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University of Windsor Scholarship at UWindsor Electronic Theses and Dissertations Theses, Dissertations, and Major Papers 2005 Scoring the charter: A twenty-year analysis of supreme court voting trends (Pierre Trudeau). Jason A. Daigle University of Windsor Follow this and additional works at: https://scholar.uwindsor.ca/etd Recommended Citation Daigle, Jason A., "Scoring the charter: A twenty-year analysis of supreme court voting trends (Pierre Trudeau)." (2005). Electronic Theses and Dissertations. 3384. https://scholar.uwindsor.ca/etd/3384 This online database contains the full-text of PhD dissertations and Masters’ theses of University of Windsor students from 1954 forward. These documents are made available for personal study and research purposes only, in accordance with the Canadian Copyright Act and the Creative Commons license—CC BY-NC-ND (Attribution, Non-Commercial, No Derivative Works). Under this license, works must always be attributed to the copyright holder (original author), cannot be used for any commercial purposes, and may not be altered. Any other use would require the permission of the copyright holder. Students may inquire about withdrawing their dissertation and/or thesis from this database. For additional inquiries, please contact the repository administrator via email ([email protected]) or by telephone at 519-253-3000ext. 3208. Scoring the Charter: A Twenty-Year Analysis of Supreme Court Voting Trends by Jason A. Daigle A Thesis Submitted to the Faculty of Graduate Studies and Research through Political Science in Partial Fulfillment of the Requirements for the Degree of Master of Arts at the University of Windsor Windsor, Ontario, Canada 2005 © 2005 Jason A. Daigle Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Library and Bibliotheque et 1*1 Archives Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition 395 Wellington Street 395, rue Wellington Ottawa ON K1A 0N4 Ottawa ON K1A 0N4 Canada Canada Your file Votre reference ISBN: 0-494-09758-2 Our file Notre reference ISBN: 0-494-09758-2 NOTICE: AVIS: The author has granted a non­ L'auteur a accorde une licence non exclusive exclusive license allowing Library permettant a la Bibliotheque et Archives and Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par I'lnternet, preter, telecommunication or on the Internet, distribuer et vendre des theses partout dans loan, distribute and sell theses le monde, a des fins commerciales ou autres, worldwide, for commercial or non­ sur support microforme, papier, electronique commercial purposes, in microform, et/ou autres formats. paper, electronic and/or any other formats. The author retains copyright L'auteur conserve la propriete du droit d'auteur ownership and moral rights in et des droits moraux qui protege cette these. this thesis. Neither the thesis Ni la these ni des extraits substantiels de nor substantial extracts from it celle-ci ne doivent etre imprimes ou autrement may be printed or otherwise reproduits sans son autorisation. reproduced without the author's permission. In compliance with the Canadian Conformement a la loi canadienne Privacy Act some supporting sur la protection de la vie privee, forms may have been removed quelques formulaires secondaires from this thesis. ont ete enleves de cette these. While these forms may be included Bien que ces formulaires in the document page count, aient inclus dans la pagination, their removal does not represent il n'y aura aucun contenu manquant. any loss of content from the thesis. i * i Canada Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. to ? 7 iii Abstract The Charter has transformed the way the policy process is conducted in Canada. It has ushered in a revolution focused on individual and collective group rights. The entrenchment of codified rights and freedoms has forced the legislatures to conform to the contents within the Charter and has reshaped Canadian socio-political values. Various studies have attempted to explain the Charters role in this process, however the question left unanswered is how has the Charter reshaped the policy process and what is the impact to Canadian constitutionalism? This thesis seeks to answer this question through a detailed quantitative analysis. The body of this thesis will focus on three tenets of constitutionalism: First, the Constitution Act, 1982 implemented constitutional supremacy in Canadian law and policy, however, this shift raised many questions as to the relationship between the Court and legislatures. Second, the Charter was manufactured by Pierre Trudeau with a centralizing theme. Trudeau shaped the Charter to implement universal standards across Canada, which in effect was expected to decrease provincial autonomy. Trudeau’s nation building project focused on three areas: Mobility rights, Language and Education rights and Equality rights. This study seeks to assess whether the Charter has had the centralizing effects that Trudeau originally sought. Third the influence of the individual justice was analyzed to asses what role the each justice plays in the Court, and second whether ideological congruencies exist within the Court. The database for this study will be composed exclusively of Supreme Court Charter cases. This thesis produces an important and necessary contribution to Canadian judicial literature in that it updates the database an additional five years from James Kelly’s study. Moreover, this thesis created a more sophisticated approach to analyzing whether ideological congruencies and individual biases influence the Court’s decision making process. However, quite simply, this study is significant and unique because it is the first study to focus on the exclusive impact of the Charter, by only focusing on explicit Charter cases. Thus not only will this study update the previous studies, it has corrected and modified them. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. In memory of all the trees that contributed their lives for the completion of this thesis. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. Acknowledgments Throughout this process I have encountered many bumps and turns. I would like to thank my family and friends for their moral support and lending an ear for my constant complaining and whining. Without your support and friendship I do not know where I would be today. Ma you have especially been there on those grey days to cheer me back up, your constant encouragement and willingness to listen to my troubles will be forever remembered. Thank you so much and I love you. Denny without you, this thesis would not exist. Thank you for providing me with the opportunity to see this phase of my life through. Moreover, your support, tutelage and mentoring in the final months was more than any son could ever ask for, and for this I am eternally grateful and love you. Dave, what can I say, you truly epitomize the definition of a scholar and a gentleman. Your willingness to review my work, while faced with imposing deadlines yourself, is truly the calling of a best friend. I am forever indebted. Rachel, your continued support and encouragement could not be matched, you were a big part of this and I couldn’t have done this without you, thanks for putting up with my moods (most of the time). I can’t wait to see what our future holds together. To Tara thanks for keeping me updating on the family news, as I was often unable to pick up a phone myself.. .love ya lots! Rachelle, sorry I missed your visit.. .maybe you can convince the family to send me to Australia for a grad present!!!! Love you, miss you and come back to Canada. Kim, thank you for your guidance and support towards my post-graduate life ensuring me that I won’t wind up serving coffee at Starbucks, you have gone beyond the call and I am extremely grateful Scholastically, I would also like to thank my panel for their constructive comments throughout this process; my thesis is stronger and more balanced because of this. Dr. Maclvor, it has been quite the experience, and you got me through as promised, so I sincerely thank you. Dr. Moon and Dr. McIntyre, thank you for your comments, they were quite helpful and thought provoking. Dr. Miljan, thank you for everything, your have given me a renewed faith in my work, and for this I am indebted Wow, this is like an awards show, getting to thank everyone. Since I’ve never got to do this, I will continue by saying; to all my friends and family that I was not able to mention specifically, you have made me who I am today and I will always be there for you. By dedicating this thesis to so many that have helped me along the way, I hope this acts as a first step for me to show my eternal gratitude. Ma and Pop, especially I look forward to continually showing my appreciation to the both of you for getting me this far. I love you both and I will always be thankful for all the sacrifices you both made to get me here. You are both truly amazing people. So thank you to everyone and enjoy the read Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. vi Table of Contents ABSTRACT iii DEDICATION iv ACKNOWLEDGEMENTS v LIST OF TABLES viii CHAPTER I. INTRODUCTION 1 Impact of the Charter 2 Chapter Overview 8 II. REVIEW OF THE LITERATURE 17 Legitimizing Judicial Review 18 Federalism and the Nation Building Thesis 35 The Individual Judge 48 III. METHODOLOGY 58 Thesis Format 59 Major Exclusions and Non-Duplicated Settings 73 Data Selection Methods 75 Additional Reasons for Dismissing Cases 82 Declaring a Winner 88 IV.
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