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Law and Public Policy

D21 - Judicial Behaviour

Date: Jun 6 | Time: 03:15pm to 04:45pm | Location: SWING 108

Chair/Président/Présidente : Kate Puddister (Guelph University)

Discussant/Commentateur/Commentatrice : Jean-Christophe Bédard-Rubin (University of Toronto)

Voting and Opinion Writing on the Supreme Court of Canada, 1969-2018: Andrew McDougall (University of Toronto), Evan Rosevear (University of Toronto)
Abstract: How have decision-writing and voting changed on the Supreme Court of Canada in the Charter-era? Building on the results of a 20% sample of decisions presented at CPSA 2018, this paper presents the findings of a census of five decades of SCC decisions that captures judge, opinion and decision-level data using a refined data collection methodology. In addition to facilitating the confirmation of our initial findings, this data also allows us to more reliably examine the correlation of sex and professional experience on voting and opinion-writing as well as illuminating individual workloads, voting blocs, and the ability to confirm or refute standard perceptions of individual actors on the Court. These include the perception of Chief Justice McLachlin’s role as the great conciliator, Justice L’Heureux-Dubé as the great dissenter, and Justice Binnie as the intellectual nucleus of the Court during his tenure. In this we contribute to our ongoing research program to fill a gap in the literature in examining judicial behavior on the Court, which will enlighten us to as yet unappreciated mechanisms and processes that underlie judicial decision-making in Canada.

The Influence of Gender on Decision-Making in Provincial Courts of Appeal: Lori Hausegger (Boise State University), Troy Riddell (University of Guelph)
Abstract: This paper attempts to better understand judicial decision making on Canadian appellate courts by pairing quantitative analysis with surveys and interviews of appellate court judges. In Canada, nearly all the research into judicial decision making has been conducted on the Supreme Court of Canada. Although valuable, this research overlooks the judges who decide the vast majority of appeals – those who sit on provincial courts of appeal. To help address the paucity of research on these courts we have constructed a database to help us assess how factors such as gender may influence case outcomes at these courts. Judges, however, have protested that such statistical modelling distorts the nature of judging and underplays the importance of deliberating over the law when making decisions. The extremely high unanimity rate of Canadian provincial courts of appeal also raises questions about whether these models are missing some of the influences operating behind the scenes. With this in mind, we surveyed the judges themselves and followed up with in-depth interviews. This paper pairs our quantitative findings on the influences on judicial decision making with an exploration of how the judges themselves see and explain their decision making processes and outcomes. Studying judicial decision making in these different ways should give a better understanding of the influences shaping Court outcomes.