Chapter 11 Courts, Policy-Making and Judicial Impact
• public policy involves developing objectives to address issues or problems and selecting means to
achieve those objectives. These include value considerations and effectiveness and efficiency
• interstitial rule making- judges asked to adjudicate disputes, it is often unavoidable that they
shape law and policy as a by product of interpreting how the law applies to a particular situation.
• this is especially true for constitutional law- when judges are asked if ordinary
laws are constitutional
• activist decision- decision that requires the government to alter its policy
• courts adopt a policy making model. This includes a greater willingness to relax the rules
concerning standing, mootness and political questions; to allow interveners; to use social factors; and to
shape the law.
Courts and Policy Making
• adjucative model of courts emphasizes that the judicial development of law should be limited and
incremental and be based on existing legal principles in order to be legitimate
• the police making model of courts is more comfortable with judges base in their decisions on
promoting fairness, balancing interests and keeping the law in tune with the times. with less
emphasis on the application of legal principles
• advocates for codification suggested that judges who made decisions on a case by case basis
could easily avoid following established precedent by distinguishing the present case from the
past ones, i.e. inserting personal biases.
• opponents of codification suggested that law making by judges trained in the law was important
bulwark against legislative bodies that might respond to the whims of the masses when making
• the accelerated growth of legislation and regulation coincided with the rise of the administrative
state in which legislatures delegated rule making and adjudicative powers to various
• courts shape law and policy in four important non constitutional ways
• 1. courts perform a policy-making function in overseeing decisions made by administrative
tribunals. courts review procedural aspects of administrative tribunal decision making and assess
the substantive decisions that tribunals make. The recent trend has been for courts to be somewhat decennial to decision made by administrative tribunals. Even some decisions that uphold
administrative decisions contain seeds of judicial policy making. Moreover, even if judges review
only the procedural aspects of administrative tribunal decision making rather than the substance,
this an still have important policy implications.
• 2.the second way that courts have a policy making role in non-constitutional cases is
cumulatively. The decisions that judges make in routine cases when applying legislative or
common law rules, which often leave room for discretion, can forge policy in the aggregate.
Changes in those patterns can signal a change in judicial policy. Since most cases end at the trial
court, they have an important part in policy making in the aggregate.
• 3. clarifying the law or filling the gaps of law when applying common law precedents or
legislation to specific cases. This task is necessitated by poorly drafted legislation or because
rules cannot be written so precisely as to cover every possible situation that may give rise to a
legal despite.Appellate courts have more leadership in this kind of policy making.
• 4. to deviate from applying legal rules that are laid out fairly clearly in common law precedents or
• there is not always a clear line separating an appropriate incremental change to the law to keep it
abreast of new social or technological developments, and more wholesome creation of rules by
judges, which is often considered to be outside the boundaries of the judicial function.
• studies suggest closer to the adjudicatory model-- interpreting and applying the law with only
incremental changes before the Charter.
• some argue that the Charter has made courts move toward a policy-making model.
• non constitutional decisions often do not generate the same sustained intense debate over
legitimacy as do constitutional decisions, especially charters. 1)in some of the non constitutional
law legislators appear to deliberately leave room for copious amounts of judicial discretion and
policy making, such as in criminal sentencing and family law. 2)if a legislative body does not
agree with a policy created by judges in a non=constitutional decision, then it has the option of
passing a law to usher in its preferred rules. They do not have these powers in cases of federalism
and the Charter.
• Charter was added to the constitution, that gave judges clear legal authority to declare laws to be
in violation of the constitution or to provide other remedies for violation of rights. The Bill of
Rights was not considered by the majority of justices on the SCC to give them this power until
1997 Reumeration Reference.
• federalism decisions can influence policy indirectly by constraining government options and
distributing power between federal and provincial governments. • When the SCC has decided questions involving federalism and constitutional change, it has rather
directly implicated itself in constitutional policy making.
The Charter of Rights
• it empowered them to review the constitutionality of provincial or federal government laws even
if those laws were in accordance with the federal-provincial division of powers.
• for the SCC to shape policy, it depends on factors: how broadly would he court define the rights
to contain in the Charter, which side would have the bulk of the burden of proof in Charter cases,
would the Charter apply to common law as well as legislation and what kind of remedies would
the courts provide for rights claimants whose rights have been violated.
Making a Charter Claim
• Figure 11.1 on page 363 is a summary
• 1. claim that a law or action by a state official violates one or more of the rights in the Charter
• supreme court has relaxed the rules of standing and mootness so that there are lower procedural
barriers to getting into court
• they interpret highly political charter claims
• they interpreted s.32 of the charter-- the section that states that the Charter applies to the
Parliament and government of Canada.
Defining Charter Rights
• SCC favors rights claims, which increases the likelihood of them ruling in favor of the rights
• the chances f a rights claimant winning a charter case depends on how broadly courts are willing
to interpret the rights in the charter and whether the burden of proof in charter cases rests more
with the rights claimant or the government
• the court said charter rights deserve a board and purposive or large and liberal interpretation
• tended to emphasize a living tree approach to rights interpretation rather than relying on framers
• s.7 of charter, courts are willing to look at substantive fairness and justice of the law rather than
just whether the law has sufficient procedural safeguards, it has also included a certain degree of
• the court has been hesitant to find that governments are acting outside the boundaries of the
principles of fundamental justice if they do not provide a certain level social welfare benefit Burden of Proof in Charter Cases and the s. 1 Reasonable Limits Clause
• in addition to reading rights relatively broadly, the second way in which the court has made it
easier for rights claimants is by shifting the burden of proof to the government to justify that
limits on rights are reasonable under s. 1 of the charter.
• oaks test-to justify limits on rights under s. 1. Is the law pressuring and substantial objective in a
free and democratic society? 2. does the law have means that are proportional to meet the
objective? --chart on page 366.
• if applied strictly, the oaks test makes it very difficult for government actors to justify limitations
• minimal impairment test- was changed soon after oakes such that the means would have to
impale the rights as little as reasonably possible
• this policy-making potential is fuelled by the need to examine and analyze social-fact data to
some degree in the s. 1 analysis
An Example of a Charter Claim: The Chaoulli Decision
• Chaoulli v. Quebec (Attorney General)  1 S.C.R. 791, 2005 SCC 35, was a decision by the
Supreme Court of Canada of which the Court ruled that the Quebec Health Insurance Act and the
Hospital Insurance Act prohibiting private medical insurance in the face of long wait times
violated the Quebec Charter of Human Rights and Freedoms. In a 4 to 3 decision, the Court
found theActs violated Quebecers' right to life and security of person under the Quebec Charter.
The ruling is binding only in Quebec. Three of the seven judges also found that the laws violated
section seven of the Canadian Charter of Rights and Freedoms.
Remedies under the Charter
• a declaration that a law or regulation or administrative order violates the constitution is only one
of various remedies that courts can provide to successful rig