CANADIAN SUPREME COURT DECISION-MAKING, : INSTITUTIONAL,GROUP,AND INDIVIDUAL LEVEL PERSPECTIVES DISSERTATION

Transcription

1 3 v Yi W& *14 CANADIAN SUPREME COURT DECISION-MAKING, : INSTITUTIONAL,GROUP,AND INDIVIDUAL LEVEL PERSPECTIVES DISSERTATION Presented t the Graduate Cuncil f the University f Nrth Texas in Partial Fulfillment f the Requirements Fr the Degree f DOCTOR OF PHILOSOPHY By Panu Sittiwng, B.A., M.A. Dentn, Texas May, 1994

2 3 v Yi W& *14 CANADIAN SUPREME COURT DECISION-MAKING, : INSTITUTIONAL,GROUP,AND INDIVIDUAL LEVEL PERSPECTIVES DISSERTATION Presented t the Graduate Cuncil f the University f Nrth Texas in Partial Fulfillment f the Requirements Fr the Degree f DOCTOR OF PHILOSOPHY By Panu Sittiwng, B.A., M.A. Dentn, Texas May, 1994

3 Sittiwng, Panu, Canadian Supreme Curt Decisin-Making, : Institutinal, Grup, and Individual Level Perspectives. Dctr f Philsphy (Plitical Science), May, 1994, 203 pp., 23 tables, 42 illustratins, bibligraphy, 87 titles. Since its creatin in 1875, the Canadian Supreme Curt has undergne several institutinal transitins. These transitins have changed the rle f the Curt tward a mre explicit and influencial plicy making rle in the cuntry. Despite this increasingly significant rle, very limited attentin has been given t the Curt. With this perspective in mind, this study presents several analyses n the decisin making prcess f the Canadian Supreme Curt. At the institutinal level, the study fund that within the stable wrklad, the cases cmpsitin has shifted away frm private law t public law cases. This shift is mre significant when ne cncentrates n appeals invlving cnstitutinal and rights cases. The study fund that this changing pattern f the Curt's decisin making was a result f the institutinal changes shaping the Supreme Curt. Statistically, the ablitin f rights t appeal in civil cases in 1975 was fund t be the mst imprtant surce f the wrklad change. Anther institutinal behavir that was analyzed was cnflict in decisinmaking. It was fund that the variatin in the rate f dissensus in the Curt's decisin making can be explained by the leadership f the chief justice. Finally,

4 the study fund that the level f liberalism in the Curt varied frm ne natural curt t anther. These differences, amng ther things, may be the result f shifts in individual justice's idelgies in each natural curt. This hypthesis was partly cnfirmed in the analyses based n the grup level. The results f the multidimensinal scaling analysis suggest that mre ften than nt, the vting blcs were partially structured and explainable by either liberal r cnservative idelgical dimensins. In the final analysis chapter, the study expanded the previus research t test the time bund nature f the persnal attributes mdels in explainig justices' liberalism in vting behavir. The results were mixed. While the mdels were successful in explainig the variatin in the liberalism scres fr justices wh served in the Curt during , the same mdels did nt succeed r nly partially succeeded in explaining the variatin fr justices wh served during

5 TABLE OF CONTENTS Page LIST OF TABLES LIST OF ILLUSTRATIONS. iv vi Chapter 1. THE CANADIAN SUPREME COURT AND ITS DECISION MAKING 1 The Canadian Supreme Curt in Transitin: A Shrt Histrical Review The Significance f Histrical Changes fr the Canadian Supreme Curt's Plitical Rle Appraches t Decisin Making in judicial Research Purpse and Outline f the Study 2. INSTITUTIONAL LEVEL PERSPECTIVE 24 Review f the Literature and Research Design Data Cllectin an Missing Cases Size and Surces f Caselad Cmpsitin f Caselad Cnflict in Decisin Making Plicy Directin in Decisin Making 3. GROUP LEVEL PERSPECTIVE 102 Research Design Vting Calitins in the Canadian Supreme Curt 4. EXPLAINING INDIVIDUAL JUSTICE'S DECISION MAKING. 143 Structure f Canadian Persnal Attributes Mdel Research Design Methds and Findings 111

6 5. CONCLUSION 173 APPEXDIX 181 BIBLIOGRAPHY 196 IV

7 LIST OF TABLES Table Page 2.1 Ttal Cases Reprted by the Canadian Supreme Curt, Original Surce f Cases Appealed t the Canadian Supreme Curt, Ttal Number f Cases Reprted in Each Legal Issue in the Canadian Supreme Curt, Number f Public and Private Issues in the Canadian Supreme Curt, ARIMA Mdel f Changes in the Pattern f the Canadian Supreme Curt Scpe f Rule Adjudicatin, Types f Legal Issues Brught t the Supreme Curt Mst Frequently Number f Cnstitutinal/Rights Cases in The Canadian Supreme Curt, ARIMA Mdel f Changes in the Rati f Cnstitutinal and Rights Cases in the Canadian Supreme Curt, Number f Cases Reprted and Nn Unanimus Decisins in the Canadian Supreme Curt, ARIMA Mdel Fr Leadership and Dissensus in the Canadian Supreme Curt, Sample Re-Cding f Peck-Russell Data int the Three Categries Number f Cases in Each Case Type Categry in the Canadian Supreme Curt, Number f Cases Types and Case Outcmes in Each Natural Curt Statistical Tests f Means Differences in Liberalism in Unanimus and Nnunanimus Decisin Liberalism Scres fr Each Individual Justices f the Canadian Supreme Curt Ill 3.2 Vting Agreement Index in the Canadian Supreme Curt, Prvincial Representatin f the Canadian Supreme Curt Justices Appinted Prime Minister and Number f Their Appintees. 155

8 4.3 Operatinalizatin f Persnal Attribute Factrs OLS Estimatin fr Individual Claims and Ecnmic Claims Mdel fr Justices Wh Served During 1949 t OLS Estimatin fr Individual Claims and Ecnmic Claims Mdel fr Justices Wh Served During 1875 t OLS Estimatin fr Individual Claims and Ecnmic Claims Mdel fr All Justices Descriptive Statistics Fr Liberalism Scres 166 VI

9 LIST OF ILLUSTRATIONS Figure Page 2.1 Number f The Canadian Supreme Curt's Cases Reprted, Majr Surces f Canadian Supreme Curt Decisin by Decade Surces f Canadian Supreme Curt Decisin by Principle Regin 2.4 Number f Public Law and Private Law Issues, Percentages f Public Law Issues, Number and Percentages f Cnstitutins and Rights Cases 2.7 Percentages f Cnstitutinal and Rights Cases, Level f Dissensus in the Canadian Supreme Curt, Level f Dissensus in the Canadian Supreme Curt, Percentages f Cases Types Mix in Canadian Supreme Curt, Percentages f Liberalism in Each Natural Curt, Percentages f Liberalism in Individual Claims Cases in Each Natural Curt, Percentages f Liberalism in Ecnmic Cases in Each Natural Curt, Percentages f Liberalism in Fiscal Claims Cases in Each Natural Curt, Multidimensinal Scales Slutin fr Natural Curt Multidimensinal Scales Slutin fr Natural Curt Multidimensinal Scales Slutin fr Natural Curt Multidimensinal Scales Slutin fr Natural Curt Multidimensinal Scales Slutin fr Natural Curt Multidimensinal Scales Slutin fr Natural Curt Multidimensinal Scales Slutin fr Natural Curt Multidimensinal Scales Slutin fr Natural Curt Multidimensinal Scales Slutin fr Natural Curt Multidimensinal Scales Slutin fr Natural Curt Multidimensinal Scales Slutin fr Natural Curt Multidimensinal Scales Slutin fr Natural Curt Multidimensinal Scales Slutin fr Natural Curt Multidimensinal Scales Slutin fr Natural Curt Vll

10 3.15 Multidimensinal Scales Slutin fr Natural Curt Multidimensinal Scales Slutin fr Natural Curt Multidimensinal Scales Slutin fr Natural Curt Multidimensinal Scales Slutin fr Natural Curt Multidimensinal Scales Slutin fr Natural Curt Multidimensinal Scales Slutin fr Natural Curt Multidimensinal Scales Slutin fr Natural Curt Multidimensinal Scales Slutin fr Natural Curt Multidimensinal Scales Slutin fr Natural Curt Multidimensinal Scales Slutin fr Natural Curt Multidimensinal Scales Slutin fr Natural Curt Multidimensinal Scales Slutin fr Natural Curt Multidimensinal Scales Slutin fr Natural Curt Bx Plts f Justices Liberalism Scres 167 vm

11 CHAPTER 1 THE CANADIAN SUPREME COURT AND ITS DECISION MAKING Since 1949, when the right t appeal t the British Privy Cuncil was ablished, the Canadian Supreme Curt has undergne institutinal transitins. These transitins have changed the rle f the Curt frm an essentially "adjudicatry rle" tward a mre explicit and influencial plicy making rle in the Canadian regime (Mrtn 1986, 3). The new cnstitutin (The Charter f Rights) f 1982 helped t strengthen this new fund rle f the Curt. Despite this increasingly significant rle f the Supreme Curt, very limited attentin has been given t it, even amng schlars f Canadian rigin, when cmpared t the U.S. Supreme Curt. 1 The lack f attentin reflected the Curt's strict interpretatin f its duty as a mere interpretatr and discverer f the law, as well as the limited cnstitutinal rle the Curt was expected t play (Sittiwng 1985, 8-9). Thse wh did study the Curt, n the ther hand, argued that the Canadian Supreme Curt had a cnsiderable functinal significance in Canadian plitics. In deciding a dispute, justices f the Supreme Curt, frm time t time, were required t exercise cnsiderable discretin, regardless f hw they chse t define their pitical functin (see Cheffin, 1966 and Futs, 1969 in particular). Thrugh a review f sme "highlight" decisins, 1

12 2 Sittiwng prvides evidence f this functinal significance and the exercise f discretin (1985, 11-12). Given the increasing imprtance f the Canadian Supreme Curt, it is apprpriate that this dissertatin analyze its decisin making. At a minimum, it hpes t make a cntributin t the rejuvenatin f the Canadian judicial behavir study traditin, which virtually disappeared during the 1970's. Secnd, it hpes t prvide an analysis which will cntribute t the understanding f the transfrmatin f the Canadian judiciary that is nw ccurring. Canadian Supreme Curt in Transitin: A Shrt Histrical Review The Canadian Supreme Curt is a relatively yung institutin. It was established in 1875, under the grant f pwer given t the Canadian Parliament by the British Nrth American Act f During its early perid the Supreme Curt was nt the final curt f appeal fr Canada. That bdy was the Judicial Cmmittee f the Privy Cuncil in England. The final appeal t the Privy cuncil was ablished in 1949 by the amenment t sectin 1024(4) f the Criminal Cde, and the Supreme Curt became the final curt f appeal. The establishment f the Supreme Curt was nt withut difficulty. It ccurred eight years after the intrductin f the British Nrth America Act, and six years after the first Supreme Curt Act was intrduced t the Huse f

13 Cmmns. The stry f its establishment gives us sme insight int the factrs that have shaped Canadian Supreme Curt plitics frm that day t this. The first bill was intrduced n May 21, 1869 by Sir Jhn Macdnald. Accrding t his prpsal the Supreme Curt was t be cmpsed f ne Chief Justice and six Judges wh were t hld ffice n 'gd behavir and be remvable nly upn the address f the Senate and Huse f Cmmns.... [Its intentin was t establish] the Dminin's highest Curt, but was nt t be cnsidered as ding away with the right f appeal t the Judicial Cmmittee f the Privy Cuncil in England. (MacKinnn 1946, 259). 3 The Parliament did nt take any actin cncerning the bill, instead cpies f it were sent t the judges thrughut the cuntry fr their pinins (Mackinnn 1946, 259). On March 18, 1870 the new bill was intrduced. This bill, hwever, was withdrawn n May 11. The main reasns fr this abandnment were the questin f representatin n the curt f each prvince, and the jurisdictin f the new curt. This bill did nt cntain a prvisin fr the representatin f each prvince. It was understd that the Chief Justice and six judges were t be chsen as far as pssible in a representative manner frm the benches and bars f the varius prvinces, with tw judges frm Quebec (MacKinnn 1946, ). Cncerning its jurisdictin, the bill gave vast pwer t the Supreme Curt, including pwer ver prvincial law matters. This tuched ff the strngest

14 reactin against the new curt. The critics' basic cntentin was that decisins dealing with Quebec's Civil Cde rendered by prvincial judges wh had been trained and had practiced in that legal system ught nt t be reviewed by a curt f appeal which has nly a minrity wh knw such law. They pinted ut that "[it] wuld be that thse same laws wuld be explained by men wh wuld nt understand them, and wh wuld, invluntarily perhaps, graft English jurisprudence upn a French Cde f Laws" (Russell 1970, 7). Their classical example was that The Quebec suitr wh wn his case befre the Superir Curt, the Curt f Review and the Curt f Queen's Bench in Quebec nly t lse, three t tw, befre the Supreme Curt f Canada might, in such a situatin, lse his case when 11 judges had been in his favur and nly three against him (MacKinnn 1946, 262). After his withdrawal f the 1870 bill, Macdnald planned t intrduce a third bill in 1873, but was prevented by his plitical defeat in that year. It tk five years fr the third bill t be intrduced. In 1875 the Hnurable Telesphre Furnier, Minister f Justice in the Lawrence Mackenzie Gvernment, intrduced a bill fr the establishment f a Supreme Curt, and a Curt f Exchequer fr the Dminin f Canada. This bill was passed n April 8, 1875 by a vte f 112 t 40. This marked the beginning f the Canadian Supreme Curt. Accrding t this bill, the Curt's principal functin was t serve as a final appellate tribunal with brad pwers f review ver the prvincial curts 4

15 5 decisins. The Curt was cmpsed f six judges, including a Chief Justice. Amng them tw judges wuld be appinted frm the benches and bar f Quebec. Despite the earlier bjectin cncerning the cmpsitin f the Supreme Curt, the Supreme Curt Acts did nt reslve the Quebec case being heard by a minrity f the Quebec judges. Hence the Curt was put in the psitin where its authrity was nt acceptable by all grups in the cuntry. Even thugh the 1875 Supreme Curt Act established the Curts as a final curt f appeal, it did nt ablish the right t appeal t the Privy Cuncil. The interpretatin f sectin 47 f the Act is that n appeals wuld lie frm the Canadian Supream Curt, t any Curt f appellate jurisdictin in the United Kingdm.... [Hwever,] Privy Cuncil... was nt a curt but an advisry bard t the mnarch and therefre did nt fall within sectin 47 f the act.... [Thus, it retained a right t hear appeals] (Editr. Osgde Hall Law Jurnal 1964, 171). Cncerning the Curt's status when it was first established, MacKinnn pinted ut that Frm the beginning the "supremacy" f the Supreme Curt was vershadwed by the right f appeal t the Privy Cuncil.... Althugh the right f appeal directly frm the Curt t the Privy Cuncil was t be limited, it remained in the case f judgements f the curts f last resrt in the prvinces...[there were tw] ptins f preceeding either t the Supreme Curt r directly t the Privy Cuncil. The Supreme Curt was therefre "supreme" nly in cases which were taken t it, and even then its "supremacy" was subject t the ryal prergative.... Hence the authrity f the Supreme Curt wuld be final nly in relatively unimprtant cases (1946, 262).

16 6 On Octber 8, 1875 the first Chief Justice, Sir William Buell Richards, was swrn in and the ther five judges, Sir William Jhnstne Ritchie, Sir Samuel Henry Strng, the Hnurable Telephre Furnier, the Hnurable Jean Thmas Tashereau, and the Hnurable William Alexander Henry, were swrn in n Nvember 8, The Supreme Curt cnvened fr its first sessin n January 17, Hwever, they did nt hear an appeal until June 5, 1876 in Taylr vs. The Queen (Laskin 1975, 462-3). In its first decade f existence, the Supreme Curt was attacked by several grups. The lines f criticism revlved arund the questins unreslved prir t its establishment. The first grup f critics argued that the establishment f the Supreme Curt under the subrdinatin t the Privy Cuncil did nt serve the purpse f sectin 101 f the B.N.A. Acts, that is, t establish additinal curts fr the better administratin f the laws f Canada. They felt that the Supreme Curt was simply an additinal step thrugh which the parties t the disputes wuld have t g befre appeal t the Privy Cuncil (Russell 1970, 16). The secnd line f criticism - that the Supreme Curt weakened and devalued the tp Prvincial Curts - was launched primarily by the Ontarians and Quebeckers. The Maritimes and Western prvinces did nt jin in the attack because neither f them had established specialized curts f appeal. Thus they were "inclined t welcme the curt as a better accessible and less expensive alternative t the Privy Cuncil" (Russell 1970, 18). The Ontarians

17 7 and Quebeckers, n the ther hand, had recently established their appellate curts, and saw the Supreme Curt as inapprpriately degrading them. These tw grups, hwever, based their critiques n different factrs. The Quebeckers emphasized the distinctin between cmmn law and civil law. The cmplained that their civil law ught nt t be interpreted by a curt whse members were predminantly trained in and had practiced cmmn law. The Ontari critics, n the ther hand, were cncerned mainly that, n the whle, the Supreme Curt members wuld be far less qualified when cmpared t the judges f the Ontari Curt f Appeals 2 (Russell 1970, 18). They lacked cnfidence in the Supreme Curt justices wh were appinted frm prvinces ther than Ontari. A serius attack n the Supreme Curt came in 1879 when Mr. Jseph Keeler, the member f Parliament frm Nrthumberland East, Ontari, intrduced a bill t the Parliament f Canada t ablish the Curt. Frtunately, mst f the members f the Parliament did nt seriusly cnsider the matter. They "treated the intrductin f this bill as a practical jke and the first reading ended in a debate n prcedure" (Mackinnn 1946, 269). Hwever, this did nt prevent Mr. Keeler's secnd effrt. On Febuary 19, 1880 a secnd bill with the same purpse was intrduced. MacKinnn described the Parliament actin: This time a lively debate tk place n the merits and weaknesses f the Curt. The critics decried the expense t the taxpayers f maintaining the curt; sme declared that the cst t the litigants in

18 appearing befre it barred the pr frm justice.... The pssibility f the invasin f prvincial rights was cntinually brught up. Plitical influence was als charged, fr sme branded the Curt as a refuge fr the plitical supprters f the late administratin (1946, ). With supprt frm bth Gvernment and ppsitin, the Supreme Curt survived the serius attack. "The gvernment tk nte f the criticism and annunced its intentin f meeting the bjectins which were raised. The bill then received six mnths hist by the vte f 148 t 29" (Mackinnn 1946, 271). This marked the end f the effrts t ablish the Supreme Curt. Tward the turn f the century, the Canadian public, bth French-speakers and English-speakers, started t realize and understand the necessity fr the tw legal cultures t c-exist side by side. This helped the Supreme Curt gain mre cnfidence frm the Canadian public. Hwever, ne majr prblem was still left unslved, the Curt's subrdinatin t the Privy Cuncil. The effrt t ablish the right t appeal t the Privy Cuncil was nt smething new in Canadian legal develpment. It had been current amng Canadian leaders since the Supreme Curt had been first established. Hwever, this effrt did nt succeed until seventy fur years later, in Canadian schlars, bth histrians and plitical scientists, agreed that the majr event which paved the way fr the ablitin f the right t appeal t Privy Cuncil was the Statute f Westminster (1931). By virtue f this Statute

19 certain fetters that affected the legislative cmpetence f Canada [were remved]. With these fetters remved, the prvisins f the B.N.A. Act f 1867 had full effect t invest in the Parliament f Canada a cmplete legislative authrity thrughut the Dminin (Editr. Osgde Hall Law Jurnal 1964, ). In 1933 Parliament passed an amendment t sectin 1024(4) f the Criminal Cde. Accrding t this amendment, "n appeal shall be brught in any criminal case frm a judgement r rder f any curt in Canada t his Majesty in Cuncil." (Editr. Osgde Hall Law Jurnal 1964, ). The Privy Cuncil cnfirmed these tw laws in the case f British Cal Crpratin vs. The King (1935). They held that "since the passing f the Statute f Westminster, the limitatins f the Clnial Laws Validity Act were abrgated and the Dminin was cmpetent t limit appeals n criminal matters t the Supreme Curt f Canada" (Editr. Osgde Hall Law Jurnal 1964, 172). Furteen years later, the Supreme Curt Act was amended t make the Supreme Curt the final appellate curt fr all Canada. On Octber 9, 1950, the Curt held a special sessin "t inaugurate the new status f the Supreme Curt f Canada" (Laskin 1975, 463). Tgether with the Curt's new status, the size f the Supreme Curt was increased t nine judges, with three judges t cme frm Quebec. The next imprtant change in the Supreme Curt ccured in 1975, when there was a change in the Curt's jurisdictin. Parliament passed a bill t ablish the right t appeal in civil cases invlving $10,000 r mre. This

20 actin was an effrt t establish a dual legal system in Canada (Russell 1980, 9). As a cnsequence, Russell argued that it will likely shift the Supreme Curt's rle t ne which is principally cncerned with the interpretatin f federal statutes and the adjudicatin f citizen claims against federal administrative rgans (Russell 1982, 10). The final significant structural change, certainly a majr ne, ccurred in The Cnstitutinal amendments f 1982 finally established the Supreme Curt as an institutin f the Cnstitutin rather than f the parliament. Accrding t Sectin 41(d) f Cnstitutin Act f 1982, the Supreme Curt statutry cmpsitin f nine judges, with three frm Quebec, may nt be changed withut the unanimus cnsent f the Federal gverment and all the prvinces. In additin. Sectin 42 prtects the Supreme Curt frm any ther changes by statutry acts. This prvisin dictates that any ther change t the Supreme Curt must be accmplished thrugh the prcess f cnstitutinal amendment. 10 The Significance f Histrical Changes fr the Canadian Supreme Curt 's Plitical Rle All the changes utlined abve have significantly altered the rle f the Canadian Supreme Curt in the plitics f the cuntry. At its creatin, the Canadian Supreme Curt was supreme nly in its name. The ability f the parties f the dispute t appeal t the Privy Cuncil in England undermined its

21 11 rle in public plicy making in the cuntry. In additin, via the per saltern appeal, prvincial gvernments culd appeal frm the decisins f the prvincial appeal curts directly t the Privy Cuncil, and avid the Supreme Curt altgether (Mrtn 86, 2). The lng subrdinatin t the Judicial Cmmittee f the Privy Cuncil led t tw majr cnsequences. First, the justices cnceived f themselves as legal psitivists, a discverers f law as a fixed bdy f principles, whse rle is nly t discver and interpret the law. 3 A mst dramatic example f this view is fund in a 1936 pinin by Justice Cannn ppsing Dminin scial legislatin (Reference re The weekly Rest in Industrial Under-Takings Act, The Minimum Wages Act, and The Limitatin f Hurs f Wrk Act (1936)). When an act f parliament is challenged befre this curt as uncnstitutinal, ur duty is t lay the article f the cnstitutin which is invked beside the statute which is challenged and decide whether the latter squares with the frmer. Our nly pwer is t annunce ur cnsidered judgement upn the questin. This curt neither apprves nr cndemns any legislative plicy. Our delicate and dificult ffice is t ascertain and declare whether the legislatin is in accrdance with r cntraventin f the prvisins f the cnstitutin. Having dne s, ur duty ends (Supreme Curt Reprts 1936, 513). 4 The secnd cnsequence was their alleged rigrus adherence t the dctrine f "stare decisis." The late Chief Justice Bra Laskin, as a law prfessr, pinted ut that: At a minimum, "Stare Decisis" meant that the Supreme Curt... cnsidered itself bund by the decisins f the highest curt f appeal, the Privy Cuncil... [wh] cnsidered itself bund by the decisin

22 12 f the huse f Lrds, the United Kingdm's ultimate appeal curt. This fact cmpelled the Canadian Curts, either by frce f lgic r traditin, t cnsider themselves bund t fllw the decisins f the Huse f Lrds and f English curts f higher r c-rdinate jurisdictin (Laskin 1951, ). All the changes utlined abve helped the Supreme Curt t gradually transfrm its rle t a mre plitically active ne. The ablitin f the rights t appeal t the Privy Cuncil especially helped t increase the Supreme Curt's prestige by making it the "final and exclusive" curt f appeal fr Canada. The ablitin f appeals by right in civil cases with a value ver $10,000 cntributed t the autnmy and freedm f the Curt t select and cntrl its wn dcket. It allwed the Curt t pick and chse cases which raise significantly imprtant questins f law and plicy. This idea was reflected in then Chief Justice Laskin's cmment that this change cnfirmed "the Curt's status as Canada's ultimate appellate curt" (1975, 474), by altering the functin f the Supreme Curt frm that f "traditinal appellate review" t that f "supervisry cntrl." Supervisry cntrl means "t versee the develpment f the law in the curts f Canada, t give guidance... t the prvincial cuts... n issues f natinal cncern" (Laskin 1975, 474). This change has dramatically changed the cmpsitin f the Supreme Curt's caselad. Fr example, I shall shw that while prir t 1975 a majrity f cases in the Supreme Curt came t the Curts as f right, this

23 13 pattern was reversed in the pst-1975 perid. 5 A full discussin f the Supreme Curt's case lad will be presented in a later chapter. The plitical rles f the Supreme Curt were bradened further with the 1982 amendment that added the Charter f Rights and Freedm t the Cnstitutin and bradened the scpe f the Supreme Curt's exercise f judicial review. The new cnstitutin nw prvides the Supreme Curt and all lwer curts the ability t censr nt nly the rules and regulatins passed by bth the prvincial and federal legislative and executive branches, but als the cnduct f all their emplyees (Mrtn 1986, 14). The cmbined effect f the ablitin f the right t appeal in the civil cases and the Charter f Rights has drastically changed the rle f the Supreme Curt in Canadian plitics. I shall subsequently shw that the number f private matter cases brught t the Supreme Curt decreased while public matter cases increased, after these changes; quantitatively the plitical rle f the Canadian Supreme Curt is expanding. This is especially true as mre cnstituitnal lawrelated cases are brught t the Supreme Curt, a trend that already had started by the 1980's. Appraches t Decisin Making in Judicial Research The study f judicial decisin-making can be cnducted frm at least tw different appraches, the traditinal and the empirical r behaviral. A study is

24 14 classified as traditinal if it is descriptive in nature and des nt use r uses very little quantificatin in its methdlgy. The fcal pint f such a study typically is t examine a supreme curt by cncentrating n dctrinal analysis f ne decisin r a set f decisins. The study is classified as empirical if it is interested in cllecting facts and refining methdlgies in an attempt t encurage r derive scientific generalizatins abut hw and why judges make the decisins they d. Empirically, decisin-making in judicial plitics can be studied frm tw majr appraches. In his attempt t intrduce a theretical framewrk fr decisin making in judicial plitics, Gibsn suggests an integratin f varius levels f analysis (institutin, grup) with the individual level (1983, p. 8). The cmbinatin will prvide us with at least three perspectives n supreme curt decisin making: the curt as an institutin, as a grup, and as individual decisin makers (Tate and Handberg 1986, 5). The first apprach, the macr r institutinal level apprach, uses the curt as a unit f analysis. This apprach lks at the Supreme Curt as a plitical institutin which renders discrete plicy decisins similar t thse f the legislative r executive branch. The fcal pint f study in this apprach is t analyze varius aspects f the decisin making f curts in different cuntries r acrss different perids f time in a given cuntry.

25 15 Analyzing a curt's decisin utcmes allws us t decribe the types f public plicy issues, the typical directins f thse plicies utcmes, and cntinuity and change in thse patterns f decisin making. While the institutinal perspective prvides us an verall picture f Supreme curt decisin making utcmes, it fails t accunt fr the rles f the individual justices wh makeup the curt. The institutinal utcmes f the curt's decisin making are in fact the aggregate behavirs f thse justices. Hence, analyses based n the grup and individual level will prvide a further and better understanding f the decisin making f the Supreme Curt. The main theme in grup level analysis is t identify judicial vting calitins and the attitude dimensins underlying such calitins. Supreme Curt justices are viewed as the decisin makers wh interact amng themselves in rder t reach the final decisin. The decisin utcmes f the Supreme Curt, especially in nn-unanimus cases, may represent tw r mre interacting grups f justices wh reached different cnsensuses n what the law means when it is ambiquus r when clear precedents are lacking. Hence, an analysis f the justices' vting calitins and the attitudes underlying such grups may help us explain the changing public plicy utcmes f the Supreme Curt. Analyzing grup behavir may help us understand grup interactin. It des nt, hwever, prvide an understanding f why a particular judge develped the attitudes he has, and what accunts fr such develpment.

26 16 Analysis based n justice's individual backgrunds may help t explain their attitudes and vting behavirs. Individual level analysis is, then, interested in explaining a justice's rle and vting behavir using sme individual level factrs such as persnal attributes. While n attempt was made t link several levels and units f nalysis in the previus research, this study will try t analyze the institutinal level tgether with the grup and individual level. The micr level apprach uses the individual judge as the unit f analysis. Its aims are t explain the behavirs and the factrs which influence the behavirs f particular judges. In the past this apprach has been dminated by tw majr cmplementary mdels, the psychmetric and the persnal attibute r scial backgrunds mdel. Accrding t Glendn Schubert, the psychmetric mdel will shw the differences in and the cnsistency f the attitudes f a grup f persns tward a single shared value. This mdel is based n the assumptin that "whatever their degrees f cmplexity, it is pssible t represent symblically the idelgical psitins f justices cmprising the Supreme Curt at any particular time as a cnfiguratin f ideal pints in a psychlgical space f specifiable dimensinality" (1974, 17-18). This mdel then argues that judges wh share a cmmn idelgy tward a particular issue will decide and vte in the same way; differences in idelgy and attitude will make them vte differently. Cnsequently, "by investigating the relatinships between and amng

27 17 issue-vectrs and ideal-pints in the space f the mdel, we can learn abut idelgical relatinships within, between, and amng the minds f the justices wh, in the empirical sense, cmprise ur set f respndents" (p. 19). The secnd mdel, the persnal attribute r scial backgrund mdel, is an extensin f the first ne. This mdel agrees that the differences in justices' idelgies and attitudes will have impacts n the utcme f the cases. These differences are assumed t result frm their life experiences r scial and persnal backgrunds f these judges, amng ther things. Purpse and Outline f the Study Previus research (Sittiwng, 1985) attempted t demnstrate the significance f the Supreme Curt in Canadian plitics. It shwed that the Curt, thrugh its decisin prcesses, has engaged rutinely in the authritative allcatins f values in the sciety. In additin, the attribute r scial backgrunds mdel was applied t explain cnservative and liberal vting in the Curt. This study will be an expansin f the previus study. The three levels perspective will be used as the main analytical framewrk fr the study. At the institutinal level, the main analyses purpse will invlve crss-time cmparisn f varius aspects f Supreme Curt decisin making. A full discussin is presented later in Chapter 2. Its intentin is t shw and

28 18 explain cntinuity and change in the Canadian Supreme Curt's rle as a plitical institutin which renders and shapes public plicies in Canada. At the grup level, the study will try t identify vting calitins in each "natural curt" (a curt f cnstant membership) and hw they vary ver time. Understanding these vting structures in the Supreme Curt may help us understand cntinuity and changes in directin f the Supreme Curt public plicy utcmes. The individual level analysis t be presented is nt new in nature, but is new in substance. My previus research (Sittiwng, 1985; see als Tate and Sittiwng, 1989) applied the persnal attributes mdel t the Canadian Supreme Curt justices in rder t explain their prpensity t be liberal in their vting behavir. This dissertatin will imprve upn and update the frmer study in several areas by: 1. including mre justices in the mdel; 2. including mre persnal attribute factrs in the mdel; 3. cnducting separate analyses f the mdel fr different substantive cases types. 4. cnducting separate analyses f the mdel fr different time frames. The study will analyze six persnal attributes mdels. By cmparing thse mdels, this study hpes t identify the persnal attribute factrs which can

29 19 explain a justice's vting behavir significantly and cnsistently bth acrss substantive case types and acrss time. The study is divided int five chapters. Fllwing this intrductry chapter, each chapter will fcus n the analysis f the Canadian Supreme Curt's decisin making. Each will fcus n a different unit f analysis. Chapter tw will analyse decisin making at the institutinal level. Chapter three will use the grup as the unit f analysis, and Chapter fur will fcus n the individual level. Chapter five prvides cnclusin and suggestins fr future research.

30 20 Endntes 1. Fr sme f the plitically-riented studies f the curt see Russell (1970, 1975), Weiler (1974), Cheffins (1966), Futs (1969) Peck (1967, 1969), McWhinney (1974), Mrtn (1985, 1986), and Tate and Sittiwng (1989) Mrtn, Russell, and Withey (1991). 2. This was evidenced as sme f the Ontari leading judges and lawyers in that perid pted t remain at the less prestigues prvincial curts r in private practice rather than accept appintment t the Supreme Curt (Mrtn 1986, 2). 3. Fr examples f argument in this line see E. McWhinney (1974), H. McD. Clkie (1942), and J. A. Crry (1967). 4. The argument by Justice Cannn was similar t that made by Justice Owen Rberts in United States v. Butler. He wrte that: It is smetimes said that the curt assumes a pwer t verrule r cntrl the actin f the peple's representatives. This is a miscnceptin. The Cnstitutin is the supreme law f the land rdained and established by the peple. All legislatin must cnfrm t the principles it lays dwn. When an act f Cngress is apprpriately challenged in the curts as nt cnfrming t the cnstitutinal mandate, the judicial branch f the gvernment has nly ne duty - t lay the article f the Cnstitutin which is invked beside the statute which is challenged and t decide whether the latter squares with the frmer (297 U. S. 1 (1936), at 62). 5. The Canadian Bar Assciatin's Cmmittee n the Cnstitutin reprts that in 1975 the Supereme Curt heard 31 cases which were predminantly civil law. The number was reduced t 16 in 1976, and nly 6 in 1977 (The Cmmittee n the Cnstitutin f the Canadian Bar Assciatin 1978, 58 as cited in Russell. 1984, 233).

31 CHAPTER REFERENCES Cheffins, Rnald I "The Supreme Curt f Canada: The Quiet Curt in an Unquiet Cuntry." Osgde Hall Law Jurnal 4: Clkie, H. McD "Judicial Review, Federalism, and the Canadian Cnstitutin." Canadian Jurnal f Ecnmics and Plitical Science 8: Crry, J. A "Precedent and Plicy In the Supreme Curt." Canadian Bar Review 45: Editrs. Osgde Hall Law Jurnal "Histrical Sketch f the Supreme Curt f Canada." Osgde Hall Law Jurnal 3: Futs, Dnald R "Plicy-Making in the Supreme Curt f Canada." In Cmparative Judicial Behavir: Crss-Cultural Studies in Plitical Decisin-Making in the East and West, eds. Glendn A. Schubert and David J. Danelski. New Yrk: Oxfrd University Press. Gibsn, James L "Frm Simplicity t Cmplexity: The Develpment f Thery in the Study f Judicial Behavir." Plitical Behavir 5: 7-49 Laskin, Bra "The Supreme Curt f Canada, A Final Curt f Appeal f and fr Canadians." Canadian Bar Review 64: Laskin, Bra "The Supreme Curt f Canada, The First One Hundred Years: A Capsule Institutinal Histry." The Canadian Bar Review 53: MacKinnn, Frank "The Establishment f the Supreme Curt f Canada." The Canadian Histrical Review 27: McWhinney, Edward "The Plitical Impact f the Canadian Supreme Curt." Ntre Dame Lawyer 49:

32 22 Mrtn, F. L "The Pliticizatin f the Supreme Curt f Canada." Paper presented t the Interim Meeting f the Research Cmmittee n Cmparative Judicial Studies f the Internatinal Plitical Science Assciatin, Center fr the Study f Law and Sciety, University f Califrnia, Berkeley, December 14-15, Mrtn, F. L "The Plitical Impact f the Canadian Charter f Rights and Freedms." Canadian Jurnal f Plitical Science 20: Mrtn, F. L., Peter H. Russell and Michael J. Withey "The Supreme Curt's First 100 Charter f Rights Decisins: A Statistical Analysis." Occasinal Papers Series, Research Study 6.1, Research Unit fr Sci- Legal Studies, University f Calgary. Peck, Sydney L "The Supreme Curt f Canada ( ): A Search fr Plicy thrugh Scalgram Analysis." Canadian Bar Review. 45: Peck, Sidney L "A Scalgram Analysis f the Supreme Curt f Canada, " In Cmparative Judicial Behavir: Crss-Cultural Studies in Plitical Decisin-Making in the East and West, eds. Glendn A. Schubert and David J. Danelski. New Yrk: Oxfrd University Press. Russell, Peter H The Supreme Curt f Canada as a Bilingual and Bicultural Institutin. Ottawa: Infrmatin Canada. Russell, Peter H "The Plitical Rle f the Supreme Curt f Canada in Its First Century." Canadian Bar Review 53: Russell, Peter H "Intrductin, Histry and Develpment f the Curt in Natinal Sciety: The Canadian Supreme Curt." Canada-United States Law Jurnal (Cnference n "Cmparisn f the Rle f the Supreme Curt in Canada and the United States", Case Western Reserve University, Cleveland, Ohi, Octber 20, 1979) 3: Russell, Peter H "Cnstitutinal Refrm f the Judicial Bench: Symblic vs Operatinal Cnsidernatins." Canadian Jurnal f Plitical Science 17: Schubert, Glendn A Judicial Mind Revisited: Psychmetric Analysis f Supreme Curt Idelgy. New Yrk: Oxfrd University Press.

33 Schubert, Glendn A. and David J. Danelski, eds Cmparative Judicial Behavir: Crss-Cultural Studies in Plitical Decisin-Making in the East and West. New Yrk: Oxfrd University Press. Sittiwng, Panu "Canadian Supreme Curt Decisin-Making: The Persnal Attribute Mdel in Explaining Justices' Patterns f Decisin- Making, " Master Thesis, Nrth Texas State University. Tate, C. Neal and Rger Handberg "The Decisin Making f the United State Supreme Curt : A Three Level Perspective." Paper presented t the Annual Meeting f the American Plitical Science Assciatin, Washingtn D.C. August Tate, C. Neal and Panu Sittiwng "Decisin Making in the Canadian Supreme Curt: Extending the Persnal Attributes Mdel Acrss Natins." Jurnal f Plitics 51: Weiler, Paul In the Last Resrt: A Critical Study f the Supreme Curt f Canada. Trnt: Carswell. 23

34 CHAPTER 2 INSTITUTIONAL LEVEL PERSPECTIVE Review f the Literature and Research Design Empirically, decisin-making in judicial plitics can be studied using three majr appraches. The first apprach, the macr r institutinal level apprach, uses the curt as a unit f analysis. This apprach lks at a curt as a plitical institutin that renders discrete plicy decisins similar t thse f the legislature r executive. The fcal pint f study in this apprach is the analysis f varius aspects f the decisin-making f curts in different cuntries r acrss different perids f time. Several studies can prvide examples f institutinal level empirical analyses f varius aspects f the judicial system. Mcintsh (1981) studied the relatinship between sciecnmic develpment and the rate f litigatin, degree f change in legal agenda, and case dispsitin pattern. His main purpse was t answer the questin "whether the dispute reslutin f curts has diminished with scial and ecnmic develpment and rising litigatin csts" (p. 823). Using data frm 1820 t 1970 fr the cases filed in the circuit curts f St. Luis, Missuri, he fund that neither sciecnmic develpment nr increasing csts f litigatin lessened the dispute reslutin f the St. Luis 24

35 25 circuit curts. His analysis shwed that there is a nnlinear relatinship between the rate f private law case filings and sciecnmic develpment (p. 828). The filing rate shwed a decline in the perid frm the 1840s t the 1890s and then shwed an increase fllwed by stability (p. 828). While the rates f litigatin remained stable, the study, hwever, fund different patterns f types f litigatin. Frm 1820 t 1920, ecnmic issues cmbined t dminate the curt agenda. Family law and trt cases have dminated in the pst-1920 perid (p. 829). Cncerning the methds f case dispsitin, Mcintsh fund a pattern in which cntested judgments declined and vluntary dismissals and uncntested judgments increased (p. 847). While the Mcintsh study fcuses n ne curt, thers have attempted t cmpare curts in different settings. Fr example, Steven Daniels (1990) cmpared patterns f caselads in circuit and cunty curts in fur cunties in Illinis and in, anther study, cmpared civil litigatin differences between urban and rural trial curts in Illinis (Daniels 1982). In a similar way, Stkey (1986) lked at the relatinship between sciecnmic cycles and the pattern f civil litigatin in fur ecnmically different cunties in Arizna, and Friedman and Percival (1976) studied the varius aspects f the dispute settlement functin f tw Superir Curts in tw cunties in Califrnia frm 1890 t They fund that despite their differences in the level f industrializatin and urbanizatin, the tw Curts perfrmed these functins in

36 26 the similar way and shwed the same pattern f changes in these functins, away frm dispute reslutin tward mre rutine administratin (p. 301). Althugh the abve studies used data frm the lwer curts, Casper and Psner (1976), as a respnse t the recmmendatin f the study by the Freund Cmmissin n the caselad prblem f the U.S. Supreme Curt, presented bth a theretical structure f caselad develpment and the ptential nature f the wrklad generated by the grwth in cases filed befre the Supreme Curt. They fund that the rate f increase f the U.S. Supreme Curt varied in different types f dckets, and that the factrs that affect the increase in caselad were due mainly t the change in law rather than t sciecnmic grwth (pp ). They als fund that the increase in caselad resulted in the increased demand f justices' time t screen cases fr review. The increase in time pressure, hwever, did nt reduce the ability f the Curt t "discharge its respnsibilities r its ability t review a case where Supreme Curt review wuld serve an imprtant functin" (p. 92). Other studies fcus n the nature f U.S. Supreme Curt caselad. Fr example, McLauchlan (1980) used an explratry data analysis technique t describe the patterns f caselad ver time. In anther study, McLauchlan (1981) used regressin analysis t mdel the macr-level variables which seem t influence the Curt's caselad ver time. Yet, anther study by Tate and

37 27 Handburg (1986) prvide examples f studies f the public plicy case mix f the U.S. Supreme Curt ver a lng perid f time. Others lked at caselads in ther cuntries. Fr example, Van Ln and Langerwarf (1990) examined the civil curts in Belgium. Using a s-called "Functinal Thery," they tried t relate sciecnmic develpment t litigatin trends in Belgium fr (p. 282). They fund that sme f the hyptheses derived frm the functinal thery are supprted by the data, and sme are cntradicted (p. 294). Van Ln and Langerwarf cncluded that, sciecnmic develpment is nt the nly ne factr in explaining this litigatin trend. T better understand this trend, they recmmended three classes f factrs: the rules f law and judicial prcess, the rganizatin and peratin f the curts, and factrs utside the curt, including sciecnmic change (p.295). While the abve studies fcus mstly n the curts' caselads in general, ther studies fcus n particular issues. Fr example Ulmer's study fcuses n gvernment litigatins and civil liberties in the U. S. Supreme Curt (Ulmer 1985). Ulmer hypthesized that gvernmental litigants are mre likely than nngvernmental litigants t be favred in cases decided by the U.S. Supreme Curt (p. 901). By analyzing all cases which raised a civil liberties issue frm , he fund that there is a significant trend tward less supprt fr gvernment litigants (p. 905). In additin, he fund that the Supreme Curt

38 28 steadily diminished state pwer ver civil liberties cases mre than that f federal gvernment agencies (p. 907). Anther study analyses the "demise f cnsensual nrms in the U.S. Supreme Curt" (Walker, Epstein, and Dixn 1988). They pinted ut that the early 1940s marked a perid in which the U.S. Supreme Curt experienced drastic and permanent changes in their decisin-making unanimity (p. 361). The increase in these decisin cnflicts was attributed t several factrs, including: change in the Curt's caselad; change in the Curt's cmpsitin and its justices' characteristic; and leadership style f the chief justice (p.364). They cncluded that, in cmbinatin with ther factrs, the leadership f Harlen Fisk Stne cntributed t this change (pp ). Walker, Epstein, and Dixn's finding was cnfirmed in the study by Haynie (1992). Using the tenure f each chief justices as interventin variables, Haynie fund that tw chief justices, Hughes and Stne, had significantly cntributed t the change in the level f dissenting behavir in the U.S. Supreme Curt (pp ). Anther recent study analyzed the reactin f a Supreme Curt in a plitical crisis situatin (Tate and Haynie 1993). Using data frm the Philippine Supreme Curt, the authrs analyzed the impact f the martial law perid n the institutinal perfrmance f the Curt. Defining the nset, cnslidatin, breakdwn f martial law authritarianism, and revlutin (pp ), they

39 29 apply the Bx-Jenkins ARIMA mdel t assess the impacts f thse fur interventins n the Supreme Curt's functinal perfrmance f cnflict reslutin, scial cntrl, and rutine administratin (pp ). Fr the Canadian Supreme Curt, there are nly a few studies which have studied the Curt's institutinal decisin-making empirically. Russell, ne f the pineers f the empirical analysis f the Canadian Supreme Curt, presented a statistical summary f the cases it decided frm 1875 t 1969 (Russell 1975). The study cncentrated n the caselad, rigin f cases, types f cases, and impact f the Curt's decisins n prvincial and federal cnstitutinal law. A mre recent study examined Canadian Supreme Curt decisins in cases invlving the Canadian Charter f Rights (Mrtn, Russell, and Withey 1991). It shwed that since the intrductin f the Charter f Rights in 1982, the Curt has becme an increasingly imprtant plitical actr that has influenced the public plicy f the cuntry, especially in the area f individual-state relatinships. It pinted ut that while bth the federal and prvincial gvernments were affected by the charter, "the impact... n the prvinces has been qualitatively greater than its effect n federal law-making, and that Quebec in particular has been mst affected" (p. 20). The studies cited abve illustrate several appraches which can be used t investigate varius aspects f the institutinal behavir f the Supreme Curt. In fact, Tate and Handberg (1986) suggest that "given apprpriate data, it is

40 30 pssible t investigate any number f ther aspects f the Curt's decisin making" (p. 7). At the institutinal analysis level, this study will investigate several aspects f the Canadian Supreme Curt's decisin-making and hw it has varied ver the perid : 1. The size and surces f the Curt's caselad; 2. The cmpsitin f the Curt's caselad, fcusing n: a. general patterns f cmpsitin. b. a massive shift frm private t public law matters. c. a striking increase in cnstitutinal law and related matters; 3. The patterns f cnflict in the Curt's decisin-making; and, 4. The directin f the Curt's decisin utcme, fcusing n: a. directin f the Curt's plicy making in majr substantive decisin-making areas. b. the changes in thse directins ver time. In the crss-time cmparisn, tw classes f factrs will be cnsidered as ptential explanatins f cntinuity and change in Supreme Curt decisin utcmes: verall structural changes and within-structure changes. Overall structural changes refer t the changing status f the Supreme Curt frm subrdinatin t the Privy Cuncil during the pre-1949 perid t the Curt f Last Resrt fr Canada after 1949, and frm parliamentary supremacy t

41 31 cnstitutinal supremacy, i.e., frm the Curt created by an act passed by the Parliament t the Curt established by the new Cnstitutin in 1982 (Russell 1982, 2). The structural changes are hypthesized t have effects n the Curt in its decisin-making prcess, functinal perfrmance, and aggregate behavir, since they help t define the new rle, scpe, and depth f rule adjudicatin fr the Curt. Within-structure changes refer t changes in the Curt's persnnel, the retirement f judges frm the Curt, and the appintment f new judges t the Curt. Based n the persnnel changes, we can define the Supreme Curt in a particular perid as a natural curt (a curt f cnstant memberships). An analysis f changes in natural curt membership may help t explain cntinuities and changes in the directin f Curt plicy utcmes. Befre beginning these analyses, it is necessary t describe the data they will use. Data Cllectin and Missing Cases When this prject was prpsed, the data t be used in the institutinal analysis cnsisted f a ne-half randm sample f all the Supreme Curt cases reprted frm 1875 t This plan was changed because the study is nw able t make use f a previusly cllected set f relatively extensive data n the decisins f the Supreme Curt fr the perid These data, cllected in the early 1970s by Prfessr Sidney Peck f Yrk University and Prfessr

42 32 Peter Russell f the University f Trnt with the supprt f the Canada Cuncil and the Scial Science and Humanities Research Cuncil, were initially analyzed by Russell (1975), and freely made available fr use in this analysis. Upn receiving the data frm Canada, Prfessr Neal Tate, with supprt frm the Canadian Faculty Research Prgram f the Embassy f Canada, the Suthwest Assciatin fr Canadian Studies, and the Faculty Research Cmmittee f the University f Nrth Texas, was able t expand the data frm 1970 thrugh the first half f The availability f these mre extensive data led me t change the plan fr data cllectin. Instead f cllecting and using a 50 percent randm sample f all the cases, the study will primarily analyze the existing Peck, Russell, and Tate data. Hwever, the decisin t use these data was nt withut its prblems. An initial analysis f the Peck-Russell-Tate data suggested that there shuld be a ttal f 8417 decisins reprted frm 1875 thrugh the first sessin f Of the 8417 cases, there are 6241 cases frm 1875 thrugh 1969, and 2176 cases frm 1970 t Unfrtunately, the riginal data fr cllected by Peck and Russell were still in the frm f cmputer punch cards, and it turned ut that numerus cards were missing. The missing cases presented a variety f prblems. The data cntained tw punch cards f infrmatin fr each reprted decisin. The initial analysis

43 suggested that there were 1306 cases missing card ne and 1365 cases missing card tw. The missing cards tw, hwever, did nt present a majr prblem since card tw cntained n infrmatin pertinent t cases decided befre the appintment f Justice J. W. Estey in 1944 (see the cdebk t the data in Appendix A). Hence mst f these missing cases did nt have t be recded. Missing data n card ne was mre serius, bth quantitatively and qualitatively, because card ne cntained all the substantive infrmatin cded abut the case. Hence, all 1306 cases with card ne missing had t be recded. The cmpletin f this recding was the final stage in Tate's restratin f the cmplete Peck-Russell dataset. In additin t the Peck-Russell-Tate dataset, the study will use anther dataset cnsisting f nly nnunanimus decisins but including variables nt cded in the Peck-Russell dataset. Part f these data were cded earlier and were used in the previus studies (Sittiwng 1985; Tate and Sittiwng 1989). The nnunanimus dataset previusly cvered all the split decisin frm 1949 t The availability f the Peck-Russell-Tate dataset allwed this study t expand t cver all such cases frm 1875 t the first sessin f The nnunanimus decisin data will be used fr cmparisn with the analysis f the plicy directin f case utcmes. In additin, it als was used t crss check the reliability f the Peck-Russell-Tate data. 33

44 34 Size and Surces f Caselad The legal prvisins cncerning the jurisdictin f the Canadian Supreme Curt were riginally defined in the Federal Supreme Curt Act f 1875 sectin 35. Accrding t this act, The Supreme Curt shall have, hld and exercise an appellate, civil and criminal jurisdictin within and thrughut Canada. Based n this act, the Supreme Curt has jurisdictin ver every aspect f Canadian law. This brad base cvers federal and prvincial laws and statutes, public and private matters, and cmmn and civil law thrughut Canada. In additin, sectins 55 and 56 prvide the Supreme Curt the right t hear references 1 by the Gvernr-in-Cuncil, r by the Senate r Huse f Cmmns, n imprtant questins. Sectin 55 stated: Imprtant questins f law r fact cncerning (a) the interpretatin f the British Nrth America Acts; (b) the cnstitutinality r interpretatin f any federal r prvincial legislatin; (c) the appellate jurisdictin as t educatinal matters, by the British Nrth America Act, 1867, r by any ther Act r law vested in the Gvernr in Cuncil; (d) the pwer f the Parliament f Canada, r f the legislatures f the prvinces, r f the respective gvernments theref, whether r nt the particular pwer in questin has been r is prpsed t be exercised; r (e) any ther matter, whether r nt in the pinin f the Curt ejusdem generis 1 with the freging enumeratins, with

45 35 reference t which the Gvernr in Cuncil sees fit t submit any such questin; may be referred by the Gvernr in Cuncil t the Supreme Curt fr hearing and cnsideratin; and any questin cncerning any f the matters afresaid, s referred by the Gvernr in Cuncil, shall be cnclusively deemed t be an imprtant questin. Sectin 56 then prvides the pwer t the Senate r Huse f Cmmns f the federal Parliament t refer bills t the Supreme Curt. Tw majr changes altered the riginal scpe f the Curt's jurisdictin. The first ccurred in 1975 when the right f appeal was ablished in civil cases where the amunt in dispute exceeded $10,000. This limitatin did nt reduce the jurisdictin f the Supreme Curt, but left it t the Curt t select the cases it will hear. The secnd change, a mre imprtant ne, ccurred in The adptin f the Charter f Rights bradened the scpe f Supreme Curt judicial review. F. L. Mrtn (1986) pints ut that: The Charter applies nt just t the legislatin and administrative rules and regulatins f bth levels f gvernment, but als the cnduct f all gvernment emplyees plicemen, prisn wardens, and administratrs f ther public services and prgram. This latter categry f "state actin" was rarely subject t judicial review prir t 1982 (p. 14). Fr the initial picture f the Canadian Supreme Curt's decisin-making, ne can turn t Table 2.1, which presents the number f decisins it reprted each year in the perid , alng with the by-decade annual averages and cases per 100,000 ppulatin. Figure 2.1 presents the plt f the annual

46 ^ ^ ^ T t V D H M C O ^ O O O O O N O f O > n & i/i <U T3 ^ ^ ^ ^ < ^ < ^ V j C? ' t T t r t T t,, ' t,! : O H H H d c i d d c i d d d ON ON i 1 i 9 ^? ^ 9 r H ^ ^ T J ', i r > <D a> S3 > c a ' 0 0 \ "3 I 8 Q a I EL a W) < <1> T3 cd I ON n TJp N O O ^ i O h ^ ^ c i n h ^ h ^ i n ^ h n n n n n n g n n n i n i > 00 T < t s S3 O U r-h C3 O t-i a, D CO <N 3 4 CD f-»h " 3 X) s-5 cd eg H U X! >> X) 7 3 <D ts Oh <D C* CO O CO cd U m Tf Tf Tt a s l l l l l l l l l l l l l l l l l l l l l l l l l l g g l l l S S S B R g f c p g g i p s s s f c p g g g i g g g g ^ g p. g j j g j ^ g. g ^ g a i l l l l l l l l l l l l l l l l l l l l s s s a a s l s l S S H 00 \0 h H \n <N (N rt <m m Si S! S S 8 S $ P 2! S F C! 3 5 ; S ; & G ; I S ; P > A 8! S 8 F C P! I l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l l

47 c 15 O O cn cn

48 cases reprted. In rder t help clarify the trend in the data, Figure 2.1 als 38 presents the three years center mving average plt f the data. The graph presented in Figure 2.1 is quite interesting. It shws sme cyclical trend in the number f reprted cases. There is a steady increase in the cases reprted in the first 20 years f the Curt's existence, which remains stable at the rate f 85 reprted cases per year. This trend cntinued fr the next 10 years, then it shwed a decline t abut 75 reprted cases annually. With the initial increase in the late 1920s, the Supreme Curt reprted less cases during The Curt reprted mre cases steadily duing the 1950s, fllwed by a fluctuatin during the perid Despite the ablitin f the rights t appeal in civil cases, the perid immediatly after 1975 shwed a drastic increase in the number f cases reprted. In fact, the cases reprted by the Curt reached its all time high in The early 1980s shwed a steady decrease in cases reprted until 1985 where the trend is reversed tward the end f the series. The fluctuatin in Curt cases reprted did nt shw any effect f ppulatin grwth in the cuntry. In fact, the rati between average cases reprted per 100,000 ppulatin shws a decline frm the early t the later perid. Since the ablitin f the rights t appeal t the Privy Cuncil in 1949, the annual average cases per 100,000 ppulatin are abut 0.4 cases. At this time, it is difficult t pinpint the factrs which can explain the variatin in the

49 cases reprted. The sudy lacks apprpriate data that may have a ptential t 39 explain these variatins. This subject will be pursued in later study. The surces f the cases decided by the Supreme Curt frm 1875 t 1990 is presented in Table 2.2. The surces f the Supreme Curt cases reflect the sciecnmic dimensins f the Canadian plity and hw thse dimensins have changed ver time. Despite their skepticism tward the Curt in the early perid, Quebec and Ontari were the majr surces f the Curt's cases. The Federal Curt and British Clumbia came in third and furth, respectively. Cllectively, they represented abut 72.5% f all f the Supreme Curt decisins (see Figure 2.2). Figure 2.2 demnstrates that the cmbined share f Ontari and Quebec, the tw largest prvinces, bth in size and ppulatin, has generally declined frm the earlier t the later decades, but in the twentieth century that decline has been due almst entirely t Quebec. In fact, frm the 1920s t the present Ontari's share has increased and remained stable while Quebec's, with a single reversal, has declined. In cntrast, the share f British Clumbia has shwn a steady increase thrughut the twentieth century paralleling its grwth in ppulatin and ecnmic significance. Althugh Figure 2.2 represents nly three majr prvinces in Canada, it des nt imply that ther prvinces are nt imprtant surces f Canadian Supreme Curt decisins. Their shares, hwever, can be mst easily understd

50 t2 (T) O v ON 1-4 O Tf" *3- <N c4 jd 13 H ON ON * tt 3 O U 8. < CO 1 U <u T) <L> <D O* Oh C c/s <D CO cd U <D S3 O g *Sb 'C a 00 c* O ON <s <s Tf a\ C\ 55 $ Z & 00 rfr d <N! V) ws *n r-«00 vq vq r-4 \ Os On rf <si r <N vq c T-H <N Csi»ri 2? *n VO <N ON - <N \JD Tt* c4 * <-N> \6 <N i 2 S rf a O) Tf <N O \T) <N T-H > OV t-h v~» r-h <N»n T-H r-h 00 <N vq -rf 3 rf \D CT\ <N O <N CO S O Tt 5 \q MD rf v v \ ON O* i O <M <N d V~> \D 0\ ^ O O i-i < <N r-j "I- c4 g V > S < O t-» Tf VO 8 8 u a I <u 55 CtJ ec 2: 2 OQ O <D 55 "S O ei e«-8 S J 5 H U OQ z d g i

51 Q O 4> <j> * * I X X / c 0 L_ 0 Q_ 0 "O G 0 Q _Q c '( * 0 Q D O O 0 0 Q_ D GO C a *~D D C O O H O cn 0 D O if) i^ CN CN 0 L_ =3 cn

52 42 by cmbining them int the principal reginal divisins that are cmmn in Canada. 3 Figure 2.3 presents these reginal shares. It shws the shift in Supreme Curt decisin-making attentin frm eastern t western Canada. Ignring the anmalusly high share f the decisins cming frm the western prvinces in the 1910s and 1920s, ne sees a steady increase in the share f the western prvinces in the Supreme Curt's decisins, and a decline in the share f the Atlantic regin. These changing patterns are hardly a surprise. They parallel the patterns f ppulatin and ecnmic share fr Canada's regins (see Jacksn, Jacksn and Baxter-Mre 1986 ). Perhaps mre t the pint, they reflect the pattern f changing ecnmic well-being f Canada's regins and the increasing latetwentieth century suspicin f Quebec fr federal gvernmental institutins and agencies. Cmpsitin f The Caselad The scpe f rule adjudicatin can be bserved quantitatively by lking at the variety f types f cases decided by the Curt. Table 2.3 presents the ttal case mix f the Canadian Supreme Curt. It shws that the Curt was asked t make decisins in a substantial variety f issue areas. The issues invlved in the cases range frm such private disputes as family law, wills, mtr vehicles, etc. t public plicy related issues such as cnstitutin law,

53 12 E 12 1 ^ a <t> i <i> i i S «2 ( u -a c XI u J3 «^ u. a < < 3 * (j) < < 3 X 0 m > > C O *cn 0 (Z _0 Q. *Q C *!k_ CL _Q C O \n * 0 O c 0!k_. CD CL O) 00 =5 O CD 0 k_ CL D U1 C O T3 D C O O M cn 0 D O CO r CN 0 L. D cn

54 44 federalism, civil liberties, taxatin, etc. Mre detailed discussin f these issues is presented belw. The table classifies the number f issues raised in the cases decided int tw categries, public and private law. In ttal, 4,463 issues raised in the cases (49.31%) are classified as public law issues and there are 4,588 issues in the private law area (50.69%). 4 While private law issues utnumber public law issues verall, criminal law issues were the mst frequently raised issues with a ttal f 1,018 (10.60%). Trt, cntract, real prperty, and jurisdictin cases rund up the five issues decided by the Curt mst frequently. Cmbined they accunt fr 38.3% f all issues raised. Lking at Table 2.3 alne may lead ne t cnclude that the Canadian Supreme Curt did nt significantly play a rle in public plicy frmulatin in Canada. The majrity f its caselad has been in private law areas, and the number f cntrversial plicy issues such as cnstitutinal law r civil rights and liberties was small. Hwever, a mre careful analysis f the dynamics f the casetypes decided by the Curt in different perids shws that the Canadian Supreme Curt has gradually increased its rle in plitics. T understand the dynamics f the Curt's rule adjudicatin, we need t lk at the frequencies with which the varius types f issues were raised in different perids. T make the presentatin mre meaningful and manageable, the issues raised in the cases that were classified in Table 2.3 have been

55 3 00 \D (N v 0\ in \ d d v 5 VO CN O in Q\ CN OO cn r-h t> 5 O CN CN in CN in t> d d CN r-h* d O r-h cn d OS ON i *Ti r- 00 t+h CJ > s <T>O G\ VO cn CN O On CN in *n O OO VO cn cn T ' p "3" r-h t-h" O cn ^t" CN d cn t> OO OO CO CN r-h* t3 u *n rt \ cn v Tt >n h a\ h mcnmm*r)mt <CNO>OO i> ^ ^ >n (N i 1 m \ 'O M H * 1 i t ( ro a S3 CO CO CN <D 1 H 13 u Q S <D S3 «s C«HH 13 &JQ <D J CO <D 0 CO CO i <D > =3 CO CO 5 S g"i s l l l l a S wj -e ca (daj: < < a pa cq u a g CO I M "S U U.2 2 a sj & O «D U Q >> tj i Si 2 CO CU *d & 13 <D g s a >> T3 s P3 "> VH CO 13 PLh U- I C3 CO S3 a vr^cnr^cncncnvv\a\vvv^fr cnivq Ci tr>cnicn vq cnicn c>\ cn ciin *n r*; ^ O O O O O c n O ^ O O O O r f T - I r n c n O Fraud w a OS 03 <D C/5 ctf u 1 th <u U M-i r-4 IT) in cn cn * r^ S VO CN I * i-j Tf cn \ vq Tf- (N r-h d CN CN ^ < CN VO r> c^- cn OO r-h OO cn cn *r> cn rhoohhono\xcn(nfncnhoo\(n(s CN *n >T)(N(NrirH^^\nhhTri-h r-h (Tj <3 rh T' cn cn a O ti x> 3 H CO <D =3 CO CO I CO <D CO CO a a 5 > CO CO a s >» ^ a Ctf> ti T3 0J) H ctf *G <L> Q a *3 S «+i 4D C5 2 * a C *C c3 +3 5=3 c a 'S 5- S & S3»-H CO O 8 -a 13 *3 T3 CO CO C O a s :e -a a 5 5 b s-11 a c.<u -i.p P s j < < «U < O U U B W B S l j 2 i :

56 ^ ON ON * r-h CO ^t r-h OO CN 00 w VO in MO 3 VO ^t ON CN r-h r-h t> CN T-H t> CN d r-h r-h* d * 1-4 r-h d OO d CM* CO ON VO w <4-H Ctf > # CO OO r - CN CO CO VO OO ON r-h Tf- * OO O * r-h p O r-h OO OO CN r-h CN CO O CO CO r " H *" H CN CO r-h CN CN r-h vd r-h r-h VO ON CO r - * WO *n ^ v r - c N ^ t c ^ i r - ^ ^! J \ O O H \ 0 0 \ H t S H ^ *r> r-h t-h t> cn cn GO t tj- ce 0 S3 c«c«1 > C/3 <D S3 W3 a <D +-» "3 l i S 3 a s a.2 *«& S Kjn <D c5 <D a s> csj c$ s jd T3 «' % > x) ti 2 s s >% s Cu O % a CJ 0 a ctf J 1 > a D* OD ^ S 13 s & ' «2 *> a P «W C/3 H W>.s *35 3 & «e H s H # CO CN VO r-h ON CN OO CO ON OO WO r-h *T) *n CN VO CO w (N CN CN O CN r H r-4 (N CO ON ^t CJ JZJ 3 s ON CO CN VO CN VO ON vq ON CN CN VO ON ON w w d CN ^H* d d CO* Tf O * V O C O C N ^ f - r - H T t O O N V O t ^ O h T f r H i O T f ( N V D ( N ^ T t M CN M (N h t. i CO VO 5 "8 ' S 0 u N CO cn <D 1 H t» <D S3 <D «. 3 «0 1 ts 3 a C* in " - C3 Q - S S 1 1 H H 13 <D *3 a a <D _ w a 3 5. S % % < i H h h 5 a 0 1 «D a a 0 L> fcj a 1 <D a Vh <D _ 3 2 > O W

57 cmbined int tw brad categries: private and public issues. Table 2.4 shws the ttal number and percentages f cases which raised private law r public law issues annually frm 1877 t the first half f These numbers are pltted in Figure 2.4 and Figure 2.5, respectively. The pattern depicted in Table 2.4 and Figure 2.4 is very striking. With nly 11 exceptins (1910, 1912, 1939, 1944, 1946, 1959, 1967, 1968, 1970, 1971, 1974), private law matters maintained a numerical dminance ver public law issues in the Canadian Supreme Curt's decisin-making almst every year frm 1877 thrugh In this perid private issues were decided by the Curt at an average f 50 cases annually, cnstituting 56.79% f all cases. Public law cases were decided by the Curt at an average f 39 cases annually, cnstituting 43.21% f all cases. One might ntice that in the decade , public law issues dminated private law issues in five f ten years, thus hinting at the change t cme. Frm 1977 n, hwever, the Supreme Curt's decisinmaking has been clearly and lpsidedly dminated by public law matters. The average number f public law cases increases t 77 annually accunting fr 71.05% f all cases, while the number f private law cases declines t 32 cases annually, accunting fr 28.95% f all cases. The figure is subdivided int fur segments based n the ccurrence f significant changes relevant t the Canadian Supreme Curt. The first perid cvers frm the establishment f the Supreme Curt t 1949, when the right t 47

58 48 Table 2.4 Number f Public and Private Issues in the Canadian Supreme Curt, Year Public Private Ttal N % N %

59 49 Table 2.4 (Cntinued) Year Public Private Ttal N % N %

60 50 Table 2.4 (Cntinued) Year Public Private Ttal N % N % * Ttal * The data fr the 1990 term included nly the first sessin and were reprted in Vlume 1 f 1990.

61 c =3 O O CD > O CO CD O r CD O O CD O r^ 00 (J) CD LO r^ 00 cn CD 3 (n if) a CD a > *L_ CL XJ C O a _J 25 =3 CL M CD -D CN 0 k_ D CP

62 O CT> (J) O CO CD O CX> CD CD LO 00 cn 0 D in CO O CT> 25 D 0_ c 0 Q L_ 0 Q_ O r^ 00 cn 0 cn C 0 0 CL U1 CN 0 D cn

63 appeal t the Privy Cuncil was ablished. The secnd perid is between 1949 and 1975 when the Curt's jurisdictin was changed. The third perid is frm 1975 t 1982, after the right t appeal in civil cases where the amunt in dispute exceeded $10,000 was ablished. The furth perid, frm 1982 t 1990, cvers the time after the new cnstitutin. As mentined in Chapter One, these changes significantly altered the plitical imprtance f the Supreme Curt. The ablitin f the right t appeal t the Privy Cuncil helped t increase the Supreme Curt's prestige by making it the final and exclusive curt f appeal fr Canada. The ablitin f appeals by right in civil cases with a value ver $10,000 cntributed t the autnmy and freedm f the Curt t select and cntrl its wn dcket. It allwed the Curt t pick and chse cases that raise significantly imprtant questins f law and plicy. The adptin f the Charter f Rights cnstitutinalized the Curt's authrity. Using these divisins, ne can see that the ablitin f the right t appeal t the Privy Cuncil did nt drastically alter the balance f the Supreme Curt's rule adjudicatin. Hwever, the latter tw changes appear t have significantly shifted that balance. This is clear frm Figure 2.5, which plts the percentage f ttal reprted decisins accunted fr by public law cases frm 1877 thrugh After 1975, the graph shws a cntinuing rise f public law issues. The 53

64 54 adptin f the new cnstitutin in 1982 appears t slidify their dminatin in the Supreme Curt decisin making in the 1980s. T test the significance f these events n the changing rule adjudicatin pattern statistically, the study estimated a Bx-Jenkins ARIMA (3,1,0) 5 mdel fr the data. The shift in percentages f public issues cases was mdelled as a functin f three time series interventins and the three changes marked by the ablitin f the right t appeal t the Privy Cuncil, the ablitin f the right t appeal in civil cases, and the adptin f the new cnstitutin. These events are hypthesized t have a permanent effect with a gradual nset 6 n the prprtin f public issues cases. Since the ablitin f the right t appeal in civil cases (1975) and the adptin f the new cnstitutin (1982) ccurred in a clse time span, the study als hypthesized that they have a cmpund effect n the changes. Table 2.5 presents the result f the multivariate Bx Jenkins ARIMA (3,1,0) estimatin and their assciated statistics. Prir t estimating the multivariate mdel, I calculated univariate mdels fr each interventin. The results f the univariate mdels are similar t thse f the multivariate ne. The result f the multivariate mdel shws that the ablitin f rights t appeal t the Privy Cuncil did nt significantly change the rati f public issues cases decided by the Supreme Curt. The study expected that the ablitin f the right t appeal in civil cases and the adptin f the new cnstitutin will have a cmpund effect n the Curt's scpe f

65 55 Table 2.5 ARIMA Mdel f Changes in the Pattern f the Canadian Supreme Curt Scpe f Rule Adjudicatin, Predictr Parameter Value % Change 7 T-Rati Ablitin f Rights t Appeal t Privy CuncilC0j Ablitin f Rights t Appeal in Civil Cases ( ** New Cnstitutin c * First-rder Autregressin (j) ** Secnd-rder Autregressin (t> Third-rder Autregressin (j) ** Residual Sum f Squares = Degrees f Freedm =103 Residual Mean Square = * Significant at the.10, ne-tail test ** Significant at the.05, tw-tail test rule adjudicatin. Only the frmer is statistically significant; hence, the cmpnd effect did nt ccur. One pssible explanatin f the failure f the cmpund effect is based n the rate f change fr the 1975 change. The is equal t.791 which is a high value fr gradual nset. In the theretical sense, the high 6 will result in a lng perid f time befre the full effect is realized and the series permanently mves t the new level (McCleary and Hay 1980,

66 ). Since there are nly 5 perids that separate 1975 frm 1982, it is pssible that the full impact was nt yet realized befre the new interventin ccurs. In anther wrd, the event in 1975 and the event in 1982 are statistically crrelated t ne anther. In fact, McCleary and Hay, in their example, shw that it is pssible that the mathematical results f a cmpund effect and a lng gradual effect are similar (1980, ). The mdel estimates that the ablitin f the rights t appeal in civil cases has caused a change in the percentage f public issues cases decided by the Curt by 41.3% per year. Symblically, the change in 1975 was the least imprtant change f the three changes because it did nt alter the status f the Supeme Curt as a supeme, independent and cnstitutinally created institutin in the cuntry. Operatinally, hwever, it allws the Curt t cntrl the selectin f cases it wants t hear and decide. The analyses presented abve suggest that the Curt has seized the mment and elevated itself t becme an imprtant plitical institutin whse behavir, thrugh the decisn in a case, will have an impact n public plicies in the cuntry. The dynamics f the Supreme Curt's mix f rule adjudicatin are als evident when ne again examines change ver time in the types f cases that dminate the Curt's reprted decisins. Table 2.6 presents the ten mst frequendy raised issues in the decisin-making f the Canadian Supreme Curt

67 in the three different time perids: the perid prir t the ablitin f appeals t the Privy Cuncil ( ), the perid frm then until the change in the Curt's jurisdictin in 1975, and, frm 1975 t It is clear frm the table that the case mix f the Curt changed significantly frm the first t the third perid. In the first perid, the Canadian Supreme Curt was dealing mst frequently with private law matters. Private law matters cnstituted 57.6% f all cases in this perid, and the first three types f private law cases heard (trt, cntract, real prperty ) represent 23.7% f all the cases in that perid. In this perid, there were nly three types f public law cases in the tp ten, and cnstitutinal cases were nt amng them: Railways (ranked number 6), Municipality (ranked number 7), and Criminal (ranked number 10). Tgether they cnstituted nly 12% f all cases in this perid. This pattern changes smewhat in the secnd perid as public law matters (Criminal and Incme Tax cases) share the tp fur spts with the private law cases (Trt and Cntract). The tp tw public law case categries cmbined utnumber the tp tw private law categries cmbined, but nt by much (17.5% t 14.6%). Of the tp ten categries in this perid, five categries were public law cases (Criminal, Incme Tax, Municipality, Cnstitutinal, Labr) and 4 categries were private law (Trt, Cntract, Real Prperty, Mtr Vehicle) with Prcedure as the remaining categry. In additin, the ttal number f issues raised in this perid was mre evenly split between the tw 57

68 58 Table 2.6 Types f Legal Issues Brught t the Supreme Curt Mst Frequently in the Three perids Issues Number % Issues Number % Issues Number % Trt Criminal Criminal Cntract Trt Cnstitutinal Jurisdictin Incme Tax Trt Real Prperty Cntract Labur Prcedure Real Prperty Cntract Railways Mtr Vehicle Insurance Municipality Municipality Municipality Insurance Prcedure Family Statute Interp Cnstitutinal Administratin Criminal Labr Bill f Rights Public Law cases 2,805 Public Law cases 1,147 Public Law cases 1,163 (42.4%) (47.6%) (70.6%) Private Law cases 3,807 Private law cases 1,262 Private Law cases 485 (57.6%) (52.4%) (29.4%) Ttal 6,612 Ttal 2,409 Ttal 1,648 legal categries, and cnstitutinal cases appear in the tp ten. Public law case categries cmbined fr 47.6% f the ttal and private law cases cmbined fr 52.4%. It is in the third perid that the mix f specific legal issues brught t the Supreme Curt changed drastically. In this perid, trt cases are the nly private law matter that remains in the tp fur categries. The tp tw public law matters (Criminal and Cnstitutin cases) accunt fr 38.4% f all the cases

69 59 heard by the Curt, and public law cases dminate the Curt's wrklad: they accunt fr 70.6% f all cases heard in this perid. The shift frm private t public law cncerns becmes even mre prminent when we restrict ur attentin t cases that raised the mst plicyrelevant public matters, cnstitutinal r rights issues. The cnstitutinal r rights cases categry grups tgether cases cded as having raised Aliens, Bill f Rights, Civil Liberties, Cnstitutin, Educatin, Criminal Law, Immigratin, Prcedure, and Crwn Rights issues. Table 2.7 presents the distributin f public, private, and cnstitutinal and rights cases by decade. The distributin f cnstitutinal/rights cases is pltted in Figure 2.6, and Figure 2.7 pltts the annual number and percentages f cnstitutinal/rights cases. The graph in Figure 2.6 depicts the ttal number f cnstitutinal and rights case, n the left Y-axis (Ttal), and the percentages f public law cases (% Public) and f all cases (% Ttal) n the right Y-axis. We can see clearly frm the table and the figure that the Curt's scpe f rule adjudicatin had changed drastically frm the beginning t the mre recent years. In the early perid, the cnstitutinal and rights cases were nt very significant either in number r percentage. Hwever, their curves climb steadily and they becme a majrity f public law decisins by the 1970s and the 1980s. In the 1980s, they represented almst ne-half f all decisins in the Canadian Supreme

70 c CD Q ik_ 0 D_ 00 t in tn C Z5 O

71 61 Table 2.7 Number f Cnstitutin/Rights Cases in The Canadian Supreme Curt, Year Public Private Cnstitutinal / Rights Cases Number As % f Public As % f Ttal Ttal Curt. The annual plt in Figure 2.7 shws the significant rise after 1976, and these cases remain high until 1990, the last year in the series. The annual data were used t statistically mdel the three events n the changing patterns in the rati f cnstitutinal/rights cases. The Bx-Jenkins ARIMA (0,1,2) mdel was applied t these data. Table 2.8 presents the mdel estimatins and its assciated statistics.

72 O CD cn m 00 if) 0 (/) D O cn jc g> hi "U c 0 01 c CO c H w 0 cn c 0 0 CL c CD O L- CD CL CN 0 L- D cn

73 63 Table 2.8 ARIMA Mdel f Changes in the Rati f Cnstitutinal and Rights Cases in the Canadian Supreme Curt Predictr Parameter Value % Change 8 T-Rati Ablitin f Rights t Appeal t Privy Cuncil! Ablitin f Rights t Appeal in Civil Cases d ** New Cnstitutin c * First-rder Mving Average 0j ** Secnd-rder Mving Average * Residual Sum f Squares = Degrees f Freedm =108 Residual Mean Square = * Significant at the.05, ne-tail test ** Significant at the.05, tw-tail test The result f the multivariate estimatins shws that the ablitin f rights t appeal t the Privy Cuncil in 1949 did nt statistically significant in the change f the rate f cnstitutinal/rights cases brught t the Curt. The ablitin f the rights in civil cases and the new cnstitutin f 1982, n the ther hand, are statistically significant at the.05 level, ne-tailed test. The mdel predicts that the 1975 changes will result in the increase f cnstitutinal

74 and rights cases by 77.8%, and the new cnstitutin resulted in the increase f the rate by 37.8%. This is precisely shwn in the graph. One can see that the graph line shws a small rise, with sme fluctuatin in sme years, but remains stable frm 1949 t The big increase in the rati f cnstitutinal and rights cases came after the ablitin f the rights t appeal in civil cases in 1975 and cntinue t rise after The statistical insignificance f the ablitin f rights t appeal t the Privy Cuncil in 1949 is interesting. As mentined earlier, this change helped the Canadian Supreme Curt becme the final appellate curt in Canada, and was suggested by Canadian Supreme Curt schlars as a "crucial and necessary first step tward the enhancement f the Supreme Curt's plitical influence" (Mrtn 1986, 6). The statistical findings in this study, hwever, fail t cnfirm that cnclusin. The changing mix f cases heard by the Canadian Supreme Curt frm the private law t the public law dmain and the significant rise in the cnstitutinal and rights cases can be viewed as a shift in the rle f the Curt in Canadian plitics. Private law matters have limited public plicy cnsequence. Public law matters, n the ther hand, have a significant impact n the public plicies f the cuntry, especially when the cases invlve cnstitutins, civil rights, taxatin, and criminal law. This study has 64

75 65 demnstrated that these cases are n the rise, while private law matters are n the decline. These changes in its rule adjudicatin dcument that the Canadian Supreme Curt has transfrmed itself (been transfrmed) frm a traditinal and "nnplitical" judicial branch t a mre plitically-riented and significant institutin. The abve analysis allws ne t assert that the cntemprary Canadian Supreme Curt has cme t play a significant rle in shaping public plicies in Canadian sciety. The increase in the cnstitutinal and rights cases brught t the Supreme Curt will undubtedly keep the Supreme Curt in the middle f several public plicy debates, and these cnstitutinal and rights cases will have a larger impact n the sciety than private r ther public law matters cases. Cnflict in Decisin Making Previus sectins fcused n the wrk f the Canadian Supreme Curt; this sectin will present a different institutinal behavir f the Curt, cnflict in decisin-making. Since the publicatin f Pritchett's The Rsevelt Curt, judicial plitics schlars were directed t the study f cnflict in decisinmaking by fcusing n the nnunanimus decisins rendered by the curt. Pritchett prvided the reasn fr study the nn-unanimus decisin as: A unanimus judicial decisin thrws little light upn... "deliberatin in prcess." It tells nthing f the cnflicts arund the judicial cnference table, the accmmdatins and the cmprises that went int the final result. A unanimus pinin is a cmpsite

76 66 and quasi-annymus prduct, largely valueless fr understanding the values and mtivatin f individual justices. A nnunanimus pinin admits the public t the Supreme Curt's inner sanctum. In such a case the prcess f deliberatin has failed t prduce a cnclusin satisfactry t all participants. Having carried the argument as far as they usefully can, the justices find it necessary finally t take a vte, state and supprt the winning and lsing psitins, and place the arguments befre the wrld fr judgement. In infrming the public f their decisins and their reasns, the justices als supply infrmatin abut their attitudes and their values which is available in n ther way (1946, xii). The main theme in this sectin is t present an verall picture f the cnflict in decisin-making f the Canadian Supreme Curt. It will als try t assess the impacts f the institutinal change n these cnflicts, and finally it will present the factrs that prbably cause the rise r decline in such cnflict. Table 2.9 presents the annual number f cases reprted and number f nnunanimus decisins and their percentages; and Figure 2.7 presents the time series plt f the percentages and the mving average trends. Lking first at the percentage f the nnunanimus decisin in the Curt, n the average, its percentages f nnunanimus decisins was 32.72% with the high f 79.17% in 1882 and the lw f 9.43% in The ver time trend is very striking. The plt shws a secular trend dwnward frm the early perid t the latter with sme cycles. The institutinal changes in the Supreme Curt discussed earlier did nt shws any impacts n these trends. In fact, a statistical mdel fr the time series with three interventins did nt shw any statistical significance. Hence, these trends resulted frm sme ther factrs. Previus

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80 70 studies n the U.S. Supreme Curt pinted ut, with sme reservatin, that the mst imprtant factrs that can be used t explain the level f dissensus is leadership style f the chief justices (Walker, Epstein, and Dixn 1988, ; see als Haynie 1992). T test this hypthesis, the study represents the rate f dissensus in Figure 2.8 with the divisin based n each chief justice's tenure. Infrmatin abut chief justices' tenure is presented in Appendix C. Althugh the cycles f the time series did nt cmpletely fluctuate with the tenure f the chief justices, it shwed sme patterns in each perid, in particular, the shift that ccurred during the Ritchie, Fitzpatrick, Duff, Kerwin, and Laskin Curts. T statistically assess the impacts f Chief Justices' tenure n the level f dissensus in the Supreme Curt, the study mdels a Bx-Jenkins ARIMA (2,1,0) fr the data. Table 2.10 presents the estimatins f the mdel. The mdel was estimated with ne lag f the term year. This is arbitrary, but is assigned t allw chief justices time t effectively utilized their leadership in the Curt. The impact f chief justice n the series was cnsidered t be temprary, with a gradual nset. In terms f statistical prcedure, this was cded as a binary number with 1 during the chief justice's term years and 0 therwise. In ttal there were fifteen chief justices frm 1870 t Chief Justice Richards was drpped frm the mdel since he was the first chief justices fr whm the mdel cannt make a cmparisn between preinterventin and pst-interventin. Six chief justices ( Henry E. Taschereau,

81 71 Table 2.10 ARIMA Mdel Fr Leadership and Dissensus in the Canadian Supreme Curt, Chief Justices Parameter Value % Change 9 T-Rati Richie CO, * Strng (fl * Fitzpatrick CO * Anglin c Duff * Rinfret Kerwin c Laskin C0g ** First-rder Autregressin * Secnd-rder Autregressin * Residual Sum f Squares = Degrees f Freedm = 93 Residual Mean Square = * Significant at the.05, ne-tail test ** Significant at the.10, ne-tail test. Davies, Rbert Taschereau, Cartwright, Fauteux, and Dicksn) were excluded because their tenures were t shrt. The estimated mdel was very successful in accunting fr the variatins in the series. Of all the chief justices included in the mdel, five chief justices shwed a statistical significance in the changing level f dissensus in the Curt. Richie ( ), Strng ( ), Fitzpatrick ( ), and Duff ( ) were respnsible fr the increase in the dissensus rate during their

82 72 chief justice tenure. Chief Justice Laskin was the nly chief justice wh demnstated the leadership in cntrlling and reducing the level f dissensus in his Curt. The ability f Chief Justice Laskin t reduce dissensus in his Curt is rather interesting because Laskin dissented the mst during his years as a junir judge f the Supreme Curt. His rate f dissensus as a junir judge was abut 20% f all cases he participated in. This rate, hwever, drpped t abut 8% during his years as the chief justice. The success f the initial mdel t explre the rle f chief justices n the level f dissensus in decisin-making is impressive. Scial behavir and phenmena are rather mre cmplex s that ne cannt fully explain them using a single factr alne. This is prbably als the case f the level f dissensus in the Canadian Supreme Curt. Despite the success f the mdel, the study acknwledges that there are ther ptential variables that als can accunt fr thse variatins. Indeed, Petersn has identified fur general categries f factrs relating t prbable causes f dissenting behavirs. These include factrs such as difficult questin f law, size f caselad, curt prfessinal n dissenting behavir, leadership, individual justices' idelgy, etc. (1981, 424). A full analysis n this subject, hwever, is beynd the scpe f this study. A mre cmplete analysis will be persued in future research. At a minimum, the explratry wrk presented abve serves as the initial empirical wrk tward a

83 better understanding f cnflict in the decisin making prcess f the Canadian Supreme Curt. 73 Plicy Directin in Decisin Making T understand that the judicial system has impact n public plicies in the cuntry is nt sufficient. It is als imprtant t understand hw these plicies were impacted and in which directin they were changed. The directin f the Curt's decisin-making reflects the substantive plicy preferences f the Curt's majrity, judged as pr r cn n certain liberal interests. In the United States in this century, the vast majrity f the Supreme Curt's decisin nw fall int three substantive areas: civil liberties, ecnmic interests, and fiscal claims (see Pacelle 1992). Accrding t Glendn Schubert, civil liberties cases are thse in which the primary issue "invlves a cnflict between persnal rights and claims t liberty and gvernmental authrity," while ecnmic interest cases are thse invlving a cnflict between "underprivileged ecnmic interests as against thse f affluence and mnply pwer." Finally, fiscal claims cases are thse that invlve "mnetary cnflicts f interest between private individuals and gvernment" (Schubert 1962, ). Thugh Schubert's classificatins were fr the U.S. system, they are als apprpriate t Canada. Analgs f these decisin categries accunt fr the vast majrity f Canadian Supreme Curt decisins frm In civil rights

84 74 and liberties cases, the primary issue invlves claim t a particular right r liberty that has been allegedly unjustly denied, rdinarily by the actin f a gvernment at either the prvincial r natinal levels. Despite the fact that the Charter f Rights in Canada was nt adpted until 1982, it is understd that Canadians d have the basic rights and liberties that are cmmn in demcratic scieties. Thse rights and liberties include the right t free speech, freedm f religius belief and practices, freedm f the press, right t a fair trial, and thers. In fact, Russell pints ut that the Charter did nt really create new rights, but rather a new way f making decisins abut rights in which the curt system plays a systematic and authritative rle (1982, 32). The ecnmics case type can be straightfrwardly applied t the Canadian system. It invlves mainly civil suits amng individuals, business r grups. The issues in the cnflicts invlve private mnetary disputes, trts, landlrdtenant, labr-management disputes, wrker cmpensatin, individual prperties, sales f gds, cntracts, insurance, banking, etc. The cmplete list f issues is presented in the cdebk (item number 7 and 8). It als includes cases invlving business regulatin by the gvernment. Finally, the fiscal claims cases invlve mainly taxatin cases between gvernment agencies and individuals r business agencies. Unfrtunately, while Schubert's civil rights and liberties classificatins are simple and straightfrward, and familiar t American students f judicial

85 75 plitics, they are smewhat difficult t apply using the Peck and Russell dataset. The infrmatin used t classify cases is cded as fur variables that describe the types f legal issues raised in a given case, and in a fifth variable that identifies the "brad legal issue" raised in the case. The variables are numbers 7 t 12 in the cdebk. Fr ecnmic and fiscal claims cases, the Peck and Russell data generally cntain enugh infrmatin t allw ne reliably t classify cases int the tw categries. This was nt the case in civil liberties cases. The reasn is that Peck and Russell did nt classify their cases using categries that can easily be matched with Schubert's categries f civil liberties claims, and their data d nt cntain enugh additinal infrmatin t allw ne reliably t classify a given case int an apprpriate civil liberties categry. While the categries used by Peck and Russell t cde legal issues make it difficult t cde civil rights and liberties issues directly, they d nt prevent this study frm classifing cases int ne f the three fllwing categries: 1. Individual claims against gvernment in cases ther than ecnmic r fiscal claims; 2. Ecnmic claims cases; and 3. Fiscal claims cases. The first categry will cnsist f cases that have a private individual as ne party in the case and a gvernment agency as the ppsing party. The issues invlved in these cases are thse cded by Peck and Russell as having raised

86 76 issues cncerning aliens, the bill f rights, criminal law, cnstitutin, civil liberties, immigratin, municipality, Crwn rights, prcedure, evidence, statute interpretatin, and cnflict f law. Sample f these cases are presented in Table Fr example, ne case was assigned as an individual claim because the legal issues raised in the case include criminal, evidence, and prcedure, and the brad legal categries invlved in the case were cnstitutin and federal statute (see case number 1 in Table 2.11). Case number 9 was assigned as an ecnmic case because it raised the individual prperty issue and invlved cmmercial law. Finally, case number 16 was classified as a fiscal claims case because it invlved taxatin and federal statute. Based n the infrmatin cded in the Appelant (item 13), the Respndent (item 14), and the Dispsitin f Appeal (item 5), each case can be classified as having liberal r cnservative utcme. The liberal utcme cases are thse where the Curt decided in favr f the individual in individual claims cases. In ecnmic claims cases, the Curt majrity favred the interest f the "underprivileged." Fr example, they are the cases where the Curt favred private individual against crpratin, labr ver management, tenant in landlrd-tenant cases, debtr in debt cllectin cases, etc. It als includes pr gvernment utcmes in business regulatin cases. In the fiscal claims cases, the liberal utcmes are thse cases where the curt decided in favr f the gvernment. The cnservative utcme will be the ppsite. 10

87 77 Table 2.11 Sample Re-Cding f Peck-Russell Data int the Three Categries Peck-Russell Issues Cded in the Data Legal Issue cded in Item 7 Legal Issue cded in Item 8 Legal Issue Legal Issue Brad Legal cded in Item 9 cded in Item 10 Categries cded Individual Claims Cases: 1. Criminal 2. Criminal 3. Cnstitutin 4. Cnstitutin 5. Immigratin 6. Civil Liberty 7. Municipality Evidence Prcedure Prcedure Aliens B. f Rights Aliens Criminal Civil Liberty Jurisdictin Mtr Veh. Cnstitutin and Federal Statute Federal Statute Cnstitutin and Federal Statute Cnstitutin and Federal Statute Federal Statute Cnstitutin and Federal Statute Civil Cde and Prvincial Statute Ecnmic Cases: 8. Real Prperty 9. Statute Interpret. Ind. Prperty 10. Railways Trt 11. Landlrd-Tenant Labr 14. Utilities 15. Insurance Trt Cntract Cntract Prcedure Banking Cntract Real Prperty Fraud Debtr-Creditr Cmmercial Law Cmmercial Law Federal Statute Federal Statute and Cmmercial Law Prv. Statute and Cmmercial Law Civil Cde Civil Cde Federal Statute and Cmmercial Law Fiscal Claims Cases: 16. Incme Tax 17. Excise Tax Sales 18. Municipality Tax 19. Jurisdictin 20. Utilities Real Prperties 21. Jurisdictin Real Prperties 22. Municipality Tax Jurisdictin Crwn Rights Banking Tax, Other Municipality Tax Excise Tax Sales Prcedure Federal Statute Federal Statute and Prvincial Statute Prvincial Statute Federal Statute Prvincial Statute and Civil Cde Prvincial Statute Prvincial Statute

88 78 By analyzing the utcme f the cases, we can determine the plicy preferences f the Supreme Curt. As the Supreme Curt's reprted cases can be bth unanimus and nnunanimus decisins, lking at the cnflict in their decisin-making will help in understanding the magnitude f their plicy preferences and the rle f each individual judge in determining the utcme f the decisin. One can assume that judges wh cast the dissenting vte in a case have strng pinins n the subject that they are willing t let be knwn. Hence a lk at the presence r absence f a nnunanimus decisin in the curt's wrk will shed sme light n the directin f its plicy preferences. The study will analyze unanimus decisins tghether with nnunanimus decisins. It is mre useful t base the analyses n "natural curt," r a Curt f cnstant membership, rather than n the year t avid verly small numbers f case types in each year and because the changes in the Supreme Curt persnnel cmpsitin can be used as pssible explanatins f shifts in case utcmes. The setting f the Curt agenda the selectin f cases fr decisin is an interactin prcess between tw majr actrs: "rganized grup litigants and the justice" (Pacelle 1992, 36). A particular cases r class f cases selected by the Curt fr judgment des nt entirely depend n the litigants t bring cases t the Supreme Curt, but als n the desire f justices t influence a particular issue r set a particular public plicy agenda. In fact, Supreme Curt justices can influence the type f litigant that will be brught t the Curt by their

89 79 cnsistency in refusing t hear a particular type f case. Fr these reasns, the natural curt unit is apprpriate. A natural curt is defined as a curt f cnstant membership, i.e., ne in which n new justice is appinted (see Schubert [1974] fr the first knwn example). They are useful analytical units because they change with persnnel changes and, thus, allw ne t decipher behavir patterns that may be due t persnnel adjustments. This study culd nt, hwever, use the strict definitin f natural curt. In additin t the abve definitin, it als required a natural curt t cver a minimum f tw years. The additinal requirement is useful since it allws us t be able t analyze mre cases during the perids where there was a high turnver f judges n the Supreme Curt. Appendix B presents the classificatin f each natural curt with the names f the justices wh served in a particular curt. The study divided the Canadian Supreme Curt frm 1877 t 1990 int 27 different natural curts. Table 2.12 presents the annual distributin f each case type and Table 2.13 presents the data based n natural curt. The annual percentages f each case type are pltted in Figure In ttal, there were 1,625 cases (19.31%) classified as individual claims against gvernment (ICLAIM); 5,558 cases (66.03%) classified as ecnmic claims (ECON); 810 cases (9.62%) classified as fiscal claims (FISCAL); and 424 cases (5.04%) nt classified. As expected, the mix f types f cases that

90 80 Table 2.12 Number f Cases in Each Case Type Categry in the Canadian Supreme Curt, Year ICLAIM % ECON % FISCAL % N/A % Ttal

91 81 Table 2.12 (Cntinued) Year ICLAIM % ECON % FISCAL % N/A % Ttal

92 82 Table 2.12 (Cntinued) Year ICLAIM % ECON % FISCAL % N/A % Ttal Ttal 1, , ,417 came t the Supreme Curt changed frm the earlier t the later perids. Ecnmic interest cases dminated the Curt's dckets in the early perids until 1980 (see Figure 2.10). In the perid frm 1877 t 1945, they represented abut 70-80% f all cases reprted, and in sme years they were as high as 90%. The percentages, hwever, started t decline after They accunted fr abut 60-70% during 1945 t Immediately prir t 1975, the

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95 ON Tf <N CO in m in m»n in <n c t> in s T < CO r- <N s CO CO ON Tt 00 <N CO Tt Tt Tt m Tt CN m c i> c SO 00 ^ 00 Tt ON (N m *n ON Q\ \» in C s O H % 72 s 00 s 8 rh t^- <N *~ H i ON CO in m CO l> 34 CN <N s \ SO C- CN Tt in m s CS T^- i I > O i> CO r- SO 00 <N, r in in»n <N <N -' ^-H SO* CN CO i> rh <N ON in Tt Tt m Tt <N SO CO O < *n O ^ 00 Tt m Tt T-4 t- m <N in m a VH Ph C/5 O CZ) ctf u J < u CO HH b 7i r t s ON» 00 ON t- ON SO CO r- «N SO T 4 rh rh CO in r-h in s in Tt Tt in r- Tt i> i> (N <N IT) O SO Tt in *n i> Tt <N <N s 3 3 rh S 8 ^ s *n O v *n V* c/) <D C/3 «3 O W5 c W a <D C/3 Ctf u 55 O U W 00 <N r- 00 Tt SO m rh <N <N Tt in O r- SO in 00 CO t- r- rh ON CO n rh CO Tt Tt in i-h Tt w in v CO CO ^4 T_4 SO 00 SO s 00 in m in in Tt ^ Tt <N <N Tt in ON in Tt <N O in c c Tt Tt 00 CO 00 r-h in ON SO Tt r- i> CO in Tt T-H in 00 m r- Tt H Tt m a ON (N m t> in $ 3 m CO CO» CM r-h <N in Tf in»n ^-h ON O r- Tf bd 0 'S «D T3 a OH & a *a f M T3 <D 53 «a a O c *4 <N J 3 H <Z5 <D CO cd < l-j u u Vh z Tt l> ON 00 SO ON a <N t> m r- Tt r- <N T-H <N c 00 CO J H Q 4> 1 XT **-< ^ a \ g $$ *7 55 i> OS Tt Tt s ON s <M <N s Tt CO c in!> ON <N <N s c 9 2 S 3, > ^ s a O 2 3 in CM 00 s <N in c c s c T- " 1 in Tt _ 03 I J a 3 O, 2; 00 t> ON SO ^ On O «J S s 00 H m <N SO ON Tt SO m cs ON m x> J 53 d s \ g ^ 7 CO 00 ON a 0) XI J <+H rh <N c i> " 9 ON Tt Tt ON SO Tt <N s ^ <3> S -g a ON J3 in ON 9 cfl a> ON 00 ON m n rh CO CO 00 ON O* CN l> in m CN CO ^ ON T-h c *n <N \ > O ^ CN ^t O Tf SO ON ^ ON f-h m r-" a fi^s 53 T5 T3 C ^H I u Q«0 "I 1 <+H «D O <D <D C/3 O. T3 C/3 2^ O Im CO *rh H M ^ 2 S " JD I (» H J g ^ E Z * fc

96 c 0 0 Q_ 00 CN

97 87 ecnmic cases again shwed anther rise. The ablitin f the rights t appeal in civil cases nt nly helped shift the balance between public law and private law, but it als helped t shift the case type mix as well. After 1975,ecnmic cases drpped drastically frm abut 70% f the case mix t 15% in On the reverse path, individual claims cases rse frm unimprtant in the Supreme Curt's agenda t a majrity f cases at the end f the 1980s. Frm 1877 t 1920, they represented less than 10% f the mix. The initial increase in individual claims cases ccurred in the late 1920s when they cnsistently accunted fr abut 10-20% annually. After 1945, the individual claims cases again mved up t a new plateau, cnstituted mre than 20% and remained at this level until In the pst-1975 perid, they shwed a drastic rise and eventually surpassed ecnmic cases as the number ne case type in They became a majrity f the Supreme Curt agenda in 1982 when they accunted fr mre than 50% fr the first time in Supreme Curt histry. With a single decline in 1983, individual claims cases accunted mre than 50% f the case mix, and have shwn a steady rise thrughut the 1980s and int the 1990s. They represented abut 84% f the cases mixed in Initially, fiscal claims cases shwed the same pattern as individual claims cases, and were nt a significant part f the case type mix. Frm the beginning until 1970, they represented abut 10-20% f the case mix. After 1970, hwever, they tk a different turn. While the individual claims cases sared t

98 88 a new level, fiscal claims cases shwed a steady decline, and eventually lst their share in the Supreme Curt's agenda. Since 1975, they have accunted fr less than 10% f the case mix. The Supreme Curt heard nly 3 cases in 1988 and 1989 and the Curt did nt reprt any fiscal claims cases in the first vlume f In terms f the plicy preferences f the Supreme Curt, Table 2.13 als presents the percentages f liberal utcme in each categry fr unanimus, nnumanimus, and all decisins. Figure 2.11 presents each natural curt's verall liberalism, and Figure 2.12 t Figure 2.14 plts the percentage liberal in unanimus and nnunanimus decisins in each case type categry. Lking first at the verall percent liberal clumn, we see that the Curt verall was neither liberal nr cnservative. The mean liberalism scre is 50.95%. Individual natural curts, hwever, shw substantial differences in scres. Natural curt 1 ( ), 2 ( ), 15 ( ), 20 ( ), 21 ( ), 22 ( ), 23 ( ), 26 ( ), and 27 (1989-) shwed liberalism scres f less than 50%, ranging frm 29.85% fr Curt 1 thrugh 49.15% fr Curt 22. The remaining natural curt shwed scres higher than 50%, with natural curt 6 ( ) shwing the highest liberalism scre f 63.53%. Each natural curt, except natural curt 6 ( ), natural curt 17 ( ), and natural curt 22 ( ), shwed a similar pattern in their level f liberalism between unanimus and nnunanimus decisins. Their respective scres fall within ne standard

99 Percent Split Cases #- All Cases r- * H H ' i l l i' i' i' i' i' i' i' i i i i i i i' i i i i i i Natural Curt Figure 2.11: Percentages f Liberalism in Each Natural Curt, Percent 100- Split Cases All Cases i i i' i i i 1 1 i i i i 1 1 * i * i * i * i * i * i * i * i i Natural Curt Figure 2.12: Percentage f Liberalism in Individual Claims Cases

100 Percent Split Cases * * All Cases -f 10 0 i i 1 i i i i' i' i' i i i i 1 1 i i i i i i i i i i r r i Natural Curt Figure 2.13: Percentage f Liberalism in Ecnmic Cases Percent 100- Split Cases TT 1 ' 1 " 1 ' ' I I ' I I I ' I ' I ' I ' 1 ' I ' I ' I ' I ' ' ' Natural Curt Figure 2.14: Percentage f Liberalism in Fiscal Claims Cases ^ <<*> -4- I ' I ' I ' I 1 I

101 91 deviatin. Natural Curt 6's liberal scre in unanimus decisins was 71.6% cmpared t 52.3% fr nnunanimus decisins. Natural curt 17's scres were 46.5% and 64.3%, and natural curt 24's scres were 49.3% and 79.2%, respectively. There are tw pssible explanatins in these differences. First, they culd be the result f a large number f cntrversial cases. Secnd, they culd be the result f a difference in level f chesin in the tw ppsing blcs, where members in ne blc have a tendency t vte tgether mre than anther blc whse members were lsely united tgether. It is difficult t cnfirm the first prpsitin unless ne carefully analyzes the cases decided by the Curt. The test f the secnd prpsitin is the subject in Chapter Three. Liberalism in the Canadian Supreme Curt als differs acrss types f cases. Figure 2.11 plts the liberalism scres in the three categries fr each natural curt. In the individual claims cases, nly fur curts (natural curt 1 was excluded since it has nly tw cases in this categry) shwed a liberalism scre abve 50%: natural curt 12 ( ) with a scre f 58.33%; natural curt 13 ( ) with a scre f 52.94%; natural curt 24 ( ) with a scre f 51.04%; and natural curt 25 ( ) with a scre f 56.92%. The mean scre fr individual claims liberalism is 39.33%. The difference between this mean and a hypthesized "balance" mean f 50% is statistically significant at the.05 level (the t-value is with a ne tail p-value f.000).

102 92 Their cnservatism in individual claims cases was evident especially during the early perid. Frm 1875 t 1911, they favred individual claims nly abut 25% f the time. In the twentieth century, hwever, they were mre sympathetic tward individual as fur f the six highest scres belng t natural curts after 1949, especially tward the end f Chief Justice Laskin's tenure. The trend, hwever, was smewhat reversed in the Dicksn Curt, as the last tw natural curts' liberalism in individual claims cases scres are 43.7% and 37.4%, respectively. While the Curt is mre cnservative in individual claims cases, its majrity favred liberal interests in ecnmic claims cases. The mean liberalism is 53.43% and is statistically significant different frm the "balanced" mean f 50% (the t-value is 2.25 with a ne tail p-value f.015). With the exceptin f the first tw natural curts, natural curt 25 ( ), and natural curt 27 (1989 -), the Canadian Supreme Curt favred the ecnmic "underdg," with natural curt 18 ( ) as a champin with the liberal scre f 69.1%. Despite Justices Cannn's assertin f legal psitivism (see Chapter One), the Supreme Curt was instumental in ppsing the gvernment in gvernment regulatin cases. The natural curt whse time cincided with the Canadian New Deal in the 1930s and 1940s was liberal ecnmically but decided in favr f business mre than 50 percent during this perid.

103 93 In fiscal claims cases, the Curt made decisins in favr f gvernment taxatin plicies. The mean scre fr pr gvernment is 58.13%, and is a statistically significant different frm the "balanced" mean f 50% (t-value f 2.63 and a ne tail p-value f.007). Because the number f fiscal claims cases was small in each natural curt, it is difficult t truely judge curt preferences. When we cncentrate ur attentin t the natural curts that had decided mre than 30 cases, we can see that it was liberal in its decisins. The mst liberal curt in this case type was natural curt 10 ( ). There were a ttal f 37 fiscal claims cases decided by the curt, and 32 cases (86.5%) were decided in favr f gvernment agencies. In fact, this level f liberalism was carried n by the Curt in the next fur years during natural curt 11 ( ) whse liberal scre was 75.5%, the third highest scre. As the level f liberalism fluctuates acrss time and acrss case types, it is interesting t see whether it was als different in unanimus and nnunanimus decisins. T carry ut this test, I calculated the difference f means tests fr the tw types f decisin differences fr each case type. Table 2.14 presents the results f these tests. Each pair f means is similar and n differences are statistically significant. In individual claims cases, the mean percentages fr unanimus decisins is and it is fr nnunanimus decisins. The t-values fr the

104 94 Table 2.14 Statistical Tests f Means Differences in Liberalism in Unanimus and Nnunanimus Decisin. Case Type N* Mean S.D. t-value Individual Claims Cases: Unanimus Cases Nnunanimus Cases Ecnmic Claims Cases Unanimus Cases Nnunanimus Cases Fiscal Claims Cases Unanimus Cases Nnunanimus Cases * The number f cases is less than 27 because the extreme scres f 0 and 100 were excluded frm the calculatin. difference in the means is and is nt statistically significant at the.05 level, tw-tails test. The means difference f ecnmic liberalism scres is 5.01 with the t-value f 1.70, which is nt statistically significant at the.05 level, tw-tails test. A similar pattern is fund in liberalism in fiscal claims cases. The difference between the tw grups' means is 4.15 with the t-value f 1.02, and is nt statistically significant at the.05 tw-tails test. Hence ne can cnclude that the Canadian Supreme Curt did nt shw a pattern f different utcmes in their unanimus and nnunanimus decisinds The three figures

105 95 als cnfirm this cnclusin. Althugh the graphs are nt identical, they are quite similar in shape. 11 The cmparisn is imprtant t the study because it will serve as a basis fr an argument fr using nly nnunanimus decisin in the analyses that will be presented in the next tw chapters. The successful rle f the chief justices and the institutinal changes prved t be a useful in explaining the changes in ther aspects f Canadian Supreme Curt decisin making. Hwever, they failed t accunt fr the changes in the directin f the Supreme Curt's plicy. The interventin mdels develped fr bth factrs did nt shw any statistical significance. Hence, the fluctuatins that ccurred in the Curt's directin f decisin making resulted frm sme ther factr. One such factr may be idelgy. This idelgy, which was balanced verall, differs accrding t bth ver time and with case type. While explanatins fr these patterns were nt actively sught, it appears likely that the patterns may be due t changes in the Curt's memberships ver time. If persnnel changes are the principal explanatin fr these institutinal changes, it is pssible that such significant persnnel changes will shw up in the new frmatin f judicial vting calitin which in turn may increase r decrease cnflict in decisin making and change the typical substantive utcme fr certain types f cases. This will be the subject f the next chapter.

106 96 Endntes 1. In the Canadian system, references refer t litigatin brught t the Supreme Curt fr pinin and decisin in an area invlving the Cnstitutin and federal-prvincial relatinships. References can be referred t the Supreme Curt nly by the federal gvernment and the Parliament, and need nt invlve a cncrete case r cntrversy. 2. Accrding t Black's Law Dictinary. Ejusdem generis means f the same kind, class, r nature. In the cnstructin f laws, wills and ther instruments, the "ejusdem generis rule" is that where general wrds fllw an enumeratin f persns r things, by wrds f a particular and specific meaning, such general wrds are nt t be cnstrued in their widest extent, but are t be held as applying nly t persns r things f the same general kind r class as thse specifically mentined. The rule, hwever, des nt necessarily require that the general prvisin be limited in its scpe t the identical things specifically named. Nr des it apply when the cntext manifests a cntrary intentin. 3. British Clumbia is ften separated frm the ther western r "prairie" prvinces. In this study, hwever, British Clumbia was included in the western prvinces in Figure 2.2 fr the sake f clarity f presentatin. The trend fr British Clumbia, shwn in Figure 2.2, parallels that fr all the western prvinces cmbined. 4. The number f issues raised in the cases is greater than 8,417 because there are cases which were cded as having raised mre than ne issue. 5. The ARIMA (3,1,0) mdel refers t three different parameters which need t be specified befre the mdel can be analysed. In the Bx-Jenkins ARIMA traditin they are dented as (p,d,q). The p parameter refers t the rder f autregressin (AR). In the autregressive prcess each value in the time series is a linear functin f the preceding value r values. In the first-rder regressive prcess nly the single preceding value is used, and in the secnd-rder prcess tw preceding values are used, and s n. The d parameter refers t the number f differencing f the series s that the series are statinary, i.e., the trend r cycle in the time series is remved. The q parameters refers t the mving average (MA). In the mving average prcess, each value is determined by the average f the current disturbance and ne r mre previus disturbances. The rder f the mving average prcess specifies hw many previus disturbances are averaged int the new value. Hence, the mdel specified here is the ne

107 97 which includes three rder f autregressin, ne differencing, and 0 mving averages. The three parameters are subjectively but empirically specified. This methd invlves first identifying the statinary f the series thrugh a series plt. In additin t the series statinary, we als need t establish variance statinary. T achieve this prperty the study transfrms the raw data using a natural lgarithm. The AR and MA parameters are specified by bserving the autcrrelatin functin (ACF) and partial autcrrelatin functin (PACF). After the mdel has been specified, the interventin variable can be included in the mdel in the frm f binary (0,1), where 0 represents the series prir t interventin and 1 after the interventin. Mdel details are fund in Mccleary and Hay, (1980). 6. Theretically, the interventins in a time series can take ne f fur frms f tw dimensins, duratin and nset. Duratin can take a frm f either permanent r temprary, and nset can be either abrupt r gradual (McCleary and Hay, Jr. 1980,172.). The rate f the interventin's nset is the Delta (6). In a gradual situatin the Delta will range frm -1 < 6 <1. The larger the value f 6, the mre gradual the interventin's nset. When the value equal t ne, the effect des nt level ut but shws the linear trend (McCleary and Hay, Jr. 1980, ). 7. Since the percentages f public issues cases were transfrmed using the natural lgarithm, the parameter estimates by the mdel are difficult t interpret relating t the raw scre. This percentage change is used in the interpretatin. Accrding t McCleary and Hay (1980), this number can be calculated by expnentiating t the value f the parameter fr the interventin using the fllwing equatin: %change = (e-* 0 " x ) * 100 Hence, 13.5% = (e ' l ) * See nte number 7 abve fr the calculatin f these values. 9. See nte number 7 abve fr the calculatin f these values. 10. It is rutine in judicial plitics analysis t classify case utcmes as liberal

108 98 r cnservative. Accrding t Nagel (1961) the liberal utcmes are likely t favr: 1. the defense in criminal cases; 2. the administrative agency in business regulatin cases; 3. the private party in cases invlving regulatin f nnbusiness entities; 4. the claimant in unemplyment cmpensatin cases; 5. the libertarian psitin in free speech cases; 6. the finding f cnstitutinal vilatin in criminal cases; 7. the gvernment in taxatin cases; 8. the divrce seeker in divrce cases; 9. the wife in divrce settlement cases; 10. the tenant in landlrd-tenant cases; 11. the labr unin in unin-management cases; 12. the debtr in debt cllectin cases; 13. the cnsumer in sales f gds cases; 14. the injured party in mtr vehicle accident cases; 15. the emplyee in emplyee injury cases. The cnservative utcmes, then, will be the ppsite. 11. When lking at these graphs, please ignre the zer r ne hundreds percent in the graph, especially that fr individual claims and that fr fiscal claims cases. They result frm a small number f nnunanimus decisin in thse case types in that particular perid.

109 CHAPTER REFERENCES Casper, Gerhard and Richard Psner The Wrklad f the Supreme Curt. Chicag: American Bar Fundatin. Daniels, Steven "Civil Litigatin in Illinis Trial Curts: An Explratin f Rural-Urban Differences." Law and Plicy Quarterly 4: Daniels, Steven "Caselad Dynamics and the Nature f Change: The Civil Business f Trial Curts in Fur Illinis Cunties." Law and Sciety Review 24(2): Friedman, Lawrence "A Tale f Tw Curts: Litigatin in Alameda and San Benit Cunties." Law and Sciety Review 10: Haynie, Stacia L "Leadership and Cnsensus n the U.S. Supreme Curt." Jurnal f Plitics 54: Jacksn, Rbert J., Dreen Jacksn, and Niclas Baxter-Mre Plitics in Canada: Culture, Institutins, Behavir and Public Plitcv. Scarbrugh, Ontari, CA: Prentice Hall. McCleary, Richard and Richard A. Hay, Jr Applied Time Series Analysis fr the Scial Science. Beverly Hill, CA: Sage Publicatins. Mcintsh, Wayne "150 Years f Litigatin and Dispute Settlement: A Curt Tale." Law and Sciety Review 15: McLauchlan, William P "An Explratry Analysis f the Supreme Curt's Caselad, " Judicature 64: McLauchlan, William P "Lngitudinal Mdels f the Supreme Curt's Caselad, " Paper presented at the Annual Meeting f the Suthern Plitical Science Assciatin, Memphis, Nvember 5-6. McLauchlan, William P "Spectral Analysis f United States Supreme Curt Caselad, " Paper presented t the Annual Meeting f the American Plitical Science Assciatin, Denver, September

110 100 Mrtn, F.L., Peter H. Russell and Michael J. Withey "The Supreme Curt's First 100 Charter f Rights Decisins: A Statistical Analysis." Occasinal Papers Series, Research Study 6.1, Research Unit fr Sci- Legal Studies, University f Calgary. Nagel, Stuart S "Ethnic Affiliatins and Judicial Prpensities." Jurnal f Plitics 24: Russell, Peter H "The Plitical Rle f the Supreme Curt f Canada in Its First Century." Canadian Bar Review 53: Russell, Peter H "The Effect f a Charter f Rights n the Plicy- Making Rle f Canada Curts." Canadian Public Administratin 25: Sittiwng, Panu Canadian Supreme Curt Decisin-Making: The Persnal Attribute Mdel in Explaining Justices' Pattern f Decisin Making Master Thesis, Nrth Texas State University. Tate, C. Neal and Rger Handberg "The Decisin Making f The United States Supreme Curt, : A Three Level Perspective." Paper presented t the Annual Meeting f the American plitical Science Assciatin, Washingtn D.C., August, Tate, C. Neal and Panu Sittiwng "Decisin Making in the Canadian Supreme Curt: Extending the Persnal Attributes Mdel Acrss natins." Jurnal f Plitics 51: Tate, C. Neal and Panu Sittiwng "The Develpment f the Decisin Making Agenda f the Canadian Supreme Curt, : Scial and Plitical Change and Judicial Plicy Making." Paper presented t the Annual Meeting f the Western Plitical Science Assciatin, San Francisc, March Tate, C. Neal and Stacia L. Haynie "Authritarianism and the Functins f Curts: A Time Series Analysis f the Philippine Supreme Curt." Law and Sciety Review 27: Ulmer, S. Sidney "Gvernment Litigants, Underdgs, and Civil Liberties in The Supreme Curt: Terms." Jurnal f Plitics 47:

111 Van Ln, F. and E. Langerwerf "Develpment and the Evlutin f Litigatin Rates f Civil Curts in Belgium, " Law & Sciety Review 24(2): Walker, Thmas G., Lee Epstein, and William J. Dixn "On the Mysterius Demise f Cnsensual Nrms in the United States Supreme Curt." Jurnal f Plitics 50:

112 CHAPTER 3 GROUP LEVEL PERSPECTIVE The institutinal perspective presented in Chapter Tw lks at the curt as a single plitical institutin rendering discrete public plicy decisins. Analyzing a curt's decisin utcmes allws us t describe the types f public plicy issues cnsidered by a curt, cnflict in decisin making, the directins f thse plicies, cntinuity, and change in patterns f plicy utcmes, scial and ecnmic crrelates f thse plicies, and many ther interesting and imprtant phenmena. While the institutinal perspective can prvide us an verall picture f Supreme curt decisin making utcmes, it bscures the rles f the individual justices wh make up the curt in creating that utcme. The institutinal utcmes f the curt's decisin making are in fact the aggregate behavirs f thse justices. Hence, analyses based n the grup and individual level will prvide a further and better understanding f the structure f the decisin making f the Supreme Curt. The main theme in grup level analysis is t identify judicial vting calitins and the attitude dimensins underlying such calitins. Supreme Curt justices are viewed as decisin makers wh interact amng themselves in 102

113 103 rder t reach the final decisin. The decisin utcmes f the Supreme Curt, especially in nn-unanimus cases, may represent tw r mre interacting grups f justices wh reach different cnsensuses n what the law means when it is ambiguus r when clear precedents are lacking. Hence, an analysis f the justices' tendency t frm vting calitins and the attitudes that may underlie such calitins may help us explain the changing public plicy utcmes prduced by the Supreme Curt. Analyzing Supreme Curt decisin making at the grup level prbably is amng the mst traditinal f all judicial behavir studies. The mdel was first suggested by C. Herman Pritchett's The Rsevelt Curt in 1948 and later elabrated in Glendn A. Schubert's psychmetric mdel f Supreme Curt decisin making (1965, 1974). Overtime, several methd f analysis have been used t explre grup level phenmena, including blck analysis, factr analysis, and multidimensinal scaling. In fact, blck analysis and cumulative scaling were used in 35% f all the quantitative judicial studies that were published in fur majr plitical science jurnals up thrugh the 1970s (Hensley 1981). Fr the Canadian curts, at least five studies, Peck (1967a, 1967b, 1969), Futs (1969), and Russell (1970), have emplyed this methd. Accrding t Glendn Schubert, the psychmetric mdel will shw the differences in and the cnsistency f the attitudes f a grup f persns tward a single shared value. This mdel is based n the assumptin that "whatever

114 104 their degrees f cmplexity, it is pssible t represent symblically the idelgical psitins f justices cmprising the Supreme Curt at any particular time as a cnfiguratin f ideal pints in a psychlgical space f specifiable dimensinality" (Schubert 1974, 17-18). This mdel then argues that judges wh share a cmmn idelgy tward a particular issue will vte in the same way. Differences in idelgy and attitude will make them vte differently. Cnsequently, "by investigating the relatinships between and amng issue-vectrs and ideal-pints in the space f the mdel, we can learn abut idelgical relatinships within, between, and amng the minds f the justices wh, in the empirical sense, cmprise ur set f respndents" (19). The idea behind the mdel was first intrduced in analyzing vting blcs r vting agreement amng justices f the Curt (see Pritchett 1948). This methd, hwever, was criticized by Schubert as lacking sensitivity. He pinted ut that it was sensitive nly t "the mst striking and extreme patterns f variance in vting behavir." (Schubert 1972, 118). Thurstne and Degan (1951) prvided the next develpment f the mdel. They demnstated the superirity f using factr analysis ver blck analysis in discerning patterns f judicial interagreement. The factr analysis methd, hwever, culd nly "describe, nt explain, vting patterns [since] the cause f the bserved behavir must be inferred frm ther evidence" (Flang and Ducat 1977, 43).

115 105 In fact the first attempt t use factr analysis t discern vting blcs n the Supreme Curt failed because Thurstn and Degan were nt able t interpret the factr they prduced, and s were reduced t making statements like, "The Factr A represents smething which is shared by Justices Black and Duglas and which is ppsite t what is cmmn t Justices Frankfurter and Rberts" (Flang and Ducat 1977, 43). T imprve the explanatry pwer f the mdel, Schubert (1962, 1965, 1974) presented a psychmetric mdel which cmbined bth factr analysis and, later n, multidimensinal scaling with scalgram analysis. The frmer was used t identify vting grups amng the Supreme Curt justices, and the scalgram analysis f subsets f cases was used t specify the idelgical r attitudinal dimensins underlying the grups. In the technical sense, Schubert's methd invlved the bservatin f vting agreement and disagreement acrss all issues, which may be defined a priri, amng all pssible pairs f justices. The Phi cefficients fr the furfld tables f vting agreement are cmputed and submitted t factr analysis t cluster vting grups. Factrs are rtated until they rughly crrespnd t the plts f cumulative scales frm the scalgram analysis. If the crrespndence between the scales and the factrial cnfiguratin is high, as measured by a rank rder crrelatin, Schubert cncluded that "by bserving hw the cumulative scales crrelate with the pint cnfigulatin which factr analysis determines,

116 106 we learn hw the cumulative scales, the attitudinal variables, are interrelated" (Schubert 1974, 22). Schubert's psychmetric mdel was instrumental in prviding a theretical justificatin fr much research in judicial plitics. The mdel and (sme f) its techniques were applied t curts in varius cuntries, including Canada (Futs, 1969; Peck, 1967a, 1967b, 1969). Despite its ppularity, the psychmetric mdel was criticized n bth theretical and methdlgical grunds. The majr theretical criticism is that the mdel is t simple t explain the cmplex cncept, "justices' attitudes." In additin, "the mdel allws n test f cmpeting hyptheses and pays little explicit attentin t the micrlevel prcess f attitudinal influence ver behavir" (Gibsn 1983, 12). On methdlgical grunds, Tanenhaus criticized the use f cumulative scaling in judicial behavir research. His main argument centers arund the indeterminacy f the placement f judges n scalgrams under a variety f distributins f cases marginals and the relative ease f cnstructing "acceptable" scalgrams when the number f items greatly exceeds the number f persns respnding t thse items (Tanenhaus 1966, 1593). Tate, further, questins the practical applicability t ther curts f cumulative scaling in Schubert's psychmetric mdel.

117 107 Evidence f this can be seen in the fact that existing studies that d apply the mdel utside the [U.S.] Supreme Curt d nt use cumulative scales as interpretive aids....the prblem is that traditinal appraches t cumulative scaling require that the analyst be able t identify universes f cntent int which the "items" being analyzed fit....fr ther curts and, indeed, fr ther analysts, this will nt be true, and attempts at cumulative scaling in the traditinal manner will be frustrating and prbably unreliable (Tate 1983, 67). Research Design The full psychmetric mdel is difficult t apply t the Canadian Supreme Curt. This is due t the fact that the decisin making prcess in the Supreme Curt des nt require all judges t hear a case. A qurum cnsists f nly five judges. Mclver (1976) has suggested a prcedure fr applying scalgram analysis in curts where cases are nt heard by a full bench. Tate, hwever, pints ut that the methd "is f limited r n value when the number f nn-unanimus decisins in which all judges participate is small" (Tate 1983, 66). Previus reseach (Sittiwng 1985, see als Chapter Tw f this study) shws that the Canadian Supreme Curt has had a small number f nn-unanimus decisin in which all judges participated. Hence, the full psychmetric mdel is f limited value r inapprpriate when applied t the Canadian Supreme Curt because it will nt be pssible t grup justices r cnstruct scalgrams reliably. The inability t apply a mdel des nt mean that the study will abandn grup level analysis. The prblem assciated with applying the mdel t the

118 108 Canadian Supreme Curt is mainly directed at the use f scalgram analysis in the mdel. It is pssible that justices' vting blcs can be identified using factr analysis r multi-dimentinal scaling. Therefre, at the grup level, the analysis will seek t identify justice vting blcs in each natural curt. In rder t explain the attitudes underlying each vting blc, the study will use infrmatin abut individual vting behavir. The study hypthesizes that there is a relatinship amng the three levels f analysis. The vting calitins in the Curt may result frm individual justices wh share the same idelgies n a particular issue. Fr example, a liberal calitin in civil liberties cases may be created infrmally by judges wh are liberal n this issue. Hence, it is infrmative t see hw well vting calitins in the Curt can be explained by knwledge abut individual vting behavir. If individual vting behavir can be used as an explanatry variable in grup frmatin, we will expect judges wh share similar views n a particular issue t have a similar pattern f vting behavir which will lead t a higher than usual vting agreement, i. e., t belng t the same vting blc n that issue. The analysis will cmpute a pairwise vting agreement index fr all pssible pair f judges in each natural curt. All f the indices will be submitted t multi-dimensinal scaling in rder t identify vting structures in each natural curt.

119 109 In rder t explain the attitudes underline the vting structures, the study will cmpute the justice's liberalism scres and classify them as cnservatives r liberals based n these scres. If the vting structure is determined by cnservative/liberal idelgies, we will expect t see that each cluster cnsists nly f judges wh are classified as either liberal r cnservative. Based n the classificatin f the utcmes f cases as liberal and cnservative (see Chapter Tw fr cases classificatin details), it is pssible t assign a liberal r cnservative vte fr each judge wh participated in a given decisin. Thse wh assent in cases with liberal utcme cast liberal vtes. Liberal vtes are als recrded fr dissenting vtes in cases which have cnservative utcmes. Cnservative vtes will be the ppsite. A simple percentage liberal scre will be calculated fr each justice in each categry. Fr example, in individual claims cases, a justice's vting behavir is cmputed as the percentage liberal vtes in individual claims cases cnstitute f the ttal number f individual claims cases that particular judge participated in fr the decisins being analyzed. Vting Calitins in the Canadian Supreme Curt Grup level analyses f the behavir f the Canadian Supreme Curt is cmplicated by the fact that the decisin making prcess in the Supreme Curt des nt require all judges t hear a case. A qurum cnsists f nly five

120 110 judges, and decisins are typically, but nt exclusively, made in five judge panels. Nevertheless, using the natural curt as the basis fr analysis, it is pssible t identify pairs r grups f justices' wh cnsistently agree in vting by using factr analysis r multi-dimensinal scaling, data analysis techniques which allw ne t seek t identify justice vting blcs in each natural curt. T try t interpret the justices' vting calitins, the study shall use a simple measure f the justices' individual vting behavir, the percentage f the nnunanimus cases n which they vted in which they cast a liberal vte. Table 3.1 presents these data. Thus t understand the decisin making behavir f the Canadian Supreme Curt, the study use infrmatin t relate the three levels f analysis, institutinal, grup, and individual. Changes in the Curt's institutinal behavir are investigated by examining the structure f the vting calitins in the Curt, and the structure f thse vting calitins is interpreted using measures f the vting behavir f the individual justices wh share the same vting calitin. Fr example, a calitin in civil liberties cases may be created infrmally by judges wh are liberal n this issue. If this calitin is large enugh, it may cme t dminate the curt's institutinal decisin making in cntrversial civil rights and liberties decisins. Hence, it is infrmative t see hw well vting calitins in the Curt can be explained by knwledge abut individual vting behavir. If individual vting behavir can be used as an

121 Table 3.1 Ill Liberalism Scres fr Each Individual Justice f The Canadian Supreme Curt ICLAIM N ECON ICLAIM N ECON N Richards Richie Strng Taschereau, R * Furnie Henry Taschereau, H Gwynne Pattersn Sedgewick King Giruard Davies Mills * Armur * Nesbitt * Killam * Idingtn Maclennan * Duff Fitzpatrick Anglin Brdeur Minault Maluin * Newcmbe Rinfret Lamnt Smith Cannn Crcket Hughes Davis Kerwin Hudsn Taschereau, R Rand 60.6 * * * Kellck Estey, J. W. Lcke Cartwright Fauteux Abbtt Nlan Marti and Judsn Ritchie Hall Spence Pigen Laskin Dicksn Beetz De Grandpre' Estey, W. Z. Pratt Mclntyre Chuinard Lamer Wilsn Le Dain La Frest Heureux Dube Spinka Cry Gnthier McLachlin Means Std. Dev * Supreme Curt 42.0 * Justice has less than 10 cases * * * 7 12 * 4 13 * 3 11 *

122 112 explanatry variable in grup frmatin, we will expect judges wh share similar views n a particular issue t have a similar pattern f vting behavir which will lead t a higher than usual vting agreement, i. e., t belng t the same vting calitin. The data presented in Table 3.1 nly includes individual claims and ecmmic claims in the study since fiscal claims cases were t few t be analyzed reliably. The study als decided t cmpute a justice's liberalism scres if he r she has participated in mre than 10 cases in each categries. Althugh liberalism in individual claims and ecnmic liberalism are distinctive behavirs, the vting scres shw a mderate t high crrelatin. The Peasn crrelatin fr the tw scres is.60. This level f assciatin is similar t the ne reprted fr the U.S. Supreme Curt justices, but the later shws a bit higher level f assciatin. The cefficient fr the U.S curt is.79 (Tate 1981, 357). The Canadian Supreme Curt justices varied substantially in their vting behavir. The standard deviatins fr their vting scres reveal that they differed mre n individual claims cases than n ecnmics questin. In individual claims cases the liberalism scres are range frm Justice Pigen's lw f 23.7% t Chief Justice Laskin high f 80.2%. In cmparisn t the Supreme Curt's nrm f 42 percent, 16 justices were mre cnservative than the Supreme Curt's nrm having their scres less than 42.0 percent and 39

123 justices were mre liberal than the nrm having their scres higher than 42%. The lwest ecnmic liberal scres belng t Justice Abbtt (24.3%), and Chief Justice Laskin, again, pssessed the highest scre f 75.5%. In cmparisn the Supreme Curt's nrm is 50.1%. Of the 61 justices wh have ecnmic liberalism scres, 21 justices were mre cnservative than the nrm, and 40 were mre liberal. As the basis fr multidimensinal scaling analyses f the 27 natural curts, the study cmputed vting agreement indices fr all pssible pairs f judges serving during each natural curt. The vting agreement index, technically a "similarity" measure, calculates the prprtin f the cases n which a pair f justices bth vted in which they agreed, i.e., cast the same vte. Table 3.2 presents the matrices f similarities fr each pssible pair f justices in each natural curt. A cursry examinatin f thse agreement indexes shws the pssible influence f justice's idelgy n their vting behavir. Fr example, Chief Justices Laskin's extrardinarily psitin relative t his clleagues demnstrated this influence. Laskin, wh was the mst liberal justice in the study, cnsistently disagreed with Chief Justice Fauteux, Justices Abbtt, Martiand, Judsn, Pigen, De Grandpre', and Pratt, all f whm were cnservatives. On the ther hand, he ageed mst frequently with Justices Hall and Spence whm were nearly as liberal as he. In a similar way, Justices Abbtt, wh was the 113

124 114 Table 3.2 Vting Agreement index in the Canadian Supreme Curt, Natural Curt 1 Richards Ritchie Strng Taschereau, J Henry Furnie Taschereau, H. Ritchie.6667 Strng Tashereau, J Henry Furnie Taschereau, H, Gwynne Natural Curt 2 Ritchie Strng Henry Furnie Taschereau, H Strng.6216 Henry Furnie Taschereau, H Gwynne Natural Curt 3 Ritchie Strng Furnie Taschereau, H Gwynne Strng.6471 Furnie Taschereau, H Gwynne Pattersn Natural Curt 4 Strng Taschereau, H Gwynne King Sedgewick Giruard Taschereau.5472 Gwynne King Sedgewick Giruard Davies

125 115 Table 3.12 (Cntinued) Natural Curt 5 Taschereau, H Sedgewick Giruard Davies Mills Armur Nesbitt Sedgewick.5769 Giruard Davies Mills Armur Nesbitt Killam Natural Curt 6 Fitzpatrick Giruard Davies Idingtn Maclannan Giruard.4364 Davies Idingtn Maclannan Duff Natural Curt 7 Fitzpatrick Davies Idingtn Duff Anglin Davies.3831 Idingtn Duff Anglin Brdeur Natural Curt 8 Anglin Davies Idingtn Duff Brdeur Davies.6933 Idingtn Duff Brdeur Mignault

126 116 Table 3.12 (Cntinued) Natural Curt 9 Anglin Idingtn Duff Mignault Newcmber Idingtn.2273 Duff Minault Newcmber Rinfiret Natural Curt 10 Anglin Duff Mignault Newcmber Rinfret Lamnt Duff.5385 Minault Newcmber Rinfret Lamnt Smith Natural Curt 11 Duff Rinfiret Lamnt Smith Cannn Crckett Rinfret.8182 Lamnt Smith Cannn Crckett Hughes Natural Curt 12 Duff Rinfret Cannn Crckett Davis Kerwin Rinfret.5714 Cannn Crckett Davis Kerwin Hudsn

127 117 Table 3.12 (Cntinued) Natural Curt 13 Duff Rinfret Crckett Davis Kerwin Hudsn Rinfret.3333 Crckett Davis Kerwin Hudsn Taschereau, R Natural Curt 14 Duff Rinfret Kerwin Hudsn Taschereau, R Rand Rinfret.6000 Kerwin Hudsn Taschereau, R Rand Kellck Estey, J. W Natural Curt 15 Rinfret Kerwin Hudsn Taschereau, R Rand Kellck Kerwin.6957 Hudsn Taschereau, R Rand Kellck Estey, J. W Lcke Cartwright Natural Curt 16 Kerwin Taschereau, R Rand Kellck Estey, J. W. Lcke Taschereau.6296 Rand Kellck Estey, J. W Lcke Cartwright Fauteux Abbtt Cartwright Fauteux

128 118 Table 3.12 (Cntinued) Natural Curt 17 Kerwin Taschereau, R Rand Lcke Cartwright Fauteux Abbtt Martland Taschereau, R.4286 Rand Lcke Cartwright Fauteux Abbtt Martland Judsn Natural Curt 18 Kerwin Taschereau, R Rand Lcke Cartwright Abbtt Martland Judsn Taschereau, R.7222 Lcke Cartwright Fauteux Abbtt Martland Judsn Ritchie Natural Curt 19 Taschereau, R Cartwright Fauteux Abbtt Martland Judsn Ritchie Hall Cartwright.3571 Fauteux Abbtt Martland Judsn Ritchie Hall Spence

129 119 Table 3.12 (Cntinued) Natural Curt 20 Cartwright Fauteux Abbtt Martland Judsn Ritchie Hall Spence Fauteux.3913 Abbtt Martland Judsn Ritchie Hall Spence Pigen Natural Curt 21 Fauteux Abbtt Martland Judsn Ritchie Hall Spence Pigen Abbtt.7308 Martland Judsn Ritchie Hall Spence Pigen Laskin Natural Curt 22 Laskin Martland Judsn Ritchie Spence Pigen Dicksn Beetz Martland.1757 Judsn Ritchie Spence Pigen Dicksn Beetz De Grandpre'

130 120 Table 3.12 (Cntinued) Natural Curt 23 Laskin Martiand Ritchie Spence Pigen Dicksn Beetz Estey Martiand.1667 Ritchie Spence Pigen Dicksn Beetz De Grandpre' Estey, W. Z Pratt Natural Curt 24 Laskin Martiand Ritchie Dicksn i Beetz Estey Mclntyre Chuinar Martiand.1818 Ritchie Dicksn Beetz Estey, W. Z Mclntyre Chuinard Lamer Natural Curt 25 Laskin Dicksn Ritchie Beetz Estey Mclntyre Chuinar Lamer Dicksn.6666 Ritchie Beetz Estey, W. Z Mclntyre Chuinard Lamer Wilsn

131 121 Table 3.12 (Cntinued) Natural Curt 26 Dicksn Beetz Estey, W.Z. Mclntyre Chuinard Lamer Wilsn Le Dain Beetx.8571 Estey, W. Z Mclntyre Chuinard Lamer Wilsn Le Dain La Frest Natural Curt 27 Dicksn Lamer Wilsn LaFrest Heureux Dube' Spinka Lamer Wilsn La Frest Heureux Spinka Cry Gnthier McLachin mst cnservative judge in the study, agreed mre frequently with Chief Justice Fauteux, Justices Martland, Judsn, Ritchie and Pigen, all f whm were cnservative judges. He disagree mre ften with Chief Justices Cartwright, and Laskin, and Justices Hall, and Spence, all f whm were liberal. Plts f the slutin derived fr each natural curt are presented in Figures 3.1 t T facilitate ver time cmparisn, a tw dimensinal nnmetric multidimensinal scaling slutin was used t analyze each natural curt. In examining the plts, a vting blc is defined as tw r mre justices whse

132 122 agreement patterns make them visually distinctive. This criterin, admittedly lse, will be used fr natural curts 1 t 14 since they are fr Curts cmprised f nly six justices. A blc is defined as three r mre justices fr the natural curts after 1949 after the cmpsitin f the curt increase frm six judges t nine judges. If idelgies are a pssible explanatin f the vting blc, we expect t see that each blc will cnsist nly f judges wh exhibit the same idelgical directin. Natural curt 1, whse dckets were dminated mainly by ecnmic claims cases, exhibited a strng calitin f three ecnmic liberals: Strng, Richie, and Jean Thmas Taschereau. One can als see that Justices Henry Tashchereau and Richards can be viewed as a pssible ecnmic cnservative grup ppsing the frmer grup. The ther justices appear t vte independently. Natural Curt 2 shws a reduced blc f ecnmic liberals, Justices Henry and Strng, but n ther blc. Natural curt three, n the ther hand, did nt shw any vting calitin. Natural curt 4 features a vting blck cnsisting f the mderate judges in the curt. It members include justices Gwynne, Henry Taschereau, and Davies. A frmatin f an ecnmic liberal blc was evident again in natural curt 5, the first falling int the Twentieth century, with three r fur members in the calitin (lcated n the right half f the graph).

133 123 Natural Curt 1 ( ) Euclidean distance mdel ' ; Henry c.2 CO a S a -1.5 Richie Q Taschereau, J. Strng a Furnie G Taschereau, H. & - O Gwynne Richards -2 Dimensin 1 Figure 3.1: Multidimensinal Scales Slutins fr Natural Curt 1 Natural Curt 2 ( ) Euclidean distance mdel 1.5" 1.0- Henry Gwynne.5* 0.0" a Strng Richie a CN G O *00 a <D a -.5«i -1.0«i t 5-2.0, Dimensin 1 Taschereau, H. a Furnie Figure 3.2: Multidimensinal Scales Slutin fr Natural Curt 2

134 124 Natural Curt 3 ( ) Euclidean distance mdel i Pattersn Richie 0 Gwynne Taschereau, H. CN O < e i, Strng Furnie G Dimensin 1 Figure 3.3: Multidimensinal Scales Slutin fr Natural Curt 3 Natural Curt 4 ( ) Euclidean distance mdel 2.0< 1.5«Giruard a Strng 1.0«.5- Gwynne 0.0- n <N a "t/d a S -.5' G King Davies a Taschereau Sedgewick -2 Dimensin 1 Figure 3.4: Multidimensinal Scales Slutin fr Natural Curt 4

135 125 A minimum vting blc in natural curt 6 was established between the tw mderate t liberal judges, Idingtn and Duff. Natural curt 7 and 8 did nt shw any strng vting blc. Justices Idingtn and Duff again jined frces t frm a vting blc in natural curt 9. The remaining judges did nt shw any pssible calitin. Justice Idingtn was replaced by justice Anglin in a very tight mderate t liberal vting calitin in natural curt 10. Anther tight blc was established between Justices Newcmbe and Smith. They, hwever, shw different vting behavir. Justice Newcmbe was a liberal, while Justices Smith was mderate leaning tward cnservative. The strngest pssible vting blck in natural curt 11 was between Justices Crckett and Cannn. While Crckett and Cannn shwed a difference in their idelgies tward individual claim cases, bth leaned tward liberalism in ecnmic claims cases. The mdel did nt shw any vting calitin in natural curt 12. Tw vting blcks were appear in natural curt 13. A tight mderate t liberal calitin was established between justices Duff and Davis. Anther tight blck was shared by Justices Crckett and Rbert Taschereau, wh did nt, hwever, share the same idelgy. The frmer has a liberalism scres f 75.0% and 55.2% while the latter has scre f 36.9% and 47.9%.

136 126 Natural Curt 5 ( ) Euclidean distance mdel 2.0t «Giruard Mills G OJ c "S e s i Killam Taschereau, H. -L0< iq Nesbitt p. Armur ^ Sedgewick Davies D 1.5 Dimensin 1 Figure 3.5: Multidimensinal Scales Slutin fr Natural Curt 5 Natural Curt 6 ( ) Euclidean distance mdel 1.5' 1.0 l Giruard Fitzpatrick 1 3 Davies 0.0' <N G O -.5 M ac latin an G -1.0' Duff G Idingtn Dimensin 1 Figure 3.6: Multidimensinal Scales Slutin fr Natural Curt 6

137 ' 1.0 Natural Curt 7 ( ) Euclidean distance mdel ^ Anglin Brdeur.5' 0.0< -.5«^ Id in gtn G Duff Fitzpatrick a.2 '33 a ' O -2.0, D Da vies 1.5 Dimensin 1 Figure 3.7: Multidimensinal Scales Slutin fr Natural Curt 7 Natural Curt 8( ) Euclidean distance mdel Davies Duff Brdeur CN a <D a! i O Mignault O Idingtn Anglin Dimensin 1 Figure 3.8: Multidimensinal Scales Slutin fr Natural Curt 8

138 " Natural Curt 9 ( ) Euclidean distance mdel 1.5' a Mignault -5«<N 1 " L01 I Anglin 3-2.0, Dimensin 1 Figure 3.9: Multidimensinal Scales Slutin fr Natural Curt 9 Duff,. 1.5, Newcmbc Rinfret Idingtn 0.CM n 1 " n U Natural Curt 10 ( ) Euclidean distance mdel Anglin a Duff 1 Newcmbe 0.0 <N Mignault a O Rinfret -L0 1 i Lamnt Q Dimensin i Figure 3.10: Multidimensinal Scales Slutin fr Natural Curt 10 Smith

139 Natural Curt 11 ( ) Euclidean distance mdel 1.5«A Duff 1.0«Cannn.5«. a Rinfret Crckett a ** A 0.0H CM 'c/5 c <D s -.5- A Smith A -1.0«Lamnt Hughes -1.5 A Dimensin 1 Figure 3.11: Multidimensinal Scales Slutin fr Natural Curt 11 Natural Curt 12 ( ) Euclidean distance mdel!.5t - i & Crckett ' Kerwin A A Davis Hudsn A (N G O A Duff A Cannn a <D s -1.5 Rinfret A O Dimensin 1 Figure 3.12: Multidimensinal Scales Slutin fr Natural Curt 12

140 130 Natural Curt 13 ( ) Euclidean distance mdel A Kerwin <N G.2 C <D s < > ' I Taschcrcau ^ Crckett ^ Hudsn A A Duff ~ Rinfret Davis -2 Dimensin 1 Figure 3.13: Multidimensinal Scales Slutin fr Natural Curt < 1.5' i Natural Curt 14 ( ) Euclidean distance mdel Kellck 0.0, A Taschereau, R. A Rand A Hudsn A. Estey, J. W. A <N a *5 -.5 «Kerwin A -15. S A Duff i -1.0 i A Rinfret 2.0 Dimensin 1 Figure 3.14: Multidimensinal Scales Slutin fr Natural Curt 14

141 131 A mderate t liberal ecnmic calitin emerges again in natural curt 14. A lse center vting calitin is cmprised f three justices, Rand, Rinfret and Hudsn. Natural curt 15, the first fr which three member blcs required, shws a vting blc f three justices wh are mderate t liberal in individual claims cases. Its membership includes Justices Lcke, Jame Wilfred Estey, and Rand. Natural Curt 16 did nt cntain a three judge blck, but did depict a tight link between Justices Kerwin and Rand. Natural Curt 17 shws a lse cnservative vting blck amng justices Fauteux, Lcke and Abbtt. This curt als shws examples f pairwise calitins between justice Rand and Kerwin, wh are mderate t liberal, and between Justice Rbert Tashchereau and Martland, wh are cnservative. The vting pair f justices Kerwin and Rand was a cntinuatin f their previus assciatin in natural curt 16. Natural 18 again did nt shw any three judges vting blc, but did have a pair including justices Cartwright and Lcke. Natural curt 19 again shws a lse cnservative calitin, this time amng justices Fauteux, Ritchie and Judsn. It als depicts a clse pair f cnservative judges: Rbert Tashereau and Abbtt. This blck structure effectively disappears in natural curt 20 and 21, which shw nly tw-justice vting calitins.

142 132 Natural Curt 15 ( ) Euclidean distance mdel 1.5«h 1.0-«A Kerwin Rand A ^ Taschereau, R. A A Lckc Estey, J.W. 0.0«Dimensin 2 5? Cartwright A Fauteux A A Kcllck ^ Rinfret -2; l" L5 2. Dimensin 1 Figure 3.15: Multidimensinal Scales Slutin fr Natural Curt 15 Natural Curt 16 ( ) Euclidean distance mdel.5-1.3" A Estey, J.W A KeUck Fauteux Taschercau, R. O A Lckc A / ^ Cartwright A Dimensin 2 U b i Rand Kerwin A A A Abbtt A 2.0 Dimensin 1 Figure 3.16: Multidimensinal Scales Slutin fr Natural Curt 16

143 133 Natural Curt 17 ( ) Euclidean distance mdel 2.0« A Rand ^ Kerwin.5«0.0 Abbtt Lcke. A A x Fauteux Taschereau, R. A -.5' i <N ' s P Judsn <3-2.0, A CarWright A Martland Dimensin 1 Figure 3.17: Multidimensinal Scales Slutin fr Natural Curt 17 Natural Curt 18 ( ) Euclidean distance mdel 1.5«^ Ritchie 1,0. A Fauteux ^ Kerwin c G 0 g 1 0.0' - 5 ' -l. Cartw right A * Abbtt T, Lcke Martland S -1.5 A Dimensin 1 A Taschereau, R A Judsn A Figure 3.18: Multidimensinal Scales Slutin fr Natural Curt 18

144 134 Natural Curt 19 ( ) Euclidean distance mdel 1 i A A Ritchie Judsn A Fauteux Hall A Spence A G.2 *35 G <D s I. Martland A Abbtt A Taschereau, R. A Cartw right ^ Dimensin 1 Figure 3.19: Multidimensinal Scales Slutin fr Natural Curt 19 Natural Curt 20 ( ) Euclidean distance mdel 1.5' 25 Cartw right 1.0' A Spence ^ Martland Pigen A Ritchie A 0.0 a -.5 G '.,.. A Judsn Abbtt A Hall _ Fauteux A A Dimensin 1 Figure 3.20: Multidimensinal Scales Slutin fr Natural Curt 20

145 135 Natural Curt 21 ( ) Euclidean distance mdel <.5' 0.0' A Abbtt A S pence. Hal1 A Ritchie L ask in A -.5 A Martland Judsn (N O Fautcux Pigen i Q A A ^ 2.0 Dimensin 1 Figure 3.21: Multidimensinal Scales Slutin fr Natural Curt 21 Natural Curt 22 ( ) Euclidean distance mdel A Dicksn 2 Las kin A S pence 0.0' Ritchie Beetz A A cn " 5 A Pigen a Martland ^ a -i. ^ De Granpre <D Judsn ^ S L Dimensin 1 Figure 3.22: Multidimensinal Scales Slutin fr Natural Curt 22

146 Lse liberal and cnservative vting blcs again re-emerge in natural 136 curt 22 with justices Laskin, Dicksn and Spence in the liberal grup. Tw cnservative grups emerge. The first cnsists f justices Ritchie, Pigen and De Granpre'; the secnd f Beetz, Martland and Judsn. This natural curt clearly shws a divisin based n idelgy, as ne can see that all the cnservative judges ccupied the lwer half f the graph and the three liberal judges ccupied the upper prtin. This divisin in the curt remain in place in natural curt 23. All three member f the liberal calitin remain tgether, as des a cnservative calitin cmprised f justices Beetz, De Granpre', and Pratt. The liberal calitin als remain intact in natural curt 24 with Justice Lamer taking ver the psitin f Justice Spence. The cnservative blck, hwever, is reduced t a pair between justice Beetz and Ritchie. The cnservative calitin was cmpletely absence in natural curt 25. There is, hwever, a shift f the liberal calitin int tw blck with Laskin, Wilsn and Lamer in ne blck and Dicksn, Estey and Mclntyre in anther. The vting blcs f recent natural curts disappear entirely in natural curt 26: n three judges cluster clsely enugh tgether t define a blck. Finally, natural curt 27 als shws n clear blcs. The analysis presented abve did nt cmpletely structure alng the idelgies dimensins in every natural curt. Nnetheless, the results it reached reveal several things abut the nnunanimus decisin making f the Canadian

147 137 Natural Curt 23 ( ) Euclidean distance mdel 2.0' A Estey, W. Z. 0, ASpcnce, A Lask in Beetz ^ De Granpre Pratt A <N -.5 C/5 C3 s S -2.( A Dicksn Pigen A Martland i A A Ritchie 1.5 Dimensin 1 Figure 3.23: Multidimensinal Scales Slutin fr Natural Curt 23 Natural Curt 24 ( ) Euclidean distance mdel Chuinard ^ Beetz A Estey, W. Z.. A a ^ Ritchie a.2 *35 c a S -l: i A Mclntyre Lamer ^ Laskin A Dicksn,. Martland A Dimensin 1 Figure 3.24: Multidimensinal Scales Slutin fr Natural Curt 24

148 138 Natural Curt 25 ( ) Euclidean distance mdel A Chuinard Mclntyre CM A Dicksn a.2 G D s A A Estey, W. Z. A Ritchie Beetz A Wilsn A L ask in A Lamer A 1.5 Dimensin 1 Figure 3.25: Multidimensinal Scales Slutin fr Natural Curt 25 Natural Curt 26 ( ) Euclidean distance mdel A Chuinard ^ Dicksn Le Dain A & Lamer A A La Frest A Estey, W.Z. Wilsn Mclntyre & 1-1 a Beetz S -2 A Dimensin 1 Figure 3.26: Multidimensinal Scales Slutin fr Natural Curt 26

149 139 Natural Curt 27 (1989 -) Euclidean distance mdel Mclachm Dicksn La Frest Wilsn L' Heureux Dube & Gnthier Dimensin i Figure 3.27: Multidimensinal Scales Slutin fr Natural Curt 27 Supreme Curt frm 1875 t First, they cnfirms that despite the small number f nnunanimus decisins included in sme natural curts and despite its panel decisin making, the Curt's decisin making was mre ften than nt structureed, frequently highly structured. They als reveal that the basic factr underlying the structure f the curt's decisin vting was prbably justice idelgy, defined as liberal/cnservative. In fact, the mre highly structured was the Curt's decisin making, the mre likely it was that the structure f that decisin making was idelgical. Indeed, mre ften than nt, the scale slutin derived in the analysis were partially structured and can be explained by individual justice's liberal/cnservative idelgies as measured by their vting behavir in the cases.

150 140 by individual justice's liberal/cnservative idelgies as measured by their vting behavir in the cases. The multidimensinal scaling analysis als revealed that verall liberalcnservative idelgy was nt the nly factr structuring the Curt's decisin making. Nt all the vting calitins revealed were structured n liberalcnservative lines. Furthermre, the dimensins resulting frm the scaling analysis were nt always clearly defined by liberalism-cnservatism, althugh frequently ne f the tw culd have been s defined. What are the ther factrs that wuld need t be taken int accunt t explain the scaling results? Baum (1992), in his attempt t explain the changes in plicies and decisin patterns in the U.S. Supreme Curt pinted ut three factrs: 1. Membership change; 2. Individual psitin change; and 3. Issue change (Baum 1992, 5). This three changes can be cnceptually distinguished in dimensinal terms using the /-pint, representing justices psitin n a plicy dimensin, and the j-pint, representing the places f cases n the dimensin shift (5, see als Baum 1988 fr full explanatin). The multidimentinal scaling analysis presented in this chapter tk int accunt nly membership changes in the shift in the frmatin f the scale.

151 CHAPTER REFERENCES Baum, Lawrence "Measuring Plicy Change in the U.S. Supreme Curt." Amrican Plitical Science Review 82: Baum, Lawrence "Cmparing The Plicy Psitins f Supreme Curt Justices Frm Different Perids." Western Plitical Quarterly: Baum, Lawrence "Membership Change and Cllective Vting Change in the United States Supreme Curt." Jurnal f Plitics 54: Flang, Victr E. and Craig R. Ducat "Tward an Integratin f Public Law and Judicial Behavir." The Jurnal f Plitics 39: Futs, Dnald E "The Supreme Curt f Canada, " In Cmparative Judicial Behavir: Crss-Cultural Studies f Plitical Decisin-Making in the East and West, eds. Glendn A. Schubert and David J. Danelski. New Yrk: Oxfrd University Press. Gibsn, James L "Frm Simplicity t Cmplexity: The Develpment f Thery in The Study f Judicial Behavir." Plitical Behavir 5: Hensley, Thmas R "Studying the Studies: Plitical Science Research n Judicial Plitics, " Paper presented t the Annual Meeting f the Midwest Plitical Science Assciatin, Cincinnati, April Mclver, Jhn P "Scaling Judicial Decisins: The Panel Decisin making Prcess f the U.S. Curts f Appeals." American Jurnal f Plitical Science 20: Peck, Sydney L. 1967a. "A Behaviral Apprach t the Judicial Prcess: Scalgram Analysis." Osgde Hall Law Jurnal 5: Peck, Sydney L. 1967b. "The Supreme Curt f Canada ( ): A Search fr Plicy thrugh Scalgram Analysis." Canadian Bar Review 45:

152 Peck Sydney L "A Scalgrame Analysis f the Supreme Curt f Canada, " In Cmparative Judicial Behavir, Crss-Cultural Studies f Plitical Decisin-Making in the East and West, eds Glendn A. Schubert and David J. Danelski. New Yrk: Oxfrd University Press. Pritchett, C. Herman The Rsevelt Curt: A Study in Judicial Plitics and Values, New Yrk: MacMillan C. Russell Peter H Supreme Curt f Canada as a Bilingual and Bicultural Institutin. Ottawa: Infrmatin Canada. Schubert, Glendn A The Judicial Mind: Attitudes and Idelgies f Supreme Curt Justices Evanstn, IL: Nrthwestern University Press. Schubert, Glendn A ed., Judicial Behavir: A Reader in Thery and Research. Chicag: Rand McNally and C. Schubert, Glendn A "Judicial Prcess and Behavir, " In Plitical Science Annual: An Internatinal Review, ed. James A. Rbinsn. Indianaplis: Bbbs-Merrill. Schubert, Glendn A The Judicial Mind Revisited: Psychmetric Analysis f Supreme Curt Idelgy. New Yrk: Oxfrd University Press. Schubert Glendn and David Danelski eds. Cmparative Judicial Behavir. Crss-Cultural Studies f Plitical Decisin-Making in the East and West. New Yrk: Oxfrd University Press. Sittiwng, Panu Canadian Supreme Curt Decisin-Making: The Persnal Attribute Mdel in Explaining Justices' Patterns f Decisin- Making, Master Thesis, Nrth Texas State University. Tanenhaus, Jseph "The Cumulative Scaling f Judicial Decisins." Harvard Law Review 79: Tate, C. Neal "The Methdlgy f Judicial Behavir Research: A Review and Critique." Plitical Behavir 5: Thurstn, Luis and J. W. Degan "A Factrial Study f the Supreme Curt." Preceeding f the Natinal Academy f Science 37: as reprinted in Judicial Behavir: A Reader in Thery and Research, ed. Glendn A. Schubert Chicag: Rand McNally. 142

153 CHAPTER 4 EXPLAINING INDIVIDUAL JUSTICES' DECISION MAKING Chapter Tw discussed the decisin making f the Canadian Supreme Curt as a plitical institutin, and Chapter Three fcused n grup interactin in the decisin making prcess. It shwed that there were significant differences in individual justices' liberalism, althugh the analysis in Chapter Three did nt always shw the vting blcks in each natural curt falling alng the idelgical dimensins. Nnetheless, its results cnfirm sme f the underlying assumptins cncerning the rle f justices' idelgy in their vting behavir. Mre ften than nt, the scale slutins derived in the analysis were partially structured and culd be partially explained by individual justices' liberal/cnservative idelgies as measured by their vting behavir in the varius kinds f cases. This chapter fcuses n an effrt t explain the justices' individual idelgy. It des s by assuming that these differences result frm their life experiences r scial and persnal backgrunds, amng ther things. The idea that persnal attributes affect judicial decisins has lng been assumed by schlars injudicial plitics. In the 1920s Charles G. Haines stated that: 143

154 144 There is... a marked pprtunity fr individual influences in the cllective judgement such as is rendered by the Supreme Curt. As an individual's views in plitical and legal matters are likely t be in part...determined by his interest, training, envirnment and lng-cntinued assciatins, it is suggestive [that] persnal factrs [are] likely t influence judicial decisins (Haines 1922, 49). He then udined the persnal factrs that are likely t influence decisin making: remte and indirect factrs such as educatin in general, legal educatin, family and persnal assciatins; and direct factrs such as legal and plitical experience, plitical affiliatins and pinins, and intellectual and temperamental traits (49). Despite his theretical suggestin, there were n systematic effrts t measure its validity until the 1960s. Mst f the research cnducted was primarily descriptive and invlved the cllectin and rganizatin f a variety f backgrund data such as age, ethnic and religius affiliatins, parental ccupatin, career patterns, prir judicial ffice, party affiliatin, educatin, and s frth. 1 The number f factrs being included in these studies was limited nly by the availability f data r the imaginatin f the researchers (Tate 1972, 317). Further develpment was made during the 1960s. The new line f inquiry invlved attempts t relate backgrund characteristics t actual decisin patterns. One f the first systematic effrts was published by Jhn R. Schmidhauser (1963a). In his study f U.S. Supreme Curt vting recrds between 1837 and 1860, he examined the relatinship f reginal backgrund t the decisins in

155 52 majr cases invlving "sectinal rivalry." He fund that party affiliatin and reginal backgrund were significant factrs in explaining justices' psitins n a scalgram f "reginal divisive" cases (503). In a secnd study, Schmidhauser (1963b) sught t find the relatinship between a series f backgrund factrs and the prpensity f justices f the Supreme Curt t adhere t precedent, t dissent frm majrity pinins, and t abandn stare decisis. He cncluded that a number f judicial backgrund characteristics, ~ e.g. family backgrund, reginal rigins, plitical party affiliatin, and prir judicial experience appeared t be related t the tendency f Supreme Curt justices t dissent and t abandn stare decisis (518). Fllwing Schmidhauser's path breaking effrts, several ther similar 145 studies subsequently appeared. 2 In particular, Dn Bwen (1965) sught further t develp the judicial decisin making apprach. In his study, he nt nly asked if there were statistically significant relatinships between judges' backgrund characteristics and vting behavir, he als sught t test the value f these assciatins by asking hw much f the variatin in decisins they explain. Bwen applied partial and multiple regressin in his study. Its results shwed that "the amunt f variance explained by any single characteristic is generally quite lw.... [Hwever], when all six characteristics are cnsidered tgether, the amunt f variance explained is much better."

156 Despite all these systematic effrts t measure their explanatin ptential f attribute factrs, the results were mixed. Sme studies fund the mdel significant in explaining justices' decisins. Success, hwever, was limited, and sme studies fund n significant relatinships at all (Tate and Sittiwng 1987, 10). As a cnsequence, judicial plitics schlars accepted the ntin that persnal attribute mdels were nly mderately successful in explaining the justices' vting behavir. The studies by Ulmer (1973) and Tate (1981), hwever, questined this cnsensus. Ulmer (1973), in particular, warned against the "risk f premature disclsure" n the merit f the mdel (627). Tate's (1981) finding supprted the claim made by Ulmer. In his study f the U.S. Supreme Curt during the term t the term, Tate fund that 72-87% f the variatin in justices' vting behavirs in civil rights and liberties and ecnmics culd be accunted fr by tw sets f five and six persnal attribute variables (Tate 1981, 361). The mdel fr liberalism in civil liberty cases included party identificatin, appinting president (Truman, Jhnsn, and Nixn), regin, extent f judicial experience, and type f prsecutrial experience. The ecnmic liberalism mdel included party identificatin, appinting president (Truman and Nixn), prestige f prelaw educatin, appinted frm elective ffice, extent f judicial experience, and type f prsecutrial experience variables. 146

157 A later study by Ulmer suggested an imprtant limitatin f the mdel. He starts by asking the questin "Are scial backgrund mdels time-bund?" and answered "yes" (1986, 965). He fund that a single persnal attribute mdel prvides different results when applied t tw different time frames (964). Ulmer's mdel, hwever, differed substantially frm Tate's mdels. The persnal attribute variables included whether a justice's father was a state r federal gvernment fficer, whether the justice was a first brn child, and the justice's party affiliatin. The nly cmmn variable in Ulmer's and Tate's mdels is justices' party identificatin. The dependent variable in the mdel is the rati between a justice's percentage f supprt f gvernment litigants and the percentage f each curt in such cases. Hence, it was pssible that Ulmer fund a different result frm Tate since their mdels are incmpatible. Tate and Handberg, hwever, sught t qualify Ulmer's finding. By carefully specifying apprpriate case cntent and persnal attributes, they were able t prduce a mderately successful persnal attribute mdel capable f explaining 47% and 51% f the vting variatin fr U.S. Supeme Curt justices wh served during 1916 t 1988 (1991, 477). Since their mdel cvers a lng perid f scial, ecnmic, and plitical changes, Tate and Handberg were able t cnfirm that it is pssible that students f judicial vting behavir can build a mdel independent f the time dimensin. 147

158 148 All f the research discussed abve is parchial in nature because it fcuses slely n the United States judicial system. Virtually n attempt has been made t expand the mdel beynd its riginal cultural cntext, i.e., t cuntries ther than the United State. T my knwledge, nly tw such studies have been published. Tate (1972) applied Bwen's mdel and methd t the study f the Philippine Supreme Curt. His findings, hwever, were nt quite as impressive as thse he reprted fr the U.S. Supreme Curt. In anther study n the Canadian Supreme Curt, Tate and Sittiwng (1989) applied the persnal attribute mdel t explain liberalism in civil liberties and ecnmic issues cases fr 27 Supreme Curt justices wh served in the Curt during the 1949 t 1985 perid. The study fund that 73% f variance in justices' liberalism in civil liberty cases culd be explained by fur persnal attribute factrs: a nn- Quebec/Cathlic index, Liberal party appintees, appintment by prime minister Mackenzie King, and prir plitical ffice experience. In additin, the study was able t explain 70% f the variatin f justices' liberalism scres in ecnmic claims cases with a mdel cnsisting f three f the persnal attribute factrs used in the frmer mdel (pp ). The ability t duplicate Tate and Handberg's lng term study fr Canada is imprtant t the develpment f the persnal attribute mdel acrss natins and ver time. The analysis in this chapter try t extend the success f the previus study (Tate and Sittiwng 1989). It will expand the time perid t include all justices

159 149 wh served n the Canadian Supreme Curt frm 1875 t Its purpse is t replicate the previus analysis and t specify the structure f a Canadian Supreme Curt persnal attribute mdel that is significant and cnsistent bth acrss substantive case types and acrss time. Structure f Canadian Persnal Attributes Mdel Thery in judicial decisin making suggests the inclusin f several factrs such as persnality, rle, and wrk grups factrs in the mdel in additin t persnal attributes (Gibsn 1983; Tate 1981). Such a mdel, hwever, will be difficult t peratinalize and measure, especially if ne is cncerned with the lngitudinal study f justices' decisin behavir. A less-than-thereticallyptimum mdel can als be useful in such circumstances, especially when it was carefully cnstructed and applied. Tate pints ut that a mre carefully cnstructed mdel will prbably allw ne t apprximate the mre cmplex and therretical appealing mdel (1981, ). The stucture f the Canadian plitical system and previus studies f the Canadian Supreme Curt suggest the fllwing factrs shuld be imprtant in explaining judicial vting behavir. Scial Cleavage Measures Regin and Language: The impacts f regin and language n the Canadian plitical system are enrmus. The Atlantic prvinces (Newfunland, New Brunswick, Nva Sctia), Quebec, Ontari, and the prairie and western

160 prvinces (Manitba, Saskatchewan, Alberta, and British Clumbia) have 150 distinctive plitical cultures that shuld lead justices frm thse prvinces t vte differently. 3 Table 4.1 presents the prvincial representatin f Canadian Supreme Curt justices. Despite the statute mandating three Quebec judges in each natural curt, Ontari has cntributed the mst justices with 24 (35.8%), while Quebec is secnd with 21 judges (32.3%). The Atlantic and prairies and western prvinces share the remaining ne-third. The natural curt cmpsitin frm 1949 t 1980 was cnsistently ne judge frm the Atlantic prvinces, three frm Quebec and Ontari, and tw frm the prairie and western prvinces. As the prairie and western prvinces becme mre imprtant in Canada, the natural curt cmpsitin after 1980 shifted t ne judge frm the Atlantic prvinces, three judges frm Quebec and the prairie and western prvinces, and tw judges frm Onatari. This reginal pattern f appintments f curse can be interpreted as a reflectin f the ppulatin, sectinalism, and reginalism f Canadian plitics. Religin: The impact f religius idelgies n plitics is widely understd. In Canada, the impact f the Rman Cathlic church was prminent, especially prir t the 1960s, in Quebec (Jacksn, Jacksn, and Baxter-Mre 1986, 98). Als, Quebec Cathlics differ frm Cathlics in ther prvinces (Christian 1983, 114). Religius impact, hwever, is nt easy t

161 151 Table 4.1 Prvincial Representatin f The Canadian Supreme Curt Justices Regin/Prvince Number f Judges % Atlantic: Prince Edward Island New Brunswick Nva Sctia Atlantic Ttal Quebec Ontari Prairie and Western: Manitba Saskatchewan Alberta British Clumbia Prairies and Western Ttal Supreme Curt Ttal cnsider alne. The cmplicatin is due t the fact that religin is hardly islated frm ther scial characteristics. Fr Canadian Supreme Curt Justices, religin is assciated with regin. Almst all Quebec judges are Rman Cathlics. Statistically it is difficult r impssible t distinguish the effect f the tw dimensins. The study devises a measurement t handle these impacts. Career Experience Measures Prfessinal Experience: The Canadian legal prfessin can be divided int tw distinctive grups: private practitiners, and judges and law prfessr.

162 152 While sme f the Canadian Supreme Curt justices engaged in bth prfessins in their career prir t the appintment, the extent f their practice in each area was different. This difference will be used t classify judges' prir experiences. In additin, the study will als lk at their last psitin prir t the Supreme Curt appintment as anther criterin. The study hypthesizes that judges wh were private practitiners, whse ecnmic well-being relies n their services t the wealthy and pwerful interests, are rarely likely t litigate fr individuals in civil liberties and the underdg in ecnmic cases. Career judges and prfessrs, n the ther hand, have a prfessinal respnsibility t cnsider all sides f legal issues, and are nt directly dependent upn service t the wealthy and pwerful. Hence, they are hypthesized t have different patterns f vting behavir than thse with private practice experience. Judicial Experience: Previus research n Canada (Tate and Sittiwng 1989) and a study n the U.S. Supreme Curt (Tate, 1981) fund that the extent f judicial experience has a psitive effect n justices' liberalism in their vting behavir. Prsecutrial Experience: One wuld expect that judges wh had sme prsecutrial experience wuld be mre cnservative in civil liberties cases than thse wh did nt have such experience. A prsecutr represents the gvernment in civil liberties cases against thse individuals wh make a claim t thse rights; hence, they will have t defend the gvernment's rights mre

163 than the individual's. In ecnmic cases, n the ther hand, they will be mre liberal since they will defend the gvernment in business regulatin cases. Plitical Experience: Anther subset f Canadian Supreme Curt justice appintees came frm the plitical scene, especially in the early perid. Because plitical activities allw ne t interact actively with the masses, they will tend t increase a justices' sympathy fr individual claimants and ecnmic underdg. The study thus hypthesizes that justices wh had sme previus experience in plitics will be mre sympathetic t liberal interests than thse wh did nt have any plitical experience. Partisanship Measures Plitical Party f Appinting Prime Minister: Althugh the literature n mass vting behavir and judicial attribute mdel suggests the relatinship between party affiliatin and vting behavir, this study culd nt find party identificatins fr all Supreme Curt justices. Literature n the Canadian Supreme Curt, hwever, shwed that each prime minister during 1875 t 1968, wh had a chance t appint justices t the Supreme Curt, was likely t appint judges wh shared his party affiliatin (Adam and Cavalluzz 1969, 77-8). Adam and Cavalluzz als nte that their findings tend t cnfirm the belief f many Canadians that "appintments t the Supreme Curt are 'plitical gifts' given t ld party faithful" (77). Therefre, the use f prime ministers' plitical party affiliatin as a surrgate t justice's party affiliatin is 153

164 154 apprpriate. The study was able t identify party affiliatin f 34 judges. Eleven judges were members f the Prgressive Cnservative party, and 7 f them were appinted t the Supreme Curt by the Prgressive Cnservative prime ministers. There are 23 judges wh identified themself as member f Liberal party, and 22 f them were appinted t the Curt by Prime Ministers frm the Liberal party. Appinting Prime Minister: If Canadian prime ministers cnciusly appint judges t the Supeme Curt partially based n their cmmn party identificatin, we can assume that they did s in rder t carry ut sme f their plicy preferences thrugh the Curt. Hence, the study hypthesizes that justices wh were appinted by a particular prime minister will have a distinctive vting behavir cmpared t ther judges. Frm 1875 t 1990, sixty seven Supreme Curt justices were appinted by thirteen prime ministers. Table 4.2 presents the list f prime ministers and the number f justices they appinted. Overall, despite the dminatin f the Liberal party in Canadian plitics, prime minister frm bth parties had almst an equal chance t appint justices t the Supreme Curt. Thirty-fur justices were appinted by prime ministers frm the Liberal party while 33 were Cnservative party appintees. Prime Minister Laurie appinted the mst justices (11) t the Curt, and Trudeau was

165 155 Table 4.2 Appinted Prime Minister and Number f Their Appintees Prime Minister Party Number f Justices % Macdnald Cnservative Mackenzie Cnservative Thmpsn Cnservative Bwell Cnservative Laurier Liberal Brden Cnservative Mackenzie King Liberal Bennett Cnservative St. Laurent Liberal Diefenbaker Cnservative Pearsn Liberal Trudeau Liberal Clark Cnservative Mulrney Cnservative Liberal Party Prgressive Cnservative Party Ttal secnd with nine justices. Prime Minister Macdnald appinted the mst judges (8) fr the Cnservative party. Fr statistical reasns, the mdel cannt include all 13 prime ministers. Only 6 f them will be used. They were selected based n the different time perid and number f judges they appinted. Macdnald represents the early nineteenth century Cnservative party, Laurier and Mackenzie King represented the early twentieth century Liberal party and "Laissez faire Liberal",

166 and Trudeau represents the cntemprary Liberal party. Mulrney represents the cntemprary Prgressive Cnservative party. The literature n plitical culture and vting behavir suggests several ther scial cleavage factrs such as class, gender, educatin, and urban/rural distinctins (see Lipset and Rkkan 1967). They are nt applicable t the Canadian Supreme Curt justices. In general, they are elites wh came frm an upper-class, and whse educatin was much higher than ther cmmn Canadians due t their special requirements fr the psitin. Gender is barely a factr since nly three wmen have served n the Supreme Curt frm 1875 t 1990, and all three were serving in the last natural curt. Educatin experience, especially legal educatin, is excluded because it is inherent in the reginal measurement. In additin, previus research (Sittiwng 1985) fund that there is very little variatin in the justices' educatinal backgrund, especially in their legal educatin, despite the fact that Canada has tw legal cultures, cmmn law and civil law. All nn-quebec judges graduated frm majr universities in English-speaking prvinces. Quebec judges usually attended law schl within the prvince f Quebec and have additinal training frm Universities in Ontari. (Sittiwng 1985, 59-61). In additin, when ne discuss Quebec/nn- Quebec, it als implies the distinctin between French and English language, and, in legal traditin, a civil and cmmn law legal culture as well. Appendix C presents the list f all Supreme Curt justices and selected persnal attributes. 156

167 157 Research Design Dependent and Independent Variables The dependent variable is individual justices' vting behavir measured as a percentage f liberalism in individual claims and ecnmics cases. These scres were reprted earlier in Chapter 3. The independent variables, summarized in Table 4.3, will be peratinalized by measuring varius aspects f the persnal backgrunds f judges wh are included in the study. Tw f the 14 variables (Private Practice and Prir Judicial Experience) are measured in years, 1 variable (Regin and Religin Index) is assigned n a scale frm 1 t 4, and the remaining variables are measured as dichtmus variables. Mst f the variables are straightfrward in their peratinalizatin and d nt need any explanatin. The Regin and Religin Index, hwever, requires sme discussin. As mentined abve, religin is crrelated with being frm Quebec. Their Pearsn crrelatin cefficient is.57 fr the individual claims mdel and.59 fr the ecnmic mdel. As expected, Cathlicism is psitively crrelated with liberalism when ne cntrls fr Quebec/nn-Quebec rigin, and Quebec is negatively crrelated with liberalism. Hence, t cntrl fr these cllinearities and t prperly represent the relatinship between Quebec reginal rigin, Cathlicism and liberalism in juditial vting behavir, the study cnstructs a regin/religin index as presented in Table 4.3. The index is scred s that higher values are

168 158 Table 4.3 Operatinalizatin f Persnal Attribute Factrs Variable Scial Cleavages Measures: Western/Eastern Regin and Religin Operatinalizatin 0 = Eastern 1 = Western 1 = Quebec Nn-Cathlic 2 = Quebec Cathlic 3 = Nn-Quebec Nn-Cathlic 4 = Nn-Quebec Cathlic Prfessinal Experience Measures: Private Practice Prsecutry Experience Law Prfessr Judicial Experience Plitical Experience Number f years 0 = nne 1 = sme prsecutry experience 0 = nne 1 = sme teaching experience Number f years f judicial experience prir t appintment 0 = nne 1 = Sme plitical experience Partisanship Measures: Plitical Party f Appinting 0 = Cnservative Prime Minister 1 = Liberal Appinting Prime Minister 0 = Macdnald 1 = Others 0 = Laurier 1 = Others 0 = Mackenzie King 1 = Others 0 = Bennett. 1 = Others 0 = Trudeau 1 = Others 0 = Mulrney 1 = Others

169 159 expected t be assciated with liberalism, i. e. the scre f ne is assigned t nn-cathlic Quebecis (the mst cnservtive), and the highest scre f 4 is assigned t nn-quebecis Cathlic (the mst liberal). Methds and Findings The study emplyed the Ordinary Least Squares (OLS) regressin estimatin technique t fit the mdels. Three separate mdels were estimated fr each f the dependent variables. Based n previus study (Tate and Sittiwng 1989), the first mdel includes nly justices wh served during 1949 t 1990, the secnd mdel includes justices wh served prir t 1949, and the third mdel includes all justices. Initially, the study estimated the mdels by including all attribute variables. This initial analysis resulted in mdels that included six attribute factrs as ptential predictrs f justices' liberalism. The study then reestimated the mdel by including nly thse variables that were significant. Tables 4.4 t 4.6 presents the OLS estimatin f the six mdels. 4 Liberalism in Individual Claims Mdel: Of the three mdels estimated fr individual claims scres, nly ne (fr all justices) did nt prduce a statistically significant regressin in explaining the variatin in justices' liberalism scres. The mdel fr the pst-1949 perid suggests that liberalism in justices' vting behavir is a functin f being a nn-quebec Cathlic judge wh has prir experience in private practice, previusly held a plitical ffice, previuly served

170 160 Table 4.4 OLS Estimatin fr Individual Claims and Ecnmic Claims Mdel Fr Justices Wh Served During 1949 t Variable b P t-value Individual Claims Mdel (N = 28): Regin and Religin Index * Prir Plitical Experience * Party f Appinting Prime Minister * Prir Judicial Experience * Prir Private Practice Experience * Prime Minister King Appintee * a * R 2.66 Adjusted R 2.56 F-value 6.69 Significant F (df: 6, 21).0005 Ecnmic Claims Mdel (N = 27): Regin and Religin Index * Prir Plitical Experience * Party f Appinting Prime Minister * Prir Judicial Experience * Prir Private Practice Experience Prime Minister King Appintee * a R 2.58 Adjusted R 2.45 F-value 4.63 Significant F (df: 6, 20).0042 * significant at.05 level, ne-tailed test

171 as judge in anther curt, was appinted t the curt by a Liberal party prime minister, and was a nn-mackenzie King appintee. The mdel predicts the mst cnservative scre as a nn-cathlic Quebecis, wh was neither experienced as a lawyer, judge, nr plitician. He/She was appinted t the Supreme Curt by a Cnservative prime minister r by Prime Minister King. The abve discussed mdel successfully explained tw-thirds f the 161 variatin in justices' vting scre (R 2 fr the mdel is.66 with Adjusted R 2 f.55). 5 The ther tw mdels did nt have the same success. The initial estimatin f the pre-1949 mdel did nt prduce an equatin that was statistically significant. When the mdel was reestimated using the same factrs as in the pst mdel, it prduced a mderate result in predicting liberalism in individual claims (see Table 4.5). The mdel prduces an R 2 f.27 and the adjusted R 2 f.18. Tw variables, Regin and Religin Index and Party f Appinting Prime Minister, are statistically significant as the predictrs in the mdel. This mdel suggests that the mst liberal judge was smene wh was a nn-quebecis Cathlic and was appinted t the Supreme Curt by a Liberal party prime minister. The mdel including all justices, presented in Table 4.6, failed t prduce a result that is statistically significant. Ecnmic Claims Mdel: Justices' vting scres in individual claims and ecnmic issues are mderately crrelated (the Peasn r-cefficient is.60).

172 162 Table 4.5 OLS Estimatin fr Individual Claims and Ecnmic Claims Mdel Fr Justices Wh served during Variable b P t-value Individual Claims Mdel (N = 30): Regin and Religin Index * Prir Plitical Experience Party f Appinting Prime Minister * Prir Judicial Experience ^ Prir Private Practice Experience a R 2.27 Adjusted R 2.18 F-value 3.17 Significant F (df: 5, 24).0162 Ecnmic Claims Mdel (N = 42): Regin and Religin Index Prir Plitical Experience Party f Appinting Prime Minister Prir Judicial Experience * Prir Private Practice Experience a * R 2 Adjusted R 2 F-value Significant F (df: 5, 36) * significant at.05 level, ne-tailed test

173 163 Table 4.6 OLS Estimatin fr Individual Claims and Ecnmic Claims Mdel Fr All Justices. Variable b P t-value Individual Claims Mdel (N = 48): Regin and Religin Index ** Prir Plitical Experience Party f Appinting Prime Minister Prir Judicial Experience Prir Private Practice Experience a R 2.12 Adjusted R F-value.694 Significant F (df: 5, 42).6328 Ecnmic Claims Mdel (N = 59): Regin and Religin Index Prir Plitical Experience Party f Appinting Prime Minister Prir Judicial Experience Prir Private Practice Experience a * R 2.11 Adjusted R 2.00 F-value.937 Significant F (df: 5, 53).4685 * significant at.1)5 level, ne-tailed test ** significant at.10 level, ne-tailed test

174 164 Hence, the study expected t derive a mdel similar t the ne fr individual claims. In fact, the regressin analysis did nt shw any persnal attribute mdel t be significant except that fr the pst-1949 individual claims mdel. The pst-1949 ecnmic claims mdel suggests that the mst liberal judge was smene wh was a nn-quebecis Cathlic wh had extensive judicial experience prir t the appintment t the Supreme Curt. He/she was appinted t the Curt by a Liberal party prime minister except, Mackenzie King. In additin, he/she will have sme experience in hlding a plitical ffice. The mdel is mderately successful in explaining the variatin in justices' vting scre (the R 2 fr the mdel is.58 with Adjusted R 2 f.45). The pst-1949 mdel is the nly mdel that is statistically significant: the ther tw mdels did nt prduce any statistically significant regressin. In terms f the directin f the relatinship between the individual attribute factr and vting scres, the study fund mst f their relatinship in the expected directin, with the exceptin f prir private practice experience. The study hypthesized that it wuld have a negative impact n vting scre. The cefficient in bth mdels, hwever, shws a psitive relatinship. The varying results f the persnal attribute mdels estimated in this study will prbably cntribute t the debate cncerning the time bund nature f persnal attribute mdels. In the Canadian cntext, it was expected that the mdel fr individual claims cases might prduce different results fr different

175 165 time perids. Chapter 2 demnstated that individual claims cases were nt at all a significant part f the Canadian Supreme Curt case mix in earlier years. It was nt until 1949 that these cases became a regular part f the case mix. Therefre, it is pssible that the available data may nt represent a true expressin f justices' idelgy in their vting behavir. The average number f individual claims cases fr justices wh served prir t 1949 participated in is 19, and 12 f 37 judges participated in less than 10 cases. This argument, hwever, des nt explain why the mdel fr ecnmic claims issues did nt successfully explain the variatin f justices' vting behavir in the early perid since ecnmic cases were a majr part f the Supreme Curt case mix. The pssible explanatin fr ecnmic mdel may be due partly t the lack f variatin f the justices' vting scres. Table 4.7 presents the descriptive statistics fr justices wh served in the pre-1949 and pst-1949 perid tgether with the F-values and their level f significant fr the analysis f variance. Figure 4.1 presents the distributin plts f bth scres. Frm the table and the figure, ne can see that justices' scres in individual claims cases are similar and have the same dispersin, especially when Justice Cannn's scre was excluded. The analysis f variance shws that they are equal. The distributins f ecnmic claims cases scres, n the ther hand, shw tw different distributins. The pst-1949 scres shws a larger variatin in the justices' liberalism scres. The distributin f the pre-1949

176 166 Table 4.7 Descriptive Statistics Fr Liberalism Scres Individual Claims Cases: N Mean Std. Dev. Minimum Maximum Range Pre Pst F-value =.3891 Significant F (df: 1,53) =.5354 Ecnmic Claims Cases: Pre Pst F-value = Significant F (df: 1,63) =.0310 scres, n the ther hand is very cmpressed. Twenty ne scres (50%) in this perid were distributed within an 11 pint range. With such a small variatin in the justices' liberalism scres, it is pssible that the mdel failed t capture any variatin in the scres. In anther wrds, there is a very little variatin in the scres that can be explained by the mdel, regardless f hw well it was specified The analysis f variance fr ecnmic claims cases shws a significant difference in the variatin between the pre-1949 and pst-1949 justices' scres (the F-value is with a p-value f.0313). This suggests that the tw

177 167 Percent f Justices'Liberaiism Scres in Individual Claims Cases looi OCannn Percent f Justices' Liberalism Scres in Ecnmic Claims 90i Maluin 70" " 20 Huges QRichards Figure 4.1: Bx plts f Justices Liberalism Scres

178 grups are frm tw difference ppulatins. Their difference may lead t tw different mdels that are capable in explaining their respect behavirs. The questin that ne need t ask is whether the differences f the tw grup f justices resulted frm sme scial r plitical envirnments that are unique t each time perid. One such pssible factr in the Canadian cntext is the influence f the British-style f legal psitivism which may play a greater rle in the early perid. The failure f the mdel t stand the test f time require us t build a persnal attribute mdels that are apprpriate t capture the scial changes that ccurred in Canada in the past century, especially a change frm Eurpean clnial state t a Western demcracy. A better understanding f such changes may allw ne t peratinalize the persnal attribute factrs apprpriate t each time perid. This is a line f inquiry that will be pursuited in the future. The mdels did nt actually fail cmpletely. Tw variables which were included in the mdels, Regin and Religius index and Plitical Party f Appinting Prime Minister, prved t be a cnsistent predictrs in explaining the justice's vting behavir. This is cnsistent with the earlier studies n the U.S. Supreme Curt where regin and plitical party are cnsistent predictrs f the U.S. mdel (see Tate 1981; and Tate and Handberg 1991). Hence, it is pssible that additinal research and better mdel building will allw students f judicial plitics t built a persnal attribute mdel which will be bth 168

179 apprpriate crssnatinally and nt bund by time. The partial success f this study shuld help t pave way fr such research. 169

180 170 Endntes 1. Fr research in this line see Schmidhauser (1959). This wrk is the classic and influential ne in the descriptive study f the persnal attributes. Schmidhauser tried t cllect data n every aspect f the life experiences f the U.S. justices by cnsidering such variables as their fathers's ccupatins and plitical activity, place f birth, ethnic rigins, religius affiliatin, educatin, and plitical experiences. His study is influential in that it turned schlars in the field tward wrk alng this line. Fllwing his study, there were several wrks that cncentrated n sme ther natinal curts r ther American curts. Fr example see Danelski (1969), Adams and Cavalluzz (1969). 2. Fr a summary and review f these studies, see C. Neal Tate (1972). 3. Fr a discussin f the impacts f regin n Canada's plitical culture and their differences see Michael D. Ornstein, H. Michael Stevensn and A. Paul Williams (1980), Richard Simen and David J. Elkins (1974). 4. Fr mdel cmparisn purpses, the study decided t include all the factrs that were significant in ne mdel even thugh they were nt significant in thers. 5. A big drp in adjusted R 2 is expected even thugh all the parameters in the mdel are significant since the mdel is estimated with a smaller number f bservatins (28). The frmular fr adjusted R 2 is: adj. R 2 = 1 - [((n - i)(l - R 2 ) / (n - p)] Where: n = number f bservatins; i = 1 when the mdel has a cnstant and 0 when therwise; and p = number f parameters in the mdel.

181 CHAPTER REFERENCES Adams, G. and P. L. Cavalluzz "The Supreme Curt f Canada: A Bigraphical Study." Osgde Hall Law Jurnal 7: Bwen, Dn "The Explanatin f Judicial Vting Behavir frm Scilgical Characteristics f Judges." Ph.D. Dissertatin, Yale University. Christian, William "Idelgy and Plitics in Canada." In Appraches t Canadian Plitics, 2 nd Editin, ed. Jhn H. Redekp. Scarbrgh, Ontari: Prentice-Hall. Danelski, David J "The Supreme Curt f Japan: An Explratry Study." In Cmparative Judicial Behavir, Crss-Cultural Studies f Plitical Decisin-Making in the East and West, eds. Glendn A. Schubert and David J. Danelski. New Yrk: Oxfrd University Press. Gibsn, James L "Frm Simplicity t Cmplexity: The Develpment f Thery in the Study f Judicial Behavir." Plitical Behavir 5: Haines, Charles G "General Observatins n the Effects f Persnal, Plitical, and Ecnmic Influences in the Decisin f Judges." Illinis Law Review 17 as reprinted in Judicial Behavir: A Reader in Thery and Research, ed. Glendn A. Schubert. Chicag: Rand McNally and C. Jacksn Rbert J., Dreen Jacksn, and Niclas Baxter-Mre Plitics in Canada: Culture, Institutins, Behavir and Public Plicy. Scarbrugh, Ontari:Prentice-Hall. Lipset, Seymur M. and Stein Rkkan "Cleavage Structures, Party Systems and Vting Alignments." In Party Systems and Vter Alignment. eds. Lipset and Rkkan. New Yrk: Free Press. Ornstein, Michael D., H. Micheal Stevensn and A. Paul Williams "Regin, Class and Plitical Culture in Canada." Canadian Jurnal f Plitical Science 13:

182 Schmidhauser, Jhn R "The Justices f the Supreme Curt: A Cllective Prtrait." Midwest Jurnal f Plitical Science 3: Simen, Richard and David J. Elkins "Reginal Plitical Cultures in Canada." Canadian Jurnal f Plitical Science 7: Sittiwng, Panu "Canadian Supreme Curt Decisin-Making: The Persnal Attribute Mdel in Explaining Justices' Patterns f Decisin- Making, " Master Thesis, Nrth Texas State University. Tate, C. Neal "Scial Backgrund and Vting Behavir in the Philippine Supreme Curt." LawAsia 3: Tate, C. Neal "Persnal Attributes Mdels f the Vting Behavir f U. S. Supreme Curt Justices: Liberalism in Civil Liberties and Ecnmic Decisins, " American Plitical Science Review 75: Tate, C. Neal. and Rger Handberg "Time Binding and Thery Building in Persnal Attribute Mdels f Supreme Curt Vting Behavir, " American Jurnal f Plitical Science 35: Tate, C. Neal. and Panu Sittiwng "Explaining the Decisin-Making f the Canadian Supreme Curt: " Paper presented at the 29 th Annual Cnference f the Western Canadian Studies Grup f the Western Scial Science Assciatin, El Pas, Texas, April 25. Tate, C. Neal. and Panu Sittiwng "Decisin Making in the Canadian Supreme Curt: Extending the Persnal Attributes Mdel acrss Natins." Jurnal f Plitics 51: Ulmer, S. Sidney "Scial Backgrund as an Indicatr t the Vtes f Supreme Curt Justices in Criminal Cases: Terms." American Jurnal f Plitical Science 19: Ulmer, S. Sidney "Are Scial Backgrund Mdels Time-Bund?" American Plitical Science Riview 80:

183 CHAPTER 5 CONCLUSION The Canadian Supreme Curt was in the past assumed t be f little plicy significance in natinal plitics. This lack f significane reflected the narrw, literalist interpretatin f the Curt's duties shared by its justices as much as it did the relative supremacy f Parliament and the limited cnstitutinal rle the Curt was expected t play. While thse wh studied the Curt's plitical rle ften agreed that it acted s as t minimize its plicy significance, thers agued that the Curt had a rle t play in Canadian plitics that required the exercise f substantial discretin regardless f hw its judges chse t define their plitical functins. Whether there were self-impsed r institutinally-impsed limitatins n the plicy significance and decisin making discretin f the Canadian Supreme Curt in the past, these limitatins are largely irrelevant nw. Accrding t Mrtn, "the Canadian Supreme Curt is a text-bk example f a curt in transitin frm an essentially adjudicatry rle t a mre plitically influential rle" (Mrtn 1986, 1). This transfrmatin has been taking place at least since the ablitin f appeals t the British Huse f Lrds Privy Cuncil in 1949 and later in 1982, was cnfirmed by the refrms cntained in the new Cnstitutin. 173

184 174 That act "severely qualifies if it des nt actually extinguish the traditin f parliamentary supremacy in Canada" and has caused the Supreme Curt "t evlve tward a much mre explicit and influential rle in the Canadian regime" (Mrtn 1986, 3). The plitical significance f the Supreme Curt make study f the Curt an integral part f the study f Canadian plitics. The understating f future Canadian plitics and plicy making will require a much better understanding f the plitics f Supreme Curt and the decisin making behavir f its justices. With that perspective in mind, this dissertatin lked at the Supreme Curt's decisin making frm three different perspective. It lked at Supreme Curt institutinal decisin making, the rle f grup interactin in the decisin prcess, and individual decisin making behavir. At the institutinal level, the study first lked at the size and cmpsitin f the Supreme Curt's caselad. It fund that there was a cyclical trend in the Curt's reprted cases. This cyclical trend, hwever, did nt crrelate with the ppulatin grwth in the cuntry. In fact, the rati between the number f cases reprted and ppulatin shwed a decreasing trend. Within its stable wrklad, the Supreme Curt experienced substantial shifts in the surces and cmpsitin f the cases its reprted. The surces f cases appealed t the Supreme Curt shwed a trend t shift frm Quebec and Ontari t the western prvinces. This shift prbably reflects a change in

185 175 sciecnmic develpment in Canada where the western prvinces becme mre imprtant ecnmically. In term f case cmpsitin, the study fund a shift in Supreme Curt dckets frm private law t public law cases, in particular a significant increase in appeals invlving cnstitutinal/rights issues. The study fund that this changing pattern f the Curt's scpe f rule adjudicatin was a result f the institutinal change shaping the Supreme Curt. The changes that cntributed t caselad cmpsitin shift were the ablitin f rights t appeals t the Privy Cuncil in 1949, and the ablitin f rights t appeal in civil cases in Statistically, the latter was fund t be the mst imprtant surce f wrklad change. It affected bth the increase in the cnstitutin/rights cases and the rise in public law dcket. The adptin f the new cnstitutin and the Charter f Rights in 1982, was nt fund t be statistically significant influence n wrklad cmpsitin. These results supprt the argument made by thse wh study the Curt that the Canadian Supreme Curt has becme an imprtant plitical actr wh will rutinely be invlved in frmulating public plicies in the cuntry, in particular in the area f individual rights and liberties. The cmbined affect f the three changes was t mve the Supreme Curt away frm a general appeal curt tward a cnstitutinal curt whse rle is t balance the acts f ther branches f gvernment at bth the prvincial and federal level. Whether the Curt

186 carries ut this functin vigrusly will becme clearer as mre and mre 176 Charter related issues are brugh t the Curt fr decisin (see Mrtn, Russell, and Withey, 1991). Anther institutinal behavir that was analyzed was cnflict in decisinmaking. It was fund that the variatin in the rate f dissensus in the Curt's decisin making can be explained by the chief justices' tenures. This finding is similar t the similar study fr the U.S. Supreme Curt (Walker, Epstein, and Dixn, 1988; Haynie, 1992). Finally, the study lked at the directin f the Curt's decisin-making. It fund that level f liberalism in the Supreme Curt varied frm ne natural curt t anther. The study suggested that these differences, amng ther things, may be result f shifts in individual justices' idelgies in each natural curt. This hypthesis was partly cnfirmed in the analyses carried ut in Chapter Three. The analysis did nt always shw that the vting blcs in the Supreme Curt were strngly structured alng the liberal/cnservative idelgy dimensin. The results f the multidimensinal scaling analysis, hwever, did suggest mre ften than nt that the vting blcs were partially structured and explainable by ne f the idelgical dimensins. In the final analysis chapter, the study expanded the previus research t test the time bund nature f the persnal attributes mdels in explaining

187 177 justices' liberalism in vting behavir. The results were mixed. While the regressin analysis fr bth individual claims and ecnmic claims were successful in explaining the variatin in the liberalism scres fr justices wh serrved in the Curt during , the same mdels did nt succeed r nly partially succeeded in explaining the variatin fr justices wh served during The sub-perid analysis, hwever, shw that the pret-1949 perid scres shw nly a small variatin when cmpare t the pst-1949 perid. With this result, the study cncluded that, the persnal attributes mdel will need mre theretical refinement if it is t be successful in explaining individual justices' vting behavir in the earlier perid. The new mdel will have t include factrs that will capture the scial changes r scial phenmena that are unique t each time perid. Such a mdel may be difficult t achieve and the debate n the merits f such mdel will cntinue. Despite cvering a variety f Canadian Supreme Curt behavir, the study has nly scratched a surface f this inquiry. There are several lse-ends that will need t be tied up in future study, in particular at the institutinal level. At that level, the study failed t develp a thery t explain the Supreme Curt's caselad despite the fact that this is the mst frequently studied subject in the judicial behavir literature. In additin, a mre extensive analysis f cnflict in and the directin f the Curt's decisin making, is still needed if we are ging t have mre understanding f the Supreme Curt decisin making prcess and

188 its impacts n Canadian sciety. Such a study may need t emphasize n rle f individual justices in thse institutinal behavirs. At a minimum, hwever, this study has cntributed t the nging investigatin f the Canadian Supreme Curt and its "Judicializatin int plitics," 1 and shuld help rejuvenate the Canadian judicial behavir traditin. Secnd, the results, and lack f results will help bth cntribute t the understanding f the transfrmatin f the Canadian judiciary that is nw ccuring, and pen the avenue fr furture analysis. The wealth f data that were used in this study, indeed, prmises an ptimistic future fr further inquiry. 178

189 179 Endntes 1. The wrds was first used by Russell (1983) in his predictin f the changing rle f the Supeme Curt in Canadian plitics after the adptin f the Charter f Rights.

190 CHAPTER REFERENCES Haynie, Stacia L "Leadership and Cnsensus n the U.S. Supreme Curt." Jurnal f Plitics 54: Mrtn, F. L "The Pliticizatin f the Supreme Curt f Canada." Paper presented t the Interim Meeting f the Research Cmmittee n Cmparative Judicial Studies f the Internatinal Plitical Science Assciatin, Center fr the Study f Law and Sciety, University f Califrnia, Berkeley, December Mrtn, F. L., Peter H. Russell, and Michael J. Withey "The Supreme Curt's First 100 Charter f Rights Decisin: A Statistical Analysis." Occatinal Papers Series, Research Study 6.1, Research Unit fr Sci- Legal Studies, University f Calgary. Russell, Peter H "The Plitical Purpses f the Canadian Charter f Rights and Freedms." Canadian Bar Review 61: Walker, Thmas G., Lee Epstein and William J. Dixn "On the Mysterius Demise f Cnsensual Nrms in the United States Supreme Curt." Jurnal f Plitics 50:

191 APPENDIX A CANADIAN SUPREME COURT DECISION MAKING CODING SHEET 181

192 182 Card Case N. Date 1. Curt Appealed frm 1. Original 3. Single SC J 5. Highest Prv. Ct 2. Place Appealed frm 2. Exchequer 4. Other Fed Ct. r Agent. 6. Other Prv. r Terr'l Ct. Cl _ Fed. 04. N.S. 07. Ont. 10. Alta. 13. Yukn 3. Jurisdictin 02. Nfld 05. N.B. 08. Man. 11. B.C. 14. Nt applicable 03. P.E.I. 06. Quebec 09. Sask 12. N.W.T Ref. by Gv. in CI. 04. Special case remved 06. Mtin fr leave t appeal 08. Leave granted by SC 10. Leave granted by Prv. Ct. 12. De Pian appeal-mandamus prceedings appeal 14. Dubtful 15. Mtin t quash 16. Miscellaneus mtins 02. Ref. by Senate r H f C. 03. Prv. ref. 05. Petitin fr Habeas Crpus 07. Per Saltum appeal 09. Leave granted by ther Fed. Ct. 11. De Pian appeal-nn-crime. Hab. Crp. 13. De Pian 4. Appeal t Privy Cuncil Nt appealed 2. Allwed part 4. Dismissed 5. Jurisdictin denied 6. Jurisdictin affirmed and case sent back 8. Leave denied 9. Other 3. Allwed in 7. Leave granted

193 Dispsitin f Appeal 1. Allwed 2. Allwed in part 4. SC jurisdictin denied 5. Lwer Ct juris denied 6. Lwer Curt jurisdictin affirmed and case sent back 7. Leave t appeal granted 8. Leave t appeal denied 9. Other 0. SC jurisdictin upheld 6. Dispsitin f crss-appeal Dismissed 18 same as 5. 0 = nt applicable 7. Legal issue - PUBLIC Admin 04 B. f Rts 07 Cnstitutinal 10 Electin 13 Jurisdictin 16 Prcedure 19 Tax, death 22 Tax, municipal 25 Wk. Cmp. 28 Crwn Rts. 8. Legal issue - PRIVATE 31 Agency 34 Bankrupcy 37 Cmm'l 40 Debtr & Creditr 43 Family 46 Insurance 49 Mai. Prs. 52 Mtr Veh. 55 Sales 58 Trt 61 Will 64 Cnflict f Laws 02 Admir'ty 05 Civ. Lib. 08 Criminal 11 Exprpriatin 14 Labur 17 Prfessinal 20 Tax, excise 23 Tax, ther 26 Other 32 Arbt'n 35 Bills & ntes 38 Cntract 41 Evidence 44 Fraud 47 Jury 50 M. & S. 53 Prcedure 56 Shipping 59 Trespass 62 Other 03 Aliens 06 Cmbines 09 Educatin 12 Immigratin 15 Municipality 18 Railways 21 Tax, incme 24 Utilities 27 Statue interp Banking 36 Char. 39 Crpratins 42 False impris. 45 Ind. prperty 48 L. & T. 51 Mrtgage 54 Real Prperty 57 Spec, writ 60 Trust 63 Per. Prperty 10. Other PUBLIC issue Cde as 7 & 8

194 Other PRIVATE issue Cde as 7 & Brad Legal Categry 01 Cnstitutin 04 Cm Law 07 (1 + 3) 10 (2 + 3) 13 (3 + 4) 16 Mix f Appelant 01 Federal 04 N.S. 07 Ont. 10 Alta 13 Yukn 16 Crpratin 19 Pressure Grup 22 Indiv 25 Fed. fficial fficial 14. Respndent 31 Federal 34 N.S. 37 Ont. 40 Alta 43 Yukn 46 Crpratin 49 Pressure Grup 52 Indiv 56 Fed. fficial fficial 02 Fed. Statue 05 Civil Cde 08 (1 + 4) 11 (2 + 4) 14 (3 + 5) 17 Other 02 Nfld 05 N.B. 08 Man 11 B.C. 14 Municipal 17 Unin 20 Pub. Utils 23 Other 26 Prv. fficial 32 Nfld 35 N.B. 38 Man 41 B.C. 44 Municipal 47 Unin 50 Pub. Utils 53 Other 57 Prv. fficial Prv. Statue 06 (1 + 2) 09 (1 + 5) 12 (2 + 5) 15 (4 + 5) P.E.I. 06 Quebec 09 Sask 12 N.W.T. 15 Bard 18 Church 21 Other Org. 24 Trustee 27 Municipal P.E.I. 36 Quebec 39 Sask 42 N.W.T. 45 Bard 48 Church 51 Other Org. 55 Trustee 58 Municipal 15. Additinal Party same as 13 & 14

195 Additinal party same as 13 & Interventins 01 Federal 04 N.S. 07 Ont. 10 Alta 13 Yukn 16 Other 18. Cnstitutinal Outcmes 02 Nfld 05 N.B. 08 Man 11 B.C. 14 Municipal P.E.I. 06 Quebec 09 Sask 12 N.W.T. 15 Private Fed. law valid invalid 04 Prv law valid invalid 07 Fed rts upheld 02 fed law val in pt 05 Prv 1 val in pt 08 Prv rts upheld 03 Fed law 06 Prv law 09 Fed and Prv rts upheld in part 10 One Prv rts upheld against ther Prv 11 Cmbinatin f abve 19. Attendance f judges 20. Number in Dissent 21. Vting f Judges 41_ 42 1 Write Opinin f Curt 2 Wrte Majrity Opinin 3 Cncurred with Majrity 4 Wrte Dissenting Opinin 5 Cncurred with Dissenting Opinin 6 Jined in Jint Opinin 7 Absent Cl. Cl. Cl. Richards Richie Strng,.. 45 J. Taschereau 46 Furnie.. 47 Henry H. Tasch Gwynne.. 50 Pattersn.. 51 Sedgewick. 52 King Giruard.. 54 Davies Mills 56 Armur Nesbitt Killam.. 59 Idingtn.. 60 Maclennan. 61 Duff 62 Fitzpatrick. 63 Anglin Brdeur.. 65 Minault... 66

196 186 Maluin Newcrabe. 68 Rinfret Lamnt Smith Cannn Crcket Hughes Davis Kerwin Hudsn R. Tasch.. 78 Rand 79 Kellck CARD NO. CASE N Estey, J. W. 7 Lcke... 8 Cartwright. 9 Fauteux... 10_ Abbtt... 11_ Nlan Martland Judsn Ritchie.. 15 Hall 16 Spence Pigen Laskin 19 Dicksn Beetz De Grandpre 22 Estey W. Z. 23 Pratt Mclntyre Chuinard. 26 Lamer Wilsn Le Dain La Frest.. 30 Ad Hc 31 L' Heureux 32 Spinka Cry 34 McLachlin. 35 Vlumn Page 60-63_ 64-67

197 APPENDIX B THE NATURAL COURT DIVISION IN THE CANADIAN SUPREME COURT,

198 188 Curt 1: Richards, W. B., Ritchie, W. J., Strng, S. H., Taschereau, J. T., Henry, W. A., Furnier, T. Taschereau, H. E., Gwynne, J. W. Curt 2: Ritchie, W. J., Strng, S. H., Henry, W. A., Furnier, T. Taschereau, H. E., Gwynne, J. W. Curt 3: Ritchie, W. J., Strng, S. H., Furnier, T. Taschereau, H. E., Gwynne, J. W. Pattersn, C. S., Curt 4: Strng, S. H., Taschereau, H. E., Gwynne, J. W., Sedgewick. R., King G. E., Giruard, D., Davies, L. H. Curt 5: Taschereau, H. E., Sedgewick. R., Giruard, D., Davies, L. H, Mill, D., Armur, J.A., Nesbitt, W., Killam, A. C. Curt 6: Fitzpatrick, C.,Giruard, D., Davies, L. H, Idingtn, J., Maclennan, J., Duff, L. Anglin, F. A. Curt 7: Fitzpatrick, C.,Davies, L. H, Idingtn, J., Duff, L. Anglin, F. A., Brdeur, L. P. Curt 8: Anglin, F. A., Davies, L. H, Idingtn, J., Duff, L., Brdeur, L. P., Mignault, P. B.

199 189 Curt 9: Anglin, F. A., Idingtn, J., Duff, L., Mignault, P. B., Newcmbe, E. L., Rinfret, T Curt 10: Anglin, F. A., Duff, L., Mignault, P. B., Newcmbe, E. L., Rinfret, T, Lamnt, J. H., Smith, R. Curt 11: Anglin, F. A., Duff, L., Rinfret, T, Lamnt, J. H., Smith, R., Cannn, L. A., Crcket, O. A., Huges, F. J. Curt 12: Duff, L., Rinfret, T, Cannn, L. A., Crcket, O. A., Davis, H. H., Kerwin, P., Hudsn, Curt 13: Duff, L., Rinfret, T, Crcket, O. A., Davis, H. H., Kerwin, P., Hudsn, Tashereau, R., Curt 14: Duff, L.,,Rinfret, T, Crcket, O. A., Kerwin, P., Hudsn, Tashereau, R., Rand, I. C., Kellck, R., Estey, J. W. Curt 15: Rinfret, T, Kerwin, P., Hudsn, Tashereau, R., Rand, I. C., Kellck, R., Estey, J. W., Lcke, C. H., Cartwright, J. R., Fauteux, J. H. Curt 16: Kerwin, P., Hudsn, Tashereau, R., Rand, I. C., Kellck, R., Estey, J. W., Lcke, C. H., Cartwright, J. R., Fauteux, J. H.

200 190 Curt 17: Kerwin, P., Hudsn, Tashereau, R., Rand, I. C., Lcke, C. H., Cartwright, J. R., Fauteux, J. H., Abbtt, D. C., Nlan, H. G., Marti and, R. Curt 18: Kerwin, P., Tashereau, Lcke, C. H., Cartwright, J. R., Fauteux, J. H., Abbtt, D. C., Nlan, H. G., Martland, R., Judsn, W., Ritchie, R. A. Curt 19: Tashereau, R., Cartwright, J. R., Fauteux, J. H., Abbtt, D. C., Martland, R, Judsn W., Ritchie, R. A., Hall, E., Spence, W. Curt 20: Cartwright, J. R., Fauteux, J. H., Abbtt, D. C., Martland, R., Judsn, W. Hall, E., Ritchie, R, Spence, W., Pigen, L. P. Curt 21: 19: Fauteux, J. H., Abbtt, D. C., Martland, R., Judsn, W. Hall, E., Richie, R., Spence, W., Pigen, L. P., Laskin, B. Curt 22:: Laskin, B., Martland, R., Judsn, W., Richie, R., Spence, W., Pigen, L. P., Dicksn, B., Beetz, J.., De Grandpre' Curt 23: Laskin, B., Martland, R., Judsn, W., Richie, R., Spence, W., Pigen, L. P., Dicksn, B., Beetz, J.,Estey, W. Z., Pratt, Y., Mclntyre, W Curt 24: Laskin, B., Martland, R., Richie, R., Dicksn, B., Beetz, J.. Estey, W. Z., Mclntyre, W., Chuinard, J, Lamer, A.

201 Curt 25: Laskin, B., Richie, R., Dicksn, B., Beetz, J.. Estey, W. Z., Mclntyre, W., Chuinard, J, Lamer, A., Wilsn, B., Le Dain G. Curt 26: Dicksn, B., Beetz, J.. Estey, W. Z., Mclntyre, W., Chuinard, J, Lamer, A., Wilsn, B., Le Dain, G, La Frest, G. L' Heureux-Dube', C., Spinka, J. Curt 27: Dicksn, B, Estey, W. Z. Mclntyre, W, Chuinard, J. Lamer, A., Wilsn, B., La Frest, G., L' Heureux-Dube', C., Spinka, J., Cry, P. D., McLachlin, B.

202 APPENDIX C CANADIAN SUPREME COURT AND THEIR SELECTED PERSONAL ATTRIBUTES 192

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