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

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.

The Supreme Court of Canada and Strategic Decision Making: Examining Justices’ Voting Patterns during Periods of Institutional Change

“…Manfredi (1989) suggests that although judicial review has a basis in Canadian law, its Downloaded by [Northeastern University] at 17:10 18 November 2014 increase with the Charter of Rights has lead the Court to a "very broad conception of its review powers" (1989, 319). One justice interviewed by McCormick and Greene (1990), when asked about the role of judges, remarked that the "Charter of Rights has changed everything" (1990,237).…”

Stability and Change: Policy Evolution on the Supreme Court of Canada, 1945–2005

“…The importance of studying the Court before and after the Charter allows scholars to compare decisions to determine the relative activism of the Court in its earlier years. Manfredi argues that the Charter led the Court to a “very broad conception of its review powers” (1989: 319), while McCormick and Greene remark that the “Charter of Rights changed everything” (1990: 237). Morton and Knopff (2000), however, argue changes in the Court's decisions are justice-driven rather than institutionally driven.…”