The Power of Perspectives

The Canadian Bar Association

Léonid Sirota

Think Canadian courts are not ideological? Think again!

September 17 2014 17 September 2014

A recent study by Benjamin Alarie and Adrew James Green, which has attracted some attention (including from the Financial Post)  for its finding of “only weak levels of influence of ideology on decision making with respect to applications for leave to appeal.” This conclusion might seem to support the sense of smug self-satisfaction at our judiciary’s earnest impartiality with which we tend to look at the American legal system, all the more so since a comparison with the apparently more ideological decision-making at the US Supreme Court is one of Professors Alarie and Green’s themes.

Yet this would the wrong reaction. Instead their paper should prompt us to reassess the way we think about the ideological influences on Canadian courts. The American methods used by Professors Alarie and Green are not well suited for the Canadian legal and political culture, and thus unlikely to capture the influence of ideology on Canadian judges. But that does not mean that this influence does not exist.

One of these methods is to use the party of the President or the Prime Minister who appointed a judge as a proxy for the judge’s ideology, which is deemed to be conservative or liberal depending on whether he or she was appointed by a Republican/Conservative or a Democrat/Liberal. Professors Alarie and Green themselves acknowledge that this method is a “crude” one, but so far as the Canadian judiciary is concerned, it might be not so much crude as overdone. 

In contrast to the situation in the United States, there are not, in Canada, two (or three, or more) distinct legal worldviews, each associated, more or less firmly, with a political party. I have argued elsewhere that ― paradoxically given their complaints about allegedly “liberal” judges, and in contrast to the situation in the United States ― the Harper Conservatives have not even tried to articulate an alternative, “conservative” constitutional theory. They are not alone. The Liberals do not have much of a constitutional theory either, except for a tendency to wrap themselves in the Charter; nor does the NDP. And outside of the realm of constitutional law, the parties have, if anything, even fewer legal ideological commitments. (It is probably significant, too, that the realm of federal law is narrower in Canada than in the United States, so that federal political parties don’t even need to take a position on some important areas of law for the purposes of legislating ― yet, again in contrast to the situation in the United States, Supreme Court judges apply provincial as well as federal law.)

The second, at first sight more fine-grained approach that Professors Alarie and Green use is to infer a judge’s ideological leanings from his or her vote on each and every case on which he or she sits. For the purposes of this exercise, some types of vote are deemed to be “liberal,” and their opposites “conservative” ― for example a vote in favour of the defence in a criminal case is regarded as “liberal,” a vote in favour of the prosecution is “conservative.”

One obvious difficulty with this approach is that it completely disregards the facts and precedents that may dictate a case’s outcome regardless of the judges’ inclinations. But put that to one side; assume that the cases that reach the Supreme Court are rarely so easy and that over time, a judge’s votes really do reflect his or her ideology rather than the circumstances of the cases that happened to come along.

Still, for this approach to work, it is necessary to have an accurate definition of which outcomes count as “liberal” and which are “conservative.” Professors Alarie and Green use an American classification developed as part of the Supreme Court Database Code Book (at pp. 46-48). Unfortunately, it is not necessarily well-suited to the Canadian context. For example, it codes decisions in favour of States and against the federal government as “conservative.” Yet I suspect it would come as something of a shock to Stephen Harper to be told that the Reference re Securities Act, or the Reference re Senate Reform were conservative decisions.

More broadly, again because there are no well-developed and sharply distinct “liberal” (or Liberal) and “conservative” (or Conservative) legal ideologies in Canada, it is not obvious that classifying judicial votes in this way is a meaningful exercise this side of the border. The ideological valence of a judicial decision is not natural; it exists, if at all, only in a context where certain outcomes are preferred by people adhering to a political ideology, and these preferences change both between polities and over time. Consider for example the way in which, in the United States, religious freedom generally, and granting religious exemptions from generally applicable rules in particular, went from being favoured by “liberals” solicitous of civil liberties from the 1960s to the 1990s, to now being a rallying cry for “conservatives” opposed to an overbearing state and to Obamacare as its ultimate manifestation. And then ask yourself whether decisions granting or denying religious exemptions (for example Multani v. Commission Scolaire Marguerite-Bourgeoys and Alberta v. Hutterian Brethren of Wilson Colony respectively) should be considered “liberal” or “conservative” in Canada. I, for one, have no idea.

It is then not very surprising that these American methods do not reveal strong ideological effects in Canadian judicial decisions. But that is not to say that these decisions are free from ideological influences. For example the Supreme Court’s preference for co-operative and consensual federalism, reflected in its decisions narrowing such doctrines as inter-jurisdictional immunity and requiring agreement for any substantial re-balancing of the federal-provincial equilibrium (of which the Securities Act reference and the Senate Reform Reference are only the latest examples), is an ideological preference. So would be alternatives favouring a strict delineation of federal and provincial powers or allowing one of the partners in the federation to change its relationship with the others unilaterally. But these preferences do not track narrowly (Liberal or Conservative) or even broadly (“small-l liberal” or “small-c conservative”) partisan fault lines. Legal ideology in Canada is largely disconnected from what we tend to think of as political ideology. Indeed, we might not notice even legal ideological choices being there at all, because of the consistently high degree of unanimity in the Supreme Court’s decisions in recent years. Yet one need not be a fan of the various “critical theories” to take their point that a dominant approach is not necessarily an inevitable or a natural one.

Canadian judges tend to be unanimous because they tend to share a common legal worldview, but that does not mean that this legal worldview is the only one possible or that it is somehow above being called an ideology. It is, in reality, as much of an ideology as the more overtly ideological views of the American judges. It is no less contestable, albeit much less contested, as these other ideologies. We might of course be disinclined to contest it because we are actually comfortable with it. But we, no more than our judges, are not above ideology. We should not flatter or deceive ourselves into thinking that we ― or they ― are.

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Léonid Sirota teaches constitutional law at the AUT Law School in Auckland, New Zealand. He blogs at doubleaspectblog.wordpress.com / Léonid Sirota enseigne le droit constitutionnel à la AUT Law School à Auckland, en Nouvelle-Zélande. Il est l’auteur du blogue doubleaspectblog.wordpress.com.

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