The Supreme Court of Canada and Strategic Decision Making: Examining Justices’ Voting Patterns during Periods of Institutional Change

Abstract

This article examines the voting behavior of justices of the Supreme Court of Canada during two important periods of institutional change: the end of appeals to the Judicial Committee of the Privy Council (JCPC) and the adoption of the Charter of Rights and Freedoms. I argue that these changes affected the justices' voting patterns in systematic ways. My assertion is that the end of appeals to the Judicial Committee of the Privy Council removes a constraint on Supreme Court decision-making, which had led to strategic voting by the justices in the period during which the JCPC could examine and reverse the Supreme Court's decisions. For the Charter of Rights, I assert that its existence as a legal document served as a constraint for conservative justices on the Court in the period immediately following its passage. Drawing on the universe of decisions of the Supreme Court of Canada from 1945 to 2005 in criminal, tax, and tort cases, I use Baum's (1988, 1989) method of examining policy change on the Supreme Court over time. I examine judicial votes before and after the Supreme Court becomes a court of last resort in 1949, and before and after passage of the Charter of Rights in 1982. Then, I employ a logistic regression model in the Charter of Rights period and a comparison of Supreme Court of Canada and JCPC voting in the 1949 period. I find support for the assertion that justices will vote strategically when faced with threat of reversal. The Charter of Rights also appears to have a constraining effect. Its mandate as a progressive document appears to have a constraining effect on conservative justices' voting patterns, at least in the short-term following its passage.