“Drop in Caseload” at the Supreme Court of Canada

The Court had a busy semester covering cases appearing at various levels of courts in Canada and abroad. You might have noticed that we’ve covered fewer major Supreme Court of Canada (“SCC”) decisions appearing on the docket (aside from a quick burst over the holidays) and more decisions at the appeal and Federal court levels. There is a fairly simple reason for this; simply put, there have been fewer SCC cases granted leave these days and fewer sweeping legal changes handed down by the High Court.

On October 1, 2010, The Lawyer’s Weekly, a news source for the Canadian legal community, published an article entitled “Drop in caseload worries Supreme Court of Canada observers.” Thus far, it appears to have made an accurate prediction for the SCC. In addition to asking if the SCC is taking on enough cases, the article points out the fact that “the top court has decided fewer cases— and opened its doors to fewer litigants— in the first nine months of 2010 than in any comparable period in the court’s modern history.”

In addition to pointing out a caseload drop, the article reported a “continuing…downward trend in the number of appeals [the SCC] accepts to hear.” More notably, are its predictions for the upcoming year:

[From January 1, 2010 to October 1, 2010], the judges only accepted 31 cases of the 341 leave applications (nine per cent) they decided in 2010, according to court statistics. If that pattern persists, the court’s schedule could be lighter in 2011-2012 than it has been in 2010…

Here at The Court, we’ve started a tradition of compiling an annual list of top SCC cases at our OZZY Awards. This year may be a difficult choice to make a list of earth-shattering SCC precedents because we may only come up with a scant few truly ground-breaking cases. (Note: Readers are free to differ).

Perhaps one of the most striking lower court decisions of the year was handed down by Justice Susan Himel of the Ontario Superior Court of Justice in Bedford v Canada, which struck down Ontario’s prostitution laws. The case continues to wind its way through the justice system towards its most likely final destination, the Supreme Court. A fellow editor here at The Court covered this case here.

Arguably, decisions handed down by the SCC itself has shown waffling decisions that are unlike major precedent setting standards as exemplified in 2009 by R v Grant as our Criminal Judgment of the Year in 2009 and Grant v Torstar as our Civil Judgment of the Year. This year’s OZZY awards may be somewhat less spectacular given our options for 2010.

If this trend continues, the troubling result may be fewer heavily weighted High Court precedents in Canadian legal jurisprudence. Will ONCA decisions be left as our most innovative precedents? Will the SCC be busier in 2011-2012?

Now that it’s a new year, hopefully we’ll see things pick-up pace at the SCC. Stay tuned as The Court continues to follows its latest developments. In the meantime, developments in the lower courts here and high courts abroad will occupy our editorial dockets. Stay tuned for the release of our OZZY nominations on January 25th, 2011 that coincides with Hollywood’s Oscar film nominations and our final winners will be announced on February 27th, 2011.