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To mark the 25th anniversary of our Charter of Rights and Freedoms, several special events and publiations have taken place.
The McGill Institute for the Study of Canada made the Charter the subject of its 2007 conference, held February 14-16: The Charter @ 25 / La Charte @ 25 ans. The Institute for Research on Public Policy published an issue of their magazine, Policy Options, with contributions from many conference participants. In addition, a series of articles (some exceptions from Policy Options) ran in the National Post, and Kirk Makin published an article on the Charter in the Globe and Mail. Links to the newspaper articles are provided at the conclusion of this piece.
Some of the more intriguing tidbits of information on Canadian attitudes towards the Charter can be found in a recent poll by SES Research. Even taken with the grain of salt necessary when considering polling data, the determination that 58.2% of Canadians think the Charter is moving the country in the right direction but only 53.9% feel the same way about the SCC, according to an additional polling question, {{note the margin of error on the poll was +/- 3.1 % 19 times out of 20}} is worthy of the lifting of an eyebrow.
Chief Justice Beverley McLachlin has recognized the transformative role that the Charter has had on the role of the judiciary in her speech The Role of Judges in Modern Society, delivered on May 5, 2001. The Charter has become the main instrument through which the public observes the SCC interacting with Canadian society, which only further emphasizes the importance of paying attention to public sentiment in relation to the document.
Of more immediate concern is the contrast between the the recent public sentiment towards the SCC and the Charter itself. In the The Role of Judges in Modern Society speech, McLachlin C.J. cited a study by the Institute for Research on Public Policy "which found that 77 percent of Canadians were generally satisfied with the way the Supreme Court has been working." The subtle science of polling may account for some of the drop from 77% to 53.9%, but to suggest that such a wide discrepancy can be written off by the difference between being 'generally satisfied' and 'thinking the Supreme Court is moving the country in the right direction' seems a little precarious. The question is whether or not this relative drop in confidence, in relation to the SCC, is simply part of a general trend of public attitudes towards their institutions which was recognized by McLachlin C.J. in her speech, or whther there is some other factor that must be identified?
It is all the more important to determine the answer to this question in the face of the more startling finding of the SES poll, which is that only 5% of Canadians equate Charter values with Canadian values. Hearing this how can one read Charter cases that refer to Canadian values in their analysis the same way?
At 25, the Charter's significance continues to grow, as it is applied to more aspects of Canadian life. As part of our constitutional 'living tree,' however, it needs to grow in such a manner that Canadians see Charter values as their own. It is this task that our expert arborists on the SCC, as guardians of the Charter, need to keep in the backs of their minds as they continue apply Charter provisions. The challenge is a difficult one, as any sort of discussion of Canadian values easily gets mired in the tension between our multiculturalism identity and attempts to determine broader Canadian values. Or maybe this is why only 5% of Canadians think the Charter reflects Canadian values.
Links to national media articles:
- Kirk Makin, After 25 years of Charter, most think Supreme Court on right course
- Max Nemni, The Charter's Christian Roots
- Roderick A. Macdonald, Teaching the Charter (and not much else)
- Kent Roach, A Hedge Against Populism
- Father Raymond J. De Souza, Freedom Number One
- Tasha Kheiriddin, Special interests: The Charter At 25 Third in a six part series
- Peter Russell, Notwithstanding
- Hugh Segal, Charter Myths
- Andrew Coyne, We made the Charter. It did not make us
- George Jonas, Encoding Trudeau's statist spirit
- Graeme Hamilton, At 25, charter is misunderstood
3 Comments
I wonder whether the SES data can really be taken as evidence of a “drop in confidence” in the Supreme Court. The SES survey asked respondents the following:
“Based on what you know, would you say the Supreme Court of Canada is moving our society in the right direction, or the wrong direction?”
By contrast, the IRPP study cited by Justice McLachlin asked respondents a different question:
“How satisfied are you with the way the Supreme Court has been working?”
Of course, these two questions sound similar enough – both are apparent attempts to guage Canadians’ satisfaction with the Court. But subtle differences in wording are such that we can easily conceive of the two questions leading to dramatically different results. The IRPP question is solely concerned with the respondent’s feelings about the Court. By contrast, the SES question asks respondents for both their feelings about the Court and their feelings about the direction being taken by society as a whole. Thus, for example, we can conceive of some respondents in the SES survey answering “No,” not because they are unhappy with the Court, but because they are unhappy with the direction in which society as a whole is headed. By focusing on only one variable, the IRPP study gives us a much better portrait of attitudes toward the Court.
The IRPP’s survey question (though far from perfect) also has another advantage. In particular, it has been used in successive studies, over the course of several years. Thus, while it may not give an entirely accurate snapshot of public attitudes at a particular moment in time, it does allow us to compare results over the long-term, and thereby identify trends in public opinion toward the Court. When we do, fans of the Court will be relieved to learn, we find that public support for the Court is not dropping at all. On the contrary, over time, satisfaction with the Court has risen significantly. For example, the IRPP has used the following questions in several surveys:
“When the Supreme Court of Canada says a law conflicts with the Charter, who should the final say – Parliament or the Supreme Court?”
In 1987, 62% of respondents chose the Court. Similarly, in 1999, 61% chose the Court. However, faced with the same question in 2002, a remarkable 71% chose the Court over Parliament.
There are several possible reasons for this apparent increase in support for the Court. One possibility is that Canadians are familiar, and content with the Court’s work (though this seems unlikely, since the latest IRPP data also suggests that that Canadians know relatively little about what the Court actually does).
Another possible explanation is that Canadians have simply grown accustomed to judicial power, and come to recognize it as relatively benign, despite warnings to the contrary by so many critics of judicial activism.
Finally, we may be witnessing a “generational” effect. In other words, support for the Court may be rising, as generations of Canadians who grew up studying the Charter in school begin to replace those who grew up in the pre-Charter era. Indeed, this would be consistent with findings in other countries, where studies have found that support for constitutional courts tends to grow as the courts themselves get older.
For more on public opinion for the Supreme Court – and methodological issues more generally – readers would do well to consult the IRPP study:
FLETCHER, Joseph F. & HOWE, Paul. “Public Opinion and the Courts,” Choices (May, 2000).
Other useful resources include:
CALDEIRA, Gregory A. and GIBSON, James L., and SPENCE, Lester. “Measuring Attitudes Toward the United States Supreme Court,” American Journal of Political Science 47:2 (April, 2003), 354-367.
CALDEIRA, GIBSON, and BAIRD, “On the Legitimacy of National High Courts,” American Political Science Review, 92:2 (June, 1998).
HAUSEGGER and RIDDELL, “The Changing nature of Public Support for the Supreme Court of Canada,” Canadian Journal of Political Science, 37:1 (March, 2004), 23-50.
Jon,
The SES survey actually asked the same question in 2007 that you suggest was in the IRPP study that McLachlin cited in her 2001 speech, the same exact wording. You can get the PDF link off of the SES site, it is at the bottom of the page in the box adjacent to that which contained the charter poll.
The two distinctions I wished to draw were between the question about the Charter and the Supreme Court itself following up with the contrast to the historic stats from C.J. McLachlin's speech.
I am also interested to understand better the relationship between IRPP and Policy Options which comissioned the SES poll. It is my understanding that Policy Options is a publication of the IRPP, is this incorrect? If so why would Policy Options commission a separate poll by SES if IRPP is already doing some of this on its own?
Corey,
I must admit, I'm a bit puzzled by all this. I looked at the 2007 SES survey (http://www.sesresearch.com/library/polls/IRPP%20February%207%202007.pdf), and can't seem to find any evidence that they recycled the question from the IRPP's 1999 survey.
But you're absolutely right that the SES data points to a seeming gap between perceptions of the Charter, and perceptions of the Court. My inclination is to say that this discrepancy has more to do with the wording of the SES questions, and less to do with any actual ill will toward the Court. (Like I said in my earlier post, I don't put much stock in these one-time snapshot surveys, and strongly feel that we're much better off looking at studies that track attitudinal trends over the long-term.) That said, there may be something more to these numbers. I'd certainly be keen to hear what others have to say.
And as to your question... the IRPP does indeed publish Policy Options. But I don't think it has its own in-house polling unit. Instead, my understanding is that the IRPP usually takes questions developed by experts in a given field, then commissions a polling firm (in this case, SES) to conduct the survey on the IRPP's behalf.
cheers,
Jon