Hostname: page-component-78c5997874-mlc7c Total loading time: 0 Render date: 2024-11-02T20:11:24.248Z Has data issue: false hasContentIssue false
  • English
  • Français

Party Capability Theory and Appellate Success in the Supreme Court of Canada, 1949–1992*

Published online by Cambridge University Press:  10 November 2009

Peter McCormick
Peter McCormick
Affiliation:
University of Lethbridge
Get access Rights & Permissions [Opens in a new window]

Abstract

Now that the advent of the Canadian Charter of Rights and Freedoms has made the fact of judicial power so obvious, it is important to develop the conceptual vocabulary for describing and assessing this power. One such concept that has been applied to the study of United States and British appeal courts is the notion of “party capability theory,” which suggests that different types of litigant will enjoy different levels of success, as both appellant and respondent. Using a data base derived from all reported decisions of the Supreme Court of Canada between 1949 and 1992, this article applies party capability theory to the performance of Canada's highest court, and compares the findings with similar studies of American and British courts.

Résumé

Depuis que l'avenement de la Charte canadienne des droits et libertés a rendu évident l'ampleur du pouvoir judiciaire, il est devenu important de developper un vocabulaire conceptuel pour decrire et evaluer ce pouvoir. La «théorie sur les aptitudes des parties» représente l'une de ces notions. On s'en est servi pour étudier les cours d'appel aux États-Unis et en Grande-Bretagne. La théorie postule que les chances de succès varieront avec la nature des parties en litige, pour les appelants comme pour les intimés. En analysant une banque de données recensant toues les decisions de la Cour suprême du Canada qui ont été rapportées entre 1949 et 1992, cet article applique ce modèle théorique à la performance du tribunal de dernière instance au Canada, et compare les résultats avec des études semblables portant sur les cours américaines et britanniques.

Type
Research Article
Information
Canadian Journal of Political Science/Revue canadienne de science politique , Volume 26 , Issue 3 , September 1993 , pp. 523 - 540
Copyright
Copyright © Canadian Political Science Association (l'Association canadienne de science politique) and/et la Société québécoise de science politique 1993

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.)

References

1 Galanter, Marc, “Why the Haves Come Out Ahead: Speculations on the Limits of Social Change,” Law and Society Review 9 (1974–1975), 95CrossRefGoogle Scholar; see also Galanter, Marc, “Afterword: Explaining Litigation,” Law and Society Review 9 (1974–1975), 347.CrossRefGoogle Scholar

2 Wheeler, Stanton, Cartwright, Bliss, Kagan, Robert and Friedman, Lawrence, “Do the ‘Haves’ Come Out Ahead? Winning and Losing in State Supreme Courts 1870–1970,” Law and Society Review 21 (1987), 413.CrossRefGoogle Scholar

3 Reported in either or both of the Supreme Court Reports and the Dominion Law Reports.

4 It was in 1949 that appeals beyond the Supreme Court to the Judicial Committee were abolished, although the relevant legislation did not become effective until December 23, 1949, and applied only to legal cases initiated after that date. See Hogg, Peter, Constitutional Law of Canada (2nd ed.; Toronto: Carswell, 1985), 168.Google Scholar

5 Excluding both reference questions from the federal government, and appeals from reference questions directed to provincial courts of appeal.

6 See Russell, Peter, “The Political Role of the Supreme Court in Its First Century,” Canadian Bar Review 53 (1975), 576–96.Google Scholar

7 See McCormick, Peter, “The Supervisory Role of the Supreme Court of Canada,” Supreme Court Law Review (2nd series) 3 (1992), 1–28.Google Scholar

8 That is: provincial or municipal litigants might appear as net “winners” simply because they were grouped with a big winner like the Crown, rather than because they deserved it in their own right, in the same way that the statement “the combined record of Canadian hockey teams in 1991–1992 was above .500” does not necessarily imply a winning season for Toronto or Winnipeg.

9 Wheeler, et al. , “Do the ‘Haves’ Come Out Ahead?” 413.Google Scholar

10 Songer, Donald R. and Sheehan, Reginald S., “Who Wins on Appeal? Upperdogs and Underdogs in the United States Courts of Appeals,” American Journal of Political Science 36 (1992), 239.CrossRefGoogle Scholar

11 Galanter suggests that the appropriate unit for analysis for many purposes is not the individual case but the “congregation” of cases raising similar issues (Galanter, Marc, “Case Congregations and Their Careers,” Law and Society Review 24 [1990], 371).CrossRefGoogle Scholar

12 See, for example, Gambitta, Richard A. L., “Litigation, Judicial Deference and Policy Change,” Law and Policy Quarterly 3 (1981), 142Google Scholar: “In this article, I argue that lawsuits which lose in court can stimulate positive policy change, and that the final court ruling is not necessarily the most significant or influential event in the litigation process with respect to policy reform.”

13 Except for appeals from the Exchequer Court before 1970 and the occasional per saltum appeal from provincial superior trial court, which represent appeals from the original decision of a single trial judge.

14 Success rates in provincial courts of appeal fall in the mid-30 per cent range. See, for example, McCormick, Peter, “Conviction Appeals in the Alberta Court of Appeal,” Alberta Law Review 31 (1993)Google Scholar, forthcoming; and McCormick, Peter, “Caseload and Output of the Manitoba Court of Appeal 1990,” Manitoba Law Review 21 (1992), 24.Google Scholar

15 “Research shows that state supreme courts affirm more than 60% of the lower court decisions that they review” (Emmert, Craig, “An Integrated Case-Related Model of Judicial Decision-making,” Journal of Politics 54 [1992], 548).CrossRefGoogle Scholar

16 Songer, and Sheehan, , “Who Wins on Appeal?” 244.Google Scholar

17 Atkins, Burton M., “Party Capability Theory as an Explanation for Intervention Behavior in the English Court of Appeal,” American Journal of Political Science 35 (1991), 881.CrossRefGoogle Scholar

18 See, for example, Atkins, Burton, “Interventions and Power in Judicial Hierarchies: Appellate Courts in England and the United States,” Law and Society Review 24 (1990), 87CrossRefGoogle Scholar, citing a figure of 66.6 per cent for the US Supreme Court over a 27-year period.

19 Ibid., 90.

20 A different logic, of course, would apply to trial courts, which Galanter suggests are typically used by powerful groups to enforce their rights and advantages (see Galanter, , “Why the Haves Come Out Ahead”Google Scholar).

21 The concept and the method of calculation are both taken from Wheeler, et al. , “Winning and Losing in State Supreme Courts,” 407.Google Scholar

22 That is, by definition, individual litigants had to win one half of the 620 cases in which both appellant and respondent were individuals, and business litigants had to win one half of the 403 cases in which both parties were businesses.

23 Songer, and Sheehan, , “Who Wins on Appeal?” 241.Google Scholar

24 Songer and Sheehan similarly compute an Index of Relative Strength, but for them the ranking is the score: individuals, with the largest net disadvantage, would be given a score of 1, unions a score of 2 and so on (Songer, and Sheehan, , “Who Wins on Appeal?” 246Google Scholar). But this gives the same weight to the small difference between unions and individuals as to the large difference between big business litigants and provinces; in fact, the impact on the calculations is small (only the two examples given depart from intercategory increments of 1) but the greater precision of an index that can be translated immediately into percentage points of advantage remains attractive.

25 Not, of course, in the sense that the outcome of the specific can be predicted, but rather in the sense that the success potential of a block of similar appeals can be statistically calculated—to use the obvious analogy, although an insurance company cannot indicate with any accuracy the date on which any specific individual will die, objective categorization (drinker? smoker? parents had heart problems?) can generate the larger blocks from which mortality rates can be calculated with disconcerting precision.

26 From Wheeler, et al. , “Winning and Losing in State Supreme Courts,” 418.Google Scholar

27 From Songer, and Sheehan, , “Who Wins on Appeals?” 243.Google Scholar

28 Ibid., 256.

29 Wheeler, et al. , “Winning and Losing in State Supreme Courts,” 407Google Scholar, n. 7.

30 Songer, and Sheehan, , “Who Wins on Appeal?” 240.Google Scholar

31 Atkins, , “Party Capability Theory as an Explanation for Intervention Behavior in the English Court of Appeal,” 895.Google Scholar

32 More recently, Sheehan, Mishler and Songer have examined the impact of “litigant status” on the success rates of parties appearing before the Supreme Court of the United States between 1953 and 1988 (Sheehan, Reginald S., Mishler, William and Songer, Donald R., “Ideology, Status and the Differential Success of Direct Parties before the Supreme Court,” American Political Science Review 86 [1992], 464–71CrossRefGoogle Scholar). Although their categorization is somewhat more refined, their general findings are similar but with three striking qualifications: first, their coding breaks out a (racial or religious) “minorities” group which enjoys greater success than litigants that are otherwise similar; second, trade unions show a slight net advantage; and third, “corporations” (their category corresponding to “big business”) suffer a substantial net disadvantage. They conclude that litigant resources and experience are “less important than in other appellate courts” and that success rates are better explained by “the changing ideological composition of the Supreme Court” (469). However, they reach this conclusion because of the way the relative rates of success of different categories of litigant vary overtime; over the total period they consider, status and resources are indeed related to outcome. In general, they confirm the party capability ocean while making an important contribution to understanding the waves.

33 Ibid., 884.