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: