You're Saying Canada's Courts Aren't Already Politicized?

What tens years of Supreme Court decisions tell us about a recent controversy in Ontario

The Globe and Mail recently breathlessly reported on yet another Ford government “scandal” in Ontario. This time, the premier was caught admitting that he sought to appoint judges who were ideologically aligned with the Conservative government’s policy positions.

For support, the Globe drew on sources at the highest echelons of philosophical integrity and high-minded impartiality:

Ontario Liberal Leader Bonnie Crombie issued a statement warning of the "U.S.-style politicization of our courts," calling Mr. Ford’s comments "an alarming affront to legal and democratic norms" and demanding the reversal of the committee appointments.

And:

The Federation of Ontario Law Associations (FOLA), an umbrella group for 46 local lawyers groups, issued a statement saying the comments "reflect a juvenile understanding of the role of an independent judiciary" and undermine "public confidence in the administration of justice in a dangerous and anti-democratic way."

(Full disclosure: I worked for the Globe back in the 1970’s [1])

Oh give it a break. Do they really think anyone’s going to buy that earnest and solemn insistence that there’s ever been an apolitical judiciary in Canada? Has there ever been an pure and apolitical appointment at any level for any position?

Sometime ago I analyzed data covering some historical decisions of Canada’s Supreme Court. I think some of what I discovered then might be useful for us now.

Why did I focus on the Supreme Court? Because most of us know next to nothing about it. Its justices are hardly household names, how and when they’re appointed to the court is largely a mystery, and what they do with themselves from day to day is hidden.

And because the justices are called upon to provide a last-resort address for deciding how the rule of law will be applied to our lives - both personal and public. What these people do is important.

The hidden and mysterious part of it is certainly not by design. By law, the Supreme Court is required to make their deliberations and decisions available to the public. And this they most certainly have done, providing a website containing a comprehensive record of 146 years of their history.

With a little work (translation: a lot of work), I was able to programmatically pull data representing 631 Supreme Court judgments between 2013 and 2023. I then tortured the poor data using standard analytics tools until it had no choice but to reveal everything I asked of it. Feel free to take a look at the code I used in the process.

I’ll begin with the observation that the annual rates of unanimous decisions suddenly dropped around 2016 and still haven’t fully recovered. Here’s how that looks:

Of course, there’s nothing systemically wrong with internally divided courts. Robust debate is, after all, a hallmark of open societies. But it’s the trend that’s intriguing. At any rate, what changed around 2016? Was it changes to the kinds of cases making it to the high court, or was it the evolving makeup of the court itself?

Let’s dive down a bit deeper. Between 2013 and June 2023 there were 93 split decisions overall, of which 17 concerned constitutional law. I’m focusing on constitutional law because that might be where you’d most expect things to get political. For this type of analysis, it’s the possibility that the court has become politicized that I think should most concern us.

To dig a bit deeper, I identified the justices appointed by Canada’s most recent two prime ministers, the Liberal Justin Trudeau, and the Conservative Stephen Harper. Here’s the breakdown:

Trudeau appointees:

• The Hon. Michelle O’Bonsawin

• The Hon. Mahmud Jamal

• The Hon. Nicholas Kasirer

• The Hon. Sheilah L. Martin

• The Hon. Malcolm Rowe

Harper appointees:

• The Hon. Russell Brown

• The Hon. Suzanne Côté

• The Hon. Clément Gascon

• The Hon. Richard Wagner

• The Hon. Michael J. Moldaver

• The Hon. Andromache Karakatsanis

• The Hon. Thomas Albert Cromwell

In an ideal world, all cases would be decided purely on their legal merits. There might be philosophical positions shared by some but not all justices, but the doctrinal differences should have a relatively mild impact on total case loads. However, if we discover a persistent pattern of conflict following along strictly party lines, then we’d be justified in suspecting that politics is playing a role. That’s not necessarily a evil thing, but we’d certainly want to know about it.

Here’s how I went about examining the data. I filtered all non-unanimous cases (whether the total set of cases, or just those concerning constitutional law) for the names cited in dissent. If none of the dissenting justices were from the list of Harper appointees, then I “concluded” that only Trudeau appointees disagreed and the judgment leaned to the right. If there were no Trudeau appointees in the dissent, then I assumed the decision leaned politically leftwards.

Based on that (obviously imperfect) methodology, I found that 61 of the 93 split decisions were “Liberal-friendly”, and just four were supported by “Conservative” justices. Of the 17 contested cases relating to the constitution, eight leaned left and only one leaned right.

I should note that those numbers included a few ambiguous cases where the dissent was voiced exclusively by justices appointed before Prime Minister Harper’s term. But the numbers wouldn’t have much impact on the big picture we’re looking at.

What we do see, however, is that dissent on the court does often follow “party” lines - as many as nine of the seventeen constitution-related split decisions seemed to follow that pattern. That’s certainly not the same as suggesting that the court is politicized, but it does offer us direction on where to look next.

And where is that? Well here are the case numbers for those eight “liberal-leaning” contested constitutional cases:

• 37994, 38837, 39062, 38734, 38546, 38663, 38781, 39116, 39267, 39338

And here’s the one that “leaned right”:

• 38837

Head over to the Supreme Court site, look up the case descriptions, and decide for yourself.

Now since I haven’t seen any evidence of those “party-line” decisions generating panic at the Globe and Mail, I’ll assume they agree with me that such practices present little immediate threat to our peace and good government.

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[1] It’s true. I did work for the Globe in the 70’s…as a paper boy (big houses; lousy tippers).