Muttart, Daved

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York University, Osgoode Hall Law School

Osgoode Hall Law JournalVolume 47, Number 3 (Fall 2009) Article 8Book Review: The Transformation of the SupremeCourt Of Canada: An Empirical Examination, byDonald R. SongerDaved MuttartFollow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohljBook ReviewThis Book Review is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion inOsgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons.Citation InformationMuttart, Daved. "Book Review: The Transformation of the Supreme Court Of Canada: An Empirical Examination, by Donald R.Songer." Osgoode Hall Law Journal 47.3 (2009) : 603-610.http://digitalcommons.osgoode.yorku.ca/ohlj/vol47/iss3/8603Book ReviewTHE TRANSFORMATION OF THESUPREME COURT OF CANADA: AN EMPIRICALEXAMINATION, by Donald R. Songer 1DAVED MUTTART 2THE TRANSFORMATION OF THE SUPREME COURT OF CANADA: AN EMPIRICALEXAMINATION (Transformation) provides two new and important additions toour knowledge of the Supreme Court of Canada. First, the book describes ex-tensive interviews conducted with the justices of the Supreme Court by the au-thor. Second, the work explores the extent to which the Court's decisionmaking is legally and judicially based, as opposed to being policy or politicallybased. Transformation's claim to be an empirical examination rests upon analysesof the interviews, as well as reliance on statistical data.The Supreme Court of Canada, in particular, has several characteristicsthat make it an excellent example for, and analysis of, high courts around theworld. Unlike its American counterpart, which has a constitutionally limitedjurisdiction, it has a plenary jurisdiction. Canada's Court has had at least twofemale justices serving on the bench since 1987, and it currently has four femalemembers. The highest courts in other Anglo-American jurisdictions have onlyever had one woman serving the bench at any given time.3 Further, the SupremeCourt of Canada displays many tendencies in its rulings, which judicially situatesit midway between the United States Supreme Court and the House of Lordsin the United Kingdom. For example, the Canadian Court has demonstratedmore of a willingness than the House of Lords to overturn its own prior deci-1. (Toronto: University of Toronto Press, 2008) 290 pages.2. Ph.D., Sessional Instructor, Faculty of Criminology, Justice and Policy Studies, University ofOntario Institute of Technology.3. Daved M. Muttart, "A Content Analysis of Supreme Court of Canada Judgements:Preliminary Observations" (SSRN Working Paper Series, September 2009), online: <http://papers.ssrn.com/sol3/papers.cfm?abstract-id= 1470703>.604 12009147 OSGOODE HALL LAW JOURNALsions, but it is typically less willing to do so than the US Supreme Court. Addi-tionally, as with other courts, its proper role within the legal system is constantlydebated.As an American, and thus an "outsider" to Canadian law, Donald Songeravoids doctrinal issues, and instead concentrates on comparing quantitative datafrom several judicial eras. In most instances, Songer compares and contrasts theCourt's behaviour in five time periods: 1970-1975, before it obtained control ofits docket; 1976-1983, when the Court controlled its docket, but did not makeany rulings based on the Charter of Rights and Freedoms; 1984-1990, the initialCharter period; and two later Charter periods, 1991-1999 and 2000-2003.'Songer incorporates his statistics, interview data, and the work of a selection ofauthors into a lucid analysis of how the justices are selected, and why and howthey reach their decisions.Songer begins, in chapter one, by contrasting a Court that was largely ig-nored in the early 1970s to one that now generates extensive media coverage andpolitical debate. The Supreme Court's transformation from obscurity to thepinnacle of power as the interpreter of the Charter means that the Court nowhas both legal and political roles.In chapter two, Songer elaborates on his argument that the Canadian highcourt is more democratic than final courts in other jurisdictions, due to the diver-sity of the backgrounds of its justices. He notes that the Canadian Constitution'sgeographical requirements effectively demand the appointment of Catholics,Protestants, Francophones, and Anglophones.' Justices, including those nowserving, have been appointed by both Liberal and Conservative prime ministers.Songer also traces the evolution of a once completely male bench to one thatnow boasts four women. In addition, the Court now has members representinga variety of faiths. Songer mentions, however, that many justices had no priorjudicial experience before being elevated to the Court. While Songer is correctin noting that the background of the Court's justices has become more diverse,especially in respect to gender, in labelling this trend "democratic," he fails tocome to grips with the fact that all of the justices are white, upper-middle class,and, perhaps most importantly, one-time lawyers.4. Some issues are tracked on an annual basis, while others are matched with the terms of theCourt's Chief Justices.5. Songer, supra note I at 26-42.BOOK REVIEWS 605Chapter three begins by describing the Court's control of its docket-almostall cases today require the Court's leave before they will be heard.6 In discussingwhich issues receive this leave, Songer quotes the justices as concluding that"national importance is the key [criterion as to whether leave is granted]." TheCourt is not interested in error correction, but rather in issues of legal signifi-cance. Songer then traces three major trends in the Court's docket: firstly, andespecially since the advent of the Charter, the Court has heard more criminalcases as compared to those involving private economic disputes; secondly, thenumber of statutory interpretation cases dipped below those involving constitu-tional issues in the wake of the Charter, but have now rebounded; and, thirdly,the number of cases involving judicial review in general, as opposed to thoseinvolving only the review of statutes, rose after the Charter was enacted.Songer next turns his attention toward the various players in the judicialsystem, and, specifically, who wins and who loses. He finds that corporationsare just as likely to be the appellant as they are to be the respondent, while indi-viduals are more likely to be the appellant! The provincial level of governmentappears most often in front of the Supreme Court of Canada, but, as a functionof population, Ontario is underrepresented before the Court, while BritishColumbia is overrepresented.8 Individuals have the lowest success rate (41 percent), while the provincial and federal governments have the highest (62 percent); however, the party-capability theory, which predicts a higher success ratefor litigants who possess greater resources, is contradicted by the success rate ofindividuals over businesses.9In chapter five, Transformation moves towards a discussion of the Court'sdecision-making process. There has been a trend towards more appeals beingheard by all nine justices, and, in all time periods, the number of justices hearinga case increased with the importance of the issues involved. Additionally, the au-thor finds that non-party intervenors are playing an increasing role.1" The me-chanics of the justices' preparation, hearing, consensus-building, and opinionwriting are discussed with an informative blending of previous commentary withSonger's own interview data. While there does not appear to be a clear rule for6. Some criminal cases continue to come before the Court as of right.7. Songer, supra note 1 at 83.8. Ibid. at 85.9. Ibid. at 93.10. Ibid. at 123-26.606 (2009] 47 OSGOODE HALL LAW JOURNALdetermining who will author the opinion of the Court, seniority, expertise, indi-vidual interest, present workload, and the Chief Justice's vague perception of whocan best unite the bench are governing factors." Some justices have their clerksdraft the initial opinion, while others write the first draft and then request cri-tique from their clerks. The draft majority opinion is then circulated to the otherjustices for comment. Negotiation often ensues as to the basis for the opinion, andthese discussions sometimes lead to redrafting with a view to broaden support.Transformation is at its strongest when it analyzes the extent to which theCourt's decision making is legal or judicial and the extent to which it is chang-ing. In chapters six through eight, extant attitudinal studies, which propose thatjustices make rulings based on their personal opinions as opposed to the law,are efficaciously interwoven with the information gathered from Songer's inter-views. This results in an analysis that cogently supports Songer's thesis that,while the Canadian justices' attitudes are important to their decision-makingprocess, most of their efforts are spent analyzing legal issues as opposed topolicy-based materials.Songer's thesis is supported by his examination of the justices' collegialapproach to the decision-making process, with an emphasis on compromiseand unanimity in forming opinions. While there is, on occasion, bargainingamong the judges regarding an opinion, in an attempt to obtain wider supportfor the ruling, there did not appear in Songer's study to be any trading of votesfrom case to case.12 However, the fact that the attitudes and background charac-teristics of the justices-including the gender and political party that appointedthe justice in question-appear to be correlated to the directionality of theirdecisions shows that factors other than an objective legal analysis also play a rolein the outcomes reached by the Court. 3 Given this information, though, therole that the justices' attitudes play in the Court's decision-making process issmall, and substantially controlled by the political moderation of the judicialsystem and the justices' strong respect for the rule of law.There were several specific conclusions reached by the author. Firstly, theinterviews disclose that the justices strive for consistency in their rulings acrossthe provinces." Secondly, while the Court has been moderately conservative11. Ibid. at 129.12. Ibid. at 216-17, 235-36.13. Ibid. at 223-28, 235.14. Ibid. at 156.BOOK REVIEWS 607overall and particularly in criminal law matters, it has been more liberal in deci-sions dealing with civil liberties, public law, and torts. Thirdly, the advent ofthe Charter led to more liberal decisions in the criminal sphere and increasedthe Court's progressive tendencies in the civil liberties cases. Fourthly, when theCharter was first enacted, rights claimants had a high rate of success (66 percent), but their success rate has declined in recent years (40 per cent)." Lastly,there is a high proportion of unanimous decisions handed down by the SupremeCourt of Canada (approximately 70%), especially when compared to the USSupreme Court (approximately 35%).6CONTRIBUTIONS TO KNOWLEDGE: INTERVIEWS AND SYNTHESISThe most important additions to our knowledge of the Supreme Court of Can-ada are the interviews conducted with the Court's justices. Songer inserts the in-terviews throughout his narrative, effectively peering inside the leave-to-appealdecision-making processes of the Court, as well as the collegiality-enhancingpractices of the justices. The questions posed to the Justices are included in theAppendix; however, the transcripts of the interviews are not included. Portionsof the interviews are summarized throughout the text, as the justices' responsesbecome relevant to the points that Songer seeks to make.In two sections, Songer tackles Charles Epp's contention that the Charter'sinfluence on the Court's jurisprudence "is overrated."17 Songer begins by con-trasting Epp's opinion with those of other scholars and then moves on to criticizeEpp's methodological choice of measuring trends by examining the Court'sdecisions every five years. Songer expanded his quantitative analysis to includeholdings from every year. His larger sample allows him to conclude that therewas a substantial increase in the percentage of civil rights cases on the .Court'sdocket after the enactment of the Charter.18 Furthermore, the success rate forthose seeking a civil rights remedy increased post-Charter.19Notwithstanding that Songer's text contains several important contributionsto legal scholarship, Transformation contains several notable gaps. Although it15. Ibid. at 161-72.16. Ibid. at 210-13.17. Ibid. at 70-76, 166-72. However, Songer makes no reference to Harry Arthurs & BrentArnold, "Does the Charter Matter?" (2005) 11 Rev. .Const. Stud. 37.18. Songer, ibid. at 164-65.19. Ibid. at 168.608 120091 47 OSGOODE HALL LAW JOURNALbears a 2008 publishing date, most of the research pre-dates 2004.2' Where latertexts are referred to, including Ostberg and Wetstein's highly relevant 2007book on attitudinal decision-making,21 the reference is cursory at best, and thefindings are not incorporated into the author's analysis.2 2 Songer's conclusion 23that the justices are unwilling to use section 7 of the Charter to depart from thestatus quo is radically at odds with the Court's 2005 decision in Chaoulli, whichutilized section 7 to remove prohibitions on private health care.26The most striking omission for a largely empirical text is the lack of referenceto a series of articles that measured the extent to which the Court strikes downlegislation for contravening the Charter. In 2003, Choudhry and Hunter con-cluded that the rate at which legislation was being struck down by the Court wasneither increasing nor decreasing over time, and that the Court's rulings undersection 1 of the Charter did not show any consistent pattern over time.25 Their2003 piece was an update of articles by several eminent authors published in 1992and 1999.26 This statistical analysis is directly relevant to Songer's discussion onthe extent to which legislation was, or was not, struck down.2720. For example, Songer entirely omits reference to my text, which is published by Songer's ownpublisher. See Daved Muttart, The Empirical Gap in Jurisprudence: A Comprehensive Study ofthe Supreme Court of Canada (Toronto: University of Toronto Press, 2007).21. Cynthia L. Ostberg & Matthew E. Wetstein, Attitudinal Decision Making in the SupremeCourt of Canada (Vancouver: UBC Press, 2007).22. Songer, supra note 1 at 194.23. Ibid. at 171.24. Chaoulli v. Quebec, [2005] 1 S.C.R. 791. Only four of the five justices in the majority usedsection 7, but the door is now certainly wide open to further expansive use of section 7.25. Sujit Choudhry & Claire E. Hunter, "Measuring Judicial Activism on the Supreme Court ofCanada: A Comment on Newfoundland (Treasury Board) v NAPE' (2003) 48 McGill L.J.525. See also Daved Muttart, "Dodging The Issue: Activism in the Supreme Court ofCanada" (2005) 54 U.N.B.L.J. 101 (where the first finding was confirmed, but the secondone was contradicted).26. F.L. Morton, Peter H. Russell & Michael J. Withey, "The Supreme Court's First OneHundred Charter of Rights Decisions: A Statistical Analysis" (1992) 30 Osgoode Hall L.J. 1;James B. Kelly, "The Charter of Rights and Freedoms and the Rebalancing of LiberalConstitutionalism in Canada, 1982-1997" (1999) 37 Osgoode Hall L.J. 625. Songer doesbriefly quote the 1992 article-misspelling the name of one of the authors-but goes nofurther. See Songer, supra note 1 at 161. These articles also demonstrate that the Court doesnot deal differentially with issues covered by the section 33 notwithstanding clause, a pointthat is not discussed in Transformation.27. Songer, ibid. at 159-72.BOOK REVIEWS 609Songer is also uneven in his treatment of other relevant scholarship. He citesH.L.A. Hart's legal positivism but does not mention Ronald Dworkin's contraryanalysis. He quotes Michael Mandel's legalization hypothesis, while omittingAllan Hutchinson's rebuttal.28 The Court's insistence on the accused person'sright to a trial within a reasonable timeframe in R. v. Askov (1990) is cited, butnot its speedy retreat in R. v. Morin (1992).29 Songer fails to mention publishedaccounts by the justices themselves of the decision-making process in the Court.3"While Transformation provides some comparison between the Canadian andAmerican Supreme Courts,3 I would have appreciated a more in-depth com-parison, given that Songer is American. The discussion of attitudinal decision-making studies in Canada and the United States32 is a welcome exception, but,even here, the description of the situation in the United States tends to begeneral: there are no charts of pro-accused, pro-underdog, or pro-governmentrulings by American justices to match those of their Canadian counterparts.Comparisons with other courts of last resort are even more cursory.Transformation would perhaps, therefore, have been strengthened by col-laboration with a Canadian author. For example, the rise in the proportion ofcriminal and civil rights appeals33 was influenced by resources available throughlegal aid and other court-funding programs. A Canadian author would pre-sumably have encouraged Songer to take this issue into account.Lastly, Songer's discussion as to the methodology that he employed is oftencursory. For example, there is a lack of justification as to how cases were chosenor coded.3" Such descriptions are essential for scientific replication. Also, it is28. Allan C. Hutchinson, Waitingfor Coraf A Critique ofLaw and Rights (Toronto: Universityof Toronto Press, 1995).29. R. v. Askov, 11990] 2 S.C.R. 1199; R. v. Morin, 119921 1 S.C.R. 771. See Sanger, supra note1 at 144.30. See e.g. Ian Binnie, "A Survivor's Guide to Advocacy in the Supreme Court of Canada" (1999)18 Advocates Soc. J. 13; Beverley M. McLachlin, "The Charter. A New Role for the Judiciary"(1991) 29 Alta L. Rev. 540; John Sopinka, "Must a Judge be a Monk-Revisited" (1996) 45U.N.B.L.J. 167; Michel Bastarache, "The Role of Academics and Legal Theory in JudicialDecision-Making" (1999) 37 Alta L. Rev. 739; and John C. Major, "Unconscious Parallelism:Constitutional Law in Canada and the United States" (2005) 19 Wash U.J.L. & Pol'y 139.31. See e.g. Songer, supra note 1 at 56, 69-70.32. Ibid. at 173-94.33. Ibid. at 60, 70.34. Ibid. at 67. The discussion of winners and losers is a happy exception (at 90ff).610 12009] 47 OSGOODE HALL LAW JOURNALoften unclear whether the author is relying on previous sources or his interviewswhen discussing the Court's practices or decision-making processes.35In summary, Transformation has several gaps in its argument. However, theinterviews granted by the justices are interesting and illuminating, and unlikelyto be found elsewhere. The analysis of the extent to which the Court's rulings arejudicial, as opposed to political, is lucid, coherent, and enlightening.35. See e.g. ibid. at 121, 132-33.

Book Review: The Transformation of the Supreme Court Of Canada: An Empirical Examination, by Donald R. Songer

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Book Review: The Transformation of the Supreme Court Of Canada: An Empirical Examination, by Donald R. Songer

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