Home Economics 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. Three places are reserved for justices from Quebec and by convention three justices are typically from Ontario, one from the Atlantic Provinces, and two from the western provinces. 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. The process more recently involved a limited parliamentary review of the nominated justices but even that has been bypassed for recent appointments. However, the process is currently in flux with Prime Minister Justin Trudeau seeking to alter the process to make it more transparent. 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.
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. 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. 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. For example, the federal government referred to the Court the question of whether its plan to create a national securities regulator was constitutional. 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.
The Supreme Court of Canada hears appeals en banc or in panels of five or seven justices. 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.
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), justices of the Court in recent years have not voted as clearly in line with their personal policy preferences as uS Supreme Court justices. 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. 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.
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. 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. 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.
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