Administration at the Supreme Court of Canada: Challenges and Change in the Charter Era
Macfarlane, Emmett, Canadian Public Administration
Despite the prodigious amount of attention devoted to the work of the Supreme Court of Canada since the adoption of the Canadian Charter of Rights and Freedoms in 1982, there has been scant discussion of what the "Charter era" has meant for the administration of the Court. This article presents the first comprehensive description in existing academic scholarship of the administrative environment at this important governing institution. (1) Specifically, it examines important administrative changes that have occurred at the Court during the last three decades. Drawing in part on interviews with former Supreme Court justices, as well as current and former Court staff members, I explore these changes in light of the context described below.
Two changes that occurred not long before the implementation of the Charter had important ramifications for the Court's administrative context. The first, through a series of amendments to the Supreme Court Act (R.S.C. 1985, c. S-26) that were finalized in 1975, gave the Court near complete control over its docket. This considerably reduced the number of private law cases and placed "public importance" as the primary criterion for case selection. The second change, through legislation in 1977, conferred on the Court administrative independence from the Department of Justice. Five years later, the Charter empowered the Court to exercise judicial review over virtually any government action that might implicate the new constitutional document's provisions. Although the justices had occasionally dealt with public policy issues through judicial review of federalism disputes, rights-based review granted the Court a more explicit policy-making function.
Over the past twenty-five years, this new context has created two broad sources of pressure on the administrative side of the Court's work. The first pertains to efficiency. One of the impetuses for giving the judges more control over the docket was the overwhelming workload that hit the Court in the early 1970s. With the elimination of appeals as of right (outside of certain criminal appeals), the judges managed to reduce the number of cases heard between 1975 and 1980 by thirty per cent (Snell and Vaughan 1985: 240). Yet by the mid-1980s the judges were struggling with "'an alarming backlog of reserve judgments just when the Court was meeting the onslaught of difficult Charter cases" (Sharpe and Roach 2003: 371). This problem, as will be examined below, resulted from several different issues, ranging from procedural difficulties to diverging work habits among the justices. In different forms and for different reasons, challenges to the Court's efficiency have cropped up on several occasions since then. To ensure cases are heard and decisions are rendered in a timely manner, key administrative and procedural changes have often been implemented in response.
The second main source of pressure stems from a new impetus for higher levels of transparency. Given the high visibility of the contemporary Court and the often controversial nature of the issues put before it, the institution has gradually enacted measures designed to ensure increased accessibility, improved public knowledge of its role, and expanded media access. As the following exploration will show, certain changes made to accommodate enhanced transparency can themselves place further tension on the Court's efficiency.
Scholars of judicial behaviour have stated that more research is needed to shed light on the inner workings of the Court (Ostberg and Wetstein 2007: 209). To that end, this article, while highly descriptive, serves to enhance our understanding of an important governmental institution. As will be explored more fully below, the Court's efficiency also has direct effects on judicial decisions. Finally, the extent to which the Court implements reforms to increase transparency and accessibility has significant implications for both its legitimacy in the public eye and its institutional independence. …