Judicial Impact and the Supreme Court of Canada: Legislative Responses to Judicial Invalidation of Contentious Policies by Parliament and Quebec’s National Assembly

PANEL 4 SUBMISSION - The Policy Agenda of Courts This paper considers under what conditions the Supreme Court of Canada can be a powerful policy actor. In particular, this paper will consider important judicial invalidations of legislation passed by the Parliament of Canada and the National Assembly of Quebec and will evaluate the legislative response introduced to understand the impact of the judicial decision. In effect, under what conditions do Parliament and the National Assembly accept the judicial decision and legislate in compliance with the Court, and under which conditions have Parliament and the National Assembly defied the Supreme Court of Canada and reversed the judicial decision through simple legislation. This paper will present a series of judicial-legislative interactions involving controversial policy areas such as safe injection facilities in Vancouver where the Court ordered the Government of Canada to issue an exemption under the Criminal Code to allow the facility to legally operate. In response, the Parliament of Canada passed Bill C-2, The Respect for Communities Act, which effectively prevented the establishment of any other facilities in Canada. The following factors are argued to allow political actors to offset the impact of judicial decisions: the courts as implementer-dependent institutions, which provide the Parliament of Canada and the Quebec National Assembly with tremendous discretion to shape the legislative response, and secondly, the unpopularity of the Supreme Court decision among the core voting constituency of the government Conservative Party of Canada, and Quebec’s provincial political parties. This two-part hypothesis will consider issues such as prostitution reform and safe-injection facilitates in Canada under the Conservative government and the legislative responses by the Parliament of Canada. In the context of Quebec, this paper will consider judicial invalidation of the Charter of the French Language as inconsistent with the Canadian Charter of Rights and Freedoms, and the legislative responses introduced to offset the impact of judicial decisions by the Supreme Court of Canada. This paper is a study of judicial decisions and judicial impact through an evaluation of the policy responses introduced by the Parliament of Canada and the Quebec National Assembly