My overall research agenda so far has focused on developing a more comprehensive account of the institutional relationships that shape public policy and governance under the Charter of Rights. I focus on the impact that legislative and judicial interactions (particularly involving the Supreme Court) and, more broadly, the Charter itself, have in altering public policy. I also study the work of Parliament and the role and impact of officers of Parliament (like the auditor general, privacy commissioner, etc.).
I am currently working on a handful of projects. I hold a grant from the Social Sciences and Humanities Research Council to study 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.
Another project explores the normative debate and 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 preliminary/exploratory pieces on this topic recently for Policy Options and the National magazines, and have a forthcoming article in the Journal of Canadian Studies exploring the dilemma of positive rights and access to health care.
With my colleague Rachael Johnstone, I am also co-authoring work on reproductive rights and public policy. Our paper on abortion policy in Canada explores the "positive rights" implications of existing barriers to access in certain provinces, is forthcoming in the International Journal of Canadian Studies. We have also written a paper on assisted reproduction policy in Canada.
Another major project is a collaboration on a book that builds on the research I conducted for my postdoctoral research at Harvard Law School. The book will assess how elected representatives assess and act on their understanding of their obligations under the Charter.
Another book, an edited volume currently under review, examines constitutional amendment. It is an interdisciplinary project involving political scientists and legal scholars, assessing the players, the procedures and contemporary issues surrounding constitutional change. My own contribution to the book builds on a critical assessment of the Supreme Court's opinion in the Senate Reform reference, a paper forthcoming in the McGill Law Journal.
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. 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.
In addition to the book,I have conducted research exploring a number of other topics:
In an article published in the Canadian Journal of Political Science, I 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.
I explored the Court's approach to decisions implicating national security policy in the post-9/11 context in an article published in the Review of Constitutional Studies.
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 and 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.