Christopher P. Manfredi

Courts and Health Policy: Judicial Policy Making and Publicly Funded Health Care in Canada

The 1982 Canadian Charter of Rights and Freedoms provided political actors with the opportunity to make rights-based challenges to public policy decisions. Two challenges launched by providers and consumers of health care illuminate the impact of judicial review on health care policy and the institutional capacity of courts to formulate policy in this field. The significant impact of rights-based claims on cross-jurisdictional policy differences in a federal regime is noted.

The Use of United States Decisions by the Supreme Court of Canada Under the Charter of Rights and Freedoms

The adoption of the Canadian Charter of Rights and Freedoms has generated considerable interest among legal commentators who question the potential impact of United States civil rights jurisprudence on Charter adjudication. This article offers a preliminary analysis of the impact of US constitutional law generally, and civil rights jurisprudence in particular, on Charter adjudication in the Supreme Court of Canada between 1984 and 1988. Focussing on the Supreme Courts citations of US decisions, the study finds that the frequency of such citations has increased under the Charter. Moreover, the Courts use of these decisions has had a significant substantive impact in defining the nature of constitutional interpretation and the content of the Charters legal rights.

Adjudication, Policy-Making and the Supreme Court of Canada: Lessons From the Experience of the United States

This article explores the relevance of studies of judicial policy-making in the United States to the decision-making of the Supreme Court of Canada under the Canadian Charter of Rights and Freedoms. The article suggests that literature concerning the political legitimacy of judicial policy-making is minimally relevant, since a broad form of judicial review appears to be well established in Charter jurisprudence. The literature on institutional decision-making capacity has greater relevance, since the Canadian Court faces the same information-processing constraints as its American counterpart. The article concludes by suggesting that attempts to overcome problems of institutional capacity may produce additional questions of political legitimacy.

Expressive Freedom and Tobacco Advertising: A Canadian Perspective

In 1989, Canada enacted the Tobacco Products Control Act (TPCA), which prohibited tobacco advertising, required health warnings on tobacco packaging, and restricted promotional activities. Canadas tobacco companies challenged the TPCAs constitutionality, arguing that it infringed on freedom of expression. Although it seemed likely that the Canadian Supreme Court would uphold the legislation, in 1995 the court declared the impugned provisions to be unconstitutional. The decision is testimony to the constraining force of liberalism on tobacco regulation, but it is also evidence of the power of political will. While the Canadian government could have used the decision to justify withdrawing from further confrontations with powerful commercial interests, it chose instead to enact new tobacco control legislation in 1997.

“Appropriate and Just in the Circumstances”: Public Policy and the Enforcement of Rights under the Canadian Charter of Rights and Freedoms

The political value of rights depends on the availability of effective instruments for remedying violations of those rights. Recognizing this, the authors of the Canadian Charter of Rights and Freedoms provided courts with three remedial alternatives for enforcing its provisions. Focusing on section 24(1) of the Charter, which permits courts to impose any remedy they consider “appropriate and just in the circumstances, ” this article assesses how Canadian courts have dealt with the remedial dilemmas inherent in Charter litigation. This assessment unfolds in three stages. First, it sets out a framework for analyzing remedial decision-making. Next, it summarizes the cases in which section 24(1) has been explicitly invoked to enforce Charter rights. Finally, the article examines the remedial implications of judicial enforcement of minority- language educational rights.

The Young Offenders Act and Juvenile Justice in the United States: Perspectives on Recent Reform Proposals

Recent proposals to reform the Young Offenders Act have sought to address the difficult question of the proper response to youth who commit especially serious offences. This article evaluates these proposals from the perspective or recent developments in US juvenile justice policy that have also been designed to meet serious and chronic youth criminality. The article suggests that a series of US state legislative reforms, in which individual responsibility and system accountability replace rehabilitation as the dominant objective of juvenile justice policy, offers a comprehensive, if imperfect, model for reform.

Citizenship and the Canadian Charter

Cette communication s’interesse a l’impact qu’a eu la Charte canadienne des droits et libertes sur la citoyennete canadienne. Ici, le concept de citoyennete est compris au sens large comme comprenant quatre dimensions: statut legal, acces a des droits, implication dans une activite politique et un sens d’identite et solidarite partage avec d’autres. Afin de mesurer l’impact de la Charte sur ses quatre dimensions de la citoyennete, la communication analyse quatre jugements recents de la Cour supreme du Canada: Lavoie c. Canada (2002), Sauve c. Canada (2002), Chaoulli c. Quebec (2005) et Nguyen c. Quebec (2009). Finalement, la communication suggere que la jurisprudence basee sur la Charte a fait la promotion d’un modele de citoyennete liberale, contrairement a celle des modeles communautarien et republicain.