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Canadians still turn to Supreme Court for guidance

|Written By Robert Todd

Lawyers hoping to get leave to appeal for their cases from the Supreme Court of Canada better spend some extra hours sharpening their arguments if they hope to succeed.

‘What’s important is to remember that, at the leave stage, it’s hard to get in,’ says Marie-France Major.

That’s just one observation from Lang Michener LLP partner and Supreme Court advocacy group member Marie-France Major following the release earlier this month of statistics chronicling the SCC’s activities from 1997 to 2007.

The court remains busy, with the 602 leave applications filed in 2007 showing that Canadians continue to turn to it for guidance, says Major. Lawyers must be mindful of this, she says.

“What’s important is to remember that, at the leave stage, it’s hard to get in,” she says. “Many leave applications are filed; very few are accepted. So it’s important for counsel who are applying for leave to draft their arguments very carefully.”

Applications for leave to appeal rose to 602 last year from 506 in 2006. Major says that number is surprising considering that time lapses between the filing of application for leave and a decision on the application remained relatively stagnant at 3.5 months in 2007 versus 3.4 the year before.

“The court is still coming out with decisions relatively quickly on leave applications,” says Major, who suggests the fact that the court isn’t compelled to give written reasons on those applications allows it to stay on top of the workload.

The percentage of leave applications granted is down to 10 per cent from 12 per cent in 2006, although all of the 2007 cases have yet to be decided. The percentage is expected to change once all cases are decided, but if it does remain the same, it would be the lowest in the past 10 years.

Major notes that the smaller percentage may be attributed to the higher number of applications filed. The total number of applications granted is up to 64 from 55 in 2006, with 83 applications still pending.

The total number of appeals heard are down to 53 in 2007 from 80 the year before.

“Probably the most logical explanation is that in 2006 very few leave applications were granted,” says Major. “Now that more leave applications are granted, that will probably naturally increase the docket of the court and it should get back to normal.”

In terms of unanimous appeal judgments, a large chasm has opened between last year’s number of 36 versus 2006’s total of 63. That’s the lowest total in the past 10 years.

“That means that the court is split on important issues,” says Major, who notes that the time lapse between hearing and judgment has risen to 6.6 months in 2007 from 5.9 the year before.

“It may be that it’s taking more time because the court is not unanimous, so they may be taking more time because they want to see if they can have a unanimous judgment,” she says. “It may be taking more time because concurring reasons have to be written. It may also be taking more time because the court is coming down with really long judgments.”

The judgment in the Via Rail case, notes Major, was 370 pages. That case was a 5-4 split among the judges.

“Another explanation might be that the court just had a number of complex cases to hear,” she says.

The complete statistics can be found on the Supreme Court of Canada web site (www.scc-csc.gc.ca).

“The statistics are pretty hard to figure out by themselves,” says Major when asked what the numbers mean for the overall state of Canada’s top court. “From 1997 to 2007, there’s not a lot of difference. The court is still busy.”

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