The Case of the Missing Cases

Where did all the cases go? A recent article in the Globe and Mail noted a dramatic decrease in the number of judgments handed down by the Supreme Court of Canada this past year. From 144 decisions in 1990, the output of the SCC declined to the puny figure of 59 decisions in 2006.

This dwindling supply of caselaw from the SCC affects our website (for obvious reasons). More importantly, judges, lawyers, and general citizens rely upon the SCC to provide guidance and clarification on the laws of this country, particularly in areas where there is inadequate or inconsistent jurisprudence from lower courts.

Does this mean that there are fewer areas of the law that need to be clarified now than in the past? Probably not. Parliament and provincial legislatures are constantly enacting new laws that require judicial attention. Further, changes in societal values and advancements in technology continually force courts to review existing jurisprudence, both in the interpretation of statutes and in the development of the common law, to bring it in line with the times. Like road maintenance, the task before the SCC is never complete; there are always new potholes within the law that need to be paved.

So what gives? Did Sisyphus decide to take a break and have a Kit-Kat midway up the hill? While the Globe article refused to question the collective work ethic of the SCC, it did raise speculation that some judges may not be pulling their weight or that the retirements of certain prolific judges, including L’Heureux-Dube and Iacobucci JJ., have had a detrimental effect on the SCC’s output. A more optimistic view was that the decrease in decisions was the result of more deference given to lower court judgments and that this allowed the SCC to focus its energy on the more important and pressing issues and cases.

In an attempt to get to the bottom of this mystery, I have done a very basic statistical analysis from figures provided on the SCC website for 1995-2005 and from my own efforts in mining data from SCC bulletins and news releases to come up with the 2006 figures. I am by no means a statistician, but I was pretty good at adding and subtracting back in grade school and I have been known to wield a mean calculator. (The chart of all the data is available at the end of this post.)

From the outset, it is clear that the decrease in judgments did not start in 2006. From 1990-1997, the average number of decisions rendered was 118.6. From 1998-2005, that average had dropped to 82.9. However, since the SCC’s statistics bulletin only contains information from 1995-2005, I will focus on those years, dividing them into two periods: 1995-1999 and 2000-2005. From 1995-1999, the average number of decisions per year was 101.8 and from 2000-2005, this figure had dropped to 82.2.

Prior to reviewing the numbers, I had speculated that perhaps the number of applications for leave to appeal had decreased due to the rising costs of bringing a case before the Supreme Court. This theory turned out to be wrong. In fact, the average number of leave applications per year increased from 523.8 (1995-1999) to 581.7 (2000-2005). Since the percentage of leave applications that were granted remained relatively constant (average of 12.8% in 1995-1999 and 12.6% in 2000-2005), this meant the average total applications for leave granted per year increased from 66.4 to 73.7.

The SCC did leave a slightly larger number of judgments under reserve at the end of each year in this past decade than in the previous period (averages of 33.3 to 29). However, cases not decided in the previous year carry over to the workload for the following year and should not unduly affect averages for the two periods.

The only substantial factor I can think of that could explain the discrepancy is the number of appeals as of right brought to the SCC. On average, there were 35.8 appeals as of right filed per year in 1995-1999 but only 15.2 appeals as of right filed in 2000-2005. This difference (-20) outweighed the increase in the number of leaves granted within the second period (+7).

It’s clear that the decrease in the number of cases between the two periods was not due to the SCC being more selective in the cases they heard. The percentage of cases granted leave remained constant. It was also not because of a decrease in the number of leave applications (in fact there was an increase). It appears to mostly be the result of a decrease in the number of appeals as of right brought before the SCC, a factor the judges do not control.

So is this the explanation for the decrease in 2006? Not really.

The pool of cases to be decided by the SCC in a given year is not just determined by the number of appeals granted or heard in that particular year. It is also affected by the number of appeals granted in the previous year. There were only 68 cases granted leave to appeal in 2005 (compared to 73.7 on average in 2000-2005) and this left a smaller number of appeals to be heard in 2006.

Last year also saw an extremely small number of appeals as of right (7 compared to an average of 15.2 for 2000-2005). This was combined with a decrease in the number of applications for leave (465 compared to an average of 581.7 for 2000-2005) and a shockingly low number of leaves granted (41 compared to the 2000-2005 average of 73.7). In 2006, the SCC only selected 8.8% of all cases that applied for leave (compared to the steady rate of 12.7%). This all adds up to a year of drought for Canada’s highest court.

My investigation, perhaps like most studies based purely on numbers, does not really solve the mystery or answer any questions, at least not the important ones. However, I do hope this provide some sort of starting point as to what questions should be asked, such as: why are appeals as of right decreasing? And why did the SCC become much more selective in granting leaves to appeal this past year?

It is still unclear whether the SCC deliberately cut down on the number of cases it chose to hear. Perhaps the cases this past year generally did not have as much merit or raise contentious points of law as in previous years. However, if this was a deliberate effort on the SCC’s part, I highly doubt that factors such as the productivity or work ethics of the judges would play any role in such a decision. These theories would only go towards explaining how quickly judgments were produced, not why so few cases were granted leave.

One further note: as I explained above, what occurs in the previous year at the SCC has a direct impact on the number of cases heard and decided in the following year. Contributors to our website may have to duke it out for the right to comment on the few juicy cases coming out. By my count, 2007 looks like another lean year for the SCC.