Recent Proliferation of Empirical Research on the SCC – A Literature Review

Since the advent of the Charter of Rights and Freedoms, a growing number of Canadian academics have delved into empirical, and especially quantitative, research on Supreme Court of Canada judicial decision-making. A flurry of articles and literature on the subject has been published in the past few months. Below is a sample of some such research.

A quick foreword: the increase in empirical research has not yet resulted in an increase in academic literature criticizing the empirical findings or discussing the shortcomings and challenges of such research projects. On the flip-side, the research findings from such projects have not yet resulted in “cross-fertilization” (e.g. legal theory scholars using primary empirical research done by third party academics to develop their own theoretical findings). Rather, the research projects seem to involve a linear progress with the same researcher or group of researchers continuing to further develop and refine their findings and theses.

The Transformation of the Supreme Court of Canada
The Transformation of the Supreme Court of Canada: An Empirical Examination by Donald R. Songer (Toronto: UTP, 2008) has been hailed by critics and academic reviewers as a significant and comprehensive contribution to the understanding of judicial decision-making at Canada’s top court. Transformation‘s comprehensive nature is based on a twin approach of qualititave and quantitative research. The quantitive analysis in the book is the culmination of a long-running research project involving over 3,000 Supreme Court decisions between 1970 and 2003. The qualititave analysis involves detailed and in-depth interviews with ten current and former Supreme Court justices, a first in Canadian legal research.

Another aspect of the book that stood out for me was the analysis in chapter 8, which focused on unanimous decisions of the Court. Decision analysis tends to look at decisions of a court as a whole or split decisions with dissents, which is why I found this chapter intriguing. Based on both quantitative and qualititive empirical findings, Songer concludes that norms of collegiality and respect amongst colleagues often result in reasonable compromises and agreements, playing a major role in the high level of unanimity in the decisions of the Supreme Court of Canada.

(For reviews of Transformationsee Review by Lori Hausegger (2009) 30 Justice System Journal 232; Review by Daved Muttart (2009) 47 Osgoode Hall L.J. [forthcoming]. See also Unpublished review by Benjamin Alarie; Online review by Roy Flemming)

Comparartive Analysis and American Citations
A related research article provides a comparative analysis of the Canadian and US Supreme Courts. “Ideological Consistency and Attitudinal Conflict” ((2009) 42 Comparative Political Studies 763) by Matthew Wetstein, et. al (Songer is one of the four co-authors) compares the voting behaviour of judges on the two top courts between 1992 and 1997. Based on findings of a higher degree of ideological complexity exhibited by Canadian justices, the article calls into question the American unidimensional  (liberal-conservative) view of judicial voting behaviour.

Peter McCormick of the University of Lethbridge undertakes an empirical study of “American Citations and the McLachlin Court” ((2009) 47 Osgoode Hall L.J. 83). The research aims to cast doubt on “the notion of a globalizing transnational judicial community” by demonstrating that the use of American citations at the Supreme Court is modest with very contained impact. Between the years 2000 and 2008, of the 13,602 citations to judicial authority by the Supreme Court only 476 citations were to US courts (3.5%). The Court cites itself most often (7,989 citations (58.7%)). And Canadian case law makes up 88.8% of the total citations during the period.

McCormick supplements the American citation statics with commentary and analysis of where the American cases originate, the type of cases that are cited, the type of cases in which American citations are used, and a breakdown by Supreme Court judge on the use of American citations. He further provides a detailed qualitative analysis of the thirteen SCC cases that used the highest number of American citations during the period. This article is a critical contribution to the academic discourse on globalization and the seemingly popular idea of a developing “transnational top court jurisprudence” because, as it demonstrates, the numbers (at least in Canada) tell a very different story.

Still Counting
Somewhat in contrast to the view in “Ideological Consistency and Attitudinal Conflict,” the research project of Benjamin Alarie and Andrew Green is very much based on a unidimensional analysis of judicial decision-making, though they attempt to use a two-dimensional statistical model where possible. Alarie and Green also emphasize that the ideological preferences of SCC justices are ideologically complex and unpredictable (whilst utilizing a liberal-conservative unideminsional scale in coming to these conclusions). In “Policy Preference Change and Appointments to the Supreme Court of Canada” ((2009) 47 Osgoode Hall L.J. 1) Alarie and Green examine SCC judgments between 1982 and 2004 to discern the policy preferences of judges and conclude that judges’ policy preferences are not strongly related to the political party responsible for appointing the justice.

Briefly highlighting some of Alarie and Green’s statistical results: based on the Martin-Quinn model, they find Justices Stevenson, Estey, and Sopinka to be the most “liberal” and Justices L’Heureux-Dube, Wilson, and Deschamps as the most “conservative” . Using the Ostberg-Wetstein model, they find Justices Fish, Arbour, and Deschamps to be the most “liberal” and Justices L’Heureux-Dube, Gontheir, and Bastarache to be the most “conservative” (note that none of the results in the O-W model are statistically significant at 90%).

Alarie and Green develop similar research in “Charter Decisions in the McLachlin Era: Consensus and Ideology at the Supreme Court of Canada” ((2009) 47 Supreme Court Law Review 475), where they analyze Charter of Rights and Freedoms decisions by the Court between 2000 and 2009. There, the authors find Justices Arbour, Iacobucci, and Abella to be the most “liberal” and Justices Bastarache, Charron, and Gonthier to be the most “conservative.” The authors also analyse the rate of dissent for each justice, finding Justice Charron to have the highest rate of agreeing with the majority and Justice L’Heureux-Dube to have the highest rate of dissenting, as well as the highest rate of writing separate concurring decisions. They confirm their earlier findings that there is no correlation between the ideology of the political party appointing the Justice and the ideological preferences of the Justice.

Most recently, Alarie and Green have presented a Working Paper on the role of intervenors at the Supreme Court (“Interventions at the Supreme Court of Canada: Accuracy, Affiliation, and Acceptance” (SSRN)). Using their original dataset, the authors introduce the quantity and type of intervenors to determine whether they have an impact on Supreme Court decision-making. They find that intervenors have a modest but significant impact of Supreme Court justices, even convincing (in few cases) otherwise liberal or conservative leaning judges to vote against their ideological preferences and in favour of the intervenor’s point of view. They find religious groups, attorneys general, and environmental groups to be most successful intervenors (i.e. resulting in a Court decision consistent with the intervenor’s supported outcome) and school boards, financial interests, and unions to be the least successful intervenors. Their study is a trailblazer, for little academic research exists on the subject despite the increasing role of public interest intervenors at the Supreme Court.

In “Appealing Outcomes: A Study of the Overturn Rate of Canada’s Appellate Courts” ((2009) 47 Osgoode Hall L.J. 131), Michael Lubetsky and Joshua Krane present a quantitative analysis of appeals allowed (Court of Appeal decisions overturned) by the Supreme Court of Canada. They develop a “comprehensive overturn rate” (COR) statistic to measure the proportion of total appeal applications to the Supreme Court of Canada that result in reversals. They find that on average, the SCC overturned 6.5 cases for every 1,000 appeal applications between 2000 and 2007. Categorized provincially, appeal applications arising from British Columbia Court of Appeal and Newfoundland and Labrador Court of Appeal were on the higher end (13.3 and 19.9 appeals allowed for every 1,000 appeal applications, respectively) while the Saskatoon, PEI, and Ontario Courts of Appeal were on the lower end (2.3, 3.4, and 4.0 appeals allowed for every 1,000 appeal applications, respectively). COR for appeal applications from the Quebec Court of Appeal was also on the higher end at 8.8 appeals allowed for every 1,000 applications.

To address further nuances in their argument, Lubetsky and Krane develop three further variables: the “appeals pursued rate”, or the total appeals filed arising from a lower appellate court divided by that court’s caseload; the “appeals considered rate”, or the total appeals considered by the SCC arising from a lower appellate court divided by the total number of appeals pursued by the SCC; and, the “appeals allowed rate”, or the number of reversals divided by appeals considered from a given lower appellate court. Using these statistics, Lubetsky and Krane reach some preliminary conclusions and suggest areas that require further study not only for the SCC but for Provincial appellate courts. A snipet:

It is worth noting that the QCA’s [appeals pursued rate] for both criminal and civil appeals also exceeds the national average by a small but statistically significant degree. This could suggest a particularly litigious clientele or may be the by-product of a clash of judicial cultures, insofar as out-of-province litigants may fail to appreciatethe differences in approach that underlie the QCA’s “civilian” decision making. Further research could serve to explore these issues in more detail. (“Appealing Outcomes”, at 143).

Two Meanings of Dialogue
Rounding out today’s article with a move away from the quantitative empirical stream of research and into the realm of theory are two new articles on dialogue theory.

Rosalind Dixon‘s “The Supreme Court of Canada, Charter Dialogue, and Deference” ((2009) 47 Osgoode Hall L.J. 235) attempts to reinvigorate the dialogue debate by developing a new, more naunced approach to dialogue. Dixon argues that traditional dialogue theory suffers from a heavy reliance on sections 1 and 33 of the Charter of Rights and Freedoms as paths for dialogue. Further, dialogue theory need not be about attempting to provide a solution or answer to the countermajoritarian dilemma. The “new dialogue theory” proposed by Dixon aims for a weakening of judicial review by insisting that the Supreme Court show greater deference to Parliament on “second look cases” in order to foster meaningful dialogue between the two branches of government.

“Facilitating Intergovernmental Dialogue: Judicial Review of the Division of Powers in the Supreme Court of Canada” (Unpublished J.S.D. Paper, Columbia Law School, 2009) by Wade Wright (a member of the original Hogg camp of dialogue theorists) is not a dialogue theory piece as such. Here, the term dialogue is used in a broader sense concerning interactions between various forms of government: in this case, dialogue between provincial and federal governments on division of powers disputes. In this paper, Wright develops a theory of judicial review in intergovernmental cases which hinges upon the Supreme Court taking a backseat and becoming a facilitator of the dialogue between the two governments:

The Supreme Court largely withdraws from the business of imposing absolute limits on federal and provincial jurisdiction, by accommodating overlap in jurisdiction, and primarily limits itself to managing overlapping legislation to avoid legislative conflict in operation. (Facilitating Intergovernmental Dialogue, p. 52).

Conclusion
The above is meant to be a short sample of empirical research on the Supreme Court of Canada that is currently in progress or has recently been published. Such projects present a promising and useful avenue for enhancing and reinforcing existing theory with observational statistics. Most exisitng research, however, lacks a comprehensiveness that can only be acquired through improvements resulting from academic discourse and critique. Hopefully, other academics will enter the discussion and help to bridge the gap between the Antecedent and the Consequent.