D05 - Revisiting/Reimagining Canadian Judicial Process
Date: Jun 2 | Time: 01:30pm to 03:00pm | Location:
Chair/Président/Présidente : Emmett Macfarlane (University of Waterloo)
Discussant/Commentateur/Commentatrice : Emmett Macfarlane (University of Waterloo)
Charter Values and the Supreme Court of Canada: Mark Harding (University of Guelph)
Abstract: The Supreme Court of Canada frequently references “Charter values,” as distinct from Charter rights, in its jurisprudence. The Court’s use of Charter values is controversial within the literature and increasingly amongst the justices on the Court. Although Charter values are often criticized by scholars and justices alike, very little is known empirically or theoretically about their origins or purposes. This paper fills that gap. It presents the findings of an original dataset of the all the Court’s uses of Charter values (n=249). It identifies how often the Court uses them; the cases and areas of law in which they are applied; how they differ from Charter rights; and the jurisprudential purposes they serve. In so doing, it identifies four main ways the Supreme Court uses Charter values: to revise common law rules; to clarify ambiguous statutes; as unwritten constitutional principles; and to assist with interpreting administrative law. Each usage reveals how Charter values have significant implications for the Charter’s role in judicial-legislative relations and the Charter’s application to different types of legal disputes.
The Changing Structural Characteristics of Supreme Court of Canada Decisions: 1980-2020: Andrew McDougall (University of Toronto Scarborough), Evan Rosevear (University of Toronto)
Abstract: In contrast to work on its political role and, to a lesser extent, agreement and disagreement among its judges, there has been little academic attention to the structure of Supreme Court of Canada (SCC) judgments. This is unfortunate because the structural characteristics of judgments can be revealing about many aspects of judicial behaviour, both with individual justices and as a group. For example, do particular judges, types of judges, or areas of law lend themselves to more fragmentary decisions, via either dissents or concurrences? Are case- or judge-specific factors associated with the increase in decision and opinion length over time? Is there a relationship between caseload and the length of decisions or the time taken to produce them? Are some judges better able to craft opinions that their colleagues will support than others? To examine these and other questions, we use an original dataset of the SCC’s Charter-era decisions. Specifically, we examine the relationship of case characteristics (e.g., area of law, appeal as of right, court of origin, the identities of the parties and interveners), the structure of decisions (e.g., presence of concurrences and dissents, the length of the decision and its component opinions) and the characteristics of judges taking part in each case (e.g., age, gender, time on the court, geographic origin, professional and educational background). The findings of these investigations will advance our understanding of Canadian judges’ behavior and contribute to a growing, global body of literature focusing on apex court decision-making outside of the United States.
The (Appropriate) Role of a Judge in a Constitutional Democracy: A Content Analysis of Canadian Judicial Appointment Applications: David Said (University of Guelph), Dennis Baker (University of Guelph)
Abstract: Under the new judicial appointment process introduced by the Minister of Justice on October, 20, 2016, any interested and qualified Canadian lawyer or judge could apply for judicial appointment by completing a questionnaire. Section 11 of the questionnaire requires applicants to answer questions about the role of the judiciary in Canada’s legal system. This part of the application process is designed, at least in part, to allow for the evaluation of a candidate’s perception of the judicial role, but there is little publicly available information about what answers might improve or lower the chances of appointment. This paper examines the answers of forty successful candidates to the six questions in section 11 by conducting a content analysis of individual responses and classifying them according to some established models of judicial behaviour (including Cass Sunstein’s “constitutional personae”). The analysis demonstrates that common themes, likely derived from a few well known sources, can be identified in the set of answers. Examining them more closely provides new insight into both the way candidates present themselves and, by inference, what answers the selection committees might find attractive.
Diversity on Canada’s Courts: Assessing Reforms to the Federal Judicial Selection Process: Erin Crandall (Acadia University)
Abstract: In 2016, the Liberal government of Prime Minister Justin Trudeau announced reforms to the superior courts judicial selection process. As part of these changes, the government began, for the first time, to collect and publish statistics and demographic information on judicial applicants and appointees. Drawing from this demographic data, this paper will assess to what extent the Liberal government’s commitment to creating a more diverse judiciary has been realized and what barriers, if any, remain.
Participants: David Said (University of Guelph)Erin Crandall (Acadia University)Mark Harding (University of Guelph)Andrew McDougall (University of Toronto)