The Beaten Path: What We Know about the Role of the Courts from Studying Federalism, Aboriginal Rights and Charter Jurisprudence

As we noted in the introduction, scholars have long explored the role of the courts in Canadian democracy, with a particular focus on federalism, Indigenous–settler relations and the Charter. This lineage of work has produced a canon, of sorts—a collection of key studies that tend to be highly cited (in a relative sense, for a subdiscipline of Canadian political science) and structure teaching and research. Identifying a canon is an inherently contested enterprise as certain perspectives will be privileged over others. It may not even be possible: a recent study of the reading lists for the major qualifying exams for doctoral studies at 16 institutions across the country concluded that there is no agreed upon canon in Canadian politics (McMahon et al., Reference McMahon, Alcantara and Stephenson2020: 98). Reflections on the discipline and the way it is taught have reinforced asymmetries in research attention—particularly when it comes to including voices from under-represented groups. The core of Canadian political science has tended to exclude voices from women (Tolley, Reference Tolley2017), Indigenous peoples (Ladner, Reference Ladner2017) and francophones (Rocher, Reference Rocher2007; Daoust et al., Reference Daoust, Gagnon and Galipeau2022).Footnote ² For this study, we focus on identifying any enduring research themes in the canon on Canadian courts across three areas of constitutional law. Our focus on federalism, the Charter and Aboriginal rights captures three of the four main pillars of Canadian constitutionalism (Smiley, Reference Smiley1986; Borrows, Reference Borrows2010).Footnote ³ We are not directly focusing on parliamentary government here since the thrust of that literature is more focused on how political actors practice the constitutional conventions of parliamentary governance, rather than the role of the courts (Heard, Reference Heard1991; Aucoin et al., Reference Aucoin, Jarvis and Turnbull2011).Footnote ⁴ In the other three areas of constitutional law, the courts are regarded as central actors whose decisions have lasting impacts on governance and societal relations. We thus discuss key contributions in the extant literature in each of these areas, in turn highlighting the main theoretical and empirical insights of the court’s role in Canadian democracy.

The scholarship on the role of courts in Canadian democracy began in earnest with a focus on federalism jurisprudence. This is understandable. As Jennifer Smith (Reference Smith1984: 115) has argued, the absence of a constitutionally entrenched bill of rights at confederation meant that, unlike in the US, federalism dominated Canadian constitutional law. One of the consequences of the initial absence of a bill of rights is that scholars adopted a position that judicial review did not play the same role in the development of Canadian democracy as it did in the US (Ibid.)—an idea that has fed the questionable view that changes to the Constitution in 1982 and the Charter completely revolutionized the role of the judiciary in Canada (for example, Morton and Knopff, Reference Morton and Knopff2000). At the same time, early work on judicial review of the division of powers was a harbinger for key debates about the role of courts. Of note here is the debate between those who saw the establishment of the Supreme Court of Canada (SCC) and judicial review of the division of powers as ushering in judicial supremacy (Lederman, Reference Lederman1956, Reference Lederman1981), against those who saw judicial review in Canada as abiding by the Westminster tradition of Parliamentary supremacy (Stayer, Reference Stayer1968). Similarly, early scholarship on the courts was divided on whether the SCC, through its enforcement of the division of powers, was designed and functioned as a nationalizing institution or one that sought to protect the sovereignty and interests of the provinces (see Russell, Reference Russell1969; Smith, Reference Smith1984). Much of the focus here was rightly on the role of the Judicial Committee of the Privy Council (JCPC) and its legitimacy as an imperial court; while many critiqued it as biased toward the provinces as part of a strategy to check the power of the federal government, there is also a case that the JCPC’s jurisprudence was reflecting structural, territorial, cultural, economic and political diversity in the federation (Cairns, Reference Cairns1971).

While these foundational debates were augmented in many respects by the introduction of the Charter, they have also continued in various forms among those that maintained a focus on federalism caselaw. A common theme in the work on federalism jurisprudence has been to counter the early view minimizing the role of judicial review, highlighting the central role of courts in the development of federalism (Swinton, Reference Swinton1990; Russell, Reference Russell2004; Kelly and Murphy, Reference Kelly and Murphy2005; Baier, Reference Baier2006; Schertzer, Reference Schertzer2016). This scholarship has been split among those that tend to study this role through a more positivist, legal lens, seeing the courts as primarily legal venues (see Hogg Reference Hogg2009; Baier Reference Baier2006), and those that highlight the inherently political role of adjudicating conflicts over which order of government has authority for a policy area (Weiler, Reference Weiler1974; Monahan, Reference Monahan1984; Schertzer, Reference Schertzer2008, Reference Schertzer2016). Part of this split has been to focus on different variables as explaining judicial decisions in federalism cases. Baier (Reference Baier2006) has argued that we need to pay attention to judicial doctrine and legal precedent—which he argues structure and constrain judicial behavior—to understand the SCC’s federalism decisions. Others have pointed to political factors as key variables shaping federalism caselaw, notably the selection process for judges and their regional and ethnonational identities (Bzdera, Reference Bzdera1993; Schertzer, Reference Schertzer2016b) along with related ideas about the nature of the federation (Monahan, Reference Monahan1984; Schertzer, Reference Schertzer2016). This divide has manifested itself most clearly in differing assessments regarding the intention and impacts of the SCC in its division of powers rulings. For some, particularly several francophone scholars, the SCC is framed as a nationalizing institution by design (Bzdera, Reference Bzdera1993), which has led it to favor the federal government in its decisions (Leclair, Reference Leclair2003; Brouillet, Reference Brouillet2005, Reference Brouillet, Aroney and Kincaid2017). Others argue that the Court is generally balanced in its federalism arbitration (Hogg, Reference Hogg1979; Baier, Reference Baier2006, Reference Baier, Bakvis and Skogstad2020). Part of this divide among scholars when assessing the same caselaw reflects differing starting points of what the legitimate role of the Court ought to be in a diverse federation (see Schertzer Reference Schertzer2016b). Indeed, these differing views are evident in the various metaphors that have popped up to frame the role of the court as a federal arbiter—from an impartial umpire to an equal branch of government to a guardian of the federation (see Greschner, Reference Greschner2000). All told, though, the work on the courts and federalism caselaw have continued to examine the power of the judiciary and the impact of judicial review, the relationship of the courts to other branches of government, the political nature of the institution, whether the characteristics of judges impact decision-making and the legitimacy of the institution.

Scholarship investigating the judiciary dramatically increased after the passing of the Constitution Act, 1982. Two main developments produced sustained scholarly attention: the adoption of constitutional supremacy, and by extension, stronger forms of judicial review, which disrupts the exercise of parliamentary supremacy; and the passing of an individual bill of rights, the Charter, which added another pillar to Canada’s constitutional order. The democratic implications of a stronger and clearer form of judicial review produced many key works tackling the judiciary’s more prominent role in Canada’s parliamentary democracy and whether such a role was defensible in a democratic society. Some showed more optimism about the courts’ power, mainly that the judiciary did not unduly encroach upon the legislatures’ powers because of the ability of legislatures to respond to even critical judicial rulings (Hogg and Bushell, Reference Hogg and Bushell1997; Hogg et al., Reference Hogg, Bushell Thornton and Wright2007). Others were more skeptical, detailing how judicial power faced few constraints and thus could threaten democratic accountability without strengthening the power of legislatures (Mandel, Reference Mandel1989; Bogart, Reference Bogart1994; Manfredi, Reference Manfredi2001; Manfredi and Kelly, Reference Manfredi and Kelly1999; Roach, Reference Roach, Huscroft and Brodie2004; Baker, Reference Baker2010; Petter, Reference Petter2010; Hutchinson, Reference Hutchinson2008). This debate over the relationship between courts and legislatures—and their “dialogue” to find the balance—has not been settled, with work continuing to apply this concept and its tenets to understand constitutional governance across common law systems (Sigalet et al., Reference Sigalet, Webber and Dixon2019).

Scholarly attention has also been devoted to understanding the Charter’s political and policy effects now that individual rights are part of Canada’s constitutional order. From a top-down, state-centric perspective, the Charter and the related specter of judicial review has altered governments’ lawmaking process and organizational structure (Hiebert, Reference Hiebert2002; Kelly, Reference Kelly2005; Hennigar, Reference Hennigar2008). The Charter has also transformed civil society groups, altering identity formation and mobilization strategies (Epp, Reference Epp1996; Razack, Reference Razack1991; Morton and Knopff, Reference Morton and Knopff2000; Smith, Reference Smith1999; Hein, Reference Hein2000; Manfredi, Reference Manfredi2005; Vanhala, Reference Vanhala2011). Taken together, newer scholarship concerned with the effects of the Charter place the judiciary squarely within the policy process and show how judicial venues can shape political actors’ behaviors and broader policy and political change (Snow, Reference Snow2017). The concern of a related “judicialization” of politics, whereby most political issues are brought before the courts (Hirschl Reference Hirschl2008), foregrounds these various studies that explain how judicialization occurs across various policy areas. Although the literature shows how legal rights in the Charter and other bills of rights have shaped policy development (Cameron, Reference Cameron1996; Kelly, Reference Kelly2005, Reference Kelly2024; Macfarlane, Reference Macfarlane2013, Reference Macfarlane2018), there are few studies that investigate how courts behave across policy fields. This oversight means the policy role of the courts is underexplored, even if we have begun to unpack how the judiciary serves as a venue for policy development.

The role courts play mediating the state’s relationship with Indigenous peoples was arguably not the focus of scholarly attention until the SCC overturned the longstanding precedent that Aboriginal title was dependent on Crown sovereignty in Calder (Supreme Court of Canada 1973). Indeed, attention to the courts in Aboriginal law complemented the overall “red power” movement in Canada, wherein Indigenous leaders, organizations and communities politically and legally mobilized to assert Aboriginal rights onto governments’ agendas, including the patriation debates into the 1980s. Simultaneously, the judiciary’s increased powers of judicial review after the passing of the Constitution Act, 1982, section 35, which “recognized and affirmed existing Aboriginal rights and title,” also meant the courts attained heightened powers and importance to arbitrate between settler and Indigenous government disputes over the nature and scope of Aboriginal rights.

From the perspective of those analyzing Aboriginal law, courts are viewed as primarily serving the interests of the settler-colonial state by not disturbing the state’s governing authority over Indigenous peoples and lands. This is done by denying the inherent rights of Indigenous nations to exercise self-determination over territory and treating Indigenous groups as cultural minorities that exercise rights pertaining to specific practices and customs (Macklem, Reference Macklem2001; McCrossan and Ladner, Reference McCrossan and Ladner2016). Indeed, many Indigenous legal scholars critique the courts’ reticence toward advancing treaty federalism, whereby Indigenous and settler governments are equal governing authorities that must manage political and legal relations through treaties (Ladner, Reference Ladner, Rocher and Smith2003; Henderson, Reference Henderson1994; Patzer and Ladner, Reference Patzer, Ladner, Puddister and Macfarlane2022). Existing common law principles such as federalism could help inform the interpretation of section 35 and treaties to give jurisdictional space for Indigenous legal orders (Borrows, Reference Borrows2010); instead, the courts have employed archaic interpretive methods such as originalism to historicize and ultimately limit the expression of Indigenous self-determination (Borrows, Reference Borrows2017; Barsh & Youngblood Henderson, Reference Barsh and Youngblood Henderson1997; Christie, Reference Christie2019). The courts have also adopted administrative law principles to manage the duty to consult, a constitutional obligation under section 35 that was initially considered a potential pathway to actualize Indigenous legal traditions and perspectives within Crown decision-making through a generative dialogue (Slattery, Reference Slattery and John2008; Henderson, Reference Henderson2010). Over time, this promise was not realized as administrative law principles left undisturbed the Crown’s primacy in decision-making, rendering Indigenous participants as little more than stakeholders (Hamilton and Nichols, Reference Hamilton and Nichols2019; Do, Reference Do2020). It is no wonder, then, that Indigenous scholars have directed attention to international efforts to assert Indigenous self-determination across various states through the United Declaration on the Rights of Indigenous Peoples (Lightfoot, Reference Lightfoot, Kiera and Tait2017; Fitzgerald et al., Reference Fitzgerald, Borrows, Chartrand and Schwatrz2019).

By analyzing the development of Aboriginal law, these scholars reveal how courts have interpreted the common law in ways that stifle reconciliation between Indigenous peoples and settlers. For instance, the courts have not chosen to treat Indigenous peoples as sovereign governing authorities, even though arrangements to share sovereignty in Canada exist in the form of federalism. Literature on the relationship between Aboriginal rights and the Charter is also limited, mainly because the courts have only just begun to assert a framework to interpret section 25 (see Dickson v Vuntut Gwitchin First Nation 2024 SCC 10); this section is understood as a shield to protect section 35 rights from Charter claims of discrimination based on race or group membership. The settler-colonial orientation of the judiciary and its decisions is rarely examined apart from the Aboriginal law context, perhaps unsurprisingly due to the nature of settler-colonialism targeting Indigenous peoples for assimilation. Nevertheless, the critical scholarship on Aboriginal rights could also inform broader theories about the court’s role in a democratic, settler-colonial state, notably how courts, as a state institution, can be expected to facilitate reconciliation and decolonization if the repatriation of Indigenous land and sovereignty are its objectives (Tuck and Yang Reference Tuck and Wayne Yang2012). There especially may be fertile ground to explore the relationship between section 35 and the other pillars of Canadian constitutionalism as courts are beginning to assess how Canada’s commitment to the United Nations’ Declaration on the Rights of Indigenous Peoples (UNDRIP) will affect Indigenous–state relations.

From this broad array of work, several key theoretical insights and debates have arisen with related positions on the role of the courts in Canadian democracy. These theoretical positions and debates in many respects mirror those that apply outside Canada to other liberal democracies. Overall, the literature on the judiciary—particularly after the introduction of the Charter—is largely concerned with the democratic pedigree of courts and the desirability of judicial review given Canada’s settler-colonial, federated system that employs Westminster parliamentary-style democracy. Some of these theoretical positions and research themes also appear in the sociolegal and legal analyses of these three areas of law, particularly the appropriate role of the judiciary as an impartial arbiter given their enhanced role in resolving deeply political conflicts. A legal positivist perspective asserts that law is a human construct distinct from morality and politics (Hart, Reference Hart2012: 185). Given this view, the law’s authoritative power comes from its reliability to provide guidance (Raz, Reference Raz1979). As such, many legal theorists subscribe to the view that judges “discover” laws from the rules created by recognized authorities in society and impartially consider all alternatives to ensure that they can justify how a chosen rule can be applied more generally to future similar circumstances (Hart, Reference Hart2012: 205). From this legal positivist tradition, legal scholars often focus analytical attention on tracing the text and reasoning of judicial decisions to identify whether the interpretation and application of legal rules produce consistency and reliability.

In contrast, legal realists contest whether judges can impartially discover legal rules or that the interpretation of law is a purely logical process. Although judicial independence is a cornerstone of liberal democracies, legal realists assert that judges participate in “making” law, particularly as legal rules can be vague or in conflict with one another (Llewellyn, Reference Llewellyn1960). Therefore, law and its application are shaped by the particular social context of the time, including judges’ personal experiences and socialization (Pound, Reference Pound1959; Singer, Reference Singer1988). On the basis of this interpretation of judges as lawmakers, understanding the broader effects of law on society should inform how judges interpret and apply legal rules (Cohen, Reference Cohen1937; Posner, Reference Posner1986). Thus, many sociolegal scholars empirically investigate how the social context can be reflected in or embedded by judicial decisions, and how judicial decisions in turn can influence broader social relations (Galanter, Reference Galanter1989; Merry, Reference Merry2006).

One of the takeaways from this review is that the norm seems to be to draw from one area of constitutional law to make insights about the role of the courts. Of course, there are also exceptions to this tendency. There are studies that theorize more generally about the judiciary’s role within broader systems of governance by considering its unique institutional development over time or by analyzing the entwining of political, social and legal forces. Hogg’s Constitutional Law of Canada (Reference Hogg2009) stands apart here for its comprehensive treatment of the breadth of constitutional law, but while it is an invaluable resource, it is a textbook to teach the law. Monahan’s (Reference Monahan1987) book is an example of the type of work that can cut across areas of law—exploring the broad role of the SCC and the impact of judicial review by looking at its growing role in both federalism and Charter cases. There are also a few comprehensive analyses of the SCC that trace the development of the institution, particularly after the formal adoption of judicial review in 1982. To understand how judicial review has altered the SCC, this literature traces judicial decisions across various areas of law to discern overall patterns in judicial decision-making over time (for example, Bushnell, Reference Bushnell1992; McCormick, Reference McCormick2000; Songer, Reference Songer2008). For instance, McCormick’s (Reference McCormick2000) study focuses on the leadership of chief justices across various areas of law, such as Aboriginal law, criminal law and Charter rights, to investigate shifts in Court behavior across time. Although these studies are invaluable, they were primarily produced to empirically assess the impact of judicial review and the SCC’s actions after 1982.

This brief review of foundational political science and legal and sociolegal scholarship raises a set of theoretical debates and methodological approaches we would expect to see continued in the contemporary scholarship. Given the thrust of the literature on these three areas of law, our primary expectation is to see work focused on the role of the courts in a complex, democratic system and considerations of the influences on, and effects of, judicial outcomes on social and political relations. For instance, we expect that research probing the legitimacy of courts across the three areas of constitutional law will be a persistent theme, but that the focus on legitimacy will be tailored to either consider the democratic or apolitical foundations of the Court vis-a-vis the political branches of government in the case of federalism and Charter scholarship, or contesting the settler-colonial foundations of the judiciary’s authority to assess Indigenous legal claims. Related to this broader concern with the court’s legitimacy is a consideration of the appropriate exercise of judicial review and the political effects of judicial review on other state institutions and policy areas. Again, we would expect that the scholarship on federalism, Aboriginal rights and Charter rights would take up all these questions related to the exercise and effects of judicial review, although the Charter scholarship may employ more explicit policy analysis. To explain judicial decision-making, the canon also considers the individual characteristics of judges, particularly the ideological composition of the bench. We expect to see these research themes regarding judges’ personal beliefs and values explored in scholarship on federalism and the Charter, as the literature on Aboriginal rights jurisprudence tends to view settler-colonial values and logics as a structural force rather than an individual-level belief. However, in line with the split between more legal realist and legal positivist approaches, we would also expect to see a significant stream of work from legal scholars that seeks to trace developments in the caselaw as part of the tradition of aiding in the discovery of judge-made law. One of our primary motivations in surveying the more recent scholarship is to assess whether these debates and approaches continue to animate the study of courts in Canada, and whether our understandings of the judiciary are tied to specific areas of law.

The Directions: Our Method and Analytical Framework

This study is designed to survey a selection of contemporary legal, sociolegal and political science scholarship that explores the role of courts in Canada across three areas of constitutional law. This is not a full “meta-analysis”; as we demonstrate below, a traditional meta-analysis summarizing causal findings is not feasible given the type of research conducted on the courts and constitutional law in Canada. However, our survey approach allows us to identify leading recent work to better understand the trends, findings and gaps in our collective knowledge of these three pillars of constitutional law in Canada. To carry out our survey, we followed a two-step method.

First, we identified studies on the courts published between 2012 and 2022 in leading academic journals and presses that publish research related to federalism, Aboriginal law and the Charter. Determining the standing of a journal is fraught with subjectivity. In general, there are three approaches often used to assess the standing of a journal in the area of law and politics: citation metrics (how often a journal is cited in other journals); judicial citations (how often courts, such as the Supreme Court of Canada, cite an article from a journal); and peer-rankings (how scholars rank venues through surveys) (Campagnolo and Andrzejewski, Reference Campagnolo and Andrzejewski2022). For this article, we have followed the first two approaches, that is, selecting a sample of generalist journals on Canadian law and politics broadly conceived. The generalist journals chosen for this study do not specialize in a particular area of law or politics, while also exhibiting impactful citation metrics and history of judicial citations in the Canadian context.Footnote ⁵ We have also sought to ensure a measure of balance in the stated disciplinary focus of the venue to not over-represent any one discipline (that is, maintaining a balance between law journals and social science journals).

Applying these selection criteria, we have included four bilingual journals with a social science focus and four law journals, two of which publish works in both official languages. The social-science-focused journals are: the Canadian Journal of Political Science (impact factor of 1.2); Canadian Public Administration (impact factor of 1.4); Canadian Journal of Law and Society (the flagship journal of the Canadian Law and Society Association, with an impact factor of 0.7); and the Review of Constitutional Studies (the journal of the Centre for Constitutional Studies in the Faculty of Law at the University of Alberta).Footnote ⁶ The law journals included in this study are: the University of Toronto Law Journal (5.99 ranking in the Washington and Lee University Law Journals Ranking and second most cited journal by the SCC); McGill Law Review (0.89 ranking in the Washington and Lee University Law Journals Ranking and the most cited journal by the SCC); Osgoode Hall Law Journal (1.18 ranking in the Washington and Lee University Law Journals and cited by the SCC 100 times); and The Supreme Court Law Review (0.4 ranking in the Washington and Lee University Law Journals and publishes a widely read and influential annual review of constitutional cases).Footnote ⁷

This is—of course—a sample of the universe of peer-reviewed journals that publish work on Canadian federalism, Aboriginal rights and Charter jurisprudence. There are also venues outside Canada that publish on comparative law and politics, with periodic articles that include or engage with Canadian constitutional law, notably, Publius, the International Journal of Constitutional Law (ICON), and Law and Society Review. However, our article limits samples to venues based in Canada and treating domestic law and politics as the primary object of analysis. While comparative journals accept case-studies of Canada, and Canada is also employed in the ever-growing and important field of comparative constitutional studies (Hirschl, Reference Hirschl2013), one of our objectives here is to examine studies that focus on federalism, Aboriginal rights and Charter jurisprudence in Canada as their main objective of analysis—largely with the goal of understanding how the canon of this scholarship has continued to develop and apply broader theories of the role of the courts in liberal democracies.Footnote ⁸ For these reasons, we excluded comparative law and sociolegal journals.

Additionally, since books remain a critical venue for legal, sociolegal and political science research in Canada, we examined book-length studies and chapters in edited volumes from the three leading academic presses: University of Toronto Press, University of British Columbia Press and McGill-Queen’s University Press. We acknowledge this is not an exhaustive list of potential venues for studies on Canadian courts, but our aim here is to survey the recent scholarship published in Canada’s leading scholarly venues with a measure of balance between disciplinary and theoretical foci. Moreover, by many measures—citations, awards, presence on reading lists—these three presses are the leading venues for monographs and edited volumes that focus on Canadian federalism, Aboriginal rights and Charter jurisprudence. Like with comparative journals on law and sociolegal studies, international book presses were also excluded. We acknowledge that academic presses outside Canada publish case studies and comparative work that includes Canada, notably Cambridge University Press and Oxford University Press. However, given that our focus is on Canadian law and the periodic nature of these publications,Footnote ⁹ a focus on studies from the three Canadian-based academic presses provides a sufficient sample to determine trends in this area of scholarship.

Finally, our focus on finding the contemporary research themes and approaches advanced by scholars has led us to exclude textbooks and handbooks on Canadian law and courts. Textbooks are significant contributions to our understanding of the judiciary and their political and legal effects—some even integrate original research (see Hausegger et al., Reference Hausegger, Hennigar and Riddell2014); nonetheless, we have excluded textbooks and handbooks because their primary focus is to synthesize information for teaching rather than present original research findings.

To identify our corpus of studies, we canvassed all issues published in the eight journals during the time frame. For books and edited volumes, we consulted with the acquisition editors of the presses and used the online search catalogues from the three presses to review all books and edited volumes tagged as political science, law, sociology or history. We viewed the titles and abstracts of these studies, taking a liberal approach to include sources that touched on any of the broad themes of the study—looking for references to constitutional law, federalism, Indigenous politics, Aboriginal rights, the Charter and the courts/Supreme Court of Canada. This initial review identified 642 potential studies (532 articles and 110 monographs and chapters). A subsequent review of the abstracts and introductions of each of these studies assessed whether they examined the role of the courts in at least one of the areas of constitutional law we are focused on in this study (for example, that the study analyzed federalism, Aboriginal rights or Charter jurisprudence). This secondary review excluded 189 articles and 30 monographs/chapters, primarily in the areas of federalism and Indigenous politics, because they did not include any substantive consideration of the role of the courts or related jurisprudence. This left 423 studies. This is not a comprehensive dataset of all work on the courts in Canada; however, it is a significant and generous sample of the literature on federalism, Aboriginal rights and Charter jurisprudence published between 2012 and 2022 that enables us to confidently identify general trends and characteristics of this scholarship.

The second step of our method was to apply an analytical framework designed to identify these theoretical and methodological trends and characteristics. This framework builds on our review of the legal, sociolegal and political science scholarship and covers key attributes of the studies: the area(s) of constitutional law, the authorship, the method and scope, the object of analysis, the research endeavor and the main theoretical themes. We were particularly interested in the thematic focus of the articles and whether and how they engaged with key debates about the role of courts in liberal democracies. Our framework thus sought to identify the main research themes and related debate that we noted above in the canon (see Figure 1).

Figure 1.

Main Research Themes and Related Debates about Role of Courts.

To carry out our review, we coded each book, article and chapter. We adopted a deliberative approach that focused on reaching consensus, while following many of the best practices designed to achieve intercoder reliability.Footnote ¹⁰ After an initial phase of data immersion and codebook refinement, the three authors undertook a collaborative process of coding, where each study was read by at least two authors and all coding disagreements were tracked and resolved through regular meetings. It is important to note that our dataset includes both book-length studies and article-/chapter-length studies. As such, we would expect some variation between these formats in terms of the breadth of topics covered—in particular, the ability to use mixed methods and to explore more research themes, theoretical debates and areas of law in the longer format of a monograph. We identify divergences between formats on these points in our findings when they are present.

Finding Our Way: Current Scholarship on the Court’s Federalism, Charter and Aboriginal Rights Caselaw

In this section we provide findings from our survey. Of the 423 studies published over the past 10 years in the venues we surveyed, 343 (81%) were journal articles, 54 (13%) were chapters in edited volumes and 26 (6%) were full-length monographs.Footnote ¹¹ Among these studies, the majority (77%) were authored by those from a legal background (academics with a primary appointment at law schools and practicing lawyers), though political scientists also authored a fair proportion (see Table 1).

Table 1

Authorship and Publication Venue of Studies

Note: Totals reflect that some studies are authored by an interdisciplinary team.

Table 2

Intersections between Areas of Law

Note: Number of studies with an area of law considered; totals reflect that some studies cover multiple areas of law.

Table 3

Methods and Scope of Studies on the Courts: 2012–2022

Note: Totals reflect that some studies adopted a mixed methods approach.

Table 4

Research Themes on the Role of Courts in Canada

Note: Totals do not equal 100% as some studies had an absence of, or multiple, themes.

The distribution of studies across publication venues follows the disciplinary breakdown of authorship. The majority of studies appeared in law review journals, with the highest number in the Supreme Court Law Review (147 articles, 35% of all studies). In comparison, the Canadian Journal of Political Science, the flagship journal for the discipline, published fewer than 20 studies over this period. At the same time, books and edited volumes were a popular medium for political scientists, with University of Toronto Press and University of British Columbia Press publishing relatively equal numbers of studies in this period. Several of the journals we examined accept submissions in either official language (CJPS, CPA, SCLR, MLJ and RCS), yet there was a dearth of articles written in French: only 17 studies (4%) were published in French in this period, and 11 of them were published in the McGill Law Journal, which had a significantly higher percentage of articles in French than other venues (32% of its articles in our sample were written in French).

Among the studies we examined, the tendency was to focus on the Charter of Rights and Freedoms. It was the most common area of constitutional law, with 68 per cent of articles, books and chapters examining the Charter. This was followed by studies focusing on Aboriginal rights (30%) and federalism (19%) (see Figure 2). Critically, among this work, the vast majority of studies only focused on one area of constitutional law: of the 423 studies we examined, 336 (79%) focused exclusively on one area of constitutional law. This tendency was most apparent in the work published on the Charter (see Figure 2 and Table 2). Among studies that examined Aboriginal rights and federalism, there was a higher proportion of studies that incorporated additional areas of law (for example, federalism and Aboriginal rights or Aboriginal rights and the Charter, etc.). However, very few studies—only 16 (or 3.8%)—took a truly broad view that examined three areas of law in-depth in the same piece. In addition, it is important to note that studies engaging with more than one area of law often did so by including an area other than the three main pillars of constitutional law (see Figure 2 and Table 2). We found 31 studies where scholars paired their focus on Charter, Aboriginal rights and/or federalism jurisprudence with other foci such as administrative law, non-Charter related criminal law, human rights, language rights and other areas. The tendency to engage with more than one area of law was more common in book-length studies: 27 per cent of books in our sample engaged with more than one area of law, compared with 21 per cent of articles and 17 per cent of chapters in edited volumes.

Figure 2.

Areas of Constitutional Law Covered in Studies.

Note: Totals reflect that some articles cover multiple areas of law.

Research on the Charter tended to focus on a few particular provisions. The most common focus was section 7–14 jurisprudence, which relates to legal rights such as life, liberty and the security of the person and protections against search and seizure. Studies examining these legal rights comprised 33 per cent of all the work on the Charter. Following this was work on section 2 fundamental freedoms (16% of work on the Charter) and section 15 equality rights (10% of work on the Charter). Much of the work on the Charter was firmly rooted in a legal lens: legal academics and practitioners authored 77 per cent of the studies on the Charter.

The methodological approach of the recent scholarship on the courts in Canada is overwhelmingly qualitative (see Table 3). Almost 97 per cent (410 of 423) of studies employed qualitative methods. Only a handful of studies (19) in our dataset either adopted quantitative methods or a mixed-methods approach. Among the qualitative studies, the majority (54%) followed a largely positive law tradition of tracing the caselaw to identify the development of relevant doctrines and precedent. Very few studies employed broader social scientific qualitative methods, such as formal content analysis based on systematic textual review (4%) or elite-level interviews (2%). Indeed, among the qualitative work, many took a somewhat opaque approach of citing and analyzing a select number of decisions to buttress the main argument. This tendency is also reflected in the scope of the studies we examined: 93 per cent were small-N, with only a handful examining a large number of cases (which tended to happen more frequently in book-length monographs).

The methods of the scholarship we surveyed are closely related to the research endeavor and the discipline of the author. The majority (64%) of work on the courts in the three areas of constitutional law we focused on, over the past 10 years, is descriptive. Much of this descriptive research was carried out by legal academics and practitioners tracing the caselaw to accentuate developments in the doctrines and jurisprudence to help the process of “discovering” the law. At the same time, a significant proportion of the work we surveyed (29%)—again largely from legal scholars—takes a decidedly normative perspective. These studies tend to build on a description of the caselaw or a court’s actions to make a normative argument for either how the courts erred in their decisions or how the law ought to be interpreted to align with the author(s)’ views of what is just. The remainder of the work (7%) sought to explain the outcomes of court decisions more explicitly. Here disciplinary focus was an evident driver of these trends: 70 per cent of the work seeking to explain outcomes was authored by political scientists. The seeming influence of disciplinary focus—and the high proportion of studies being authored by legal academics or practitioners—was also reflected in the research endeavor: the most common object of analysis was the law itself (70% of the time), followed by the courts (21%), with only a few studies focusing on matters such as a policy field (3%) or other institutions such as Parliament.

Across the 423 studies we examined, there was relatively uneven and sporadic engagement with the main research themes that make up the canon on the role of the courts in Canadian democracy. We were only able to identify a clear engagement with at least one of the main themes in just over half of the studies (although, in these 215 studies, often authors engaged with more than one theme). As presented in Table 4, the most common theme authors reflected upon was the relationship between the courts and the other branches of government (25% of studies). Here, a relatively small number of studies (17) invoked the dialogue debate and reflected upon whether the courts or Parliament are supreme. A significant portion of studies considered the power of the judiciary (23%), and in particular whether the courts were being activist or restrained in exercising judicial review. Indeed, these two themes (the relationship between institutions and the power of the courts) were often combined to reflect on the role of the courts (more than 30 times). In addition, a fair number of studies were designed to consider and reflect upon the legitimacy of the courts as a decision-making venue. Noteworthy here is the relative paucity of work that examined the selection mechanisms of judges, the political leanings of courts and the characteristics of judges.

It is not surprising that the Canadian scholarship on the courts has focused most of its attention on understanding the institutional dynamics of judicial review, particularly the relationship between courts and representative institutions. Indeed, skepticism of judicial review largely relates to concerns over the courts inappropriately encroaching on the responsibilities and powers traditionally exercised by the legislative and executive branches of government. Analyzing and understanding this trend of “judicializing” political matters is ubiquitous across the extant literature. The work we surveyed here that focuses on assessing the effects of judicialization is unquestionably a valuable contribution to our understanding of the relationship between the judiciary and other branches of government, from discussions of the role of dissenting opinions to our understanding of democracy (Dawood, Reference Dawood2013) to showing how deference to Parliament has created precarious situations for migrants (Gaucher, Reference Gaucher and Macfarlane2018) to the role of court decisions in the policy cycle of rape shield legislation (McNabb and Baker, Reference McNabb and Baker2021), to name only a few examples. At the same time, many of the 99 studies engaging with this theme present a fairly linear and straightforward causal arrow between the courts and representative institutions. For instance, studies often begin by analyzing a landmark or politically important Court decision, followed by an analysis showing the degree to which a government’s subsequent legislation is shaped by the court ruling. Then the study provides an assessment of the democratic implications of court influence, usually finding that the judiciary has significantly affected government action. This “proto-typical” model depicts a clear relationship between courts and legislative bodies. However, the work we surveyed here that touches on this theme is unevenly focused on the judiciary’s Charter rulings: 72 studies in our dataset exploring the relationship between the courts and other branches of government were focused on the Charter, in contrast to 20 studies on federalism cases and 12 on Aboriginal rights. Not only are the various areas of constitutional law unevenly examined, but the findings rarely compare judicial influence over government legislation across different levels of government, benches and policy areas. The clear implication here is that more comparison across different areas of laws, actors and policy areas is needed to produce a comprehensive understanding of the degree to which judicialization is shaping legislation and government action over time.

The trend of analyzing the effects of court decisions on subsequent government legislation as a measure of judicialization is reminiscent of studies employing dialogue theory. To be clear, though, few studies in our dataset directly invoked the dialogue concept. This likely reflects the fact that many scholars have challenged the premise that the mere presence of second look legislation indicates equal power between courts and governments (for example, Manfredi, Reference Manfredi2007 and Macfarlane, Reference Macfarlane2013). And yet, the government’s reaction to court decisions remains one of the key approaches by which scholars assess the court’s impact on government action. Although the way in which governments respond to courts may reveal which legal ideas are adopted, there is much less attention on testing the absence or presence of other political forces that could shape how governments pass legislation in light of court interventions. Kelly’s recent (Reference Kelly2024) book-length study is not included in our dataset, but endeavors to parse out the various political conditions that might explain how governments can depart from judicial rulings, including lobbying, federalism and public sentiment. This is indicative of an approach that could augment the existing focus in the literature—expanding the scope of analysis beyond judicial decisions and follow-up legislation may help us more systematically explain the broad effects of judicialization across time and policy areas. Another recent example of this approach, which is in our dataset, is Puddister (Reference Puddister2019), which explains that the government’s use of the reference power across various areas of law is mainly motivated by strategic considerations to avoid political blame or scrutiny. These studies address how government strategy is informed and shaped by judicial review, and thus better explain government actions after courts render decisions.

A smaller but important subset of the scholarship we examined assesses the impact judicial review has on how governments govern. This literature departs from analyzing government legislation after court decisions and considers how the threat of judicial review has changed the legislative process, building on the insights from earlier work about the rising prominence of the Department of Justice in policymaking (Hennigar, Reference Hennigar2008) and identifying the various Westminster-based mechanisms in place that can help governments manage litigation risk (Hiebert, Reference Hiebert2002; Kelly, Reference Kelly2005). More recent work in the last 10 years has picked up on these themes to argue for the value of legislative rights review (Hiebert, Reference Hiebert2012) as well as the conditions that facilitate legislatures ignoring judicial decisions (Kelly, Reference Kelly and Macfarlane2018). Research into these types of dynamics is central to understanding the broader institutional effects of judicial review, but it could be further expanded in the future to explore how government strategies and the organization of departments may vary depending on the policy area or party in power.

The second most prominent research theme among the studies we examined—the power of the judiciary—is closely related to the relationship between courts and other branches of government. Studies exploring the power of the judiciary in our dataset largely engaged with the long-running theme of assessing whether courts are behaving in an activist or restrained manner when rendering decisions that will likely have significant political ramifications (see Macklin, Reference Macklin2014; Macfarlane, Reference Macfarlane, Puddister and Macfarlane2022). Among this work, there was a tendency to judge the actions of the courts critically, either seeing activism as infringing on the democratic process (for example, Harding and Knopff, Reference Harding and Knopff2013) or lamenting the deference of the courts to legislatures and failing to protect rights or groups (Gaucher, Reference Gaucher and Macfarlane2018; Macfarlane, Reference Macfarlane2012; Roach, Reference Roach2012). While related to the scholarship on the relationship between branches, these studies are distinct in their more explicit focus on how courts choose to exercise judicial review given the nature of the legal dispute before them and the consequences of how they wield their potential power (Tushnet, Reference Tushnet2013). Such consequences include the trajectory of policies or practices after Charter cases (for example, Shaffer, Reference Shaffer2012; Hennigar, Reference Hennigar, Puddister and Macfarlane2022; Jochelson and Ireland, Reference Jochelson and Ireland2019) or how the parameters of the federal division of powers may wax and wane to be more or less (de)centralizing (for example, Baier, Reference Baier, Bakvis and Skogstad2020; Brouillet, Reference Brouillet, Aroney and Kincaid2017; Newman, Reference Newman2016; Schertzer, Reference Schertzer and Macfarlane2018). The norm for these studies is to stick close to the text of decisions to interpret how they develop, often tracing law over time, to assess the court’s legal stance.

Although authors may deduce activist or restrained behavior on the basis of the contours of the decision, these predominantly legal studies largely do not try to explain judicial behavior by considering the potential political motivations underpinning the decisions. Of the 88 studies in our dataset that assess how courts wield judicial power, political scientists authored 18, whereas legal scholars authored 59. This gap speaks to the need and opportunity to further explore whether judicial behavior across areas of law is driven by their individual preferences or the broader sociopolitical context at a given time (rather than looking endogenously at the law to understand judicial power). Indeed, there are fewer than 10 quantitative studies in our dataset that assess the evolution of jurisprudence on the basis of different SCC benches and across different areas of law (for exceptions, see Bédard-Rubin and Rubin, Reference Bedard-Rubin2018; Cameron, Reference Cameron2015; Ostberg and Wetstein, Reference Ostberg and Wetstein2018; Johnson, Reference Johnson2019; McCormick, Reference McCormick2014).

The legitimacy of the judiciary was a theme that arose in works on all areas of constitutional law: it was a key aspect of 10 studies looking at federalism jurisprudence, 19 studies looking at the Charter and 34 studies exploring Aboriginal rights. The prominence of this theme in the work on Aboriginal rights is unsurprising, especially for political scientists, as the courts’ power of judicial review situates them as key decision-makers whose judgements could yield significant political and social consequences. Within the works in our dataset that examined Aboriginal rights, the perception toward the court is split on the legitimacy of courts pronouncing on Aboriginal rights and Indigenous–state relations. There are studies that make a strong case that the judiciary is an illegitimate venue given its colonial ties and thus acts as an agent of the settler-colonial state (for example, Arbel, Reference Arbel2019; Chartrand, Reference Chartrand2013; McCrossan and Ladner, Reference McCrossan and Ladner2016; Milward, Reference Milward2012; Patzer and Ladner, Reference Patzer, Ladner, Puddister and Macfarlane2022). On the contrary, there are studies that argue there is value and space for the courts to play a role in reconciliation and to promote legal pluralism (Walters, Reference Walters2017; Stiffen, Reference Stiffen2019; Slattery, Reference Slattery2014; Manley-Casimir, Reference Manley-Casimir2021; Dubois and Saunders, Reference Dubois and Saunders2018). In studies focusing on the Charter, concerns about the judiciary’s legitimacy center on its policy and democratic impact when the Charter is enforced (for example, Fehr, Reference Fehr2022; Smith, Reference Smith2023). In the federalism literature, the courts’ legitimacy is explored when it deals with political conflicts over the division of powers (for example, Schertzer, Reference Schertzer2016).

As is seen with work on other research themes, those that raise questions about the legitimacy of the courts are largely doing so by looking at only one area of law. This is a particularly noteworthy gap in the literature: the court’s potential legitimacy deficit could be theorized more comprehensively in the Canadian context by considering the different dimensions of legitimacy that must be balanced by the courts in different legal and political contexts. For example, federalism, Charter and Aboriginal rights cases can bring different and distinct groups into conflict with one another and with the state—raising different kinds of legitimacy challenges that the courts must grapple with when rendering decisions. More to the point, Canada’s federal and Westminster system is superimposed onto Canada’s settler-colonial foundations, making legitimacy a constant source of concern for the country’s entire constitutional order. Indeed, it is largely accepted that Canada’s constitutional order represents a myriad of principles and relationships that may not ever be fully negotiated or accepted (Russell, Reference Russell1991). How the courts manage these competing conceptions of legitimacy within a complex and at times conflicted constitutional order is a glaring gap in the scholarship we surveyed and thus begs to be further explored. A notable exception here is Hiebert’s (Reference Hiebert, Goodyear Grant and Hanniman2019) study, which demonstrates how courts and existing constitutional mechanisms interact to manage different dimensions of legitimacy. She notes how most scholarly attention is paid to the courts’ lack of democratic pedigree, which overlooks how the courts in their Charter jurisprudence may also be neglecting federalist principles. This neglect in turn helps explain governments’ motivations to use section 33, although she notes that Charter-infringing legislation can be passed without invoking such a visible clause as well. This study is thus a valuable example of how scholarship could better consider how different expectations of legitimacy may be implicated even in more specific constitutional disputes.

The court’s influence in policymaking has also attracted attention among the work in our dataset, although this theme appears less often than we might expect. Studies of the court often begin or end with a few declaratory statements about the desire to better understand how court decisions impact an area of law because it has real-world policy impacts. Nevertheless, there are few studies that explicitly and directly apply theories of public policy to the study of courts (see Do, Reference Do and Macfarlane2018). This oversight is surprising, given that a main consequence of judicialization is the courts’ purportedly inappropriate influence over government policymaking when human and administrative rights may be affected (Hirschl, Reference Hirschl2008).

The handful of studies that do explicitly employ policy theories to assess the impact of courts in policymaking in our dataset tend to focus on one of two areas. The first considers how courts are opportunity structures for groups to realize their policy goals—either by directly tracing how legal mobilization played a role in policy change (Dubois and Saunders, Reference Dubois and Saunders2018; Hoberg, Reference Hoberg2018) or how a series of decisions (often Charter cases) in a specific legal area has potential or real benefits for a desired policy outcome. For example, the work has shown how the Court’s elaboration of environmental rights as Charter rights can shape future sustainability policies (Collins, Reference Collins2015; Kalajdzic Reference Kalajdzic2021) or how section 7 Charter rights may produce positive obligations on governments and state actors (Shaffer, Reference Shaffer2012; Latimer, Reference Latimer2014; Macfarlane, Reference Macfarlane2017; Manfredi and Maioni, Reference Manfredi and Maioni2018; and Hennigar, Reference Hennigar, Puddister and Macfarlane2022). In federalism studies, the court’s policy role has been analyzed by considering how its promotion of collaborative federalism has shaped policy outcomes (see Baier, Reference Baier, Puddister and Macfarlane2022; Brouillet, Reference Brouillet, Aroney and Kincaid2017; Poirier, Reference Poirier2020; Schertzer, Reference Schertzer and Macfarlane2018). It is also striking that a significant number of studies that explicitly employ policy theories to the study of courts came from an edited volume asking scholars to do this, edited by Macfarlane (Reference Macfarlane2018) (for example, Snow and Puddister, Reference Snow, Puddister and Macfarlane2018 and Zanoni, Reference Zanoni and Macfarlane2018).

There is clearly a need for more work on the policy role and impact of the courts. The most obvious gap here is a lack of work that cuts across areas of law: like with other themes most work in our dataset focuses on the Charter. Yet, high profile court cases continue to shape policies that directly affect the livelihoods of Indigenous peoples, including membership, child welfare and family services. Therefore, there is ample opportunity to further explore how courts are used by policy actors in contexts with political inertia and powerful veto players, particularly in the area of Aboriginal rights. By extension, comparing across different policy areas is crucial to identify how the courts’ influence over policy may not be consistent. Linking research themes may be a way to present a more comprehensive depiction of the court’s role in policymaking. For example, the broader policymaking environment across different policy sectors may help explain the court’s behavior in decisions, such as whether they render more activist or restrained decisions (for example, Songer et al., Reference Songer, Johnson, Ostberg and Edward Wetstein2012 and Ostberg and Wetstein, Reference Ostberg and Wetstein2008). Moreover, the way in which governments institutionally organize their policymaking process in certain areas to account for the risk of judicial review could help inform which policy theories best explain how courts fit in and shape the policymaking process in a Westminster context.

While there are only a handful of studies in our dataset that engage with the theoretical accounts of the political nature or objectives of the courts, those that do so tend to draw insights from—and contribute back to—a broadly institutionalist account of the judiciary. Therefore, among this work, courts are analyzed as political institutions, but with some unique motivations. Here there were examples of work examining dynamics such as the inner workings of the SCC (Macfarlane, Reference Macfarlane2012), how courts make decisions (McCormick and Zanoni, Reference McCormick and Zanoni2019) and how the ideational dimensions of the federation shape the role of the judiciary in the system (Schertzer, Reference Schertzer2016). There are some studies that also consider whether the courts are political agents of state control (Panagos, Reference Panagos2016), drawing from similar insights from literature that examine the court’s legitimacy deficits due to its settler-colonial foundations. Of course, there are also mainly legal analyses that seek to challenge the notion that courts are political bodies, reinforcing that the judiciary and the judges that staff them are bound by legal doctrines and norms (Sharpe, Reference Sharpe2018).

Relatedly, there are few studies that examine the individual characteristics of judges and whether this impacts judicial decision-making. The notable exceptions here tend to be large-N studies and book-length studies that employ mixed methods to consider whether the attributes of judges combine with other factors to explain judicial outcomes (see Songer et. al., Reference Songer, Johnson, Ostberg and Edward Wetstein2012; Wetstein and Ostberg, Reference Wetstein and Ostberg2017; McCormick, Reference McCormick2014). These studies make important insights into the various factors that influence judicial decision-making, but they are few and far between. The lack of quantitative and behavioralist work on the courts in Canada stands in stark contrast to the work in the US, where these accounts are the norm. It is surprising to see the persistence of this gap given rising concerns over political polarization and heightened ideological commitments among political actors more generally. Although there is a general understanding that Canadian judges are not as motivated by partisan ties as their US counterparts, the continued politicization of judicial appointments processes among appeal courts may mean that there should be a greater interest in judges’ ideological preferences and whether this affects their judging.