Hostname: page-component-669899f699-2mbcq Total loading time: 0 Render date: 2025-04-29T04:08:52.290Z Has data issue: false hasContentIssue false
  • English
  • Français

Why Does the Federal Government Appeal to the Supreme Court of Canada in Charter of Rights Cases? A Strategic Explanation

Published online by Cambridge University Press:  01 January 2024

Matthew A. Hennigar
Get access Rights & Permissions [Opens in a new window]

Abstract

Despite the impressive body of scholarship dedicated to analyzing litigation involving the Charter of Rights and Freedoms in the Supreme Court of Canada, there remains an incomplete understanding of why these cases come to the Court. Notably absent from the literature is sustained analysis of why governments, the most frequent class of appellant, bring Charter cases to the Supreme Court. Recent work has addressed the decision to appeal by the U.S. federal government and state attorneys general and provides an excellent theoretical starting point. I use case data collected from interviews with federal government lawyers and law reports to test whether the Canadian federal government's decisions to appeal to the Supreme Court of Canada in Charter cases are also “procedurally rational.” I conclude that these decisions are primarily shaped by strategic considerations related to policy costs, case importance, reviewability, and the prospect of winning on appeal, regardless of the party in power. In the process, the article further extends the application of strategic decisionmaking theory with regard to law and courts beyond judicial behavior, and beyond the U.S. context.

Type
Articles of General Interest
Information
Law & Society Review , Volume 41 , Issue 1 , March 2007 , pp. 225 - 250
Copyright
© 2007 Law and Society Association.

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Article purchase

Temporarily unavailable

Footnotes

This article draws on material from my doctoral dissertation at McGill University. As such, I have had the benefit of comments from several individuals, but I would like to thank in particular Christopher Manfredi, Elisabeth Gidengil, Troy Riddell, Lori Hausegger, and the journal's editor and anonymous reviewers. The financial support received via a Social Sciences and Humanities Research Council of Canada Doctoral Fellowship and the Robert and Mary Stanfield Dissertation Fellowship at McGill University is also gratefully acknowledged.

References

References

Adams, Michael (2003) Fire and Ice: the United States, Canada and the Myth of Converging Values. Toronto: Penguin Canada.Google Scholar
Brodie, Ian (2002) Friends of the Court: The Privileging of Interest Group Litigants in Canada. Albany: State Univ. of New York Press.CrossRefGoogle Scholar
Brunet, Melanie (2000) Out of the Shadows: The Civil Law Tradition in the Department of Justice Canada, 1868–2000. Ottawa: Department of Justice Canada.Google Scholar
Cairns, Alan C. (1992) Charter versus Federalism: The Dilemmas of Constitutional Reform. Montreal: McGill-Queen's Univ. Press.CrossRefGoogle Scholar
Canada Supreme Court Reports (19821986) Ottawa: Registrar of the Supreme Court of Canada.Google Scholar
Consensus Report on the Constitution (Charlottetown, Aug. 28, 1992, not ratified) [Charlottetown Accord].Google Scholar
Constitution Amendment, 1987 (Signed June 3, 1987, not ratified) [Meech Lake Accord].Google Scholar
Department of Justice Canada (2000) Federal Prosecution Service Deskbook. Ottawa: Department of Justice Canada.Google Scholar
Department of Justice Canada (2001) Serving Canadians: Report of the Federal Prosecution Service Review. Ottawa: Department of Justice Canada.Google Scholar
Epp, Charles R. (1998) The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago: Univ. of Chicago Press.CrossRefGoogle Scholar
Epstein, Lee, & Knight, Jack (1998) The Choices Justices Make. Washington, DC: CQ Press.Google Scholar
Epstein, Lee, & Knight, Jack (2003) “Walter F. Murphy: The Interactive Nature of Judicial Decision Making,” in Maveety, N., ed., The Pioneers of Judicial Behavior. Ann Arbor: Univ. of Michigan Press.Google Scholar
Flanagan, Tom (2002) “Canada's Three Constitutions: Protecting, Overturning, and Reversing the Status Quo,” in James, P. et al., eds., The Myth of the Sacred: The Charter, the Courts, and the Politics of the Constitution in Canada. Montreal: McGill-Queen's Univ. Press.Google Scholar
Flemming, Roy B. (2004) Tournament of Appeals: Granting Judicial Review in Canada. Vancouver: UBC Press.Google Scholar
Flemming, Roy B., & Krutz, Glen S. (2002) “Selecting Appeals for Judicial Review in Canada: A Replication and Multivariate Test of American Hypotheses,” 64 J. of Politics 232–48.CrossRefGoogle Scholar
Galanter, Marc (1974) “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” 9 Law & Society Rev. 95–160.CrossRefGoogle Scholar
Gallagher, Sheila A. (1993) “The Public Policy Process and Charter Litigation,” in Monahan, P. & Finkelstein, M., eds., The Impact of the Charter on the Public Policy Process. North York, Ontario: York University Centre for Public Law and Public Policy.Google Scholar
Hall, Peter, & Taylor, Rosemary (1996) “Political Science and the Three New Institutionalisms: Review Article,” 44 Political Studies 936–57.CrossRefGoogle Scholar
Heard, Andrew D. (1991) “The Charter in the Supreme Court of Canada: The Importance of Which Judges Hear an Appeal,” 24 Canadian J. of Political Science 289–307.CrossRefGoogle Scholar
Hein, Gregory (2001) “Interest Group Litigation and Canadian Democracy,” in Howe, P. & Russell, P., eds., Judicial Power and Canadian Democracy. Montreal: McGill-Queen's Univ. Press.Google Scholar
Hennigar, Matthew A. (2002) “Players and the Process: Charter Litigation and the Federal Government,” 21 Windsor Yearbook of Access to Justice (Symposium: 20 Years Under the Charter) 91–109.Google Scholar
Immergut, Ellen (1998) “The Theoretical Core of the New Institutionalism,” 26 Politics & Society 5–34.CrossRefGoogle Scholar
Knopff, Rainer, & Morton, F. L. (1992) Charter Politics. Scarborough, Ontario: Nelson Canada.Google Scholar
Kritzer, Herbert M. (2003) “The Government Gorilla,” in Kritzer, H. & Silbey, S., eds., In Litigation: Do the “Haves” Still Come Out Ahead? Stanford, CA: Stanford Univ. Press.Google Scholar
Lipset, Seymour Martin (1989) Continental Divide: The Values and Institutions of the United States and Canada. Washington, DC: Canadian-American Committee.Google Scholar
MacCharles, Tonda (2004) “It Was An Issue of Rights,” Toronto Star, 2 Oct., pp. H1, H4.Google Scholar
MacNair, Deborah (2001) “The Role of the Federal Public Sector Lawyer: From Polyester to Silk,” 50 University of New Brunswick Law J. 125–65.Google Scholar
Maltzman, Forrest, et al. (2000) Crafting Law on the Supreme Court: The Collegial Game. Cambridge, United Kingdom: Cambridge Univ. Press.Google Scholar
Manfredi, Christopher P. (2001) Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism, 2d ed. Toronto: Oxford Univ. Press.Google Scholar
Manfredi, Christopher P. (2002) “Strategic Behavior and the Canadian Charter of Rights and Freedoms,” in James, P. et al., eds., The Myth of the Sacred: The Charter, the Courts, and the Politics of the Constitution in Canada. Montreal: McGill-Queen's Univ. Press.Google Scholar
Manfredi, Christopher P. (2004) Feminist Activism in the Supreme Court: Legal Mobilization and the Women's Legal Education and Action Fund. Vancouver: UBC Press.Google Scholar
McCormick, Peter (1993) “Party Capability Theory and Appellate Success in the Supreme Court of Canada, 1949–1992,” 26 Canadian J. of Political Science 523–40.CrossRefGoogle Scholar
McCormick, Peter (1994) Canada's Courts. Toronto: Lorimer.Google Scholar
McCormick, Peter (1999) “The Most Dangerous Justice: Measuring Judicial Power on the Lamer Court 1991–97,” 22 Dalhousie Law J. 93–125.Google Scholar
Mitchell, Graeme G. (1993) “The Impact of the Charter on the Public Policy Process: The Attorney General,” in Monahan, P. & Finkelstein, M., eds., The Impact of the Charter on the Public Policy Process. North York, Ontario: York University Centre for Public Law and Public Policy.Google Scholar
Morton, F. L., & Allen, Avril (2001) “Feminists and the Courts: Measuring Success in Interest Group Litigation in Canada,” 34 Canadian J. of Political Science 55–84.CrossRefGoogle Scholar
Morton, F. L., & Knopff, Rainer (2000) The Charter Revolution and the Court Party. Toronto: Broadview Press.Google Scholar
Morton, F. L., et al. (1996) “The Role of Governments in Charter Litigation: Charter Politics as Centre-Periphery Politics.” Paper presented at the annual meeting of the Canadian Political Science Association, Brock University, St. Catharines, Ontario, 1–3 June.Google Scholar
Murphy, Walter (1964) The Elements of Judicial Strategy. Chicago: Univ. of Chicago Press.Google Scholar
National Reporter (19821986) Fredericton, New Brunswick: Maritime Law Book Co.Google Scholar
Ostberg, Cynthia, et al. (2002) “Attitudinal Dimensions of Supreme Court Decision Making in Canada: The Lamer Court, 1991–1995,” 55 Political Research Q. 235–56.CrossRefGoogle Scholar
Pacelle, Richard (2003) Between Law and Politics: The Solicitor General and the Structuring of Race, Gender, and Reproductive Rights Litigation. College Station, TX: Texas A&M Univ. Press.Google Scholar
Russell, Peter H. (2004) Constitutional Odyssey: Can Canadians Become a Sovereign People?, 3d ed. Toronto: Univ. of Toronto Press.Google Scholar
Salokar, Rebecca Mae (1992) The Solicitor General: The Politics of Law. Philadelphia: Temple Univ. Press.Google Scholar
Shilton, Elizabeth J. (1993) “Charter Litigation and the Policy Process of Government: A Public Interest Perspective,” in Monahan, P. & Finkelstein, M., eds., The Impact of the Charter on the Public Policy Process. North York, Ontario: York University Centre for Public Law and Public Policy.Google Scholar
Smith, Miriam (1999) Lesbian and Gay Rights in Canada: Social Movements and Equality-Seeking, 1971–1995. Toronto: Univ. of Toronto Press.CrossRefGoogle Scholar
Songer, Donald, & Johnson, Susan W. (2002) “Attitudinal Decision Making in the Supreme Court of Canada.” Paper presented at the annual meeting of the Midwest Political Science Association, Chicago, 25–28 April.Google Scholar
Songer, Donald, & Sheehan, Reginald (1992) “Who Wins on Appeal? Upperdogs and Underdogs in the United States Courts of Appeals,” 36 American J. of Political Science 235–58.CrossRefGoogle Scholar
Songer, Donald, et al. (1995) “An Empirical Test of the Rational-Actor Theory of Litigation,” 57 The J. of Politics 1119–29.CrossRefGoogle Scholar
Tate, C. Neal, & Sittiwong, Panu (1989) “Decision-Making in the Canadian Supreme Court: Extending the Personal Attributes Model Across Nations,” 51 J. of Politics 900–16.CrossRefGoogle Scholar
Tate, C. Neal, & Vallinder, Tørbjörn (1995) “The Global Expansion of Judicial Power: The Judicialization of Politics,” in Tate, C. N. & Vallinder, T., eds., The Global Expansion of Judicial Power. New York: New York Univ. Press.Google Scholar
Tsebelis, George (1990) Nested Games: Rational Choice in Comparative Politics. Berkeley: Univ. of California Press.Google Scholar
Waltenburg, Eric N., & Swinford, Bill (1999a) Litigating Federalism: The States Before the U.S. Supreme Court. Westport, CT: Greenwood Press.Google Scholar
Waltenburg, Eric N., & Swinford, Bill (1999b) “The Supreme Court as a Policy Arena: The Strategies and Tactics of State Attorneys General,” 27 Policy Studies J. 242–59.CrossRefGoogle Scholar
Wetstein, Matthew, & Ostberg, Cynthia (1999) “Search and Seizure Cases in the Supreme Court of Canada: Extending an American Model of Judicial Decision Making across Countries,” 80 Social Science Q. 757–74.Google Scholar
Wheeler, Stanton, et al. (1987) “Do the ‘Haves’ Come Out Ahead? Winning and Losing in State Supreme Courts, 1870–1970,” 21 Law & Society Rev. 403–45.CrossRefGoogle Scholar
Wright, Gerald C. (1976) “Linear Models for Evaluating Conditional Relationships,” 20 American J. of Political Science 349–73.CrossRefGoogle Scholar
Zorn, Christopher (1997) “U.S. Government Litigation Strategies in the Federal Appellate Courts.” Ph.D. diss., Department of Political Science, Ohio State University.Google Scholar
Zorn, Christopher (2002) “U.S. Government Litigation Strategies in the Federal Appellate Courts,” 55 Political Research Q. 145–66.CrossRefGoogle Scholar

Cases Cited

Haig v. Canada, [1992] 94 D.L.R. (4th) 1 (Ontario Court of Appeal).Google Scholar
R. v. Schachter, [1990] 2 F.C. 129 (Fed. Ct. App.); [1992] 2 S.C.R. 679 (S.C.C.).Google Scholar
Vriend v. Alberta, [1998] 1 S.C.R. 493 (S.C.C.).Google Scholar

Statutes Cited

The Charter of Rights and Freedoms, Schedule B, Canada Act 1982 (U.K.), 1982, c.11.Google Scholar
Constitution Act, 1867 (U.K.).Google Scholar
Criminal Code, R.S. 1985, c. C-46.Google Scholar
Department of Justice Act, R.S., 1985, c. J-2.Google Scholar
Supreme Court Act, R.S., 1985, c. S-26.Google Scholar