Final Appeal: Decision-Making in Canadian Courts of Appeal

Charlotte Neff is chair of the Department of Law and Justice at
Laurentian University and the co-author of The Annotated Competition Act
1992.

This scholarly analysis of how judges make decisions in provincial
courts of appeal, the Federal Court of Appeal, and the Supreme Court of
Canada is based on interviews with 101 judges and reviews of nearly 6000
cases from across Canada. The core concern of the authors, who are all
political science professors, is whether the broad judicial discretion
that clearly exists in appellate courts is consistent with democracy.
While this book has several authors, it is a joint effort rather than a
series of independent articles.

The authors begin by considering the essence of democracy, which they
present as being premised on the principle of mutual respect. (Viewed in
this way, democracy does not preclude judicial discretion that is not
based on majority views.) They go on to examine the influences on the
exercise of this discretion, including the individual backgrounds of the
judges and the legal and decision-making processes and culture. Special
consideration is given to the Quebec Court of Appeal (given Quebec’s
distinct civil law tradition) and the Supreme Court of Canada.

The authors next review the evidence that judicial discretion does
effect change by considering, first, the way in which the pattern of
citing precedent has changed in the decisions judges write and, second,
the differences that have evolved in the various jurisdictions across
Canada. In their concluding discussion of the relationship between
judicial power and democracy, they consider the effect the Canadian
Charter of Rights and Freedoms has had on this issue and our perceptions
of it and the importance of fostering among our judges a sensitivity to
the democratic ideals that flow from mutual respect. Their text is
supplemented with tables and detailed notes, and a comprehensive
bibliography and an index are included.