Top court open to case-choice bias, study says
Court may choose Charter cases government is sure to win: academics

Janice Tibbetts
The Ottawa Citizen
Wednesday, April 14, 2004

A University of Toronto study raises the extraordinary prospect the Supreme Court of Canada might be biased by hearing cases that ensure government victories so as to deflate widespread complaints judges are too powerful.

"There is a potential problem of the Supreme Court's selection bias," says the academic paper. "In an effort to appear less activist, the court may intentionally grant leave to appeal in a few cases each year where governments will win, in order to enhance the perception that the court is deferential to government."

The court, with the exception of a few criminal cases, controls the cases it will hear and decides to rule on them based on whether they raise an issue of public importance.

The study also suggests the court could skew its statistics the other way by granting leave to appeal in cases that are a sure win for Canadians challenging government laws on the grounds they violate the Charter of Rights.

The nine-member bench is mindful of complaints judges have too much power, and Chief Justice Beverley McLachlin asserted in a speech late last year, "it is an unfortunate and momentous event" for judges to strike down a law.

The study, by law professor Sanjit Choudhry and student Claire Hunter, concludes it's a myth the Supreme Court is becoming more activist by finding in favour of Canadians who complain their Charter rights have been violated.

After examining Charter of Rights rulings from 1982-2002, the authors found that governments won their cases 62.4 per cent of the time.
Moreover, there has been no upward trend in recent years of the Supreme Court striking down laws, the study found.

The evidence with respect to absolute government-win rates does not support the hypothesis that judicial activism is increasing over time," it says.

Mr. Choudhry and Ms. Hunter say they were motivated by an incident in December 2002, when one of Canada's most senior judges issued a ruling decrying the rise of judicial activism and calling for the judiciary to step back from overriding elected legislators.

Justice William Marshall of the Newfoundland Court of Appeal took aim at the Supreme Court of Canada in his stinging indictment, in which he said there was an "air of legitimacy" to widespread complaints.
The ruling centred around a pay-equity dispute, which reaches the Supreme Court of Canada next month, and the nine-member bench could use the case as an opportunity to respond to Justice Marshall's indictment.

The University of Toronto findings contradict another study earlier this month that Canadians are more likely to win Charter of Rights challenges since Chief Justice McLachlin assumed the Supreme Court helm at the beginning of 2000.

That study, by Osgoode Hall Law School dean Patrick Monahan, found Charter claims are more likely to succeed than fail.

But the two studies were different in that the University of Toronto paper only considered cases involving Charter of Rights challenges to government laws, while the Osgoode report was broader, dealing with challenges against police, which account for a significant portion of Supreme Court cases.

The Charter of Rights include freedoms of religion, expression and association, the legal right to life, liberty and security of the person, and the right against unreasonable search and seizure. There are also equality guarantees, including freedom from discrimination based on age, sex, race or disability.

The Ottawa Citizen 2004