Supreme Court of Canada Justices Almost Always Agree

Today’s going to be an interesting day at the Supreme Court: they’re hearing argument in the Election Act appeal (Ted Opitz, et al. v. Borys Wrzesnewskyj, et al.), the first such direct appeal brought to this court. Factums are available here; and this is the link to the webcast. If you’re too pressed for time to wade through factums or watch the hearing live, you might like to follow Ottawa law prof Carissima Mathen’s tweets from the courtroom instead.

[Remember: when you need to get to the Supreme Court website and can’t recall the official URL, just use Slaw’s shortcut: or Easy peasy.]

With the focus on the court today, it seemed like the right time to offer up a bit of quick research on agreement among the judges. The idea came from Simon Chester, who pointed me to a piece done by the Washington Post on the US court; he wondered whether we might do something like it. So I’ve done a version of that study for our court, using the most recent 100 decisions (which means all opinions from 2011 and 2012 up to this week).

I’ve created two dynamic tables showing the percentage of time that one justice agrees with another (when both took part in the decision, of course). The first table uses a broad understanding of agreement (like the US version), which includes everything but dissent; the second table looks only at strict, or “strong,” agreement in which the two justices concur in a single opinion. You’ll find the tables, Degrees of Agreement – Concurrence at the Supreme Court of Canada: The 100 Most Recent Cases, on a separate page in Slaw. (If anyone’s interested, I’ve got the tables in spreadsheet format, too.)

Unsurprisingly, you’ll see a much higher level of agreement among all the pairs of our justices — our court is not divided ideologically in the sharp way that SCOTUS is. In the US table the two pairs of judges — Scalia-Ginsburg and Thomas-Ginsburg — agree 47% of the time; whereas, the lowest level of agreement in our court is the 70% of the Fish-Deschamps pair. As well, you’ll see that the two new justices have had little time to make their mark and have written no dissents up to this point.


  1. Interesting project, and quite unique (at least from what I’ve seen) in Canadian judicial analysis. If you have time, it might be worth “drilling down” and analyzing the different judges’ attitudes in relation to various issues.

    You correctly say, of course, that our top court is a lot less polarized than its US equivalent. It’s sad to see that a lot of issues that should provoke discussion and disagreement in the courts are largely ignored. Civil forfeiture is a telling example that I have recently been researching.

  2. According to Allan C. Hutchinson in the “The Province of Jurisprudence Democratized” (2008) (and he surveyed the Canadian context as well):

    “There are no easy solutions to the present undemocratic trends. In this sense, the debate around judicial review is something of a distraction. Improvement in society’s democratic status will not come from increased interventions by judges in governmental policies. Indeed, judicial supervision is a short-term crutch that might actually harm a limping polity in the medium- and long-term march towards a fuller and stronger democracy.” (193)

    And “If ostensible democratic societies are to persist with judicial review, then a variety of steps can be taken—reduced judicial powers, specialized constitutional courts, responsive appointment procedures, legislative overrides, greater judicial accountability, periodic constituent assembles, etc.—to de-sacralize and defrost the constitutional order. However, the preferred course is to work toward the abandonment of judicial review as a pivotal institution in democratic societies. Aristocratic rule is no less palatable because judges and jurists are the new “princes … and prophets.” And it is certainly no more acceptable when such elites wrap themselves in the trappings of democracy. In a society that takes democracy seriously, there is no privileged place for judicial proconsuls or their scholarly cohorts—citizens can govern best when they govern themselves. Though there has never been a golden age for democracy, what now passes for democracy has no sustained or substantive role for the voices of ordinary citizens—‘ignorant armies’, ‘confused alarms’, and ‘a darkling plain’ indeed.” (195)