And yet, despite their importance, applications for leave to appeal don’t attract much attention. There’s an awful lot of them. Many are thought frivolous. Applications are handled quietly behind closed doors. No reasons are given for their disposition, so there’s nothing on paper to dissect and criticize.
Recently I heard criticisms of the leave to appeal process from two senior practitioners, one in Toronto and one in Vancouver. My Toronto correspondent felt strongly that written reasons should be given for accepting or denying leave to appeal. He said he had raised the issue with two of the current members of the court, and each replied that justices did not have enough time to give reasons. This, wrote the Toronto lawyer, “leaves the litigants and the bar in a difficult and unsatisfactory position.”
My Vancouver correspondent had a more complex point. He pointed out that Rule 19 of the Supreme Court allows the registrar to accept or reject any document that someone seeks to file. What is the extent of this power, he wondered, and how does the registrar use it? Leave to appeal documents he had tried to file were rejected by the registrar, unreasonably so he thought. “Since reasons for judgment are never given on leave applications, it is at least suspect that the registrar is making all the decisions,” he wrote in an e-mail to me.
To deal with the last point first, I don’t think for one minute that the registrar is deciding the fate of applications for leave to appeal. I’ve interviewed a number of Supreme Court judges recently, some retired, some sitting. Almost all, including Chief Justice Beverley McLachlin, told me how seriously they regarded applications for leave to appeal and how hands on the justices are. A Supreme Court judge spends, on average, about half a day a week considering applications. Three-judge panels consider each one and generally make a written recommendation for the other six judges to consider. These recommendations are dealt with at monthly meetings of the entire court. The process typically takes about three months, which in the judicial world is pretty fast. But, no matter how conscientious the justices are, there’s still the problem of no reasons given, which can lead to the kind of misapprehension and doubt exhibited by my Vancouver correspondent.
Section 40 of the Supreme Court Act says an appeal lies where “the court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed fact and law involved in that question, one that ought to be decided by the Supreme Court.” This ponderous and vague formula gives the court almost unlimited discretion to accept or reject an application. These days, for every leave to appeal granted, at least seven or eight are rejected. That is presumably because they are regarded as of no legal or public importance, but nobody knows why the judges regard them this way. No explanation is offered.
There are two big problems with this lack of transparency. First, in any individual application, justice is not seen to be done. We just don’t know what happened and can’t evaluate it. This is a serious flaw in the court’s process. Second, no guidance is given to the profession and the country about what kind of applications are likely to be successful — about what the court considers to be of legal or public importance. We have to guess, which is no good at all. Both of these problems would be solved if written reasons, however brief, were given, at least when an application for leave to appeal is denied.
But how realistic is it to expect the Supreme Court to give reasons? What about what the two judges told the Toronto lawyer who wrote to me, that there just isn’t enough time to do it? I don’t find that excuse very convincing. Around 600 applications for leave to appeal are filed in a typical year. It used to be that a hundred or more of these were successful, giving the court a substantial workload of research, hearings, and judgment writing. But recently, the annual number of successful applications has dropped dramatically, to somewhere around 60. No one seems to know why — how could they in the absence of reasons — and it remains to be seen if this is a long-term trend. In the meantime, the judges have less to do. Perhaps some of the time freed up could be usefully spent explaining why applications failed (reasons why an application has succeeded seem unnecessary). The reasons need not be lengthy and elaborate; in most cases, a page or two would do. Maybe, sometimes at least, those three-judge memos recommending disposition of an application could be adapted to do the job. And perhaps the judges’ law clerks could help, as they do in the Supreme Court of the United States where, as a result, they have been described as the “junior court.” I’m told that today Canadian clerks have little to do with leave to appeal applications.
There is nothing glamorous about the leave to appeal process. It is not the stuff of front-page newspaper stories, but it is where individual justice is meted out and the Supreme Court’s docket is shaped. Justice is often in the details. We need to know details. We need to have reasons.
Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm. He has just released his latest book, Mighty Judgment: How the Supreme Court of Canada Runs Your Life. Visit him online at philipslayton.com.