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The Judicialization of Politics in Canada and the Policy Legacy of the Mclachlin Court (2000-2017)

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The Judicialization of Politics in Canada and the Policy Legacy of the Mclachlin Court (2000-2017) The Judicialization of Politics in Canada and the Policy Legacy of the McLachlin Court (2000-2017) Marianna Callocchia A Thesis in The Department of Political Science Presented in Partial Fulfillment of the Requirements for the Degree of Master of Arts (Political Science) at Concordia University Montreal, Quebec, Canada September 2019 © Marianna Callocchia, 2019 CONCORDIA UNIVERSITY School of Graduate Studies This is to certify that the thesis prepared By: Marianna Callocchia Entitled: The Judicialization of Politics in Canada and the Policy Legacy of the McLachlin Court (2000-2017) and submitted in partial fulfillment of the requirements for the degree of Master of Arts (Political Science) complies with the regulations of the University and meets the accepted standards with respect to originality and quality. Signed by the final examining committee: Chair Dr. Stephanie Paterson Examiner Dr. Daniel Salée Thesis Supervisor(s) Dr. James B. Kelly Approved by Dr. Elizabeth Bloodgood Chair of Department or Graduate Program Director Dean, André G Roy Date December 5, 2019 ABSTRACT The Judicialization of Politics in Canada and the Policy Legacy of the McLachlin Court (2000-2017) Marianna Callocchia Since the birth of the Charter of Rights and Freedoms in 1982, the Supreme Court has been charged with being an extremely activist Court responsible for initiating fundamental policy reform via its remedial powers (s. 24(1)). Relatively few studies exist, however, which attempt to evaluate the truth of these claims. Stated differently, few have studied whether judicial invalidation actually results in fundamental policy change. Utilizing dialogue theory as the framework of analysis, complemented with a modified approach to Matthew Hall’s (2010) theory of final appellate courts as ‘implementer-dependent’ institutions, the study attempts to fill this gap. By conducting six case studies of salient and controversial issues of public policy, and by analyzing the corresponding legislative sequels introduced by federal or provincial governments in response to judicial invalidation, the study attempts to measure the policy impact and legacy of the McLachlin Court, and to understand the conditions under which the Supreme Court behaves as a powerful policymaking institution. The thesis demonstrates that the Court’s policy clout is contingent on whether the federal or provincial legislatures, as the designers and implementers of public policy, create conditions favorable to judicial policymaking and the judicialization of politics. The findings illustrate that, given the right set of circumstances – namely when the Court delivers a decision that proves to be unpopular with the non-judicial actors responsible for enforcing the judicial ruling, and, as a result, when the responsible iii legislature introduces reply legislation that challenges, or ineffectively implements, the Court’s decision – judicial power will be rather limited. iv ACKNOWLEDGEMENTS This work would have not been possible without the help of Professor James Kelly, my thesis supervisor and mentor. Thank you for pushing me to reach my full potential, and for granting me the freedom to explore myself academically. Your knowledge and passion for the subject is invaluable, and I am extremely honored and humbled to have learned from the best. I would also like to take this opportunity to thank Professor Daniel Salée for agreeing to be a member of the thesis committee, and for providing me with the guidance and feedback necessary to improve and grow. Furthermore, I would like to thank all of my professors and the staff at Concordia University who have made my graduate experience a memorable one, and who have given me the tools necessary to succeed. To my best friends Cristina and Alexia, thank you for constantly and generously supporting and encouraging me, and for being a part of both my hardships and successes; for being my voice of reason, for the constant pep-talks, and for showing me endless and unconditional love. Finally, I must express my sincerest thanks to my family – the people who have always encouraged me to pursue my ambitions, goals and dreams, and who have walked alongside me every step of the way. To my mom, thank you for being the glue that holds this family together. Without your strength, patience, guidance and love, I would not be where I am today. Much of my success I owe to you, and, for that, I will be forever grateful. To my sisters, Bianca and Liana, thank you for being the epitome of strong, confident and independent women, and for constantly reminding me that the sky is truly the limit. Thank you for being my people; for listening to me read my work over and over again, and for your unwavering love, encouragement and support. v To my fierce angel, thank you for encouraging me to pursue a higher education, for always believing in me, and for guiding me from above. I am the woman I am today because of the person you raised me to be. You are greatly missed, but will never be forgotten. vi TABLE OF CONTENTS 1 Introduction.…….…………………………………………………………………………….....1 1.1 Research Question and Scope of Study…………………………………………….....3 1.2 Methodological Approach………………………………………………………….....7 1.3 Institutional Focus and Units of Analysis………………………………………….....8 1.4 Case Selection and Data Analysis…………………………………………………….9 1.5 Measuring and Operationalizing Judicial Policy Impact………………………….....13 1.6 Outline of Chapters…………………………………………………………………..15 2 The Judicialization of Politics and Judicial Policymaking in Canada………………………....18 2.1 Left-Wing Charter Critics…………………………………………………………....20 2.2 Right-Wing/Conservative Judicial Critics…………………………………………...22 2.3 Dialogue Theory and the Supreme Court of Canada………………………………...30 2.4 Beyond Dialogue Theory: Courts as Implementer-dependent Institutions…………..39 2.5 Addressing the Gaps in the Existing Constitutional Literature in Canada…………………………………………………………………………………....45 3 The Harper Conservatives and Criminal Justice Policy……………………………………….48 3.1 Overview of PHS Community………………………………………………………..50 3.2 The Supreme Court of Canada: Canada (Attorney General) v. PHS Community Services Society [2011]……...........................................................................54 3.3 Bill C-2: The Harper Conservatives’ Response to PHS Community………………...58 3.4 Overview of Bedford………………………………………………………………....63 3.5 The Supreme Court of Canada: Canada (Attorney General) v. Bedford [2013]………………………………………………………………………...68 vii 3.6 Bill C-36: The Harper Conservatives’ Response to Bedford………………………...71 3.7 Judicial Impact and the Harper Conservatives……………………………………….74 3.8 Conclusion…………………………………………………………………………...78 4 The Judicialization of Healthcare Policy……………………………………………………....80 4.1 Overview of Carter…………………………………………………………………..83 4.2 The Supreme Court of Canada: Carter v. Canada (Attorney General) [2015]……...87 4.3 Bill C-14: The Trudeau Liberals’ Response to Carter……………………………....91 4.4 Overview of Chaoulli………………………………………………………………..98 4.5 The Majority on the Supreme Court of Canada: Chaoulli v. Quebec (Attorney General) [2005]………………………………………………………………………...102 4.6 The Minority on the Supreme Court of Canada: Chaoulli v. Quebec (Attorney General)[2005]………………………………………………………………………....107 4.7 Bill 33: Quebec’s Response to Chaoulli……………………………………………108 4.8 The Policy Impact of the Supreme Court of Canada in Carter and Chaoulli………111 4.9 Conclusion………………………………………………………………………….114 5 The Judicialization of Minority Language Education Policy in Quebec……………………..117 5.1 Minority Language Education Rights in Quebec…………………………………...119 5.2 Overview of Solski………………………………………………………………….122 5.3 The Supreme Court of Canada: Solski (Tutor of) v. Quebec (Attorney General) [2005]…………………………………………………………………………………...124 5.4 Overview of Nguyen………………………………………………………………..128 5.5 The Supreme Court of Canada: Nguyen v. Quebec (Education, Recreation and Sports) [2009]…………………………………………………………………………..129 5.6 Bill 115: Quebec’s Response to Solski and Nguyen………………………………..132 viii 5.7 Judicial Impact and Minority Language Education in Quebec……………………..140 5.8 Conclusion………………………………………………………………………….143 6 Conclusion: McLachlin’s ‘Legacy’…………………………………………………………..146 Bibliography…………………………………............................................................................158 Appendix 1 (McLachlin Court’s Charter Docket)……………………………………………..170 Appendix 2 (Charter Cases Involving Primary Legislation)…………………………………..178 Appendix 3 (Legislative Responses)…………………………...................................................181 ix 1 Introduction The adoption of bills of rights worldwide has sparked scholarly interest in studying the powers of final appellate courts. The birth of the Canadian Charter of Rights and Freedoms in 1982 is certainly no exception. 1 As the ‘umpires of federalism,’ courts have traditionally acted as mediators in disputes arising from issues related to the division of powers and, in this respect, have always played an important constitutional role.2 April 27th, 1982, however, marked the beginning of a new era for Canadian courts. Armed with strong remedial powers, they were now in a position to transform into a powerful policymaking institution. In Canada, a system structured by the principle of parliamentary democracy, judicial power and policymaking is troubling because it empowers the courts – an unelected and unaccountable institution incapable of addressing complex issues of public policy, and which lack the information required to balance competing interests in society3 – to claim “responsibility
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