Research Agenda
My overall research agenda focuses on developing a more comprehensive account of how the constitution, and the institutions within it, impact public policy and governance. I analyze the impact that legislative and judicial interactions (particularly involving Parliament and the Supreme Court) and, more broadly, the Charter of Rights, have in altering public policy. I also study constitutional change, the work of Parliament, the role and impact of officers of Parliament (like the auditor general, privacy commissioner, etc.), and free expression.
Current Projects
Unwritten Constitutionalism. I am currently working on a book manuscript examining Canada's unwritten constitution, exploring the role that constitutional conventions, unwritten constitutional principles, and the norms, practices, and customs surrounding the constitution relate to the various written components of the Constitution of Canada, and to each other. I have published a recent piece on the place of constitutional conventions in the so-called "constitutional architecture" in the Canadian Journal of Political Science.
Freedom of Expression/the regulation of online hate speech. I am the principal investigator of a Social Sciences and Humanities Research Council funded project examining the regulation of online hate speech in Canada, New Zealand, and the United Kingdom. Working with my colleague Rachael Johnstone, we are examining recent legislative initiatives/proposals to assess how governments and the respective parliaments in these countries balance rights considerations while tackling the fraught and challenging problem of hate speech online. The project has a lot of moving parts, including research interviews with decision makers, content analyses of legislative debates, news media coverage, and assessment of existing jurisprudence under the countries' respective bills of rights.
I have edited a recent book titled Dilemmas of Free Expression (University of Toronto Press, 2022). My own contribution to the book is a chapter exploring the harms associated with hate speech and the justifications advanced for limits on free expression in that context. My most recent piece in this area, published in Review of Constitutional Studies, examines free expression principles in the context of systemic oppression.
My very first article, published in 2008 in the Canadian Journal of Political Science, explored the way in which we understand rights and use rights in public discourse by examining how the media report on Supreme Court Charter decisions.
Ongoing Areas of Research
Judicial decision-making/behaviour. How do judges, specifically on the Supreme Court of Canada, make decisions implicating rights? Understanding the decision-making processes and collegial aspects of the Court, as well as the potential factors that motivate judicial decisions, is important for several reasons. First, research purporting to demonstrate the influence of ideological motivations on the part of the judges’ policy decisions has obvious implications for those concerned about “judicial activism” on the part of the judges, and the legitimacy of the judicial role in policy making. Second, in practice, this reality should inform any potential reform of the process by which members of the Court are appointed. Finally, an appreciation for how decisions are made gives us a better understanding of the impact of the Court as a policy maker. My book, Governing from the Bench: The Supreme Court of Canada and the Judicial Role (UBC Press, 2013), is based on research conducted for my doctoral dissertation. It describes and analyzes the Supreme Court of Canada’s internal environment and decision-making processes, drawing extensively on 28 research interviews with the Court’s current and former justices, former law clerks and other staff members. It assesses how legal, ideological and strategic motivations on the part of the justices come into play at the various stages of the Court’s process. It also situates the Court in terms of its relationship with the other branches of government and its role in broader society. I advance a broad, historical institutionalist understanding of the judicial role to demonstrate the complex and interconnected nature of these various motivating factors.
A number of articles emerged from this research, including a study of consensus and unanimity on the Court published in the Supreme Court Law Review, a study of the Court's administration in Canadian Public Administration, and a recent analysis of the legacy of former Chief Justice Beverley McLachlin in the Supreme Court Law Review. I'm currently writing a paper on methodology and the study of judicial decision-making for an edited collection on public law methodology.
Institutional Relationships. In the course of research conducted at Harvard University during a two-year SSHRC postdoctoral fellowship, I examined the concept of an inter-institutional "dialogue" between courts and legislatures in the context of rights cases. By systematically examining legislative responses to judicial invalidation of statutes by the Supreme Court, my research identifies the extent to which the elected branches are able to respond to judicial rulings on the Charter. The analysis considers whether legislatures merely follow the Court’s policy prescriptions (or even fail to respond at all) or whether amendments are made that could require the Court to take a second look at the policies if they are challenged under the Charter again. The fruits of this research were published in an article in the International Political Science Review. An article exploring the concept of dialogue in comparative perspective (examining Canada, Australia, New Zealand and the United Kingdom) was published in the Review of Constitutional Studies. A more recent follow-up analysis of the dialogue concept was published in the Ottawa Law Review.
Another recent project explores the relationship between governments and the courts. Drawing on regime politics theory, a paper published in the Canadian Journal of Political Science examines the distinctive outcomes in constitutional cases between different 'regimes' or dominant governing coalitions over time. The approach of specific governments to courts and the constitution is also explored in a chapter I contributed to The Blueprint: Conservative Parties and their Impact on Canadian Politics (University of Toronto Press, 2017).
My most recent work on institutional relationships was published in a new book, Legislating under the Charter: Parliament, Executive Power, and Rights (University of Toronto Press, 2023) (with Janet Hiebert and Anna Drake).
Constitutional Change. How does constitutional change happen, and why is it so difficult for Canada to amend parts of its constitution? Canada has a protracted and tense history involving constitutional reform, including the decades of 'mega-constitutional politics' that led to patriation in 1982, with entrenchment of a domestic amending formula, the Charter of Rights, and Aboriginal and treaty rights. Efforts to satiate feelings of betrayal among certain Quebec elites led to the failed Meech Lake and Charlottetown Accords, in turn instigating the near break-up of the country in the 1995 Quebec secession referendum. This political context informs a political culture around constitutional amendment hostile to 'opening the constitution.' Coupled with the stringent requirements of the amending formula, and recent Supreme Court jurisprudence, Canada has one of the most difficult to amend constitutions in the world.
My work on constitutional amendment has resulted in the publication of an edited volume exploring different facets of these Canadian challenges, titled Constitutional Amendment in Canada (University of Toronto Press, 2016). An authored book, analyzing of the Court's reference on Senate Reform and its implications for Canada's constitutional stasis was published in 2021 by UBC Press. It is titled Constitutional Pariah: Reference re Senate Reform and the Future of Parliament.
I have also published analyzes of the Senate Reference in the McGill Law Journal, constitutional stasis in a chapter in the book New Frontiers in Canadian Law (University of Toronto Press, 2019), and on the constitutional limitations imposed on electoral reform in the Supreme Court Law Review and in a chapter in Should We Change How We Vote? Evaluating Canada's Electoral System (McGill-Queen's University Press, 2017).
New work in this area focuses on the concept of 'judicial amendment' of the constitution, as distinct from ordinary constitutional interpretation. A paper outlining a factor-based approach to identifying judicial amendment is forthcoming in I-CON: the International Journal of Constitutional Law.
Parliament. Based on research funded by a grant from the Social Sciences and Humanities Research Council I am undertaking a study of officers of Parliament. The project includes a policy impact study, analyzing officer reports and recommendations and tracing government and parliamentary follow-up. Another component involves interviews with current and former officers and parliamentarians to assess the respective roles and relationships between officers, the government and Parliament. The first article in this project (co-authored with Gwyneth Bergman), a study of the Conflict of Interest and Ethics Commissioner, was published in Canadian Public Administration. We recently published a second article on the privacy commissioner in 2021, also in Canadian Public Administration.
Along with my 2021 book on the Senate, I am the co-author of the aforementioned book Legislating Under the Charter (University of Toronto Press, 2023) with Janet Hiebert and Anna Drake.
Public Policy/Policy Impact. I edited a book on the policy impact of courts titled Policy Change, Courts, and the Canadian Constitution (University of Toronto Press, 2018). I have published studies of abortion policy (with Rachael Johnstone) in the International Journal of Canadian Studies, and national security policy in the Review of Constitutional Studies. I have written about the Court's approach to multiculturalism policy in the edited book Policy Transformation in Canada: Is Past Prologue? (University of Toronto Press, 2019), and the policy process in the context of rights and emergency powers in the Canadian Journal of Political Science.
Another project explores the policy implications surrounding whether the Charter of Rights should protect social and welfare rights, which are often referred to as "positive rights." A key distinction between traditional "negative rights" - which prevent government from interfering or infringing on rights - and "positive rights" is that the latter would require governments to provide particular services or entitlements to meet their rights obligations. This has important institutional implications, because legislatures are properly regarded as the institutions that hold the public purse. Further, for a variety of reasons, judges do not make for good policy-makers, and although they must deal with assessing public policies in the context of negative rights cases, enforcing social and welfare rights is considered another order of magnitude more complex in that regard. I have written pieces on this topic in the Journal of Canadian Studies, National Journal of Constitutional Law, and the Ottawa Law Review.