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Abstract
This article examines the voting behavior of justices of the Supreme Court of Canada during two important periods of institutional change: the end of appeals to the Judicial Committee of the Privy Council (JCPC) and the adoption of the Charter of Rights and Freedoms. I argue that these changes affected the justices' voting patterns in systematic ways. My assertion is that the end of appeals to the Judicial Committee of the Privy Council removes a constraint on Supreme Court decision-making, which had led to strategic voting by the justices in the period during which the JCPC could examine and reverse the Supreme Court's decisions. For the Charter of Rights, I assert that its existence as a legal document served as a constraint for conservative justices on the Court in the period immediately following its passage. Drawing on the universe of decisions of the Supreme Court of Canada from 1945 to 2005 in criminal, tax, and tort cases, I use Baum's (Citation1988, Citation1989) method of examining policy change on the Supreme Court over time. I examine judicial votes before and after the Supreme Court becomes a court of last resort in 1949, and before and after passage of the Charter of Rights in 1982. Then, I employ a logistic regression model in the Charter of Rights period and a comparison of Supreme Court of Canada and JCPC voting in the 1949 period. I find support for the assertion that justices will vote strategically when faced with threat of reversal. The Charter of Rights also appears to have a constraining effect. Its mandate as a progressive document appears to have a constraining effect on conservative justices' voting patterns, at least in the short-term following its passage.
Acknowledgment
This research was supported by a grant from the Canadian Studies Research Grant Program.
Notes
1. Although, it should be noted that the province of Quebec has a civil code legal tradition.
2. Some of the natural courts do not correspond to the institutional change years exactly. In those instances, I use a conservative estimate by dividing the natural courts so that the institutional change will always occur in the “pre” institutional change period.
3. A large number of criminal appeals that arrive at the Court by appeal as of right are decided summarily with fewer than five pages devoted to the opinion. Thus, criminal cases where the Court's decision was five pages or less were omitted from the analysis.
4. The data for the 1970–2005 period come from the High Courts Judicial Database (HCJD). The HCJD is a public access database created by Stacia L. Haynie, Reginald S. Sheehan, Donald R. Songer, and C. Neal Tate with the support of grants provided by the Law and Social Science Program of the National Science Foundation (NSF). These data were collected under two grants funded by the National Science Foundation, “Collaborative Research: Fitting More Pieces into the Puzzle of Judicial Behavior: a Multi-Country Database and Program of Research,” SES-9975323; and “Collaborative Research: Extending a Multi-Country Database and Program of Research,” SES-0137349, C. Neal Tate, Donald R. Songer, Stacia Haynie and Reginald S. Sheehan, Principal Investigators. It is available for public use and download at http://sitemason.vanderbilt.edu/site/d5YnT2/data_sets. The data for the 1945–1969 period was supported by funding from the Canadian Embassy's Canadian Studies Research Grant Program, and are part of a larger project, entitled, “An Institutional Perspective to Supreme Court Decision Making in Canada and the United States,” Susan W. Johnson, principal investigator.
5. In the criminal category, the Taschereau, Cartwright and Fauteux courts were combined in order to reach the threshold for minimum number of cases decided. In the tort category, the last Laskin natural court was combined with the Dickson court, and the last Lamer natural court was combined with the McLachlin courts in order to reach the minimum number of cases for inclusion in the analysis. In the tax case category, the last two Laskin natural courts were combined with the Dickson court, and both McLachlin courts were combined with the Lamer courts.
6. Ideally, civil liberties cases would have been analyzed for the Charter of Rights period. However, the number of non-criminal civil liberties cases in the pre-Charter period (1980–1984) was too small for reliable statistical analysis: n=15.
7. Baum (Citation1988, 1989) calculated the percent liberalism in case votes for each justice in period 1 and period 2 separately. He then subtracted the score in period 2 from the score in period 1 producing an adjustment change score for each individual justice. Then, the median of the individual justice changes was calculated to produce an adjustment. The adjustment score was added to the raw score of each judge in period 2 to produce an individual adjustment score for each justice.
8. This analysis also includes only criminal cases where the decision is five pages or greater.
9. Unfortunately, the number of cases in the tort and tax areas are too small for analysis using logistic regression. In tort cases n=166. In tax cases n=101.
10. Further analysis of the gender variable indicated that it was statistically significant, with Justice Wilson voting more liberal in the pre-1984 than the post-1984 period. However, due to lack of variance in the female variable, the logistic regression model overall failed to produce reliable model predictors, even when female was substituted for other ideology variables, such as Quebec or political party, in the model.
11. The aggregate effects over time are included in Appendix A.
12. The actual support scores for each justice are included in Appendix B.
13. The correlation between party of the appointing PM and The Globe and Mail score is 0.092. The mean variance inflation factor (vif) and tolerance values indicate that multicollinearity is not present in the model to a significant degree.
14. The Judicial Committee of the Privy Council (JCPC) data was supported by funding from the Canadian Embassy's Canadian Studies Research Grant Program, and are part of a larger project, entitled, “A Historical Perspective to Supreme Court Decision Making in Canada and the United States,” Susan W. Johnson, principal investigator.
15. See Appendix A.
16. Results available from author.
17. See Appendix A.
18. Results for continuing trends for continuing justices after the immediate post-1949 natural court are available from the author.
19. Results of criminal cases in the 1949 period are available from the author. Unfortunately, analysis of the end of criminal appeals for the 1933 period was not possible. Lyman Duff becomes chief justice in 1933, the same year that criminal appeals to the Privy Council end. Thus, changes in behavior could be due either to changes in leadership or the end of appeals to the JCPC. Further, there was a great deal of turnover in the 1933 period with only four justices serving during both periods. The number of criminal cases in this period did not meet the threshold requirements for analysis, 1925–1933: n = 25.