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Special Double Issue on the Supreme Court of Canada in 1997
October 1998, Volume 6, Number 4,5, & 6

THE SUPREME COURT AND THE CHARTER:
QUANTITATIVE TRENDS - CONTINUITIES AND DISCONTINUITIES
BY PETER H. RUSSELL


Statistics about courts and judges can at best give only an indication of broad trends in the work of the courts and the inclinations of judges. They certainly cannot tell us much about the major developments in the Supreme Court’s constitutional jurisprudence or about the impact its decisions are having on the country. Statistics cannot even give us a very useful snapshot of one year’s constitution decisions of the Supreme Court.

The statistical data provided by the organizers of this conference on 1997 Supreme Court of Canada cases involving constitutional challenges are a case in point. For my money, what is really important about the Supreme Court’s constitutional work in 1997 is not to be found in any of its quantitative features. The Court’s most important acts of constitution-making—for that is, unescapably, what the Court does in adjudicating constitutional disputes—came in just two decisions—one on the judiciary itself, and the other on Aboriginal rights.

In the four cases included in these statistical tables (see the article by Patrick Monahan) as Charter challenges based on section 11(d), the Supreme Court imposed on all jurisdictions in Canada the requirement that an independent commission play the key role in deciding on any changes in judicial remuneration. Quite unlike the other Charter cases included in these tables, these four were not brought before the Court by ordinary citizens trying to vindicate their rights. In fact, these cases were brought to the Supreme Court by provincial court judges objecting to the treatment of their salaries during a period of fiscal restraint. The Court’s decision in these cases should be seen as an assertion of judicial power against the political branches of government. The Supreme Court presided over by Chief Justice Lamer appears to be much less restrained than was the Dickson Court in deciding cases that affect the metes and bounds of the judiciary’s power and the material interests of its members.

The relative acquiescence of the media and mainstream opinion with the activism of the judicial salary cases is in marked contrast to the shocked public reaction to the Court’s decision in Delgamuukw. This is the single most important decision ever rendered by a common law court on the doctrine of aboriginal title. The decision significantly strengthens the legal resources of indigenous peoples—not only in Canada but around the world. While it gives real substance to native title, it also upholds the Crown’s sovereign power to infringe that title. But by requiring that such infringements, unless minor, require more than consultation with native title holders, the Supreme Court in effect renews the Proclamation of 1763 and commits contemporary Canada to following a treaty-like process in making arrangements for sharing land and jurisdiction with Aboriginal peoples whose land rights have not been extinguished.

While judicial statistics cannot tell us very much, they can tell us something—especially about continuities and discontinuities in the work of the courts and alignments among the judges. It is with an eye to long-term patterns and possible breaks in them that I look at the batch of tables presented to us. To do this, it is necessary to relate them to earlier work on quantitative trends, namely work published by Professor Ted Morton and myself assisted by Michael Withey and Troy Riddell, and now updated by James Kelly. Though there are differences between the ways these earlier studies counted and classified Charter decisions, I do not think these differences are so serious as to undermine the value of comparing the results of these quantifying exercises.

First, on the quantitative importance of the Charter of Rights in the work of the Supreme Court, the story is one of continuity. The conference data show that, in the six year period from 1992 to 1997 (inclusive), the Court decided 176 Charter cases—just under 30 per year. That is pretty close to average: since 1984, when the Court heard its first Charter case, it has averaged 25 Charter cases per year, and if one omits the first two years when Charter cases were just trickling in, the average Charter output per year is 27.5 cases. Although 1997 may seem like a lean year with just 19 Charter cases, this is only a reflection of a sharp drop in the total number of cases the Court decided last year.

Over the last fourteen years, Charter cases have constituted just under one-quarter of the Court’s business. This has meant that, in the Charter era, constitutional law has become the largest legal category on the Supreme Court’s docket. The Canadian Supreme Court, however, is still far from being a "constitutional court", because constitutional cases account for less than one-half of its caseload.

The biggest change indicated by the data for these recent years is the remarkable increase in aboriginal rights cases. Aboriginal peoples are increasingly turning to litigation—not as an alternative to negotiation, but as a means of strengthening their position in political negotiations. The other development in the Court’s constitutional docket, not captured by these tables, is the increase in the Court’s decision making on the judicial branch of government itself. In 1997, the Court devoted more of its energy to adjudicating disputes between the branches of government than between the levels of government: besides the four cases dealing with judicial salaries, it decided important cases dealing with evidence of judicial bias and judicial-executive branch relations. Relying on the judiciary to settle disputes between the branches of government is as bad for the health of the body politic as relying on it to settle disputes between the levels of government.

Other quantitative dimensions of the Supreme Court’s Charter work show remarkable continuity. Actions of executive branch officers, mainly the police, rather than legislation continue to be the target of just over one-half of the Charter challenges coming before the Court. No doubt, this reflects another enduring continuity—the fact that two-thirds of Charter cases involve the legal rightssections of the Charter. While the democratic sting in judicial review of executive acts is less pronounced than in judicial review of legislation, it should nonetheless be noted that the frequency of the Supreme Court’s review of legislation is considerably higher than in Charter cases dealt with in the lower courts. However, it is interesting to observe that, while overall since 1984 the success rate of Charter challenges to executive acts has been somewhat higher than in challenges to legislation, in the conference data on the most recent six years the reverse has been true—a 35 percent success rate in cases challenging legislation versus just 21 percent in cases challenging administrators and the police.

Federal legislation continues to be challenged a little more frequently than provincial legislation. This is in marked contrast to the situation in the United States, where state legislation is challenged much more often than federal statutes. The reason for this is not just the greater number of states but the fact that criminal law, the main target of constitutional challenges, is essentially under state jurisdiction in the U.S. Though federal legislation is reviewed more often in Canada, it is overturned, proportionately a little less often than provincial legislation. But the higher success rate in challenges to provincial legislation (35 vs 25 percent for federal challenges) has not been so stark as to become, as yet, a political issue in our federation.

Aggregate success rates in Charter cases coming before the Supreme Court really cannot tell us very much. The conference data show that, over the last seven years, 26 percent of the Supreme Court’s Charter cases have resulted in wins for the Charter claimant. This, despite the very high rate of success reported for 1997, is a little below the overall success rate of 33 percent recorded for all Charter cases since 1984. But significant trends emerge only when we look at variations in success rates across the three categories of Charter cases that account for nine out of every ten Charter cases the Court hears—legal rights (sections 7 to 14), fundamental freedoms (section 2), and equality rights (section 15).

When we do this, we find in the data for recent years as in the data for all of the Court’s Charter decisions since 1984, that success rates are significantly higher in cases involving legal rights than in the other two categories. Since 1984, the success rate for legal rights has been 31 percent as compared with only 22 percent in equality rights cases, and 20 percent in fundamental freedoms cases. The differences are narrower in the conference data for 1992-97—29 percent for legal rights versus 27 percent and 24 percent for fundamental freedoms and equality rights. But if we remove cases involving the amorphous section 7 (where many claimants try but few succeed), the success rate in legal rights rises to 35 percent. Charter claimants continue to have their best chance before the Supreme Court when they are claiming the protection of one of the Charter’s specific legal rights.

The relative continuity in the Supreme Court’s Charter statistics is interesting to observe in light of the fact that it has changed from being a Court largely made up of Trudeau Government appointees to one composed almost entirely of Mulroney Government appointees. Indeed, since Justice Wilson’s retirement in 1991, right up to Justice La Forest’s retirement and Justice Sopinka’s death in 1997, all of the Court’s ordinary members have been Mulroney appointees. Only Chief Justice Lamer, whom Mulroney elevated to that position in 1990, was originally a Trudeau appointment. At least quantitatively, in terms of overall bottom-line results, the shift from a Mulroney Court to a Trudeau Court does not indicate that the Supreme Court has become significantly more conservative or less activist. The overall success rate of Charter claimants in Chief Justice Lamer’s court has been just 1 percent, lower than in the pre-1990 Dickson Court.

But what about divisions within the Court? Since the Court’s "honeymoon" period with the Charter came to an end in 1985, the Charter has tended to divide it much more than any other part of its docket. Our study of its first decade of Charter decisions showed that, while the Court was unanimous in 82 percent of its non-Charter decisions, in Charter cases its unanimity rate fell to 59 percent. The conference data show an even lower unanimity rate, just 39 percent, for the last four years of Charter decisions.

Though there are no doubt shifting coalitions on different issues, there is evidence of a dominant core group of five justices on the Lamer Court—the Chief Justice himself plus Justices Cory, Iacobucci, Sopinka, and Major. More often than not, these five have been on the majority side when the Court has split in Charter cases and they have been relatively pro-Charter, compared with the other four members of the Lamer Court, Justices Gonthier, LaForest, L’Heureux-Dubé, and McLachlin.

But it would be misleading to view these two groupings as ideological blocks. In earlier analyses of voting trends, we looked separately at criminal justice cases and equality cases involving the rights of women and vulnerable minorities (including cases involving language and aboriginal rights, and religious freedom claims). This analysis showed that the two women justices, L’Heureux-Dubé and McLachlin, while relatively non-activist in criminal justice cases, especially L’Heureux-Dubé, were by a considerable measure the most likely of all the justices on the Lamer Court to support Charter claimants in cases raising issues of social and cultural equality. The two judges most likely to align with them in these cases were Chief Justice Lamer and Justice Cory. On the other hand, the two Justices who left the Court in 1997, Justices LaForest and Sopinka, though relatively pro-claimant in criminal justice cases, especially Sopinka, were at the opposite ends of the Court in equality cases.

Bearing these trends in mind, it is evident that the two newest members of the Court, Justices Bastarache and Binnie—Prime Minister Chrétien’s first Supreme Court appointments—could tip the balance of power in the Court. If one or both of them tookan approach to the Charter that is significantly closer to L’Heureux-Dubé and McLachlin than to the judges they replaced, the Court could shift to the left and become more supportive of equality claims. So, ultimately, we do have something interesting to look for in the Supreme Court’s 1998 Charter statistics.

Peter H. Russell is Professor Emeritus of Political Science at the University of Toronto.