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The Supreme Court of Canada and the Judicial Role: an Historical Institutionalist Account

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The Supreme Court of Canada and the Judicial Role: an Historical Institutionalist Account THE SUPREME COURT OF CANADA AND THE JUDICIAL ROLE: AN HISTORICAL INSTITUTIONALIST ACCOUNT by EMMETT MACFARLANE A thesis submitted to the Department of Political Studies in conformity with the requirements for the degree of Doctor of Philosophy Queen’s University Kingston, Ontario, Canada November, 2009 Copyright © Emmett Macfarlane, 2009 i Abstract This dissertation describes and analyzes the work of the Supreme Court of Canada, emphasizing its internal environment and processes, while situating the institution in its broader governmental and societal context. In addition, it offers an assessment of the behavioural and rational choice models of judicial decision making, which tend to portray judges as primarily motivated by their ideologically-based policy preferences. The dissertation adopts a historical institutionalist approach to demonstrate that judicial decision making is far more complex than is depicted by the dominant approaches within the political science literature. Drawing extensively on 28 research interviews with current and former justices, former law clerks and other staff members, the analysis traces the development of the Court into a full-fledged policy-making institution, particularly under the Charter of Rights and Freedoms. This analysis presents new empirical evidence regarding not only the various stages of the Court’s decision-making process but the justices’ views on a host of considerations ranging from questions of collegiality (how the justices should work together) to their involvement in controversial and complex social policy matters and their relationship with the other branches of government. These insights are important because they increase our understanding of how the Court operates as one of the country’s more important policy-making institutions. The findings have significant implications for debates over judicial activism and the relationship between courts and the other branches of government when dealing with the Charter. The project also concludes that the justices’ role perceptions – the ideas, norms and rules that govern their role as judges and that of the institution – both shape and constrain their decision making behaviour. Understanding judicial behaviour with a focus on role perceptions allows for bridge-building between the competing explanations of judicial decision making and for theory-building in the broader judicial politics literature. ii Acknowledgments First and foremost I would like to thank Janet Hiebert for her dedication and support. This dissertation has benefited enormously from her insights and careful attention. Any remaining errors, omissions or flaws are mine. I am also grateful for the guidance and commitment Janet has demonstrated throughout my time as a graduate student at Queen’s. She has been a tremendous mentor and source of support. I would also like to thank Keith Banting, Kathy Brock and Scott Matthews for their support and feedback on various endeavours over the past several years. I have learned a lot from all of them and I am better for having had access to their counsel. I am grateful for the support of the friends and colleagues I was fortunate enough to meet at Queen’s. My thanks to Mira Bachvarova, Alan Bloomfield, Siobhan Byrne, Chris Canning, Holly Grinvalds, Nick Hardy, Simon Kiss, Rob Lawson, Rémi Léger, Allison McCulloch, Marcel Nelson, Sean O’Meara, and Dimitri Panagos. I would especially like to thank Jeremy Clarke, Jordan DeCoste, Anna Drake, and Laura Kelly, who have at various times provided feedback on work related to this project and who have most frequently put up with my prattling about it. This dissertation and my professional development would not have been possible without the support of my parents, Don and Eileen Macfarlane, and my sister Aingeal. I would like to thank my family for their continued encouragement. Finally, I am forever indebted to my wife, Tiffany. Her love and support provides the foundation for the years of work that went into this project. Whatever purpose or inspiration that is evident in these pages is thanks in large part to her remarkable ability to put up with me! I would also like to thank her parents and grandparents for their constant support. iii Table of Contents Abstract i Acknowledgements ii Chapter 1 Introduction 1 Approach 9 Emphasizing the Charter 16 Chapter Outline 18 Chapter 2 Theoretical and Methodological Debates 21 The Attitudinal Model 24 The Legal Model 28 The Strategic Model 33 Historical Institutionalism 41 Canadian Literature 48 The Attitudinal Model 48 The Strategic Approach 50 Institutional Scholarship – Old and New 53 A Neo-Institutional Approach 56 Chapter 3 Evolution of the Court 63 A Brief History of the Court 64 Towards a More Expansive Policy Making Role 69 Justiciability 69 Third Party Interveners 78 Evidence 83 Diving into the Deep End? 87 The Judges of the Contemporary Era 88 The Judicial Role, the Law, and Ideology 89 Gender 100 Experience 102 Conclusion 105 Chapter 4 Setting the Stage 107 The Contemporary Court 108 The Chief Justice 108 The Registrar and Court Staff 111 The Executive Legal Officer 113 Law Clerks 114 Efficiency and Administration 115 Getting Cases to the Supreme Court 121 The Leave to Appeal Process 121 Reference Cases 135 Written Submissions and Case Research 138 Panel Selection 140 Oral Hearing 143 Conclusion 152 iv Chapter 5 Inside the Court’s Decision-Making Process 155 Conference 156 Preparation of Reasons 162 Circulation of Drafts 166 Lobbying 174 Re-Conferencing 184 Unanimity as a Goal and its Effects 185 Conclusion 201 Chapter 6 Outside the Court 204 Institutional Boundaries and Questions of Capacity 206 Reasonable Limits and the Social Policy Distinction 209 Justices’ Views on Social Policy 217 The Court’s Approach: Health Policy Cases 221 Institutional Relationships and the Notion of Dialogue 241 Public Perception 257 Engaging the Media 264 Conclusion 270 Chapter 7 Conclusion 274 Implications and Future Research 281 Bibliography 287 v List of Tables Table 3.1 Ideological Scores and Professional Backgrounds 104 of Supreme Court Appointees, 1977-2008 Table 4.1 Average Case Lapse Times, 1987-2008 118 List of Figures Figure 4.1 Organization of the Supreme Court of Canada 112 1 “The Charter means that judges are called upon to answer questions they never dreamed they would have to face.” – Chief Justice Beverley McLachlin. Chapter 1 - Introduction This study describes and analyzes one of Canada’s most important governing institutions, the Supreme Court. Created in 1875, the Court has spent most of its history in relative obscurity. Only in the last thirty years has the institution garnered regular media coverage or sustained attention by political scientists. Much of this interest was generated by the advent of the Charter of Rights and Freedoms, which transformed the Court’s role and thrust its work into the national spotlight. The Court has evolved from a largely legal, dispute-resolving body into a policy- making institution whose decisions have far-reaching implications for virtually all areas of Canada’s political, social, cultural and economic life. A handful of recent cases are illustrative of the scope and importance of the Court’s work. In 2004, amid considerable public debate, the Court rendered a decision declaring same-sex marriage consistent with the Charter while noting that freedom of religion guarantees prevent religious officials from being compelled to perform same-sex marriages.1 A year later, the justices dealt with potential tension between two of Canada’s most venerated institutions: the universal public health care system and the Charter. A 4-3 majority struck down a Quebec law prohibiting private medical insurance on the basis that it violated Quebec’s own Charter of human rights and freedoms, with the Court split 3-3 on whether the law was unconstitutional under the Canadian Charter.2 In 2006, as many Western liberal democracies continue to struggle with the accommodation of ethnic and religious minorities, the Court ruled that a Quebec school board could not prohibit a Sikh student from wearing his kirpan (a ceremonial dagger) to school.3 And a 2007 case pitted due process rights against national security concerns. The Court struck down specific provisions of the federal government’s security certificates regime, holding that secret 1 Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698. 2 Chaoulli v. Quebec (Attorney General) [2005] SCC 35, [2005] 1 S.C.R. 791. 3 Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256. 2 hearings to determine the legitimacy of detaining suspects violate the Charter guarantee of habeas corpus under section 10(c) and the right to life, liberty and security of the person under section 7.4 These four cases, like many that now come before the Court, involve decisions regarding the fundamental social and cultural values of the country, basic due process rights, religious and cultural accommodation, national security, and important social programs (in the case of Chaoulli, the largest social program in the country in terms of overall expenditure). This reflects the institution’s important role within Canada’s governing system. Further, all of these cases took place within the last five years, suggesting that on a qualitative level, the Court’s “activism” under the Charter remains as significant as ever.5 The term “activism” is often levelled at the Court in a pejorative manner by critics of its overall approach to Charter enforcement. Here I adopt the oft- cited definition of “judicial activism” articulated by Peter Russell as meaning “judicial vigour in enforcing constitutional limitations on the other branches of government and a readiness to veto the policies of those branches of government on constitutional grounds.”6 The nature and degree of the Court’s activism has been the subject of intense and voluminous attention. For quite some time the extant scholarly literature pertaining to the Court or judicial decision making has been preoccupied by largely normative debates about activism7 or 4 Charkaoui v.
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