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Home arrow Economics arrow Commitment and cooperation on high courts : a cross-country examination of institutional constraints on judges


The Supreme Court of Canada has nine justices. The prime minister appoints the justices, although the Supreme Court Act formally grants the appointment power to the governor in council.[1] Three places are reserved for justices from Quebec[2] and by convention three justices are typically from Ontario, one from the Atlantic Provinces, and two from the western provinces.[3] In the past, the minister of justice identified potential candidates through a process that involved consultations with the chief justice of the Court along with the attorney general and senior members of the bar from the relevant region.[4] The process more recently involved a limited parliamentary review of the nominated justices but even that has been bypassed for recent appointments.[5] However, the process is currently in flux with Prime Minister Justin Trudeau seeking to alter the process to make it more transparent.[6] The prime minister also appoints the chief justice, typically from justices on the Court, with a weak (possibly extinct) convention of appointing the most senior justice on the Court but also alternating between French and English-speaking justices.[7]

The Supreme Court is the final court of appeal in all civil and criminal matters in Canada, hearing appeals from the federal court system as well as the provincial and territorial courts. The Court must hear certain criminal appeals (these are termed “appeals as of right”) where there is a dissent on the court of appeal or the court of appeal overturns an acquittal.[8] However, the Court has control over most of its docket as all other cases require the Court to grant leave to appeal before it hears the case.[9] Three justices hear each leave-to-appeal application, with the test being whether the appeal raises an issue of “public importance.” In addition, the federal and provincial governments can refer issues for the Court to decide.[10] For example, the federal government referred to the Court the question of whether its plan to create a national securities regulator was constitutional.[11] This practice stands in contrast to the US Supreme Court, which cannot decide a legal question unless there is an actual “case or controversy” being disputed by directly affected parties.[12]

The Supreme Court of Canada hears appeals en banc or in panels of five or seven justices.[13] The chief justice determines both the size of the panel for a particular appeal and which justices will hear the appeal. Before 1975, when the docket was composed largely of appeals as of right, the Court mainly used panels of five. However, after the Supreme Court gained control over most of its docket through the leave-to-appeal process, the average panel size has increased.[14]

The Canadian Supreme Court appears to be more of a strategic or possibly almost a deliberative court relative to the united States. unlike earlier justices of the Supreme Court of Canada (prior to the 1990s)[15], justices of the Court in recent years have not voted as clearly in line with their personal policy preferences as uS Supreme Court justices.[16] However, justices do appear to vote in line with their personal views to a greater extent in certain areas of law such as search and seizure and some Charter cases.[17] If we look at the range of lifetime liberal voting rates over the 30-year period starting in 1970 shown in Figure 1-2, the Supreme Court of Canada was much less polarized than the uS Supreme Court and on par with the uK and Australia. Canadian justices then appear only mildly ideologically committed in most areas of law relative to uS justices.[18]

Further, Supreme Court of Canada judges very often agree unanimously on decisions. Recently, for example, Chief Justice McLachlin has made a conscious effort to reduce disagreement where possible, leading the recent Court to be reputed to be more cooperative than the Court in the 1970s.[19] Figures 1-3 and 1-4 show that even in the 1970s through the 2000s, the Supreme Court of Canada had a much lower percentage of judgments with at least one dissent and fraction of dissenting opinions than the uS Supreme Court and was between the united States and Australia on the high side and the uK and India on the low side on both these measures. Voting alliances on the Court in recent years appear quite fluid with the Court becoming more consensus-oriented in recent years.[20] The Court therefore may have shifted over time from a more attitudi- nal court toward its current strategic or deliberative form relative to the uS Supreme Court.

  • [1] Supreme Court Act RSC 1985, c S-26, s 4(2) [Supreme Court Act Canada].
  • [2] Supreme Court Act Canada, supra note 41, s 6.
  • [3] Peter McCormick, “Selecting the Supremes: The Appointment of Judges to the SupremeCourt of Canada” (2005) 7:1 Journal of Appellate Practice and Process 1 at 13 [McCormick,“Selecting the Supremes”].
  • [4] McCormick, “Selecting the Supremes,” supra note 43 at 14.
  • [5] Benjamin Alarie & Andrew Green, “Policy Preference Change and Appointments tothe Supreme Court of Canada” (2009) 47 Osgoode Hall LJ 1 at 7-8 [Alarie & Green “PolicyPreference”]; Adam M. Dodek, “Reforming the Supreme Court Appointment Process, 20042014: A 10-Year Democratic Audit” (2014) 67 The Supreme Court Law Review: Osgoode’s AnnualConstitutional Cases Conference 111. In 2014, Prime Minister Harper dispensed with the parliamentary review altogether to appoint Justice Gascon, following a decision from the SupremeCourt that a nominated candidate was ineligible to sit on the Court.
  • [6] See Chapter 3 for a more detailed discussion of appointments in Canada.
  • [7] Peter McCormick, “Choosing the Chief: Duality, Seniority, and Beyond” (2013) 47:1 Journalof Canadian Studies 5 at 6.
  • [8] Criminal Code, RS C 1985, c C-46, s 691.
  • [9] Supreme Court Act Canada, supra note 41, s 40(1).
  • [10] Supreme Court Act Canada, supra note 41, ss 36, 53.
  • [11] Reference Re Securities Act, 2011 SCC 66, [2011] SCR 837.
  • [12] U.S. Const. art, III, § 2, cl, 1.
  • [13] Supreme Court Act Canada, supra note 41 (“[a]ny five of the judges of the Court shall constitute a quorum and may lawfully hold the Court,” s 25).
  • [14] McCormick, “Selecting the Supremes,” supra note 43 at 11.
  • [15] Donald E. Fouts, “Policy-Making in the Supreme Court of Canada, 1950-1960” in GlendonSchubert & David Danelski, eds, Comparative Judicial Behavior: Cross-Cultural Studies ofPolitical Decision-Making in the East and West (New York: Oxford university Press, 1969) 257(“[o]ur analysis has shown that the Supreme Court of Canada resembles its u.S. counterpart insignificant respects [...] its decisional philosophy is strikingly similar to that espoused in theu.S. Court a generation earlier. The behavioral analysis [.] serves to challenge the orthodoxpositivist view that the judges merely discover and apply the law” at 284); Peter McCormick,“Birds of a Feather: Alliances and Influences on the Lamer Court 1990-1997” (1998) 36 OsgoodeHall Law Journal 339 [McCormick, “Birds of a Feather”]; Peter McCormick, “Blocs, Swarms,and Outliers: Conceptualizing Disagreement on the Modern Supreme Court of Canada” (2004)42:1 Osgoode Hall Law Journal 42 99 at 137.
  • [16] Alarie & Green “Policy Preference,” supra note 45 at 42; C.L. Ostberg & Matthew E.Wetstein, Attitudinal Decision Making in the Supreme Court of Canada (Vancouver: universityof British Columbia Press, 2007) at 191-192 [Ostberg & Wetstein, Attitudinal Decision Making].
  • [17] C.L. Ostberg & Matthew E. Wetstein, “Search and Seizure Cases in the Supreme Court ofCanada: Extending an American Model of Judicial Decision Making across Countries” (1999)80:4 Social Science Quarterly 757; Benjamin Alarie & Andrew Green, “Charter Decisions in theMcLachlin Era: Consensus and Ideology at the Supreme Court of Canada” (2009) 47 SupremeCourt Law Review 475 at 500-501.
  • [18] Matthew E. Wetstein et al., “Ideological Consistency and the Attitudinal Conflict:A Comparative Analysis of the u.S. and Canadian Supreme Courts” (2009) 42:6 ComparativePolitical Studies 763.
  • [19] Emmett Macfarlane, “Consensus and unanimity at the Supreme Court of Canada” (2010)52 Supreme Court Law Review 379 at 385.
  • [20] McCormick, “Birds of a Feather,” supra note 55 at 1.
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