Charter Decisions in the McLachlin Era: Consensus and Ideology at the Supreme Court of Canada

Supreme Court Law Review (2d), Vol. 47, pp. 475-511, 2009

37 Pages Posted: 16 Apr 2009 Last revised: 4 Nov 2009

See all articles by Benjamin Alarie

Benjamin Alarie

University of Toronto - Faculty of Law

Andrew James Green

University of Toronto - Faculty of Law

Date Written: April 16, 2009

Abstract

This paper examines how justices on the Supreme Court of Canada voted in Charter appeals between 2000 and 2009. Charter appeals, at least in popular belief (and possibly also in theory), have the greatest potential to reveal voting that is influenced by extra-legal policy preferences. Confining the analysis to the time during which Chief Justice McLachlin has led the Court aids in controlling for the effects of a particular Chief Justice in assessing the roles of ideology and consensus.

Several of the Court's members have exhibited sharply different voting proclivities in s.15 (equality rights) appeals as compared with Charter claims made in the context of criminal law appeals (and, indeed, other Charter appeals). This finding suggests that at least some of the justices on the Court have been influenced by policy preferences on at least some occasions in discrete areas of Charter rights adjudication. On the other hand, it also suggests that judicial policy preferences are richer and significantly more nuanced than can adequately be captured by a simple "right"-"left" or "conservative"-"liberal" characterization of these policy preferences. The paper discusses a number of implications of the analysis and findings.

Suggested Citation

Alarie, Benjamin and Green, Andrew James, Charter Decisions in the McLachlin Era: Consensus and Ideology at the Supreme Court of Canada (April 16, 2009). Supreme Court Law Review (2d), Vol. 47, pp. 475-511, 2009. Available at SSRN: https://ssrn.com/abstract=1387039

Benjamin Alarie (Contact Author)

University of Toronto - Faculty of Law ( email )

Jackman Law Building
78 Queen's Park
Toronto, Ontario M5S 2C5
Canada
416-946-8205 (Phone)
416-978-7899 (Fax)

HOME PAGE: http://www.law.utoronto.ca/faculty-staff/full-time-faculty/benjamin-alarie

Andrew James Green

University of Toronto - Faculty of Law ( email )

84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

Register to save articles to
your library

Register

Paper statistics

Downloads
401
rank
69,326
Abstract Views
2,184
PlumX Metrics