Judicial Decision-Making

co-authored by Adam Dodek and Lorne Sossin

This commentary was first published on the Globe and Mail website on November 23, 2007.

Why should Canadians care about judicial independence? For one, history shows that a strong independent judiciary can be a bulwark against tyranny. Often, the first thing that an aspiring dictator does is attempt to neutralize the independence and effectiveness of the judiciary through harassment or corruption. Robert Mugabe's success to this effect in Zimbabwe is an unfortunate recent case study in the demise of judicial independence and its impact on society. Similarly, in Pakistan, where a stacked Supreme Court ruled yesterday to clear General Pervez Musharraf's path to re-election, Chief Justice Iftikhar Chaudhry and other members of the court had been confined to house arrest.

In Canada, we have been fortunate to have escaped such upheavals. However, we often look to the independence of the judiciary to resolve some of the most divisive and highest-profile issues of the day — through commissions of inquiry, invariably headed by a judge. We need only think of Gomery, Goudge, Arar, Walkerton, Air-India and now, of course, the Mulroney inquiry. In Canada, judicial independence is the collective constitutional capital that we frequently draw against to help bail us out of messy problems; we should not take it for granted.

I've just posted a new paper on SSRN entitled, "Should They All Just Get Along? Judicial Ideology, Collegiality, and Appointments to the Supreme Court of Canada".  My coauthor, Andrew Green, and I argue that the singular focus on the policy preferences of Supreme Court justices is apt to miss an important dimension of Court dynamics--the degree to which the justices engage in cooperative decision-making.

On June 4, 2008, a Roundtable was held at the Faculty of Law, University of Toronto on the Dunsmuir v. New Brunswick decision from the Supreme Court of Canada (handed down in March of 2008).  The aim of the Roundtable was to explore the implications of this decision for the development of Administrative Law, and in particular the Court's wide-ranging discussion of the standard of judicial review of administrative action, deference, and the applicability of procedural fairness to public office holders.

The background material for the Roundtable, including the Dunsmuir case, the facta filed at the Supreme Court, and some early commentaries are available for download at: http://www.law.utoronto.ca/conferences/dunsmuir.html.

Below, we have prepared a summary (in PDF format) of the themes, ideas and arguments raised during the Roundtable in the hopes that it will serve as a catalyst for further discussion and debate.  We invite comments on any aspect of the discussion which might interest readers of this blog.

• Summary of the Roundtable on Dunsmuir (PDF)

This commentary was published in the National Post on September 11, 2008.

In the spring of this year, the government established an advisory committee to assess candidates to fill the vacancy left on the Supreme Court of Canada by the resignation of Justice Michel Bastarache. Unfortunately, the committee has fallen victim to infighting between government and opposition. The squabbling has been used as an excuse by the Prime Minister to bypass the committee altogether and to unilaterally nominate Justice Thomas Cromwell of the Nova Scotia Court of Appeal in a clear departure from the selection procedure announced by Justice Minister Rob Nicholls on May 28.

Even so, since the nomination must also run the scrutiny of yet another House of Commons committee -- which cannot be established till after the election-- it is clear that the vacancy on the Supreme Court will not be filled till late this year at the earliest, and probably not till early 2009. As Canada’s most senior court, with a heavy case load and awesome responsibilities, the court surely deserved better treatment. We are also entitled to ask: How could the selection procedure have become so distorted and what can be done to avoid the same thing happening in the future?

Andrew Green and I have just posted a new paper on SSRN in which we analyze 105 Charter decisions of the Supreme Court of Canada.  Here's the abstract:

This paper examines how justices on the Supreme Court of Canada voted in Charter appeals between 2000 and 2009. Charter appeals, at least in popular belief (and possibly also in theory), have the greatest potential to reveal voting that is influenced by extra-legal policy preferences. Confining the analysis to the time during which Chief Justice McLachlin has led the Court aids in controlling for the effects of a particular Chief Justice in assessing the roles of ideology and consensus.

This article first appeared in The Lawyers' Weekly, November 20, 2009.

Some of us entertained a slender hope in 2006 that the Harper administration, after its election into office, could be persuaded not to use federal judicial appointments to feed the patronage mill. After all, as Opposition leader, Harper had fiercely denounced the Liberal party sponsorship scandal in Quebec and had promised to introduce an accountability act if the Conservatives won the next election. In a similar vein, Vic Toews, the future first justice minister in the Harper cabinet, endorsed a 2005 report of the House of Commons Justice Committee criticizing patronage appointments and calling for exclusively merit-based appointments. Toews was deputy chair of the committee.

Prof. Ran Hirschl has published a new book, Constitutional Theocracy (Harvard University Press, 2010).

• Publisher's web page

From the publisher:

At the intersection of two sweeping global trends - the rise of popular support for principles of theocratic governance, and the spread of constitutionalism and judicial review - a new legal order has emerged: constitutional theocracy. It enshrines religion and its interlocutors as "a" or "the" source of legislation, and at the same time adheres to core ideals and practices of modern constitutionalism. A unique hybrid of apparently conflicting worldviews, values, and interests, constitutional theocracies thus offer an ideal setting-a "living laboratory" as it were-for studying constitutional law as a form of politics by other means. In this book, Ran Hirschl combines insights from legal theory, economics, theology, and political sociology with a rigorous comparative analysis of religion-and-state jurisprudence from dozens of countries worldwide to explore the evolving role of constitutional law and courts in a non-secularist world.