Discrimination and the Private Law in Canada: Reflections on Spence v. BMO Trust Co.

Discrimination has long been identified as detrimental to the basic functioning of multicultural countries like Canada. While governments have adopted constitutional law and passed human rights legislation to combat and control discrimination, these laws are inapplicable to a significant portion of Canadian law. Areas of private law, such as wills and trusts are therefore more vulnerable to use by individuals seeking to perpetuate discrimination. The main way that courts in Canada have dealt with this issue is through the use of the doctrine of public policy. As early as the 19th century, private law provisions viewed as restraining another’s freedom of religion or perpetuating discrimination on grounds such as race, ethnicity, or sexual orientation have been found contrary to public policy by Canadian courts and voided accordingly. While the uniquely Canadian jurisprudence in this area continues to evolve, until quite recently, its trajectory appeared to be one of expansion. However, the latest appellate level decision in this area,Spence v. BMO Trust Co., appears to have changed the course of this jurisprudence. In Spence, the Ontario Court of Appeal found that certain testamentary clauses, no matter how discriminatory in nature, can never be subject to a public policy review. This article argues that while the result of Spence was likely correct on its particular facts, the reasoning of that decision goes too far in its attempt to limit the doctrine’s applicability with respect to discrimination in the private law. Parts of the decision in Spence ignore the key message of past decisions in this area concerning the danger of uncensored discrimination in Canadian society. While reasonable people may disagree on the outcome of any given public policy inquiry, a point that should attract consensus is that the private law should never be an unexamined and impenetrable shelter for discrimination. However, Spence effectively creates an area of the private law immune to legal scrutiny by precluding the use of the common law doctrine that has been used to directly confront and censure discrimination in Canadian private law.

Race and social policy: challenges and obstacles

This chapter asks what the pressing racial inequalities are in contemporary British society and to what extent is social policy as a discipline equipped to analyse and respond to these. It provides an overview of some contemporary outcomes in the key areas of labour market participation, education, and criminal justice, summarising some prevailing features and patterns, before going on to explore in more detail whether social solicy as it is presently configured, focusing as it does on the concern with a redistributive notion of equality, is sufficiently well placed to grasp these. The chapter then develops a fascinating argument based on the observation of the need to fully incorporate an account of institutional racism and ‘everyday bordering’, as well as a critical understanding of the so-called ‘progressives dilemma’ set out by David Goodhart. The history of social policy as a disciplinary practice may stymie the kinds of foci that are needed. This analysis demands a recognition that mainstream social policy inquiry is parochial, but also that the object of inquiry is shaped by historical racism.

The Evolution of Public Policy and Judicial Function in English Law

This article is concerned with the function of English judges in employing the doctrine of public policy to decide cases under common law. For the first time, the article offers a critical appraisal of the recent evolution of public policy and decision making under English law from a structured doctrine of legal rules and limited judicial discretion to an open-ended principle of subjective evaluations. The main thesis of the article is that the latest judicial amendment of the nature of the public policy inquiry constitutes a radical and unnecessary departure from generally accepted propositions on the appropriate function of English judges in addressing issues of public policy.

Timing Is Everything: The Utility of Time-Series Analysis to Capture Causality in Qualitative Case-Based Policy Inquiry

While policy researchers call for new approaches to support the analysis of complex policies, the dominance of experimental and quasi-experimental designs limits the field’s possibilities. Innovative yet rigorous qualitative methods have been overlooked, despite strong arguments by seminal qualitative methodologists about the appropriateness of qualitative research for inquiry situated in particular contexts and that recognizes the influence of time, place, people, and belief systems on outcomes. We argue that qualitative time-series analysis is one such overlooked approach that has greater potential for educational policy research because of its ability to address complexity in causal relationships. This article contributes to the policy and methodological literature in two ways: First, by providing a synthesis of available methodological literature on qualitative time-series analysis; and second, by providing two illustrative qualitative case studies that used different time-series approaches to examine policy development over time while accounting for the contextual factors and meaning-making that inform policy and shape the policy process. The article concludes with a discussion of the contribution of qualitative time-series analysis for policy research with examples from the cases.

The argumentative turn in public policy inquiry: deliberative policy analysis for usable advice

The argumentation turn in policy analysis emerged in the late 1980s as a response to questions concerning social relevance and usable knowledge. Toward this end, it focused on an apparent gap between policy inquiry and real-world policymaking. Basic to the approach was a challenge to the ‘value free’ positivist orientation that has shaped the field of policy analysis, underscoring in particular the limits of the technocratic practices to which it gave rise. After tracing the political and academic debates that surrounded the uses of policy analysis, the chapter presents the alternative argumentative orientation and its post-positivist methodological perspective. The discussion emphasizes its language-based foundations and outlines the logic of a deliberative-analytic framework for the assessment of policy argumentation. It illustrates the ways that policy analysis needs to integrate empirical and normative inquiry. Policy findings and practical policy argumentation are interpreted by decision-makers and citizens in terms of their relations to the larger framework of norms and values that imbue them with social and political meanings. Moving beyond a narrow empirical assignment, the argumentative turn seeks to assist these actors by also drawing out these normative connections. It is, as such, an effort to make good on Harold Lasswell's call for a 'policy science' of democracy.

Para além do empirismo: policy inquiry na perspectiva pós-positivista

Este ensaio contribui para a crescente crítica às metodologias neopositivistas dominantes na ciência das políticas públicas. Não somente a ciência neopositivista falhou em seus esforços para desenvolver um corpo utilizável de generalizações preditivas, como tem sido incapaz de fornecer soluções eficazes para os problemas sociais. Uma parte importante desta falha é atribuída a pressupostos epistemológicos ultrapassados. Com base na evolução da ciência e da sociologia da ciência, em particular, e no reconhecimento de que as ciências "duras" em si não descansam sobre os conceitos tradicionais de objetividade e de prova, a discussão esboça uma concepção pós-positivista da ciência política destinada a abordar a complexidade multidimensional da realidade social. Como uma orientação discursiva aterrada em particular razão, a abordagem pós-positivista situa a pesquisa empírica em um quadro interpretativo mais amplo. Mais do que apenas uma alternativa epistemológica, esta abordagem é oferecida como uma melhor descrição do que os cientistas sociais realmente fazem na prática. O ensaio termina com uma breve discussão sobre as implicações de uma abordagem pós-positivista tanto para um currículo em políticas públicas socialmente relevante, quanto para uma prática democrática de investigação em políticas públicas.