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

Law & Society Review, Mar 2007 by Hennigar, Matthew A

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.

The key insight of the institutionalist stream of rational choice theory is that institutional rules and structures provide incentives and disincentives for behavior, forming a context within which rational agents act strategically to achieve their goals as fully as possible (Hall & Taylor 1996; Immergut 1998; Tsebelis 1990). This insight has been applied fruitfully to the study of courts, as most notably exemplified by Murphy's seminal 1964 work, The Elements of Judicial Strategy, and more recently, Epstein and Knight's (1998) The Choices Justices Make and Maltzman et alia's (2000) Crafting Law on the Supreme Court.1 These works illustrate that justices of the U.S. Supreme Court pursue their policy preferences when they render decisions, but they are constrained by structural factors, including the internal rules of the Court (voting rules, for example) and the external social and political context of public opinion and the likely reaction of other state actors (Congress, the president) to judicial rulings. Applications of the strategic theory of judicial behavior have begun to emerge beyond the U.S. context: for example, Flanagan's (2002) and Manfredi's (2002) work on the relationship between an explicit legislative override provision in the Canadian Charter of Rights and Freedoms and judicial activism by the Supreme Court of Canada (SCC).

As these examples suggest, strategic explanations of decision-making within the context of law and courts have been overwhelmingly concerned with explaining judicial behavior (for an exception, see Songer et al. 1995). By comparison, the behavior of the most important and frequently appearing class of "repeat player" litigants (Galanter 1974)-what Kritzer (2003) calls "the Government Gorilla"-has been largely ignored. Recently, however, this has begun to change, with studies by Waltenburg and Swinford (1999a, 1999b), Zorn (2002), and Pacelle (2003) of what motivates governments to appeal to the U.S. Supreme Court. Although Pacelle's qualitative study provides useful insights into how the U.S. solicitor general's multiple and overlapping institutional roles and responsibilities constrain that office, Waltenburg and Swinford's and, to a greater extent, Zorn's work are noteworthy for their use of multivariate quantitative analysis to test models of government litigant decisionmaking in the context of constrained judicial and governmental institutional capacity. Waltenburg and Swinford find that U.S. state governments are '"procedurally rational' when they decide to interact with the Court" (1999a:55), and that they "are more likely to engage the Court when the issue at stake is one of importance and they estimate their chances of success are relatively great" (1999a:52; emphasis in original). Similarly, Zorn's (2002) quantitative analysis of the U.S. government's appeals to the U.S. Supreme Court finds empirical support for the hypothesis that three categories of factors influence decision makers: costs, including financial liability in civil cases, fiscal costs associated with policy change, and lost authority (especially vis-à-vis other branches of government), versus the costs of appealing, measured in terms of money, labor, and opportunity cost; reviewability, or the likelihood the Court will grant leave to appeal, which increases with the case's importance or "salience"; and the odds of a win on the merits on appeal, which Zorn (2002:152) contends must be positive if the government is to appeal.

As these examples suggest, strategic theories of government litigation behavior have been developed entirely within the U.S. context, which begs the question of whether they are sui generis or applicable to other cultural and institutional contexts. The Canadian case provides a ready comparison, as the cultural settings and institutional features in the two countries are similar, yet also distinctive. Both are mature liberal democracies and federations with constitutionally entrenched bills of rights enforced by independent judiciaries; furthermore, the Supreme Courts in Canada and the United States enjoy almost complete docket control and high levels of public support. The Canadian parliamentary system of government famously lacks the checks and balances of the American congressional-presidential system, however, and there is a long-standing-and growing-divergence of values and political culture between the two countries (Adams 2003; Lipset 1989). Of particular relevance here is the stronger link between government lawyers and the political executive in Canada. The U.S. solicitor general-who represents the national government before the Supreme Court-operates at arm's length from the president and attorney general who nominate him or her, and the Congress which confirms his or her appointment. Canadian government lawyers, in contrast, report directly to the Attorney General, who is a full member of the Cabinet executive as well as an elected member of the legislature.