by Donald R. Songer. Toronto: University of Toronto Press, 2008. 384pp. Cloth. $70.00/£45.00. ISBN: 9780802096890.
Reviewed by Roy B. Flemming, Department of Political Science, Texas A&M University. Email: roy [at] cs.tamu.edu.
Plus ça change, plus c’est la même chose. Perhaps: but maybe not. In Canada, Donald Songer, after a very detailed empirical investigation of its Supreme Court, finds considerable continuity in how the justices decide and what they decide but also significant change. One reason why Jean-Baptiste Karr’s epigram is not entirely apropos is Canada’s Charter of Rights and Freedoms. Most observers agree that the Charter, beginning in 1984, has rearranged the country’s constitutional landscape. So, it would be surprising if the Supreme Court’s norms, routines, and decisions somehow remained untouched. Another reason, integral to the political reforms leading to the Charter, included Parliament’s 1975 grant of authority to the justices that gave them new and considerable discretion over appeals they would hear. The impact of this reform also seems obvious enough: changing how justices decide to decide should produce a new agenda and new priorities. Finally, the simple political routine of replacing justices on the bench could alter the dynamics of the court.
With the largest and most complete empirical dataset available on the Canada’s court, the “High Courts Judicial Database,” Songer analyzed nearly 3500 decisions for the years 1970-2003 or roughly 100 cases per year. This unusually hefty resource helped him to nail down patterns and to empirically verify previous observations based on more limited information. In addition, Songer interviewed ten current or retired justices and four former clerks to the justices. (The book includes the protocols used in the interviews.) Songer’s aim is to explore changes in multiple indicators of outcomes and processes of the Court within the context of current research.
While Songer’s chief goal is to chart the various ways in which Canada’s high court has been transformed, his book has other purposes. Special attention is paid to introducing readers who are unfamiliar with the Supreme Court to how it works and to political science models of judicial voting behavior. For more knowledgeable readers the book elaborates on findings from earlier research that limned the contours of judicial behavior in Canada (e.g., McCormick 2000; Greene, et al. 1998). At times, these goals get in the way of one another; technical issues are sometimes slighted even as descriptions about the court and summaries or critiques of prior research accumulate. In the end, a veritable forest of findings and a thick undergrowth of commentary take root. This is a tree-top overview of the forest with an eye toward basic trends in the Canadian Supreme Court over the past three or more decades. [*381]
When the justices gained discretion to pick and choose cases they wanted to hear, many civil and criminal appellants lost their automatic right of appeal, and the effect on the Court’s docket was dramatic. Songer cites McCormick (2000) that before 1975 nearly 85 percent of the Court’s caseload was due to appeals as of right while leave to appeal petitioners accounted for the other 15 percent. Shortly afterward, the proportions were reversed. (A subsequent law in the late nineties made the Court’s docket almost entirely discretionary.) Justices, when asked by Songer, emphasized their interest in reviewing questions of “public importance” that would develop the law rather than merely correct lower court errors. The Charter naturally seems to have egged on this shift in judicial priorities. As a consequence of both interventions in the Court’s jurisdiction, private disputes diminished in importance as public law matters replaced them.
Songer’s comparisons of the docket shares of cases for various kinds of issues pretty much confirm casual and more systematic observations. Canada’s justices, given the latitude by Parliament to hear cases that piqued their interest along with the opportunities the Charter created for developing the law, granted leave to appeal to petitioners whose cases raised general public policy questions that were not mired in factual or narrow legal squabbles of concern only to the immediate parties. Tracing the mix of issues in cases heard by a high court over time, however, catches only the end result of the underlying processes that shape a court’s agenda. In this instance, Songer assumes the Charter changed the selection criteria used by the justices as they culled requests for leave to appeal; those involving the Charter presumably stood a better chance of being reviewed that those that did not.
This assumption at least for the years 1993-1995 received no support (although the “public importance” criterion and related indicators did) which suggests the Supreme Court Act of 1975 had more influence on the agenda-setting process than the Charter (Flemming 2004). This does not mean appeals involving the Charter failed to make it to the Court’s docket; only that petitions for leave to appeal that included a Charter claim were not automatically granted. It is possible the justices gave these petitions greater weight immediately after the Charter took effect but over time have discounted the importance of Charter claims. The Court’s Bulletin of Proceedings includes basic information about leave petitions from 1975 to the present that could be used to see if the odds that applications for leave with Charter issues have decayed over time.
With the transformation of the Court’s agenda, the outcomes of appeals heard by the Court might also change. One measure of these outcomes deals with challenges by appellants to statutes or executive actions based on constitutional grounds. The Charter encouraged these challenges, and Songer shows that they became more frequent after it went into effect. Since then, cases raising constitutional issues make up about a third of the Supreme Court’s docket. From the perspective of the overall docket, these challenges are rarely successful and only marginally increased after the Charter; the justices strike down [*382] a small fraction of federal or provincial laws on constitutional grounds. Looking at just those cases with Charter claims, appellants win about 40 percent of the time; good enough perhaps to gamble on an appeal to the high court, but also far from being a lead-pipe cinch. A second indicator, the flip side of the first measure, shows that in the aggregate government parties usually win in Canada’s high court, and Songer’s data reveal no changes in the success rates of governments because of the Charter. Finally, a third measure indicates the Court is no more or less liberal than it has been in the past. The trend in “liberal outcomes,” defined, for example, in terms of whether underdogs win or civil liberties are expanded, merely fluctuates around its historic mean. While it appears that continuity has carried the day, a word of caution is warranted.
Songer generally relies on “ocular tests” rather than time-series models to assess whether trends are stationary or not and the impact of the Charter or other exogenous events on these trends; this places a premium on whether we can trust what we see. For instance, to the naked eye it looks like the Charter reduced the rate of liberal decisions, but without more rigorous tests it is hard to tell. Another limitation is that the thirty-four years in the study are collapsed into five periods corresponding to before the 1975 agenda reform, after the reform, and then, beginning with 1984 when the Charter took effect, three periods roughly coinciding with the tenure of three chief justices. The rationale for these three categories is hazy as leadership is a minor and relatively undeveloped theme in the book. Indeed, “natural courts” would seem a better alternative if not a complementary option considering the significance of new appointments to the bench and that an entire chapter is devoted to the “changing profile” of justices on the bench. Be that as it may, another stumbling block besides the loss of valuable information is the absence of statistical tests of differences in the measures across the time periods, leaving judgments about movements or changes in the indicators more impressionistic than they need to be.
Although general trends suggest the Charter had a limited effect on the outcomes of cases heard by the court, more subtle shifts at the micro-level affecting the relative advantage of parties may have occurred. Using the “index of net advantage” as a proxy for the status or resources of parties (individuals, business, associations, local and provincial governments, federal government), which is consistent with McCormick’s (1993) earlier study of the court, Songer calculates the indices for various categories of parties and compares their success rates. His strongest test of the Charter’s impact rests on a before-and-after comparison of the coefficients for the parties from a logistic regression model where the dependent variable is whether the appellant won and with criminal cases as a control variable.
Continuity, once more, reigns with one important exception. Associations, when appealing lower court rulings, seem to have lost their clout in the post-Charter period. This is contrary, as Songer points out, to the “Court Party” thesis promoted by Morton and Knopff (2000) who argued the Charter encouraged groups to seek out the [*383] Supreme Court as a venue to gain new policy ground for their interests or to solidify them. Otherwise, the Charter had little impact on the success of other categories of parties. Individuals, however, were the benchmark category for this model. Songer therefore prepares two separate logistic regression models, one for criminal cases and one for civil cases, with the Charter as one of the independent variables; the dependent variable is whether individual parties won or lost. The Charter apparently produced two different effects: it increased the chances that individuals won their criminal cases but reduced their chances in civil disputes. The first result makes sense, but the latter finding is counter-intuitive, and Songer provides no explanation for it. In general, the findings are mixed with respect to who wins, with the weight of the evidence suggesting the Charter only marginally disturbed the Supreme Court’s decision patterns.
If the Charter has not changed very much who wins in Canada, perhaps it altered the justices’ working relationships. The Charter presents knotty problems of interpretation that could make deliberations more contentious; underlying divisions may surface and broaden or sharpen cleavages between the justices. Even in the face of political controversy over their decisions, this has not occurred; if anything, the Charter has blurred at least traditional cleavages among the justices.
Although dissents occur relatively infrequently in Canada, when disagreements arose in the past, before the Charter, the justices clustered according to ideology and background. These clusters reflected three variables: the party of the prime minister who appointed the justices, whether the justices came from Quebec or Ontario, and if they were Catholic or not. In the years following the Charter, Songer’s logistic regressions suggest, these factors lost their statistical significance in civil liberties and private economic disputes, but not in criminal cases.
Songer claims the changed profile of the justices offers an explanation. In non-criminal cases, a justice’s gender now trumps the traditional factors and has replaced them, while for criminal cases it joins the other factors in explaining divisions on the bench. Thus, dissents in civil liberties and private economic questions stem from differences in how female and male justices vote and not whether they were Liberal or Conservative appointments. This change stems from changes in the political priorities regarding the appointment of female judges, although the prime ministers and the justice ministers involved probably did not anticipate how their choices would affect the decisional dynamics on the Supreme Court. At the same time, it is not clear how the advent of the Charter figures into this new scheme of things.
Canada’s Supreme Court is the mirror image of the U.S. Supreme Court in that Canadian justices typically agree with one another and are more likely to affirm lower court decisions than reverse them. Unanimity remains a vibrant, effective norm that governs how Canada’s jurists go about the business of judging: three-quarters of the time the justices agree on judgments in cases, concurrences are few and far between (for thirty-four years the proportion of cases without concurrences averages nearly 87 percent), [*384] and minimum winning coalitions occur only in one out of ten cases. Fluctuations occur from year to year but with little visual evidence of upward or downward trends, much less of breaks in the trends after the Charter. The persistence of unanimity in Canada thus becomes a puzzle, certainly for American observers. Equally puzzling, when compared to the United States, is Canada’s high rate of affirming lower court decisions, which, despite ups and downs, also appears relatively constant over time. In perhaps the most intriguing discussion of his book, Songer tackles the thorny problem of unanimity by building on Glendon Schubert’s spatial version of the attitudinal model.
The basic argument is that unanimous votes occur according to how the ideological diversity of the panel or coram hearing the appeal maps onto the ideological space occupied by the lower court judges. This argument generates several testable hypotheses, some intriguing results, but often dense discussions that are not helped by mislabeled columns in two of the tables. The key indicator is a variant of one kind or another of ideological diversity; the attitudinal model, however, regardless of how diversity is measured is found wanting and apparently is time-bound.
Songer points to “strong evidence” to support his conclusion that decisions to vote unanimously “are not solely ideologically driven” (p.228), but this applies only to the post-Charter years. Since the Charter, ideological diversity has declined in significance as unanimity became unmoored from judicial ideology even as the statistical relationships between unanimous votes and the political salience of cases – i.e., the presence of a constitutional issue, whether the cases involved statutory interpretation, and if they attracted interveners – have grown stronger. Canada’s justices are more likely to cast dissenting votes when the environment surrounding cases gets more divisive. It remains as a mystery, however, why the Charter muted judicial ideologies in the Court’s deliberations, if it did, even as it seems to have raised the importance of political cues in the justices’ voting decisions.
When things vary, do they also change? Sometimes: but not always. Songer focuses on the who, the what, and the how of decisions in roughly 3500 appeals heard over more than thirty years by Canada’s Supreme Court. His data and interviews limit him to this internal perspective, and given the amount of information at his disposal he had his hands full. The dynamics of decision making on Canada’s high court appear unexpectedly resilient and mostly unchanged, even while the statutory and constitutional contents of its judgments have been transformed by politics and history. The larger picture is that the role of the Supreme Court within Canada’s Westminster parliamentary system has been transformed even as the court persists in its traditional and customary ways of disposing of appeals. The dynamics of this transformation are beyond the reach of Songer’s book, even though he recognizes it, and thus he does not participate in or contribute to the debate over the “dialogic” relationship between the court, parliament, and provincial governments (Hogg, Thornton, and Wright 2007). And yet it appears that it is the role of the Court that has changed most. [*385]
Flemming, Roy B. 2004. TOURNAMENT OF APPEALS: GRANTING JUDICIAL REVIEW IN CANADA. Vancouver, BC: UBC Press.
Greene, Ian, Carl Baar, Peter McCormick, George Szablowski, and Martin Thomas. 1998. FINAL APPEAL: DECISION-MAKING IN CANADIAN COURTS OF APPEAL. Toronto: James Lorimer & Company, Inc.
McCormick, Peter. 2000. SUPREME AT LAST: THE EVOLUTION OF THE SUPREME COURT OF CANADA. Toronto: James Lorimer & Company, Inc.
McCormick, Peter. 1993. “Party Capability Theory and Appellate Success in the Supreme Court of Canada.” 26 CANADIAN JOURNAL OF POLITICAL SCIENCE 523-540.
Morton, F. L., and Rainer Knopff. 2000. THE CHARTER REVOLUTION AND THE COURT PARTY. Peterborough, ONT: Broadview Press Ltd.
Hoggs, Peter W., Alliason A. Bushell Thornton, and Wade K. Wright. 2007. “Charter Dialogue Revisited – Or ‘Much Ado About Metaphors’” 45 OSGOODE HALL LAW JOURNAL 1-65.
© Copyright 2009 by the author, Roy B. Flemming.