Parliamentary Constraints on the Supreme Court of Canada

• In Event: Judicial Decision Making in a Comparative Perspective

Abstract

Scholarship on the Charter has often argued that SCC decisions act as constraints on Parliament which typically bows to the pronouncements of the SCC on rights issues (e.g. Roach 2001, Hiebert 2002, etc.). In contrast, American scholarship has increasingly recognized constraints placed upon the U.S. Supreme Court in its constitutional decisions; “institutional maintenance” encourages the Court to consider the preferences of other actors (e.g. Clark 2010, Harvey and Friedman 2006, Gardner and Thrower 2023). While Canadian political scientists have argued that Parliament fails to contest judicial review under the Charter, this dialogue debate focuses on legislative responses to cases (Macfarlane 2013). But case-based research may fail to identify legislative constraints on SCC decisions because decisions to review actions of Parliament are likely correlated with merits decisions. A statute-centred approach, however, can correct this selection bias enabling us to show Parliamentary constraints on the Court.

We demonstrate that the SCC constrains its own behavior in response to parliamentary preferences and ideology. This study examines the likelihood of the SCC to invalidate federal statutes on constitutional grounds (including ultra vires and Charter invalidations) from 1949 to the present. We hypothesize that the SCC accommodates the policy preferences of Parliament in its constitutional decisions, though this relationship is tempered by the strength of the government in Parliament and the political salience of the policy at issue. By examining statutes and decisions both pre- and post-Charter, we may also contribute to the vast literature on the influence of the Charter on Canadian political institutions.

Authors

• Paul J. Gardner, Queen's University

• Geoffrey Thomas Sigalet, UBC