The Supreme Court of Canada chooses which cases it will hear and does not give reasons that justify these choices. According to its enabling statute, the Supreme Court grants a litigant leave to appeal a decision if it "is of the opinion that any question involved therein is, by reason of its public importance ... one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it."
This paper explores the silence surrounding the leave to appeal process and concludes that it is inconsistent with the Court's own attitude toward transparency and justification in decision-making. One way of gaining insight into its decision-making process would be for the Court to provide reasons justifying its dispositions in leave to appeal applications. I conclude that, given the impact the leave to appeal process has on litigants and the legal system more generally, the Supreme Court should begin to issue reasons as part of this process.
OVERVIEW I. THE LEAVE TO APPEAL PROCESS II. INFORMED SPECULATION: WHY DOES THE COURT GRANT AN APPLICATION FOR LEAVE TO APPEAL? III. THE REASONS THAT THE COURT DOES NOT GIVE REASONS "Burden on Scarce Judicial Resources" "An Undue Fetter on Discretion" IV. WHY THE SUPREME COURT SHOULD ISSUE REASONS Impact on Individual Litigants Public Accountability for Judicial Decisions Reasons and The Rule of Law V. THE IMPLICATIONS OF INTRODUCING A REASONS REGIME VI. CONCLUSION OVERVIEW
The Supreme Court of Canada chooses which cases it will hear and it does not give reasons that justify, its choices. According to its enabling statute, when the Court dismisses an application for leave to appeal, it means that the issues in the case were not of sufficient public importance to require the Court's opinion. (1) It is difficult to state with any greater precision what this standard means, given that the Court issues no reasons or more specific guidelines explaining why certain cases fail to meet this Standard. With such an enigmatic benchmark for granting leave, there is understandable uncertainty about how the Court chooses which cases it will hear.
The following example illustrates the potential for misunderstanding: the Ontario Human Rights Commission's (the "OHRC") web site provides its visitors with summaries of significant anti-discrimination cases. The OHRC describes a 2001 case where leave to appeal was refused as follows: "the [Ontario] Court of Appeal's decision was supported by the Supreme Court, setting a precedent around the appropriate use of reinstatement as a remedy in human rights cases." (2) Yet, unlike what the OHRC description suggests, the Supreme Court had not actually heard the case and rendered a judgment supporting the Court of Appeal's reasons. Rather, an application for leave to appeal had been filed and dismissed. (3) The Supreme Court neither supported nor affirmed the Court of Appeal's reasons. This example is not meant as a criticism of the OHRC's description, but is included to highlight an understandable mischaracterization that results from an ambiguous leave process.
In this paper, I argue that the level of ambiguity surrounding the leave to appeal process is neither necessary nor acceptable. I explore one possible solution that Professor Lorne Sossin has suggested: the Court could provide reasons justifying its dispositions in leave to appeal applications. (4) In the first part of the paper, I examine the relationship between the leave process and the Court's function and speculate as to why the Court grants leave to appeal in certain cases. I question why the Court does not give reasons and conclude that, given the impact of the leave to appeal process on litigants and the Canadian legal system, the Supreme Court should issue reasons as part of this process. The price of this recommendation may be substantial, but it is a price worth paying.
THE LEAVE TO APPEAL PROCESS
The Supreme Court functions as a law-making court within the Canadian judicial framework because of its leave to appeal process. It has almost complete control of its own docket; in other words, it decides for itself which cases it will hear, and which it will not. The Court still hears a small, specific range of criminal cases as of right, meaning that the unsuccessful party at the appellate level has an automatic right of appeal. (5) In all other cases, the Court must grant an unsuccessful party leave to appeal. The Court gained this level of control over its own docket in 1975 with amendments to the Supreme Court Act. Before that, appeals in civil cases were heard as of right when the amount at stake was over $10,000. Beyond the serious workload issues that this created (in 1974, the Court heard 173 cases, including 63 in its October term alone), there was a growing consensus that it was no longer appropriate to base the jurisdiction of Canada's final appellate Court on the monetary amount at stake in a case. (6)
With the amendments, appeals as of right in civil cases were abolished and the Court gained the control to decide which civil cases it would hear. The criteria for granting leave are now set out in the Supreme Court Act, the Court's enabling statute:
40. (1) ... an appeal lies to the Supreme Court from any final or other judgment of the Federal Court of Appeal or of the highest court of final resort in a province ... where, with respect to the particular case sought to be appealed, the Supreme 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 law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from that judgment is accordingly granted by the Supreme Court. (7) [emphasis added] The statutory text grants the Court broad discretion in setting its docket: it may grant a party leave to appeal if one of the issues raised is of "public importance," or if it raises an issue which ought to be decided by the Supreme Court. When an application for leave is dismissed, this simply means that either the case does not raise an issue of public importance or the Court "ought not" to hear it. It says nothing of the correctness of an appellate decision. The Court may very well dismiss an application for leave to appeal even if it does not agree with the outcome reached by the appellate court. Chief Justice Laskin has highlighted the (in)significance of the Court's refusal to grant leave to appeal: "[The fact that leave to appeal was dismissed] merely signifies that the Supreme Court does not consider that the case raises a question of sufficient importance to warrant us bringing it up." (8)
The Court's Control Over Its Docket and Its Institutional Role
Granting the Court increased control over its own docket did not simply make its workload more manageable; it also affected its role in the Canadian judicial framework. Until 1975, the Court had little control over the issues it heard, making it more like a final appellate court than a law-making court. Though it supervised the development of Canadian jurisprudence much as it does today, it did so while also acting as an appellate court of last resort for a large number of cases. For Chief Justice Laskin, the amendments confirmed that "the Supreme Court is a supervisory tribunal rather than an appellate tribunal in the traditional sense." (9) He went on to remark that:
Now in its supervisory role ... the Supreme Court's main function is to oversee the development of the law in the courts of Canada, to give guidance in articulate reasons and ... direction to the provincial courts and to the Federal Court of Canada on issues of national concern or of common concern to several provinces. (10) Unlike an appellate court, which functions largely to correct errors, the Supreme Court identifies areas of public importance and oversees the development of the law in those areas. The leave process is integral to this institutional role.
INFORMED SPECULATION: WHY DOES THE COURT GRANT AN APPLICATION FOR LEAVE TO APPEAL?
How then does the Court select which areas of law are of public importance? How does it select the cases to which it grants leave to appeal? Why does it dismiss applications for leave to appeal in the other cases? Members of the Court have seldom commented on how they decide whether or not to grant leave to appeal. When the Justices do publicly comment on the process, their statements do not offer much insight beyond what can be surmised from the statutory text. (11) For instance, in 1983, Justice Dickson (as he then was) remarked that what the Court was "really looking for is a matter of public importance; an issue which goes beyond the interests of the immediate litigants, of interest to Canadians generally." (12) In 1997, Justice Sopinka provided what is perhaps the most specific insight into how the Court decides whether or not a case will be granted leave. He explained that the likelihood of being granted leave increased if the case:
* had a constitutional dimension;
* would resolve any differences between competing appellate court interpretations of decisions;
* raised a novel point of law;
involved interpretations of a federal statute or a provincial statute for which there are similar statutes in other provinces;
* would define aboriginal rights. (13)
Justice Sopinka's comments gave a better sense of how exactly the Justices reach decisions on leave applications and provided litigants with some hints as how best to persuade the Court to grant leave. Yet these factors are by no means a formula for obtaining leave to appeal; rather, their presence simply increases an application's chance of success. Further, as Professor Sossin has observed, there is no way of knowing that the Justices actually use these...