Chief Justice Lamer and Policy Design at the Supreme Court of Canada

Antonio Lamer was a remarkable figure in the annals of Canadian law. No other Supreme Court Justice bridged the two constitutional eras, pre and post-Charter, as he did. He was the only Justice to have participated in both the Patriation Reference (1981) and the Quebec Secession Reference (1998), arguably two of the most important cases in the Supreme Court’s history. Chief Justice Lamer was a staunch defender of the independence of the judiciary in both principle and practice. During his tenure as Chief Justice, attacks on the Court’s “judicial activism” became more frequent and more strident. While he accepted the public’s right to criticize the Court’s judgments, he refused to accept the underlying premise of many of the attacks - that the Court had engaged in a power grab vis a vis the other branches of government. He frequently spoke out against such attacks and worried about their impact on individual judges as well as on the judiciary as an institution. In this paper, I sidestep the debate over judicial activism by analyzing the Supreme Court’s decision making through a different lens - that of policy design. I purposely eschew a discussion of judicial activism because I believe that it has become less and less useful analytically over the course of the Charter’s history. It is widely accepted that the Charter significantly increased the Court’s policy-making role. This article examines one aspect of the Supreme Court’s policy making function - policy making as it relates to the legislative branch of government. Chief Justice Lamer’s influence in the area of criminal law policy is well-covered by others. In this paper, I address the question of how and why the Supreme Court engaged in “policy design” which is a heightened form of policy making. Policy design involves not only making a determination as to a particular policy choice, or constructing a framework for the exercise of policy choices but also selecting the specific means by which a policy will be delivered. Policy design is most commonly seen in legislation and colloquially we often talk about “the legislative scheme” under which a particular policy operates. In this paper, I analyze several of Chief Justice Lamer’s judgments through the prism of policy design. I use these cases to show that judicial policy-making is a multi-faceted endeavour. The selected cases demonstrate that there are different levels of policy making. In my analysis, I show how judicial policy making interacts with legislative policy making and I attempt to explain and evaluate the impact of that judicial policy making.

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