I was not suggesting that party charcteristics affected the decision to grant leave (though they might -the S.C.C. judges do have legal training and other things in common and for that matter if party characteristics were having different and even opposite effects on different panels they would still be having an impact, though a harder one to detect) but that they affected the decision to apply for leave.

Yours Sincerely,
Alan E. Dunne

In 2007, what I’ll call the “Overall average” was 44.8 pages per judgment, which was the highest in the 1997-2007 period and well above the mean of 35.13. But if we strip out the judgments delivered from the bench, (and deduct, let’s say, 2 pages per Bench judgment) then 2007 suddenly looks pretty unremarkable — about 46 pages per judgment, compared to an average of 45, and well off the 2000 high of 57.

The same can be said of the looking at statistics for unanimous or dissenting judgments. Those numbers can mask the fact that while judges concurred in the result of a case, they differed markedly on the approach used to get there. If the majority judgment advocates a change in the law, and the concurrence agrees in the result but uses “the old way” to get there, then isn’t that really a dissent? This kind of analysis basically says “we only care about the result,” which, when it comes to Supreme Court opinions, is hardly ever true.

To answer your second question a look at the SCC’s statistics suggests that it hasn’t actually become harder to get leave — between 1997 and 2007, no matter how many applications for leave were filed, the court seemed to grant between 10 and 12 per cent a year (rising to a high of 15 per cent in 2004). So it’s not necessarily that the Court is granting fewer applications (though that may be part of it), but at least in some years, fewer applications for leave are being filed. I would think, though, that there are some parties who will pursue their case until it cannot be pursued anymore, and would not be deterred by the chance of their case being accepted.

Your third question parallels a similar suggestion in science – maybe all the “easy questions” have been answered. That may be true, but our Charter is young in comparison to some other rights documents (notably the American Bill of Rights) and until recently the USSC still found itself with plenty to do. You’re right, though, that there is now case law that covers most sections of the Charter, which means that governments have an easier time crafting legislation that passes constitutional muster. There are still parts of the Charter that will always attract cases, particularly sections 7 and 15.

I have some trouble accepting the idea that party characteristics plays more of an important role in predicting whether a case will be given leave. In a system like the USSC’s, where all judges (at least officially) vote on whether to take a case, that could be possible, but I think in Canada, where decisions to grant leave are made by shifting panels of three judges, such an effect (if its there at all) would be muted.

1/ How many pages of judgement has the Court been releasing each year?
(particularly considering the decline of appeals as of right, which were often said to be particularly likely to be answered by one-page judgements)

2/ What has kept applications for leave coming in the face of a lower chance of being granted leave? Or, considering the long historical rise in appeals/applications (necessarily in the face of declining chances of the case being heard) has the decline in the number of appeals heard, and so of chances of an application being successful, caused the number of applications to level off?

3/ The Court may have worked through the available questions of law of public importance (obviously not all, but it may have reduced the number that remain to be decided, particularly under the Charter)

4/or being on a question of law of public importance may have become less of a predictor of an application for leave to appeal to the S.C.C. ‘s being made in a case, being replaced by, for example, party characteristics

Yours Sincerely,
Alan E. Dunne