictions, a fact that significantly affects the rule's operation. See Schlesinger, Stephen R., “Criminal Procedure in the Courtroom,” in Wilson, James Q. (ed.), Crime and Public Policy (San Francisco: Institute for Contemporary Studies, 1983), 192200.Google Scholar It should be noted that an exclusionary rule is constitutionally entrenched in Canada by section 24 (2) of the Charter, although its scope must still be defined by the Supreme Court.

74 Horowitz, The Courts and Social Policy, 35.

75 Ibid., 36.

76 The disadvantages of incrementalism are discussed in Goodin, Robert E., Political Theory and Public Policy (Chicago: University of Chicago Press, 1982), 1938.Google Scholar

77 Compare the Motor Vehicle Reference, for example, with Curr v. The Queen, [1972] 26 D.L.R. (3d) 603 and Duke v. The Queen, [1972] 28 D.L.R. (3d) 129. In the latter two cases the Court gave a narrow, strictly procedural reading to the “due process” and “fundamental justice” clauses of the Canadian Bill of Rights.

78 See Morgentaler, Smoling and Scott v. The Queen, [1988] 1 S.C.R. at 133 (McIntyre, J., dissenting).

79 See, for example, Rossum, Ralph A., “Plessy, Brown, and the Reverse Discrimination Cases: Consistency and Continuity in Judicial Approach,” American Behavioral Scientist 28 (1985), 792806CrossRefGoogle Scholar; Graglia, Lino: “When Honesty Is ‘Simply… Impractical’ For the Supreme Court: How The Constitution Came to Require Busing for School Racial Balance,” Michigan Law Review 85 (1987), 1153–82CrossRefGoogle Scholar; and Rhoden, Nancy K., “Trimesters and Technology: Revamping Roe v. Wade,” Yale Law Journal 95 (1986), 639–97.CrossRefGoogle ScholarPubMed

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81 The attraction of these groups to litigation is the relative ease of access to the judicial process and the potentially significant spoils of victory. A favourable decision on constitutional grounds transforms the interest into a right, providing the group with a trump card in future policy deliberations. See Louthan, William C., The Politics of Justice (Port Washington, N.Y.: Kennikat Press, 1979).Google Scholar

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88 Horowitz, The Courts and Social Policy, 44. In 1975, the Canadian Supreme Court acquired significantly greater control over its own docket with the elimination of appeals as of right in civil cases involving more than $10,000. See Russell, The Judiciary in Canada, 344–49. On the possible implications of this change in this context see Wilson, Bertha, “Decision-Making in the Supreme Court,” University of Toronto Law Journal 36 (1986), 234.CrossRefGoogle Scholar

89 Horowitz, The Courts and Social Policy, 51.

90 Parliament held a free vote on several abortion proposals on July 28, 1988. The proposal that came closest to adoption was a pro-life proposal that would have prohibited abortion unless the life of the mother were threatened. This proposal was defeated by a vote of 118 to 105. No other proposal, including the one put forward by the government, received more than 76 votes.

91 Horowitz, The Courts and Social Policy, 52–53.

92 Corsi, Jerome R., Judicial Politics: An Introduction (Englewood Cliffs: Prentice-Hall, 1984), 302.Google Scholar The United States Supreme Court, for example, found it exceedingly difficult to design a plan for implementing school desegregation after Brown. The best it could do was to exhort states to proceed with “all deliberate speed” toward desegregation. See Brown v. Board of Education (II), 349 U.S. 294, 301 (1955). See also Graglia, “When Honesty is ‘Simply… Impractical’ for the Supreme Court,” 1156.

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97 Chayes, “The Role of the Judge in Public Law Litigation,” 1310; and Carter, Leif H., “When Courts Should Make Policy: An Institutional Approach,” in Gardiner, John (ed.), Public Law and Public Policy (New York: Praeger, 1977), 148, 155.Google Scholar For an opposing view, see Glazer, Nathan, “Should Judges Administer Social Services?Public Interest 50 (1978), 6480.Google Scholar

98 Miller and Barron, “The Supreme Court, The Adversary System, and the Flow of Information to the Justices,” 1233–44. These include remanding cases for trial court adjudication of such facts, adopting specific rules governing judicial notice, appointing a panel of social scientists to assist the Court, rigorous licensing of the Supreme Court bar and encouraging the justices to request further information on questions of social facts when the information immediately available is unclear. For similar recommendations with respect to the Canadian Court, see Wilson, “Decision-Making in the Supreme Court,” 242–44.

99 Diver, “The Judge as Political Powerbroker,” 103.