The Supreme Court of Canada: Policy-Maker of the Year

39 Pages Posted: 5 Dec 2014

Date Written: November 27, 2014

Abstract

Each year, the Macdonald-Laurier Institute for Public Policy recognizes a “Policy-Maker of the Year”. Past recipients have included former Bank of Canada Governor Mark Carney and Foreign Minister John Baird, who have had a tremendous impact on our country’s economic stability and international stature, respectively.

One could argue that, while people in such positions are undoubtedly influential, there is another entity that is rarely acknowledged for its influence on policy, but in the last year has changed Canadian public policy in wide-reaching and long-lasting ways – the Supreme Court of Canada (SCC). This paper examines the Court’s 10 most significant judgments of the last 12 months in terms of their importance and policy implications, on issues ranging from the Senate reform reference to the Bedford case challenging Canada’s prostitution laws to the Tsilhqot’in Aboriginal land claim in BC.

This analysis comes at a time when media commentators have characterized recent high court decisions as a string of “losses” for the federal government. So what does the evidence show?

• The policy and legal impact of the Supreme Court of Canada’s decisions of the last year are significant and likely enduring;

• The Supreme Court of Canada was a remarkably united institution with consensus decisions on these significant cases being the norm, and dissenting opinions rare; and

• The federal government indeed has an abysmal record of losses on significant cases, with a clear win in just one in 10 of them.

In the last year, the Court has effectively taken Senate reform off the federal agenda for the foreseeable future, torpedoing both the governing Conservatives’ reform program and the Opposition New Democrats’ policy to abolish the Senate. The Court has struck down much of Canada’s prostitution legislation, resulting in a dramatic rewriting of the law by the current government. It has changed the landscape in parts of Canada for Aboriginal rights, affected tools available for fighting crime and terrorism, and cast into question how future appointments to the Court from Quebec will be managed. One would be hard-pressed to find another actor in Canada who has had a greater impact on such a wide range of issues than the Court has in the last year, such that the moniker Policy-Maker of the Year is appropriate. The Court, no doubt, would resist such a label on the view that it simply applies the law as part of its constitutional mandate. But the policy impact of its recent decisions is clear.

Keywords: Supreme Court of Canada

Suggested Citation

Perrin, Benjamin, The Supreme Court of Canada: Policy-Maker of the Year (November 27, 2014). Available at SSRN: https://ssrn.com/abstract=2533524 or http://dx.doi.org/10.2139/ssrn.2533524

Benjamin Perrin (Contact Author)

University of British Columbia ( email )

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HOME PAGE: http://faculty.law.ubc.ca/perrin/

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