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Ln Compliance with the Canadian Privacy Legislation Sorne Supporting Forms May Have Been Removed from This .Dissertation ln compliance with the Canadian Privacy Legislation sorne supporting forms may have been removed from this .dissertation. While these forms may be included . in the document page count, their rernoval does not represent any loss of content from the dissertation. Appealing to Higher Authority: Explaining the Federal Government's Appeals to the Supreme Court of Canada in Charter Cases Matthew A. Hennigar Department of Political Science Mc Gill University, Montreal October 2002 A thesis submitted to the Faculty of Graduate Studies and Research in partial fulfillment of the requirements of the degree ofDoctorate ofPhilosophy © Matthew A. Hennigar, 2002 National Library Bibliothèque nationale 1+1 of Canada du Canada Acquisitions and Acquisisitons et Bibliographie Services services bibliographiques 395 Wellington Street 395, rue Wellington Ottawa ON K1A ON4 Ottawa ON K1A ON4 Canada Canada Your file Votre référence ISBN: 0-612-88489-9 Our file Notre référence ISBN: 0-612-88489-9 The author has granted a non­ L'auteur a accordé une licence non exclusive licence allowing the exclusive permettant à la National Library of Canada to Bibliothèque nationale du Canada de reproduce, loan, distribute or sell reproduire, prêter, distribuer ou copies of this thesis in microform, vendre des copies de cette thèse sous paper or electronic formats. la forme de microfiche/film, de reproduction sur papier ou sur format électronique. The author retains ownership of the L'auteur conserve la propriété du copyright in this thesis. Neither the droit d'auteur qui protège cette thèse. thesis nor substantial extracts from it Ni la thèse ni des extraits substantiels may be printed or otherwise de celle-ci ne doivent être imprimés reproduced without the author's ou aturement reproduits sans son permission. autorisation. Canada ABSTRACT The adoption of the Charter ofRights and Freedoms has increased the policy importance of litigation, and, accordingly, of those government lawyers who handle su ch litigation. In particular, policies and laws may stand or faIl based on whether the government appeals its losses in the lower courts to the Supreme Court of Canada. This dissertation seeks to determine whether the federal government' s appeal decisions are based on a rational weighing of multiple factors related to costs, case importance, and the prospect of securing access to, and victory in, the Supreme Court. This first requires ascertaining the locus of litigating authority and the decision making process within the government. Surveys and personal interviews of government counsel reveal that the Department of Justice Canada, which holds a near-monopoly over Ottawa's litigation, combines decentralisation by region and policy area in the conduct of litigation with a centralised appeal decision making pro cess. Quantitative and qualitative analyses of the government's lower court losses and Supreme Court appeals confirm the dissertation's central assumption that the federai government' s appeals are calculated choices, with case importance, avoiding losses on appeal, and protecting governmental authority emerging as the strongest motivations. Further, the dissertation situates these findings in the context of the contemporary "dialogue" debate, providing the first systematic analysis of government dialogue with lower appeal courts, and incorporating the concept of appeals as a form of dialogue. The study finds a significant degree of dialogue between the federal government and the lower courts, especially following highly activist judicial rulings. This is consistent with findings from the preceding sections, that Justice Department lawyers actively defend the government' s policy-making authority. Il RÉSUMÉ L'adoption de la Charte canadienne des droits et libertés a augmenté l'importance politique du litige, et, en conséquence, des avocats gouvernementaux qui traitent ce litige. En particulier, la probabilité que les politiques et les droits survivent ou périssaent peut dépendre sur si le gouvernement fait appel à la Cour Suprême lors de ses pertes dans les cours inférieures. Cette thèse vise à déterminer si les arrêts d'appel du gouvernement du Canada sont baser sur plusiers facteurs concernant les coûts, l'importance de l'affaire, et la probabilité de gagner entrée à, et réussir dans, la Cour Suprême. Ce premier exige la détermination de la portée d'autorité gouvernemental de mettre en litige, et le processus de décisions gouvernementales. Les interviews avec des avocats gouvernementaux révèlent que le Ministère de Justice Canada, qui possède un quasi-contrôle sur le litige du gouvernement fédéral, joint la décentralisation par région et par catégorie politique dans le traitement du litige avec un processus centralisé pour les arrêts d'appel. Les analyses quantitatives et qualitatives des pertes et des appels par le gouvernement confirment l'hypothèse centrale de la thèse que les appels sont des choix refléchis. Les motivations les plus fortes pour faire appel sont l'importance du cas, le désir d'éviter les pertes en appel, et la protection de l'autorité gouvernemental. En plus, la thèse situe ces découvertes dans la contexte du débat contemporain sur le "dialogue," et documente la première analyse systématique du dialogue entre le gouvernement et les cours inférieures, incorporant l'idée de l'appel dans la définition de dialogue. Cette étude trouve un degré élevé de dialogue, surtout à la suite d'arrêts judiciaires hautement activistes, ce qui est en accord avec les observations des sections précédentes, notamment que les avocats de Ministère de Justice Canada défendent activement l'autorité politique du gouvernement. III CONTENTS Acknowledgments v Introduction 1 1. From Independence to Litigation Strategy: Scholarly Treatment of 11 Government Lawyers 2. The Federal Government' s Appeals Pro cess 42 3. Modelling the Decision to Appeal: Factors and Hypotheses 59 4. Analysing the Decision to Appeal: Data and Statistical Results 84 5. Factors in the Decision to Appeal: A Second Look 116 6. Government Appeals as "Dialogue": Expanding a Contemporary Debate 151 Conclusion 187 Bibliography 196 IV ACKNOWLEDGMENTS Many people have provided support and advice during the writing of tbis dissertation who deserve my sincere thanks. F oremost among my many friends and family in this regard is my partner Kathleen, who, as a feUow academic, was particularly understanding of the travails of a doctorate, but never let me lose perspective. Deepest thanks as weU to my parents and brothers Jay and Troy, who were probably starting to worry that 1 was going to be a student forever. Thank you aU for your love and support. 1 am grateful to have benefitted from comments on preliminary drafts from several individuals over the course ofwriting this dissertation, including Elisabeth Gidengil, Steven Wasby, Matthew Wetstein, Cythia Ostberg, Troy Riddell, and Gerald Baier. 1 owe particular thanks to Elisabeth Gidengil, for giving me the opportunity to greatly improve my familiarity with methods of quantitative analysis through an extended research assistantship. Thanks too to the Social Sciences and Humanities Research Council of Canada, the Stanfield Dissertation Fellowship, and the Department ofPolitical Science at McGill University for their financial support. Several other people deserve acknowledgment for their help in a variety offorms over the past six years. 1 greatly appreciate the time and effort taken by those Justice Department officiais who replied to my surveys and who consented to be interviewed; their co-operation was essential to understanding the bureaucratie processes of federal government litigation, and, in sorne cases, to distinguishing between theory and practice. Sincere thanks to the Department ofPolitical Science's administrative staff, especially v Helen Wilicka, for help with every conceivable facet of the program. Thanks also to my dissertation committee, composed of Elisabeth Gidengil, Richard Janda, Christopher Manfredi, Hudson Meadwell, and Richard Schultz for their dedication and insightful comments. Finally, special thanks to my supervisor Chris Manfredi. In addition to his consistently valuable advice on the dissertation, he encouraged my development as an academic in many ways during my time at McGill University. While promoting individu al initiative, he supported my conference work on seve rai occasions (often financially), provided welcome feedback on publication efforts, and facilitated the improvement of my teaching skills. 1 was fortunate to work as Chris's teaching assistant twice, during which time 1 learned a great deal about how to lecture effectively. Later, Chris and the Department ofPolitical Science gave me the opportunity to teach several classes at McGill, for which 1 am profoundly grateful. Lastly, he has served as an excellent example of academic professionalism, by combining deeply-held personal beliefs with a commitment to fairness and balanced scholarship. Thanks again for everything. VI INTRODUCTION On August 6, 1992, in Haig v. Canada,l the Ontario Court of Appeal declared that the Canadian Human Rights Act' s failure to prohibit discrimination against gays and lesbians violated the Charter ofRights and Freedoms. The court took the further, controversial step of amending the Act by "reading in" such protection, even though the Charter' s authors had explicitly excluded sexual orientation only a decade earlier. As the Supreme Court of Canada had not yet addressed whether the Charter's equality rights extended to sexual orientation,
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