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

Published online by Cambridge University Press:  01 January 2024

Matthew A. Hennigar
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Abstract

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.

Type
Articles of General Interest
Information
Law & Society Review , Volume 41 , Issue 1 , March 2007 , pp. 225 - 250
Copyright
© 2007 Law and Society Association.

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Footnotes

This article draws on material from my doctoral dissertation at McGill University. As such, I have had the benefit of comments from several individuals, but I would like to thank in particular Christopher Manfredi, Elisabeth Gidengil, Troy Riddell, Lori Hausegger, and the journal's editor and anonymous reviewers. The financial support received via a Social Sciences and Humanities Research Council of Canada Doctoral Fellowship and the Robert and Mary Stanfield Dissertation Fellowship at McGill University is also gratefully acknowledged.

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