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Supreme Court of Canada hits record low 40% unanimity rate in 2019; many appeals came from Quebec

Monday, January 20, 2020 @ 9:41 AM | By Cristin Schmitz

Last Updated: Tuesday, January 21, 2020 @ 11:15 AM

The Supreme Court of Canada divided on the outcomes of appeals in 60 per cent of the cases it decided in 2019, and spoke with one voice in just one-third of its appeal judgments — a record low unanimity rate in at least 30 years, an analysis by The Lawyer’s Daily discloses.

Last year was the fourth year of growing disagreement among the top court’s nine judges, who divided over the results, and/or in their reasons for judgment (via concurring opinions) in 45 of their 67 appeal judgments.

(For a story on the judges’ voting patterns, and which Supreme Court members were at the core of most majorities in 2019, see here.)

The court’s 40 per cent unanimity on results in 2019 was a substantial drop from the judges’ already record-low 48 per cent unanimity rate in 2018 — a year which marked the first time since at least 1990 that the judges disagreed more often than they agreed on the results of cases. By way of comparison, according to the court’s own statistics, the Supreme Court’s average unanimity rate on the results of appeals from 2000 to 2017 was of 71 per cent.

Eugene Meehan, Supreme Advocacy

The increasing frequency of dissent at the Supreme Court is “the new normal,” suggests Eugene Meehan of the trend which began in 2016 — while Beverley McLachlin was still chief justice, and which emerged during a major personnel shift (six new judges were appointed from 2014 to 2019).

“Other than giving lawyers more to read, it’s not a bad thing,” remarked Meehan of Ottawa’s Supreme Advocacy, a Supreme Court agent. “Law can be tough, and tough people can, indeed should, disagree on tough issues,” he observed. “If Canada as a country cannot agree on something, can one reasonably expect the nine brightest minds to be of one view?”

Meehan noted that the Supreme Court’s basic job is to resolve appeals while giving guidance to the lower courts and the bar. “Whether it’s 9-0 or 5-4, the appeal is resolved,” he remarked. “Having a unanimous judgment makes little difference, and instead dissent better reflects legal realities.”

Meehan also pointed out that the top court’s most-cited judgments are frequently split. “Lack of unanimity hasn’t diminished the jurisprudential weight of decisions like Dunsmuir, R v. W(D), Housen v. Nikolaisen, or Baker,” noted the former law professor and ex-executive legal officer at the Supreme Court.

He reflected that as the times change, along with the court’s composition and its chief justices, so do the court’s preoccupations and culture.

In the 1990s, for example, former chief justice Antonio Lamer emphasized the importance of promoting public confidence in, and access to, the justice system by increasing efficiency and reducing court delays; his successor, McLachlin, emphasized consensus, collegiality and clarity along with access to justice; while Chief Justice Wagner, while still new in his post,  has made public access to the court’s work one of his touchstones.

“We see a concerted effort by the court to better connect with Canadians, and to some extent the decisions they are dealing with achieve that goal as well,” Meehan remarked. “The court is dealing with cases that truly have an impact on the daily lives of Canadians, rather than simply cases that may only interest academics or big corporations.”

Lisa Silver, University of Calgary criminal law professor

University of Calgary criminal law professor Lisa Silver said she was not surprised by the growth in dissent at the court. Chief Justice Wagner “is on record indicating that he wants a more open court,” she said. “Dissents do matter. Often a dissent today forms the basis of future lower court arguments that result in change. However, where the decisions are split, such as in R v. Mills, and it is very difficult to see any majority consensus on an issue, this is not helpful and provides little to no direction to the lower courts and to counsel. This, in my view, can add to delay in the system as matters are more likely to be litigated.”

(In R. v. Mills 2019 SCC 22, a splintered judgment on online police stings and state surveillance of online communications, the top court agreed 7-0 on the result, but issued four concurring opinions that differed considerably on the scope of online constitutional privacy protection: see story here.)

Silver also remarked on the court’s controversial practice of rendering more judgments from the bench (usually without written reasons to follow, and often in as-of-right criminal appeals). (A count by The Lawyer’s Daily indicates there were 24 oral decisions, of varying lengths as compared to 43 written judgments in 2019.)

“This continues the pattern of the court to render decisions in a timely manner and not to ‘reinvent the wheel’ so to speak,” she explained. “If [the judges]  are in substantial agreement with the intermediate appellate court’s decision, they will rely on those decisions, as opposed to reserving and writing a full judgment of their own,” she noted.

Yet even in the bench judgments, there are dissenting opinions,” Silver observed. “Although, the court is trying to ‘walk the talk’ of Jordan by rendering timely decisions, sometimes by not releasing fuller judgments, the court creates uncertainty instead of clarity.”

She added, “they are also leaving certain issues for ‘another day,’  such as in R. v. M.R.H. 2019 SCC 46  ... a brief bench decision where the court leaves open a tantalizing issue of jury unanimity where the Crown drafts a single count in an indictment covering multiple distinct incidents.”

Back Row (left to right) Justices Malcolm Rowe; Suzanne Côté; Russell Brown; and Sheilah Martin. Front Row (left to right): Justices Andromache Karakatsanis; Rosalie Silberman Abella; Richard Wagner, Chief Justice of Canada; Michael Moldaver; and Clément Gascon, who retired on Sept. 15, 2019.

The Lawyer’s Daily’s annual analysis of the court’s track record also discloses that 37 per cent of the 43 appeals the judges heard by leave in 2019 came from Quebec (16 cases) — a province with less than a quarter of the country’s population.

“There was a significant uptick in leaves to appeal granted from Quebec decisions this year,” Meehan acknowledged. “One doubts that it is a product of some sort of co-ordinated strategy on the part of the court. What is more likely is that there simply happened to be more Quebec cases satisfying the test of public importance and catching the court’s attention. Many of the decisions on Quebec matters have an impact on the law outside the province. Indeed, some key Quebec decisions are written by non-Quebec judges,” he said, pointing for example to a recent Quebec Civil Code decision written by Justice Malcolm Rowe, who hails from Newfoundland: Yared v. Karam 2019 SCC 62. 

The judges’ record-high 60 per cent rate of disagreement on the results of appeals in 2019 is even higher if one sets aside the 24 appeals decided from the bench orally (of which two-thirds were unanimous and most were as-of-right appeals).

Of the 43 written judgments handed down in 2019, the judges spoke unanimously (i.e. without dissents or concurrences) in just 14 per cent of the appeals (i.e. in six of 43 cases — an 86 per cent rate of disagreement), and agreed on the outcomes in just 28 per cent of the cases (i.e. in only 12 of 43 cases were the results unanimous — a 72 per cent rate of disagreement).

It is important to note that in 2019 the judges grappled with some exceptionally difficult and ambitious challenges, notably trying to coalesce around a new framework for judicial review of administrative action which, after many hours of judicial blood, sweat and tears, culminated last month in the landmark 7-2 Vavilov trilogy: Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65; Bell Canada v. Canada (A.G.) 2019 SCC 66. 

The Supreme Court’s mandate is to hear cases that raise legal issues of public importance.  As it happened, the appeals heard by leave in 2019 from Ontario, which boasts 38 per cent of the population, made up only 28 per cent of the by-leave docket (12 of 43 by-leave appeals heard), while 14 per cent of the by-leave appeals heard (six cases) came from British Columbia — where 13 per cent of Canada’s population resides. Only one by-leave appeal was heard from each of Alberta and Manitoba, which respectively have 12 per cent and four per cent of the population. A few provinces, including Saskatchewan and New Brunswick, did not generate any by-leave appeals heard by the Supreme Court last year.

Correction: In 2019, the court disagreed on the results in 72 per cent of its written (not including oral) judgments (i.e. there were dissents or partial dissents).

Photo of Supreme Court of Canada Justices Copyright Supreme Court of Canada

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