The Transformation of the Supreme Court of Canada: An Empirical Examination <i>By</i> DONALD R. SONGER

Toronto: University of Toronto Press , 2008 . Pp. xii, 290 , bibliographical references, index. Two landmark years stand out since 1949, when, upon the abolition of appeals to the British Judicial Committee of the Privy Council, the Supreme Court of Canada became this country's ultimate appellate court. Legislative changes in 1975 granted the Court almost complete control of its docket, save for a small number of appeals as of right. The other critical year is 1982, when the Charter of Rights and Freedoms was entrenched in the Constitution and vastly expanded the range of constitutional provisions open to Court interpretation. Donald Songer, of the University of South Carolina, corroborates the emergence of a Court devoted largely to public law and increasingly to policy-making, with all the media attention this entails. He does so through a quantitative analysis that involves the content of some 3,000 Supreme Court decisions from 1970 to 2003. The data suggest that the 1975 changes made a big difference. There were about seventy cases before the Court in 1974–75 as of right; in the following year, the number was thirty-two. The Court heard an annual average of twenty appeals as of right thereafter, until the number crept upward in the latter part of the 1980s. The Criminal Code was subsequently amended in 1997 to reduce the number of criminal appeals as of right, and now “just a handful” (p. 45) are heard by the Court each year. Before 1975, half the Court's docket consisted of private economic disputes – torts, contract law, insurance, and so on. After 1975, this share went down sharply and, by the 1998–2003 period, constituted less than a quarter of the Court's docket. Criminal appeals were sixteen per cent of the docket in the early period and, in the latter, were forty-three per cent. Tax-related appeals were halved to five per cent. Civil liberties appeals rose from two per cent to 8.4 per cent, the most dramatic change in the Court's docket over the period of the study. Before 1982, seven per cent of the Court's cases involved constitutional matters. Post-1982, fully twenty-five per cent of cases are constitutional, and eighty-four per cent of these involve Charter issues. Private common law disputes are rarer, and appeals involving statutory interpretation are more common. The Supreme Court has been transformed from a court of appeal, whose work was largely characterized by the correction of legal errors in decisions below, to a public law court dedicating more of its time both to public law and the development of legal uniformity. Is high Court decision-making politics by other means? Songer relies on a growing literature in this area to suggest that political, ideological, and policy-related attitudes of justices do matter. He defines “liberal” as “a pro-defendant outcome in criminal appeals; as support for an expanded concept of rights in civil liberties issues; as the position of the federal government in the application of other public law; and as support for the government in tax cases, for the plaintiff in tort cases, and for the economic underdog in private economic disputes” (p. 161). He finds that the partisan stripe of the appointing prime minister exercises a modest influence on the voting patterns of justices. Liberal Party prime ministers appoint justices who tend to render liberal opinions. Region is an important factor: justices from the western part of the country are more conservative than those from elsewhere. For example, over the period of the study, justices from the west supported civil liberties claimants exactly one-third of the time. By contrast, justices from Ontario do so at a rate of fifty-seven per cent and from the Atlantic at a rate of forty-nine per cent. In civil liberties cases, the justices are most divided and their policy-making proclivities most evident. To cite the most extreme examples, between 1991 and 1999, Justice Claire L'Heureux-Dubé supported the claim of the criminal accused in only nine per cent of cases, while Justice Bertha Wilson and Justice John Major did so in eighty per cent of cases. L'Heureux-Dubé, on the other hand, supported the civil liberties claim of litigants in fifty per cent of cases, while Justice Gerard LaForest did so in only fourteen per cent of cases. Songer argues that gender is a new cleavage dividing justices. This new cleavage is a mix of liberal and conservative commitments. The female justices tend to favour the prosecution in criminal appeals, the underdog in private economic disputes, and the Charter rights claimant in civil liberties cases. The author warns against making too much of judicial policy-making. Bearing in mind that seventy-five per cent of Supreme Court decisions are unanimous, he argues that legal criteria drive a great deal of Supreme Court decision-making. Attitudinal and voting differences among justices are modest, much narrower in fact than among their American counterparts. Who wins in the Supreme Court? The so-called “party capability” theory holds that heavyweight litigants have the resources and repeat experience that are the ingredients of success against unsung litigants who bring only a good argument to the forum of principle. Songer sheds some light on this account. Among his more revealing statistics are those that measure the “net advantage” of different parties in litigation. A party's net advantage is the difference between its percentage of cases won (whether as appellant or respondent) and its percentage of cases lost. As players with major repeat experience, governments have net advantages over all non-governmental parties. The federal government's net advantages over individuals, businesses and associations are 21.7, 15 and 71, respectively. The equivalent provincial government net advantages are 23, 14 and 7.6. Over time, when Songer compares the net advantages of governments over individuals before and after 1982, the prospects of the latter have not improved in the Charter era. The term “businesses” encompasses a universe of small, medium and large enterprises. Songer notes that only ten per cent of business appellants before the Court are small. If the remaining ninety per cent is taken as representing on balance a set of experienced litigants, Songer's finding that individuals have a net advantage of 11.8 in appeals involving businesses runs counter to party capability theory. He offers as a partial explanation a Court tendency to favour individuals when cast as economic underdogs. However interesting the speculation they invite, net advantage measurements rest on no more than the wins and losses they record. It is therefore appropriate to recall that a loss on appeal can be a win, as in R. v. Butler, [1992] 1 S.C.R. 452. Here the Supreme Court, while dismissing a challenge to the constitutionality of an obscenity provision of the Criminal Code nonetheless wrote an opinion stamping criminal law with a Charter-friendly interpretation. Then, there is the matter of the federal government's startlingly high net advantage over associations, a number that Songer mechanically reports without comment. Charter scholar Christopher Manfredi has observed that nonetheless some groups, notably the Women's Legal Education and Action Fund, have had considerable influence on statutory interpretation in Charter cases. As for other statistics, the significance of what they measure requires similar caution. For example, Songer reports that the length of decisions has gone from a pre-Charter average of about fifteen pages to approximately double that length post-1984. He then offers a variety of reasons, including the enhanced number of clerks serving justices, larger volumes of material submitted to the Court, and the justices' perception that they must explain themselves fully to a more attentive public. An additional hypothesis could be simple judicial verbosity, for which one justice, Mme. L'Heureux-Dubé, was routinely criticized. Songer addresses the limitations of the purely quantitative approach by reporting on detailed interviews he conducted between 2001 and 2007 with ten sitting or recent members of the Court as well as four former clerks. Here he sought information he knew his quantitative data could not reveal. Many questions concerned the research and writing routines of the justices, as well as the nature of debate in conferences following hearings. He also uses interview results to bear out the findings of the quantitative analyses. For example, while justices admit that personal political views sometimes influence decision-making, they maintain that they try to find the correct legal answer to a problem. Songer's quantitative inquiries produce findings largely congruent with these remarks. Songer's attempt to “lift the veil” (p. 12) from the Supreme Court of Canada through an empirical examination joins a handful of earlier works by such scholars as Peter McCormick, C.L. Ostberg and Matthew Wetstein, Roy Flemming and David Muttart. Particularly notable is Songer's use of both statistical and interview data to link the Court's decisions with its operations. The historical sweep of his study, reaching back as it does to 1970, allows Songer to confirm that institutions matter. Contrary to the claims of political scientists like Charles Epp, who trace the changing profile of appeal litigation in Canada to changes in the social and economic resources of groups, Songer shows that institutional change makes a big difference. His is a very well-written book whether for senior undergraduates, scholars, or general readers with an interest in courts and politics. I recommend it highly.

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