Judges on Judging in Canadian Appellate Courts: The Role of Legal and Extra-Legal Factors on Decision-Making.

• Author: Hausegger, Lori

ALTHOUGH PROVINCIAL COURTS of appeal decide the bulk of appeals in Canada, relatively little is known about judicial decision-making on these courts. The high rates of unanimity on these courts makes quantitative study of their decision-making more challenging and raises questions about how their decisions may differ from those of the Supreme Court of Canada. In this study we investigate decision-making behind the scenes through surveys and interviews with appellate court judges across Canada. What influences are at work in their decisions? We find that, while appellate court judges describe their decision-making as constrained by norms (e.g. judges should arrive at conclusions based on an application of existing legal principles) and institutional structures (e.g. the large number of relatively straightforward cases heard by these courts), judges also acknowledge that to some degree, and in some contexts, individual backgrounds, characteristics, and worldviews will shape individual cases and the development of law. We explore the patterns in these findings in an effort to better understand these important courts.

BIEN QUE LES cours d'appel provinciales decident la majeure partie des appels au Canada, nous ne savons pas grand-chose sur la prise de decision judiciaire par ces tribunaux. Le taux eleve d'unanimite adoptee au sein de ces cours rend l'etude quantitative de leur processus decisionnel plus difficile et souleve des questions en ce qui concerne la maniere dont leurs decisions different de celles de la Cour supreme du Canada. Dans cette etude, nous examinons les coulisses de la prise de decision grace a des enquetes et des entrevues avec des juges de cours d'appel de partout au Canada. Quelles sont les influences qui fagonnent leurs decisions? Nous constatons que, meme si les juges de cours d'appel reconnaissent que le processus decisionnel est limite par des normes (les juges doivent arriver a une conclusion en se basant sur une application de principes juridiques existants) et des structures institutionnelles (comme le nombre important de causes relativement simples entendues par ces tribunaux), les juges reconnaissent tout de meme que dans une certaine mesure et dans certains contextes, les origines, les caracteristiques et les visions du monde de chacun et chacune influencent individuellement les causes et le developpement du droit. Nous explorons les tendances dans ces resultats dans le but de mieux comprendre ces tribunaux importants.

CONTENTS Judges on Judging in Canadian Appellate Courts: The Role of Legal and Extra-Legal Factors on Decision-Making Lori Hausegger and Troy Riddell I. Introduction 3 II. Studies of Judicial Decision-Making on Appellate Courts 6 A. Individual Characteristics, Institutional Constraints, and Role Perceptions 9 III. Survey Overview 11 A. Interviews 13 IV. Results 14 A. Unanimity 14 B. Role Perceptions and Objectives 17 C. Extra-Legal Influences 20 1. Path to the Bench 20 2. Gender 22 3. Policy Preferences 25 V. Discussion and Conclusion 29 I. INTRODUCTION

In its 2017 Sahaluk v Alberta (Transportation Safety Board) decision, the Alberta Court of Appeal struck down an Alberta law that allowed the province to immediately suspend the license of a driver when charges were laid for driving while impaired. (1) The majority argued that the right to be presumed innocent in section 11 of the Canadian Charter of Rights and Freedoms (the Charter) was violated as was the right to security of the person in section 7, given the importance of driving. The case was unusual for a few reasons. First, there was a law being challenged under the Charter--these types of cases make up a very small portion of provincial appellate court decisions. Second, there was a concurring opinion in the decision (albeit a very short one). (2) Third, there was a dissent. Madam Justice Paperny argued that neither section 7 nor 11 of the Charter were engaged, as driving was a privilege and not a right. (3)

The dissent is particularly noteworthy since the vast majority of provincial appellate decisions are unanimous. In fact, the trend in the last two decades is for Canadian provincial courts of appeal to be unanimous around 95% of the time. (4) What explains this high rate of unanimity--and, perhaps more importantly--the cases where unanimity falters and judges dissent? A few quantitative studies of provincial courts of appeal have found that case outcomes are influenced by differences between the justices, such as gender. (5) However, other studies have found more muddled results for the influence of extra-legal differences such as gender or ideology. (6) The Sahaluk case includes a dissent by a woman justice. But is their gender one of the factors influencing their vote? The high rate of unanimity in Canadian courts of appeal--and the resulting lack of variation--has complicated our previous attempts to answer these types of questions quantitatively and increased our interest in the unanimity itself. It has been over 20 years since provincial appellate judges in Canada have been asked about their decision-making. (7) Faced with this time-lapse in interviews, and the challenges posed to studying these courts, this project set out to learn more about judicial decision-making from the appellate court judges themselves.

Since the Supreme Court of Canada (SCC) decides very few cases per year, provincial courts of appeal are the final courts of appeal for the vast majority of cases that come through the system each year. As such, there is a need to better understand judicial decision-making in these courts. The survey and interviews discussed and analyzed in this paper replicate some of the key questions asked by Greene et al. (8) However, we also take a different approach to further explore various dimensions of judicial decision-making on provincial courts of appeal. For example, we ask: what causes the high rate of unanimity that makes quantitative analysis of decisions more challenging? Does unanimity reflect the workload and the types of cases coming before these courts or does it reflect compromise and negotiation (or elements of both)? In our survey and interviews we also explored the impact of extra-legal factors such as gender. Do women judges decide differently than men (particularly in certain types of cases such as those involving sexual assault), and are panels influenced by the presence of women on the bench? More broadly we asked how individual experience, backgrounds, and worldviews of judges filter into decision-making.

We argue that our results resemble what Tamanaha has dubbed "balanced realism." (9) Canadian appellate court judges describe their decision-making as constrained by norms (such as judges should arrive at conclusions based on an application of existing legal principles) and institutional structures (for example, these intermediate appellate courts review a large number of cases in which the outcome is relatively straightforward). However, judges also acknowledge that to some degree, and in some contexts, individual backgrounds, characteristics, and worldviews will shape individual cases and the development of law. As might be expected, there is a wide range of opinions as to the degree and contexts in which these factors will matter. In other words, the judges differ in how the realism is balanced.

This points to another central conclusion of this research: there is a diversity of viewpoints amongst appellate court judges as to how they should judge and how they do judge. In turn, this means that some of the aggregate responses are paradoxical. Most respondents, for instance, believe that gender does not matter to case outcomes, yet most respondents also argued that having more women on the courts will change the overall shape of the law. The diversity of viewpoints also means that some aspects of the courts remain somewhat elusive. The extremely high rates of unanimity from the courts, for example, remain difficult to explain. While judges point to the nature of the cases as a factor, judges also note that there is often some discretion in the application of the law in a number of cases. Why then are most of those cases decided unanimously? Some judges suggest that greater collegiality means that there are fewer dissents, while other judges argue that greater collegiality means that judges may feel more liberated to dissent without fear that it will cause tensions on the court.

Overall, we try to offer analysis and make inferences based on patterns in the data while not submerging the range of opinions and even, at times, their contradictory nature. We believe this study illustrates something very starkly: the influences on judicial decision-making are messier than suggested by a lot of quantitative studies and even by many judges themselves. This is likely particularly true for appellate courts which are subject to a wide variety of constraints and pressures.

2. STUDIES OF JUDICIAL DECISION-MAKING ON APPELLATE COURTS

   Scholarship on decision-making in Canadian courts of appeal is limited. As noted above, most studies of judicial decision-making in Canada have focused on the SCC. The SCC typically has a dissent rate well over 30%--this level of disagreement amongst the judges, combined with the new policy-making role of the Court under the Charter, have encouraged the proliferation of quantitative studies on its decision-making. Indeed, several studies have explored why SCC justices dissent. (10) Scholars have increasingly examined the influence of extra-legal factors on SCC justices' decision-making. For example, studies such as those conducted by Songer et al reveal that there are statistically significant ideological differences between SCC justices, although those differences are more muted than in the United States (US) Supreme Court. (11) Likewise, a number of studies have found gender-based differences in decision-making on the SCC. Based on his interviews...