Diagnostic Adjudication in Appellate Courts: The Supreme Court of Canada and the Charter of Rights

Three distinct adjudicatory processes are found in appellate courts: decisional adjudication (applying principles), procedural adjudication (choosing among principles), and diagnostic adjudication (defining and developing principles). The Supreme Court of Canada has traditionally used procedural adjudication, in which the adversary process frames issues and generates supporting material. However, the Court's decreased caseload, its increased discretion to select cases, and the arrival of a new wave of issues under the Charter of Rights has shifted the Court's work to diagnostic adjudication. As judgment becomes less a choice problem and more a creative exercise, both the degree and kind of judicial involvement changes. Thusfar, however, the Court's administrative responses to the pressure of its work have had limited success. To be effective, reforms in the way the Court organizes and processes its work must derive from an analysis of the requirements of diagnostic adjudication. The paper concludes by suggesting an overall approach and making specific proposals.