Commitment and Cooperation on High Courts

In July 2009 two young men, one with a distinctive silver handgun, robbed a jeweler. The police soon arrested Kevin Fearon on suspicion of the robbery. During the arrest, the police searched Fearon and found a cell phone. The phone was not password protected and the police accessed a text message about the robbery with the words “We did it” as well as pictures of a handgun. Only later did the police obtain a warrant to search the phone. At trial Fearon argued that the judge should not admit the text message and photos as evidence as the police violated his right against unreasonable search and seizure by examining the phone without a warrant. The trial judge admitted the cell phone evidence and convicted Fearon of armed robbery and possession of a loaded restricted firearm.[1]

After losing an appeal to the Ontario Court of Appeal, Fearon asked the Supreme Court of Canada to hear his appeal. A panel of three justices of the Supreme Court agreed that the Court should hear the appeal. The Court allowed the attorney generals of Quebec and Alberta, the British Columbia Civil Liberties Association, the Canadian Civil Liberties Association, the Canadian Association of Chiefs of Police, the Criminal Lawyers’ Association, and other groups to take part in what was seen as an important conflict between privacy rights and law enforcement. At the time of the hearing eight justices sat on the Court. Chief Justice McLachlin chose seven of those eight justices (including herself) to hear and decide the appeal.

Immediately following the hearing, the seven justices would have retired to a special conference room to discuss the appeal. Typically the most senior justice speaks first, followed by each justice in order of seniority. The chief justice would then have chosen the justice or justices who would draft opinions in the appeal. In this case, four justices agreed that the appeal should be dismissed, allowing the conviction to stand. The other three justices joined in a dissenting opinion, arguing that a person’s privacy interest in his personal phone outweighed the state’s interest in performing a warrantless search except in urgent circumstances.

Kevin Fearon lost his appeal to the highest court in Canada. What should Fearon make of this result? Should he be concerned that Conservative prime ministers appointed all four justices who decided against his appeal whereas two of the three who would have decided in his favor were appointed by Liberal prime ministers? Would the result have been different if members of all parties in the legislature had the chance to question nominees to the Court and had to agree to the nomination, similar to how judges are appointed in the United States? Or if the current chief justice and the four most senior justices selected new members to the Court, as in India?

Should Fearon be concerned that the chief justice had the opportunity to select the justices who would hear the appeal, in this case leaving off one justice? In the United States, the entire court hears almost all appeals. In Israel, on the other hand, appeals are generally heard by panels of three of the nine to fifteen members of the Court, although the president can decide to make the panel larger. Does it make a difference to how these judges decided Fearon’s appeal that the Court decided to hear this particular appeal and not others? Or that the Court allowed groups focused on civil liberties, criminal lawyers, or police chiefs to present arguments in the appeal?

Countries have adopted different answers to all these questions about how to set up their highest courts. They have chosen various combinations of features such as how to choose judges for the high court, whether the judges hear all appeals together or in smaller panels, whether the court gets to choose for itself which appeals it hears, and who gets to present arguments before the court. Our question is—do these choices affect how judges on high courts decide appeals? We argue that they do. These design choices across features of a high court influence two core aspects of how judges decide appeals: whether or not they decide appeals in accordance with their own personal views of the correct policy, and whether they decide together collegially or act as separate, independent decision-makers.

  • [1] These facts are drawn from R vFearon, 2014 SCC 77, [2014] 3 SCR 621. Commitment and Cooperation on High Courts. Benjamin Alarie and Andrew J. Green.© Oxford University Press 2017. Published 2017 by Oxford University Press.
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