Constraining the Court

When the Supreme Court of Canada makes a decision that invalidates a statute, it creates a constitutional moment. But does that have a direct and observable impact on public policy? Constraining the Court explores what happens when a statute involving a significant public policy issue – French language rights in Quebec, supervised consumption sites, abortion, or medical assistance in dying – is declared unconstitutional. James B. Kelly examines the conditions under which Parliament or provincial/territorial legislatures attempt to contain the policy impact of judicial invalidation and engage in non-compliance without invoking the notwithstanding clause. He considers the importance of the issue, the unpopularity of a judicial decision, the limited reach of a negative rights instrument such as the Charter, the context of federalism, and the mixture of public and private action behind any legislative response. While the Supreme Court’s importance cannot be denied, this rigorous analysis convincingly concludes that a judicial decision does not necessarily determine a policy outcome.

James B. Kelly is a professor in the Department of Political Science at Concordia University. He is the author of Governing with the Charter: Legislative and Judicial Activism and Framers’ Intent, which was shortlisted for the 2005 Donner Prize. He served as the 2006–07 Seagram Chair in Canadian Studies at the McGill Institute for the Study of Canada, where he coedited Contested Constitutionalism: Reflections on the Canadian Charter of Rights and Freedoms with Christopher P. Manfredi. With Janet L. Hiebert, he is also a coauthor of Parliamentary Bills of Rights: The Experiences of New Zealand and the United Kingdom. He has been a visiting fellow at the Centre for Comparative Constitutional Studies at Melbourne Law School; a visiting professor at the Faculty of Law of Bar-IIan University, Israel; and an editor of the Canadian Journal of Political Science.

In Constraining the Court, James Kelly argues that although the Supreme Court has the power to strike down legislation on Charter grounds, there is no guarantee that its decisions will reshape public policy. In his typically illuminating and incisive way, Kelly shows that the extent of courts’ "policy impact" depends on a number of factors, including whether political actors agree with judicial decisions, federalism considerations, and even the behaviour of private actors. Constraining the Court is essential reading for anyone seeking a more nuanced picture of how the institutions of state interact under the Charter, how federalism shapes the political response to court rulings, and how major Supreme Court cases do – or do not – shape public policy.

Kent Roach, CM, FRSC, author of The Supreme Court on Trial: Judicial Activism or Democratic Dialogue:

James Kelly's book offers a fresh and nuanced approach to understanding responses to Supreme Court decisions. It is essential reading for those wishing to understand the complex role of the Charter and the continued impact of federalism on policy-making.

Matthew A. Hennigar, associate professor, Department of Political Science, Brock University:

Constraining the Court is required reading for anyone trying to understand the policy impact of court decisions. Kelly's analysis of legislative and regulatory responses to court rulings is remarkably detailed and the case studies engaging and persuasive.