Public has low confidence in criminal courts; believes politics influences SCC appointments: poll

Law360 Canada (November 19, 2024, 5:07 PM EST) -- If public confidence is a litmus test for the health of the justice system, a new national poll suggests Canada’s courts have room to improve.

A study published by the Angus Reid Institute on Nov. 14 suggests that Canadians generally have low confidence in the country’s criminal courts and are not fully confident in the Supreme Court of Canada either, with one-third of respondents believing that partisan politics influences Supreme Court appointments (despite federal reforms aimed at de-politicizing appointments) while one in three were unable to identify any of the nine judges.

With a sample size of 1,600 people across Canada, the Angus Reid poll indicates that, overall, more than half of respondents (54 per cent) did not have a lot of, or any, confidence in their criminal courts.

By region, the most negative responses came from Manitoba (72 per cent), followed by B.C. and Alberta (67 per cent), Atlantic Canada (63 per cent), Ontario (59 per cent) and Saskatchewan (57 per cent). Quebecers gave the fewest negative responses about their criminal courts (28 per cent).

Correspondingly, overall 39 per cent of respondents across Canada reported a lot of, or complete, confidence in their provinces’ criminal courts — ranging from a low of 25 per cent in Alberta and Manitoba to 33 per cent in Ontario to a high of 66 per cent in Quebec.

The latest data suggest public confidence in the criminal courts has declined over the past year.

(By comparison, Statistics Canada reported on Nov. 14, 2023, that 46 per cent of Canadians said they had a good or great deal of confidence in the justice system and courts — considerably lower than for the police (62 per cent) but higher than for the federal Parliament (32 per cent) and Canadian media (31 per cent).)

The latest Angus Reid poll indicates the Supreme Court of Canada is not immune from public skepticism.

Notably, 62 per cent of respondents expressed belief that the top court is “impartial” in making decisions but, overall, fewer than half (49 per cent) reported a lot of, or complete, confidence in the court.

The level of high or total confidence in the Supreme Court, by region, ranged widely, from Quebec at the upper end (77 per cent of respondents) to Alberta at the low end (32 per cent). In between were B.C. and Manitoba (35 per cent), Saskatchewan (41 per cent), Ontario (44 per cent) and Atlantic Canada (47 per cent).

Overall country-wide, 42 per cent of respondents said they had little or no confidence in the apex court, with more Manitoba residents reporting the lowest confidence (59 per cent) as compared to B.C. (53 per cent), Alberta (56 per cent), Atlantic Canada (48 per cent), Ontario (47 per cent) and Quebec (18 per cent).

Proportionally, more supporters of the Conservative Party of Canada reported little or no confidence in the Supreme Court of Canada (64 per cent) as compared to supporters of the Liberals (26 per cent), NDP (35 per cent) and Bloc Quebecois (20 per cent).

Those with a high school education or less were more apt to express low confidence in the highest court (48 per cent), as compared to 44 per cent of those who were college-educated and 31 per cent of those with a university education.

The Angus Reid Institute’s report says many respondents believed that the process for selecting Supreme Court justices is more political than it is, given the fact that a non-partisan vetting committee created by the Trudeau government creates a shortlist from which the prime minister appoints the top court’s judges.

More than one-third of respondents said they believed Supreme Court judges are appointed for their political leanings, while three in 10 people weren’t sure.

Respondents were also unsure about the ethical principles applicable to the Supreme Court’s judges, with only 56 per cent correctly identifying that Canada’s judges aren’t allowed to be politically active.

And although most Americans (63 per cent) are able to correctly identify at least two members of their highest court — picked from a list that contains the names of three actual court members plus three “decoy” names — only one-quarter of the Angus Reid respondents in Canada were able to correctly pick out two names of Supreme Court of Canada judges.

Thirty-one per cent of respondents could not pick out any of the judges of the Supreme Court of Canada while 43 per cent could only identify one judge.

The poll indicates Canadians’ familiarity with the members of the Supreme Court of Canada is generally low, but Chief Justice Richard Wagner and Justice Suzanne Côté (tied at 51 per cent) had the most name recognition, followed by Justices Malcolm Rowe (47 per cent), Sheila Martin (43 per cent) and Michelle O’Bonsawin (40 per cent). The name recognition for Justices Andromache Karakatsanis, Mahmud Jamal and Nicholas Kasirer was in the high 20s (the name of the court’s newest appointee, Justice Mary Moreau, was not included in the poll).

University of Ottawa constitutional law professor Adam Dodek, who teaches a course on the Supreme Court of Canada, said he was surprised by some of the survey’s results. “In my mind, the responses about perception of the influence of politics on judicial decision-making in Canada do not reflect any actual changes that I have seen in Canada over the past 30 years,” he said. “I attribute these results to Canadians’ consumption of American news and to the dearth of media reporting here in Canada on the Supreme Court of Canada. This reflects a general trend to transpose American phenomena onto a Canadian setting.”

University of Alberta constitutional law professor Gerard Kennedy, who researches the role of courts in society, told Law360 Canada that the negative trends highlighted in the Angus Reid report are in line with “a general loss in faith in ‘elite’ institutions generally across the western world, especially in the Anglosphere. The same is true of universities and journalists, for instance.”

“Let us not despair excessively,” Kennedy advised. “I suspect faith in courts may well compare well to other institutions.”

He said courts have a constitutional duty to protect the rights of unpopular people (such as those accused of crimes) so “public perception” should not be the test of how courts act.

“Education regarding the role of courts in the constitutional order is essential,” he suggested. “Having said that, as a result of the Charter, courts are increasingly making decisions on matters on which they have questionable competence compared to the legislature and executive. While courts need to be careful not to abrogate their responsibilities under the Constitution in general, and the Charter in particular, they should have a healthy humility before overturning decisions of the branches subject to democratic accountability.”

Correction: The cutline for the photo of the Supreme Court of Canada’s members in 2024 has been updated to correctly identify where Justice Suzanne Côté is seated.

Photo of the Supreme Court of Canada’s 2024 Bench: SCC Collection

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