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This weekend, I conducted a review of Supreme Court of Canada ("SCC") rulings from the last 5 years and revealed a slight bias against Quebec and for Ontario. In 341 cases reviewed dating to 2004, I found that the top court was 24% more likely to allow an appeal arising from Quebec than it was from Ontario. The SCC allowed appeals from Ontario in 46% of cases as compared to 57% of cases from Quebec. Across the country, that figure sat at 51%.
The results from other jurisdictions were as follows:
BC: 35 of 70 appeals allowed (50%)
Alberta:: 18 of 31 appeals allowed (58%)
Saskachewan: 7 of 12 appeals allowed (58%)
Manitoba: 3 of 6 appeals allowed (50%)
Ontario: 29 of 63 appeals allowed (46%)
Quebec: 51 of 90 appeals allowed (57%)
Maritimes: 10 of 25 appeals allowed (40%)
Yukon: 0 of 1 appeal allowed (0%)
Federal Court: 20 of 43 appeals allowed (47%)
Total: 173 of 341 appeals allowed (51%)
The figures are not large enough to reveal any real statistically significant results, but anecdotally, they point out trends for court-watchers. In particular, the results would appear to dispel the impression many have about a bias against the BC Court of Appeal. In recent years, the Supreme Court has received more applications for leave to appeal from BC than any other province, but with the rate of allowed appeals at 50%, my review does not seem to indicate any bias against west coast appellate judges.
The review included all decisions from January 1, 2004 to March 24, 2009 with several caveats:
- All non-appeal matters were excluded, such as references and procedural motions.
- Ambiguous decisions were excluded. For example, decisions involving both an appeal and a cross-appeal were excluded if one was allowed and the other dismissed; if both the appeal and cross appeal were allowed,however, the case counted as allowed; if both were dismissed, the case was categorized as dismissed.
- Decisions in which multiple appeals were joined counted as a single case unless the appeals arose from different provinces, in which case it counted once for each originating province.
This review follows closely behind statistics released by the SCC itself on its own workload. Of particular note is that our top court appears to have dramatically improved efficiency last year as compared to trends in recent years; whereas the number of appeals heard per year had dropped from 89 to 58 between 2005 and 2007, in 2008 the court bounced back to a total of 74 appeals heard.
Despite the increase in the number of appeals, the delay at various stages of the proceedings did not increase. The time between filing for leave to appeal and a decision on leave remained steady at an average of 3.2 months, similar to previous years. Likewise, the time between granting of leave and hearing of the appeal stayed at a average of 8.9 months, the second lowest it had been in a decade. The time between the hearing and judgment dropped to an average of 4.8 months in 2008. To some extent, however, this drop in delay in 2008 may be explained by the reduced number of appeals from the previous year, meaning a reduction in backlog. But nonetheless, one is left wondering if provincial courts might have something to learn from Canada's top judges on procedural efficiency!
3 Comments
Mildly interesting statistics, their utility seriously undermined by an unnecessarily and unfairly inflammatory title. "Bias" is defined as a tendency or inclination that prevents unprejudiced consideration of a question; its antonym is impartiality. So, on the basis of very mild differences in the success rate of appeals from various provinces, the author concludes that the Supreme Court of Canada is "baised" against some provinces and in favor of others. Unexamined premise: one would expect that appeals from every single provincial court of appeal should enjoy exactly the same statistical likelihood of success or failure. Push that one notch further and you are saying that every single appeal should have an identical chance of success or failure -- and we all know that this is absurd.
Okay, leave that to one side, there is still a problem. At most (and I do not concede this, but just allow it provisionally as a discussion point) the SCC is "biased" against the Quebec Court of Appeal, a group of federally appointed judges whose performance can for some purposes be compared with the group of federally appointed judges who constitute the Ontario Court of Appeal and whose decisions are likewise subject to review by the group of federally appointed judges who are the Supreme Court of Canada. What does this tell us about "Quebec"? It would be more meaningful for this purpose to identify cases in which an action of a provincial government has been challenged, and then see how often the SCC upholds the challenge or supports the provincial government -- but this is logically independent of the question of how the provincial court of appeal has ruled on the question, since its support of its own provincial government cannot be taken for granted. (Just ask the PQ.)
If the information in this piece tells us anything, it is more likely to be some statement as to either the perceived quality or reputation of a provincial court of appeal, or (if you wish to be more cynical) about the ideological "fit" between the court and the SCC itself. (Years ago, a CJ of Manitoba was pressured out of office largely because his court suffered an embarassing string of reversals at the hands of the SCC.) But, "bias" for or against a PROVINCE? I don't think so.
Could you combine this analysis with the success rate of applications for leave to appeal? If a higher proportion of leaves from a particular province are denied, that could lead to an increase in the number of the cases actually heard being reversed.
And the headline is a bit tendentious. An 'anti-Quebec' position could be explained by a weak Quebec CA too. I express no views, just offer an alternative explanation to bias. When I was a clerk, there was a clear difference in quality of judgments coming up from different jurisdictions.
Commentary for The Court on “Is the SCC Anti-Quebec?: Top Court Statistics”
This posting raises some important questions, but in order to address them effectively, the methodology needs to be clarified and the relevance of the findings needs to be explained more fully.
In particular, it is correctly noted that the sample sizes for the data on appeals allowed are too small to be of statistical significance. In order to correct for this bias, a cross-time comparative assessment of much greater magnitude is required. Further, the findings need more substantive content in order to provide a more accurate understanding of their significance. For instance, the rationale behind the listed caveats needs to be expanded. Why were certain decisions included or excluded, and how has this affected the results and corresponding analyses? Along similar lines, how do the findings speak to the nature of appeals allowed, and are there any apparent cross-time or cross-national trends in this regard?
Such information would also help to provide a clearer understanding of the implications of the data, most notably in the context of Quebec, Ontario, and British Columbia. For instance, can the differences between Ontario and Quebec be explained? There is also a glaring omission in the discussion regarding the higher rates of appeals allowed in Alberta and Saskatchewan, at 58% each. How can these data be explained vis-à-vis the comparisons made between Quebec and Ontario? In the context of British Columbia, why are there more applications for leave to appeal in that province? Why have some commentators suggested that there might be a bias against British Columbia, and how are the data presented in this posting effective in dispelling the ideas of these other commentators? More generally, how do the data presented compare with those of other commentators, and how might these differences be explained?
Perhaps most importantly, the overall analysis lacks an in-depth evaluation of the larger implications of the findings. Statistical findings are important, but only as illustrations couched in terms of their larger relevance. In other words, how and why are these data important more broadly, and how do they reflect the bigger picture in terms of the nature and impact of Supreme Court of Canada rulings?