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Supreme Court heard fewer cases, was more divided, in past year

Thursday, February 16, 2017 @ 7:00 PM | By Cristin Schmitz

The Supreme Court’s output plunged last year, as the judges heard fewer cases and divided more than at any time since 2000 when Chief Justice Beverley McLachlin took over the leadership reins, a Lawyers Weekly analysis discloses.

In 2016, the nine judges rendered only 54 judgments in total (not including two motions) —down from 64 in 2015 (multiple appeals decided in one judgment were counted as one judgment). This marks the court’s lowest annual output since it won more control over its docket in the late 1990s. (The McLachlin court’s annual average was 73 judgments over the previous 16 years.)

As striking was the court’s lack of unanimity in 2016 — the lowest in at least two decades. The nine judges agreed on the results in only 59 per cent of the cases (32 of their 54 judgments) —and spoke with one voice (i.e. without concurrences or dissents) in less than half of the cases (26 of 54). By comparison the McLachlin court’s average unanimity rate on outcomes has been 73 per cent over the years.

Numbers don’t tell the full story of a productive court whose judges are working very hard, said Lynne Watt, leader of the Supreme Court Services group at Gowling WLG in Ottawa.

“They are also hearing very large and complicated cases, and they are pulling in some of the most important cases of the last 50 years…with enormous implications,” Watt said. “They are increasing the number of interveners that they permit to come before the court quite significantly, and they’re trying to reflect a variety of different viewpoints in their decisions.”

The year 2016 had some especially momentous cases. The court triggered an earthquake of sorts in the criminal justice system by reconfiguring the analytical framework for the Charter right to a speedy trial in R. v. Jordan 2016 SCC 27, and handed down Daniels v. Canada, a game-changer recognizing Ottawa’s constitutional obligation to Metis and non-status Indians: 2016 SCC 12.

It is worth noting that the number of judgments the Supreme Court decides is not by itself the measure of its productivity since the total goes down when the judges grapple with exceptionally difficult, divisive or time-consuming cases, and goes up when they hear more as-of-right criminal appeals, or hear more cases that can be speedily decided from the bench.

In 2016 the nine judges issued just 41 written judgments (and 13 oral judgments), compared with 52 written (and 12 oral) judgments the year before. (2015 was also a year with comparatively few — but especially far-reaching — judgments such as the constitutional blockbuster striking down the Criminal Code’s blanket ban on assisted suicide: Carter v. Canada (A.G.) 2015 SCC 5.)

The recent downward trend in the court’s output can be traced mostly to less input. The judges have been granting leave to appeal in fewer cases and heard fewer appeals. They sat on only 63 appeals (26 criminal and 37 civil) in 2016 — the same number of appeals they heard in the previous year. And of the 63 appeals heard in both 2015 and 2016, only 48 were with leave (the pool of cases which generates the bulk of the written judgments). The upshot is fewer written judgments.

Yet the number of litigants requesting leave to appeal has been pretty steady in the past few years (539 in 2015, according to court statistics).

Former Supreme Court executive legal officer Eugene Meehan, of Ottawa’s Supreme Advocacy, said the demand to appeal cases to the highest court remains strong. “Hearings have been going slowly down overall, over a 20-year period, from a high of 119 in 1994 to 63 in 2015,” he observed. “They could always hear more appeals, and there is space for them to hear more appeals, and the legal profession would be happier with that. There are various specialties within the law that would like to have more specificity, more guidance from Canada’s national court in their particular area.”

But Meehan emphasized the court has to strike a balance in its workload. “In the past year, the Supreme Court of Canada has rendered a series of significant decisions clarifying standard of review, addressing the constitutional status of Métis and non-status Indians, and making significant practical changes to criminal justice,” he pointed out. “In a year of particularly important cases, perhaps there is something to be said about quality over quantity?”

Watt said she doesn’t detect anything different in the judges’ pattern of granting leave. “The historical [percentage granted] number goes up or down a per cent or two over the decade but it really hasn’t materially altered, so they are applying the same criterion, I believe,” she said. “I think that they are letting in the cases to appeal where they believe they are important, and they’re dismissing leave applications that don’t raise issues that go beyond the interests of the individual parties.”

In Watt’s view, there is no “magic number” of cases the court should hear each year.

When it comes to unanimity, lawyers and judges consider it important in order to provide clarity and certainty in the law and Chief Justice McLachlin has said achieving it is a priority for her.

However in 2016, the legal waters were muddied more often by concurring, partly concurring, partly dissenting or plurality opinions. There were also multiple concurring opinions in a handful of cases on which the judges agreed “unanimously” on the outcome.

The lower number of appeals decided in 2016 also contributed to the judges co-writing more unanimous and majority judgments (41 written judgments divided by nine is less than five judgments each — well below the norm, so the judges doubled and tripled up more often in writing). Thus in 2016 more than one-quarter of the written judgments for the court — 11 unanimous or majority judgments — were authored by two or more judges including Jordan (three judges), and Conférence des juges des paix magistrats du Québec v. Quebec (A.G.) 2016 SCC 39 (three judges). Some dissents and concurrences were also written by two, three or even four judges.

Whether the co-authorship trend will continue remains to be seen as the winds of change are blowing, with the arrival of five younger judges in less than five years and the impending retirement of Chief Justice McLachlin, who turns 75 in 2018. If the Liberal government follows tradition, the next chief justice will come from Quebec.

Now in its final epoch, the McLachlin court has had two previous major personnel shifts. Its third incarnation started with the arrival of Justices Michael Moldaver and Andromache Karakatsanis in 2011, followed by Justices Richard Wagner, Clément Gascon and Suzanne Côté of Quebec, and Alberta’s Justice Russell Brown. Newfoundland and Labrador’s Justice Malcolm Rowe was appointed last October.

With Chief Justice McLachlin and senior puisne Justice Rosalie Abella still making major contributions to the top court’s jurisprudence — and seven judges many years away from mandatory retirement — the court is well able to fire on all cylinders this year.

Meehan said he finds the judges “very much on the ball” and “always super-prepared.”

“I’ve both won and lost cases there in the last year, and each time you’d think every judge had done nothing else over the last year but prepped for my case,” he observed. “Other counsel I’ve spoken to agree. You always get a ‘hot bench.’ ”