The Supreme Court of Canada and the Alberta Court of Appeal: Do the Top Courts Have a Fundamental Philosophical Difference of Opinion on Public Law Issues

Abstract

Prompted by the marked clash between the Supreme Court of Canada and the Alberta Court of Appeal in R. v. Ewanchuk, the authors ask whether this conflict is indicative of a fundamental divergence of opinion between the two courts. To answer this question, the authors embark on a review of all 132 public law cases appealed from the Alberta Court of Appeal to the Supreme Court of Canada between 1982 and December 2000. The authors examine these cases to determine the extent of the Supreme Court’s overt criticism of the reasoning employed by the Alberta Court of Appeal. While acknowledging the obvious difficulties of subjecting this data to precise analysis, the authors find that the data reveals some predictable patterns regarding the manner in which the two courts react to certain public law questions. The authors conclude that there are some fundamental philosophical differences between the courts, a finding which indicates that the class between the courts in the Ewanchuk case was not a completely unique or unpredictable circumstance.