Survey of Supreme Court cases shows large majority of consensus rulings

The Canadian Press
Published on January 9, 2017

OTTAWA — One of the critical issues American voters considered in choosing president-elect Donald Trump last November was the incoming leader's power to choose the next justice for the deeply divided U.S. Supreme Court — a factor almost totally absent from Canadian general elections.

A new analysis of judgments delivered over the last 16 years by the Supreme Court of Canada helps highlight just how unified Canada's top court has been, despite a shifting roster of justices appointed by both Liberal and Conservative prime ministers.

More than 60 per cent of all judgments were decided by a margin of seven or more of the nine justices on the bench.

The study by the right-leaning Manning Centre examined almost 1,200 Supreme Court decisions from January 2000 — when Beverley McLachlin was named chief justice — to June 2016.

It's not a qualitative study, but sorts the judgments by subject matter, by region where the cases originated, by types of appellant and respondent and other easily verifiable metrics. Even the word length of judgments was tracked.

"This database and accompanying analysis simply reports what has occurred in each SCC case and does not attempt to judge the merits of any decisions," says the report.

As such it provides little energy for the kind of political hurricanes that storm across the U.S. top court's ideological divide.

Ever since deeply conservative justice Antonin Scalia died last February, the process to name a replacement to the U.S. Supreme Court has been a partisan minefield. The Republican-dominated Senate has refused to hold confirmation hearings for President Barack Obama's nominee, Merrick Garland, effectively handing the choice to Trump.

In September, Trump released what he called the "definitive" list of his potential Supreme Court appointees, while warning that "the freedoms we cherish and the constitutional values and principles our country was founded on are in jeopardy."

That kind of court-inspired rhetoric is seldom heard from campaigning Canadian political leaders.

"Judges in Canada don't appear to identify themselves with particular political causes," Carissima Mathen, a constitutional scholar and Supreme Court watcher at the University of Ottawa, said in an interview Monday.

"They tend to be careful to not be easily politically identified in the way that they do in the states." 

The Manning Centre study by McGill University student Portia Proctor assessed dissenting opinions from the roster of 22 justices who have been part of the nine-member Supreme Court court over the last 16 years and found little evidence of persistent contrarians on the bench. Claire L'Heureux-Dube, who retired in 2002, and newcomer Suzanne Cote, appointed in December 2014, were the leading dissenters — in 13 per cent of judgments, respectively — with 2013 retiree Morris Fish close behind at 12 per cent.

Of the total 1,184 cases examined, only 115 judgments decided by a single vote. That's just under 10 per cent.

By contrast, 986 cases — about 83 per cent — had at least a five-justice margin and 24.7 per cent were unanimous 9-0 rulings.

Analyses of the top U.S. court have found that over decades, the average proportion of 5-4 split decisions is around 20 per cent, ranging from lows of 15 per cent in some years to as high as 30 per cent in others.

Paradoxically, the politicized U.S. Supreme Court also delivers significantly more unanimous rulings than its Canadian counterpart — about 40 per cent of U.S. judgments were 9-0 in one recent, five-year examination.

Other findings in the Manning Centre study:

— Of all the cases examined, 35.5 per cent dealt with criminal law and 26.1 per cent dealt with constitutional matters.

— The court ruled in favour of appeals 39.6 per cent of the time, while rejecting 53.7 per cent.

— 87.2 per cent of appeals originated in provincial courts of appeal, with 11.8 per cent coming from the Federal Court of Appeals.

Bruce Cheadle, The Canadian Press