Canada's Courts: A Social Scientist's Ground-Breaking Account of the Canadian Judicial System

Henri R. Pallard is a professor of law and justice and Laurentian
University.

The strength and originality of this study resides in its use of the
analytical tools and the conceptual framework of the social scientist to
examine judicial decisionmaking and the functioning of Canada’s court
system. Small-scale processes (e.g., the meanings and interpretations
ascribed to legal events by various social actors) are used to account
for macro-level patterns (e.g., the differential success rates of the
general classes of litigant) as revealed by statistics. The use of
quantitative data in the form of official statistics and qualitative
data from interviews, accounts of courtroom behavior, and pervious
research has allowed the author to relate to each other concepts about
the structure and the process of the legal system.

The social science perspective used by the author also contributes to
the book’s main weakness. For instance, from 1949 to 1990 dissenting
opinions have decreased from 41.3 percent to 27 percent, while separate
concurring opinions have decreased from 2.98 to 1.67 per reported
decision. While the author proffers some interesting and probably quite
valid reasons for the trend, he does not provide an overriding
conceptual explanation for such changes. In order to understand why
certain cases generate concurring or dissenting opinions, one must move
beyond the purely formal quantifiable attributes of the decision and
look at the substance of the decision. Dissents and concurring opinions
occur around fundamental social questions that appear in such cases as
Daviault, Thibodeau, or Egan and Nesbitt. Such qualitative issues and
others, such as the advent of the Charter as one explanation for the
newness of legal citations used by appeal courts in recent years, are
not captured by the author’s methodology.

Despite its shortcomings, this book should be read by jurists, social
scientists, and all who wish to deepen their understanding of one of our
important legal institutions.