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Academic

: University of Toronto Law School Faculty Blog

Alarie: Charter Decisions in the McLachlin Era

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Andrew Green and I have just posted a new paper on SSRN in which we analyze 105 Charter decisions of the Supreme Court of Canada. Here's the abstract:

This paper examines how justices on the Supreme Court of Canada voted in Charter appeals between 2000 and 2009. Charter appeals, at least in popular belief (and possibly also in theory), have the greatest potential to reveal voting that is influenced by extra-legal policy preferences. Confining the analysis to the time during which Chief Justice McLachlin has led the Court aids in controlling for the effects of a particular Chief Justice in assessing the roles of ideology and consensus.

Several of the Court's members have exhibited sharply different voting proclivities in s.15 (equality rights) appeals as compared with Charter claims made in the context of criminal law appeals (and, indeed, other Charter appeals). This finding suggests that at least some of the justices on the Court have been influenced by policy preferences on at least some occasions in discrete areas of Charter rights adjudication. On the other hand, it also suggests that judicial policy preferences are richer and significantly more nuanced than can adequately be captured by a simple "right"-"left" or "conservative"-"liberal" characterization of these policy preferences. The paper discusses a number of implications of the analysis and findings.

Here is one of the graphics from the paper, showing estimated ideal points of the justices overall, in equality cases, and in criminal appeals featuring a Charter rights violation. (The ideal point distributions were calculated using the Martin-Quinn method popularized in the study of the policy preferences of the justices of the US Supreme Court):

It is particularly interesting to note that although Justice Major and Chief Justice McLachlin are both in the centre of the distributions when all Charter appeals are considered together, Justice Major is an accidental centrist in that he is quite amenable to finding Charter rights violations in criminal appeals and disinclined to find in favour of claimants in equality rights appeals. Chief Justice McLachlin, on the other hand, is firmly planted in the centre with respect to each of the areas we examined.

Follow the download link at this page to access the full-text in pdf (and to have a look at some more revealing graphics).

Full post as published by University of Toronto Law School Faculty Blog on April 16, 2009 (boomark / email).