2023 Year in Review - Law & Politics Scholarship on Canada
It’s now a tradition (two years in a row is a tradition, right?) for this Substack to give a quick rundown of some of the best ‘law and politics’/constitutional scholarship on Canada that was published this past year. Usual caveats: 1) I’ve inevitably missed/forgotten some great stuff, and my apologies to everyone in advance. 2) There’s a heavy (but not total) emphasis on political science work, and it’s useful for those of you who are legal scholars to read more poli sci work anyway! 3) Some of my own publications appear at the end. They’re not necessarily part of a “best” list, but I’m proud of them anyway.
Andrea Lawlor & Erin Crandall published a great piece in the American Review of Canadian Studies on the notwithstanding clause as an instrument of ‘court curbing’ (strategies to reduce the influence or effects of court decisions). This great piece combines media analysis and public opinion data. Interestingly, while the general public’s lack of familiarity with the clause and how it works was apparent in their results, their analysis of the general support for court curbing in instances of unpopular decisions and the analysis of confidence levels in the Supreme Court are an important contribution to an understudied area.
In Law & Social Inquiry, Minh Do and Robert Schertzer pen an excellent analysis of how the Supreme Court addresses highly political cases involving jurisdictional disputes in the context of both federalism and Aboriginal and treaty rights cases. They demonstrate that the Court increasingly attempts to facilitate dialogue by pushing cases back into the political realm, thereby rejecting a “zero-sum” outcome approach when enforcing jurisdictional and rights issues. In the context of Indigenous rights, however, this reflects a failure to recognize the inherent power imbalance at stake.
Robert Berthelsen and Philippe Lagassé examine the roles of the Crown in Canadian foreign policy in International Journal. The Crown remains a fundamentally understudied and misunderstood institution in Canadian constitutionalism, and this study marks a major foray into an important area of relevance.
In an important and rich study, Kate Puddister examines police oversight agencies and the issue of police accountability in Canada in Canadian Public Administration. The law and politics fields have neglected questions of policing for far too long, and Puddister’s piece shows how political science especially can contribute important institutional analyses rather than leaving all this work to the fields of criminology and sociology.
David Said has a great piece in Canadian Public Administration on the effects of Supreme Court decisions on the Ontario Human Rights Tribunal’s discretionary power to dismiss human rights complaints. Human rights commissions/tribunals are another understudied area in law and politics, and Said’s piece is an excellent contribution in this regard.
Danielle McNabb’s work on third party intervention and the Supreme Court is groundbreaking (I’m very much looking forward to the inevitable book based on her doctoral research), and her new piece in the Canadian Journal of Political Science demonstrates just how much has changed in recent years in terms of who the ‘repeat players’ really are.
Richard Albert & Léonid Sirota published an excellent collection, titled A Written Constitution for Quebec? (McGill-Queen’s University Press) with great explorations of the very understudied idea of provincial constitutions, unwritten constitutionalism, the importance of entrenchment vs informal constitutionalism, and comparative insights within and beyond Canada.
And, while I haven’t read it yet (it just arrived in the mail last week), a big shout out to Andrew McDougall’s brand new book, Sleeping Dogs: Quebec and the Stabilization of Canadian Federalism after 1995 (University of Toronto Press). This is bound to be a landmark contribution to the scholarship on federalism, Canada-Quebec relations, and national unity.
Finally, I wanted to quickly highlight some of my own 2023 publications:
My new book, with Janet Hiebert and Anna Drake, is the culmination of 15 years of work on inter-institutional relationships under the Charter of Rights. In Legislating under the Charter: Parliament, Executive Power, and Rights (University of Toronto Press) we examine the quality and extent of executive and parliamentary consideration and debate about rights and the Charter when developing legislation or passing laws in response to court rulings on rights. Our case studies include criminal justice policy, safe consumption sites, sex work, and medical aid in dying. The book also features a number of institutional reform proposals that we think would improve matters.
In the Alberta Law Review I have a fun piece titled “Constitutional Retconning”, examining how the courts occasionally ‘reimagine’ history in judicial reasoning in ways that result in constitutional change. I think this is a meaningful way to look at a distinctive and previously unexamined technique of constitutional interpretation. The article examines changes to the Parliament’s unilateral amending authority, the perceived constitutional status of the Court itself, and to the Crown of Canada. (It also starts, as all great law journal articles do, with a brief discussion of Buffy the Vampire Slayer).
In a paper in the Osgoode Hall Law Journal I examine the purported unilateral amendments to the Constitution of Canada by Quebec under Bill 96 (as well as subsequent assertions by Saskatchewan concerning its jurisdiction and Quebec on changes implicating the constitutional requirement for members of the National Assembly mandating an oath to the Crown). My analysis examines the relationship between provincial constitutions and the Constitution of Canada, the amending formula, historical and contemporary practice, and relevant jurisprudence. I argue provinces cannot make direct amendments altering or adding to the text of the national constitution. It is perhaps the most complex piece I’ve ever written, but also one of the most important: the acceptance of these egregiously unconstitutional and unprecedented provincial acts by federal politicians (and apparently the Department of Justice) is deeply concerning.
I was also pleased to have a chapter on the study of judicial decision-making in Paul Daly and Joe Tomlinson’s new edited book, Researching Public Law in Common Law Systems (Edward Elgar Publishing).
Looking forward to 2024, as I continue work on a book with Phil Lagassé on Canada’s unwritten constitution, and my ongoing giant project on the regulation of online hate speech in Canada, New Zealand, and the United Kingdom with Rachael Johnstone and our research team.