The Canadian Supreme Court: Attitudinal conflict in right to counsel cases

Political Science Quarterly

Volumn 121, Issue 4, 2006, Pages 677-697

  Ostberg, C L ^a   Wetstein, Matthew E ^b  

^a UNIVERSITY OF THE PACIFIC   (United States)

^b Delta College   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33846659004     PISSN: 00323195     EISSN: None     Source Type: Journal    
DOI: 10.1002/j.1538-165X.2006.tb00586.x     Document Type: Review

References (112)

1. Honorable Justice Frank lacobucci (remarks delivered at a conference commemorating the twentieth anniversary of the Charter of Rights and Freedoms, Association of Canadian Studies, Ottawa, ON, March 2002).
2. For extended discussions of the attitudinal model, see Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model (Cambridge: Cambridge University Press, 1993);
3. Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (Cambridge: Cambridge University Press, 2002).
4. C. Neal Tate and Torbjorn Vallinder, eds., The Global Expansion of Judicial Power (New York: New York University Press, 1995).
5. Segal and Spaeth, The Attitudinal Model, 66-69;
6. Segal and Spaeth The Attitudinal Model Revisited, 86-89.
7. Jeffrey A. Segal, "Predicting Supreme Court Cases Probabilistically: The Search and Seizure Cases, 1962-81," American Political Science Review 78 (December 1984): 891-900;
8. Jeffrey A. Segal, "Supreme Court Justices as Human Decision Makers: An Individual-Level Analysis of the Search and Seizure Cases," Journal of Politics 48 (November 1986): 938-955;
9. Segal and Spaeth, The Attitudinal Model, 229-231;
10. Segal and Spaeth, The Attitudinal Model Revisited, 316-326.
11. Segal, "Predicting Supreme Court Cases;" Segal, "Supreme Court Justices"; Segal and Spaeth, The Attitudinal Model, 215;
12. Segal and Spaeth, The Attitudinal Model Revisited, 319.
13. Matthew E. Wetstein and C.L. Ostberg, "Search and Seizure Cases in the Supreme Court of Canada: Extending an American Model of Judicial Decision Making across Countries," Social Science Quarterly 80 (December 1999): 758-774.
14. Segal and Spaeth, The Attitudinal Model Revisited, 319-320;
15. see Sarah C. Benesh, "Principal Agency in American Courts: Perspectives on the Hierarchy of Justice" (PhD diss., Michigan State University, 1999);
16. Tracy George and Lee Epstein, "On the Nature of Supreme Court Decision Making," American Political Science Review 86 (June 1992): 323-337;
17. Timothy M. Hagle, "But Do They Have to See It to Know It? The Supreme Court's Obscenity and Pornography Decisions," Western Political Quarterly 44 (December 1992): 1039-1054;
18. Joseph A. Ignani, "Explaining and Predicting Supreme Court Decision Making: The Establishment Clause Cases, 1970-86" (PhD diss., Michigan State University, 1990);
19. Kevin McGuire, "Obscenity, Libertarian Values, and Decision Making in the Supreme Court," American Politics Quarterly 18 (1990): 47-67;
20. Jeffrey A. Segal and Cheryl Reedy, "The Supreme Court and Sex Discrimination: The Role of the Solicitor General," Western Political Quarterly 41 (September 1988): 553-568;
21. Robin Wolpert, "Explaining and Predicting Supreme Court Decision Making: The Gender Discrimination Cases" (paper delivered at the annual meeting of the Midwest Political Science Association, Chicago, IL, March 1991).
22. Donald E. Fouts, "Policy Making in the Supreme Court of Canada, 1950-1960" in Glendon Schubert and David Danelski, eds., Comparative Judicial Behavior (New York: Oxford University Press, 1969), 257-292;
23. Sidney R. Peck, "A Behavioural Approach to the Judicial Process: Scalogram Analysis," Osgoode Hall Law Journal 5 (1967): 1-58;
24. Sidney R. Peck, "The Supreme Court of Canada, 1958-1966: A Search for Policy through Scalogram Analysis," Canadian Bar Review 45 (December 1967): 666-725;
25. Sydney R. Peck, "A Scalogram Analysis of the Supreme Court of Canada: 1958-1967" in Schubert and Danelski, eds., Comparative Judicial Behavior, 193-234;
26. and C. Neal Tate and Panu Sittiwong, "Decision Making in the Canadian Supreme Court: Extending the Personal Attributes Model Across Nations," Journal of Politics 51 (November 1989): 900-916.
27. Donald Songer and Susan Johnson, "Attitudinal Decision Making in the Supreme Court of Canada" (paper presented at the annual meeting of the Midwest Political Science Association, Chicago, IL, April 2002);
28. Roy B. Flemming and Glenn S. Krutz, "Selecting Appeals for Judicial Review in Canada: A Replication and Multivariate Test of American Hypotheses," Journal of Politics 64 (February 2002): 232-248;
29. and Roy B. Flemming and Glenn S. Krutz, "Repeat Litigators and Agenda Setting on the Supreme Court of Canada," Canadian Journal of Political Science 35 (December 2002): 811-833.
30. For precedential rulings in this area, see Miranda v. Arizona 384 U.S. 436 (1966),
31. and R. v. Therens [1985] 1 S.C.R. 613.
32. For data on Canada, see Peter McCormick, Supreme at Last: The Evolution of the Supreme Court of Canada (Toronto: James Lorimer, 2000).
33. For evidence on the U.S. Supreme Court, see Lee Epstein, Jeffrey A. Segal, and Harold J. Spaeth, "The Norm of Consensus on the U.S. Supreme Court," American Journal of Political Science 45 (April 2001): 362-377.
34. Peter H. Russell, The Judiciary in Canada: The Third Branch of Government (Toronto: McGraw-Hill Ryerson, 1987), 336-339;
35. Christopher Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism (Norman: Oklahoma University Press, 1993), 28-29;
36. Manfredi, Judicial Power and the Charter, 2nd ed. (Oxford: Oxford University Press, 2001).
37. For discussion of the Canadian Supreme Court's activism, see F.L. Morton, "The Political Impact of the Canadian Charter of Rights and Freedoms," Canadian Journal of Political Science 20 (March 1987): 31-55;
38. Rainer Knopff and F.L. Morton, Charter Politics (Scarborough, ON: Nelson Canada, 1992);
39. F.L. Morton and Rainer Knopff, The Charter Revolution and the Court Party (Petersborough, ON: Broadview Press, 2000);
40. F.L. Morton, Peter H. Russell, and Michael J. Withey, "Judging the Judges: The Supreme Court's First 100 Charter Decisions" in Paul W. Fox and Graham White, eds., Politics: Canada, 7th ed. (Toronto: McGraw-Hill Ryerson, 1991).
41. Peter H. Russell, "Standing Up for Notwithstanding" in F.L. Morton, ed., Law, Politics, and the Judicial Process in Canada, 2nd ed. (Calgary: University of Calgary Press, 1992), 474-485.
42. Seymour Martin Lipset, Continental Divide: The Values and Institutions of the United States and Canada (London: Routledge, 1990);
43. Seymour Martin Lipset, American Exceptionalism: A Double-Eased Sword (New York: W.W. Norton, 1996), 92.
44. Lipset, American Exceptionalism, 92.
45. Lipset, Continental Divide;
46. Morton, "Political Impact of the Canadian Charter";
47. Morton, Russell, and Withey, "Judging the Judges";
48. Manfredi, Judicial Power and the Charter,
49. Don Stuart, "Four Springboards from the Supreme Court of Canada: Hunter, Therens, Motor Vehicle Reference, and Oakes-Asserting Basic Values of Our Criminal Justice System," Queen's Law Journal 12 (Spring 1987): 131-154;
50. and Herbert Packer, The Limits of the Criminal Sanction (Palo Alto, CA: Stanford University Press, 1968), 158-163.
51. Packer, Limits of the Criminal Sanction, 163-173.
52. C. Hermann Pritchett, "Division of Opinion Among Justices of the U.S. Supreme Court," American Political Science Review 35 (October 1941): 890-898;
53. Glendon Schubert, The Judicial Mind (Evanston, IL: Northwestern University Press, 1965);
54. Glendon Schubert, The Judicial Mind Revisited (New York: Oxford University Press).
55. Segal and Spaeth, The Attitudinal Model, 221-222.
56. C. Neal Tate and Roger Handberg, "Time Binding and Theory Building in Personal Attribute Models of Supreme Court Voting Behavior," American Journal of Political Science 35 (May 1991): 460-480;
57. Stephen Wasby, The Supreme Court in the Federal Judicial System, 4th ed. (Chicago, IL: Nelson Hall, 1993).
58. Tate and Handberg, "Time Binding and Theory Building."
59. Jeffrey A. Segal and Albert D. Cover, "Ideological Values and the Votes of U.S. Supreme Court Justices," American Political Science Review 83 (June 1989): 557-565.
60. Ibid.; Charles M. Cameron, Albert D. Cover, and Jeffrey A. Segal, "Senate Voting on Supreme Court Nominees: A Neo-Institutional Model," American Political Science Review 84 (June 1990): 525-534;
61. Segal and Spaeth, The Attitudinal Model, 226-228;
62. Segal and Spaeth, The Attitudinal Model Revisited, 321-323.
63. Lee Epstein and Carol Mershon, "Measuring Political Preferences," American Journal of Political Science 40 (February 1996): 261-294.
64. Epstein and Mershon, "Measuring Political Preferences"; Segal and Spaeth, The Attitudinal Model Revisited;
65. Lee Epstein, Thomas G. Walker, and William J. Dixon, "The Supreme Court and Criminal Justice Disputes: A Neo-Institutional Perspective," American Journal of Political Science 33 (November 1989): 825-841.
66. Epstein and Mershon, "Measuring Political Preferences," 281.
67. Tate and Handberg, "Time Binding and Theory Building."
68. Although the scaling is somewhat subjective, our analysis of newspaper accounts, books, and professional commentary confirms the accuracy of the coding scheme. The scores for the appointees serving during the post-Charter era were as follows: Pierre Trudeau (+1), Joe Clark (-1), Brian Mulroney (0), and Jean Chretien (+1).
69. Wetstein and Ostberg, "Search and Seizure Cases in the Supreme Court of Canada."
70. Segal and Cover, "Ideological Values and Votes."
71. Justices John Sopinka and Ian Binnie received the mean score, because they were elevated to the high court from private practice, while Justice Jean-Marie Beetz received this score because of the unavailability of English language translations for his rulings on the Quebec Court of Appeal in the early 1970s. It is important to note that Justices Lucien Chouniard and Charles Gonthier have scores that are based on twenty lower court decisions, rather than forty, because of the sparse number of lower court decisions handed down by these justices. All of the coding for this indicator is based on data drawn from decision summaries published in the All Canadian Digests, available online through Lexis, or Western Weekly Reports (for Justice Brian Dickson).
72. The high correlation between prime minister ideological motivation and party of prime minister may be an artifact of the time period and data used in this study. Since the measure of prime minister motivation only looked at the post-Charter period, there was only one justice appointed by a highly conservative prime minister. Accordingly, there was not sufficient variance in the scores for party of prime minister and prime minister motivation to generate more distinct measures. A listing of all the justices' scores on the measures is provided in the Appendix.
73. Since the newspaper ideology variable is the only one that correlates highly with all three measures, it seems that newspaper accounts are based on both party references and general ideological assessments.
74. We acknowledge that three of the justices (Julian Chouniard, Gerard La Forest, and Jean-Marie Beetz) received scores wholly based on commentary that focused on their political party connections, while another four (Justices Louis LeBel, Michel Bastarache, John Major, and Beverley McLachlin) were partially based on partisan ties. Yet these four latter appointments also featured some newspaper commentary on judicial ideology that would have allowed coding even if there were no references to party connections. Another possible criticism is that there was no ideological commentary on six of the twenty-one appointees to the court in the Globe and Mail. Accordingly, they were labeled as moderates and given a score of 0 on the indicator. The shortcomings of this measure may help explain why it does not correlate more highly with the lower court liberalism indicator.
75. F.L. Morton, Peter H. Russell, and Troy Riddell, "The Canadian Charter of Rights and Freedoms: A Descriptive Analysis of the First Decade, 1982-1992," National Journal of Constitutional Law 5 (Fall 1994): 51.
76. See Janice Tibbetts, "PM Leaves Lasting Mark on Canada's Top Court," Ottawa Citizen, 11 August 2002;
77. Daniel LeBlanc and Campbell Clark, "Quebec Anglophone Joins Supreme Court," The Globe and Mail, 1 August 2003;
78. Kirk Makin, '"Lawyer's Lawyer' Binnie Named to Supreme Court," The Globe and Mail, 9 January 1998;
79. and Sean Fine, "Search for Judge Turns to Atlantic," The Globe and Mail, 28 August 1997.
80. The one oral judgment that was excluded from the analysis is R. v. Babinski, [1992] 3 S.C.R. 467.
81. The cases included in the analysis are as follows: R. v. Therens [1985] 1 S.C.R. 613;
82. R. v. Ross [1989] 1 S.C.R. 3;
83. R. v. Smith [1989] 2 S.C.R. 368;
84. R. v. Greffe [1990] 1 S.C.R. 755;
85. R. v. Elshaw [1991] 3 S.C.R. 24;
86. R. v. Jones [1994] 2 S.C.R. 229;
87. R. v. Bartle [1994] 3 S.C.R. 173;
88. R. v. Prosper [1994] 3 S.C.R. 236;
89. R. v. Pozniak [1994] 3 S.C.R. 310;
90. R. v. Matheson [1994] 3 S.C.R. 328;
91. A. v. Burlingham [1995] 2 S.C.R. 206;
92. R. v. Calder [1996] 1 S.C.R. 660;
93. R. v. Feeney [1997] 2 S.C.R. 13;
94. A. v. Cook [1998] 2 S.C.R. 597;
95. and Winters v. Legal Services Society [1999] 3 S.C.R. 160.
96. Segal, "Justices as Human Decision Makers"; Segal and Spaeth, The Attitudinal Model, 229-230;
97. Segal and Spaeth, The Attitudinal Model Revisited, 324-325.
98. We began our analysis with a set of hypotheses tied to fourteen factual variables that parallel the discussion of factual circumstances in a leading constitutional law text in Canada (see Peter Hogg, Constitutional Law of Canada, 4th ed. [Toronto: Carswell, 1997], 1149-1165). We subsequently relied on stepwise regression procedures to help identify the six most prominent factual circumstances in non-unanimous right to counsel disputes. Thus, our data results represent the most parsimonious model to explain variance in the dependent variable when examining non-unanimous right to counsel cases. The six factual variables included in our study are salient ones that most scholars would identify as typical fulcrums of attitudinal conflict in the right to counsel area. Having said this, we acknowledge that a different pool of contentious cases might produce a slightly different list of salient factual circumstances that influence the justices' votes.
99. R. v. Jones [1994] 2 S.C.R. 229;
100. Winters v. Legal Services Society [1999] 3 S.C.R. 160.
101. Jphn H. Aldrich and Forrest D. Nelson, Linear Probability, Logit, and Probit Models, Sage University Paper Series on Quantitative Applications in the Social Sciences, series no. 07-045 (Newbury Park, CA: Sage Publications, 1984).
102. The calculation of the proportional reduction in error measure is modeled after prior work. See Timothy M. Hagle and Harold J. Spaeth, "The Emergence of a New Ideology: The Business Decisions of the Burger Court," Journal of Politics 54 (February 1992): 120-134;
103. and Saul Brenner, Timothy M. Hagle, and Harold J. Spaeth, "Increasing the Size of Minimum Winning Coalitions," Polity 23 (Winter 1990): 309-318.
104. [1991] 3 S.C.R. 24.
105. [1999] 3 S.C.R. 160.
106. [1997] 2 S.C.R. 13.
107. [1985] 1 S.C.R. 613.
108. When we separated the data set into three categories (liberals, moderates, and conservatives) and ran the analysis, several of the fact variables in the distinct models featured limited or no variance because of the small size of the data set. It was only after aggregating moderates with justices at the two ideological extremes that these variance issues were overcome.
109. Segal and Spaeth, The Attitudinal Model Revisited;
110. Wetstein and Ostberg, "Search and Seizure Cases in the Supreme Court of Canada."
111. Segal and Spaeth, The Attitudinal Model Revisited, 325;
112. and Wetstein and Ostberg, "Search and Seizure Cases in the Supreme Court of Canada," 768-769.