The Decade That Was: Fewer Judgments, but Does it Matter?

January 4, 2010

At least one advantage of a neutral citation is it provides a quick way to determine how many judgments the Court has released in a year. As we move out of the Aughts (or whatever pop culture decides to call the last ten years) I can confidently report that the Court closed out the decade by deciding 62 cases in 2009.

This is the second lowest number of decisions since the Court's "modern era" began in 1975 (when the Court gained significant control of its docket through the elimination of "as of right" appeals in civil cases worth more than $10,000). The lowest year on record is 2007, with 58 decisions.

Poring over these types of statistics is a pastime of many law professors and other court watchers. By looking at the number of cases, the number of dissents, who's voting with whom and who's doing the writing, we can (apparently) attempt to get inside the heads of the nine people who make the decisions.

This might be true in the United States, which has a top court that is much more politically polarized than our own. But it seems to me that in Canada, where close to 70 per cent of the judgments released between Jan 1, 2000, and Dec 31, 2008, have been unanimous in the result (despite the Court's composition changing markedly during that time), trying to use these types of statistics for any predictive purposes is probably futile.

Nevertheless, through the work of the court statisticians, I can tell you that the Lamer court released an average of 111 appeals every year; over its first decade, the McLachlin court averaged 77. Is our current Chief Justice just more choosy? Does it even matter?

It's tempting to make these sorts of comparisons with "just": the Court released just 58 decisions in 2007; in contrast to the Lamer court, it averaged just 77 judgments per year. Of course, this implies that there is some sort of ideal number of judgments that should be released in a year, which clearly is not the case. The only thing that can be said is that the judges are hearing and deciding fewer cases.

This isn't a phenomenon unique to Canada, either. The New York Times reported in late 2006 that the US Supreme Court was experiencing a similar decline in the number of cases it was taking and deciding. In the 2005/2006 term, the Court handed down only 69 decisions, the lowest since 1953.

Have our judges woken up to the fact that they can't be fired, and it doesn't matter how many cases they take? Probably not. There are, of course, many reasons for this decline. In Canada, the number of appeals as of right has fallen throughout the decade -- in 1997 and 1998 the Lamer court received 34 and 30 notices of appeal as of right, respectively. Since then, the number has only gone as high as 21, and has averaged 14, with a low of 7. (See the 2009 Special Edition of the Supreme Court's Bulletin of Proceedings for a complete breakdown of these numbers, which cover up to the end of 2008). A 1988 statutory change to the USSC's jurisdiction, which eliminated some "mandatory" appeals, has no doubt played a role in the decline of cases there.

The Times article suggested that another reason for the decline in US Supreme Court cases was that either side of the closely divided court did not want to vote to take cases that they might lose. In the US, four justices must vote to hear a case before certiorari will be granted. Of course, five votes are needed to ensure "victory" for either side, meaning that the conservative and liberal wings of the Court may each be reluctant to take cases that may not go their way.

The process is slightly different in Canada -- each application for leave is reviewed by a panel of three justices, who make the decision to hear the case or dismiss the application. (I've never been able to find out whether the decision must be unanimous or whether two out of three votes to hear a case is sufficient) That process, together with the less polarized nature of our top court, suggests that these sorts of explanations of "defensive denial" (to use the Times' term) are not applicable in the Canadian context.

One explanation that could be shared between the two countries is the rising cost of litigation. Perhaps fewer people are taking their disputes to court and appealing them all the way to the top. This may be true in the US -- in 2009, according to Chief Justice John Roberts' 2009 Year End Report on the Federal Judiciary, the total number of cases filed in the Supreme Court decreased by 6.1% between the 2007 and 2008 terms. However, the number of cases filed at the Supreme Court of Canada doesn't seem to have exhibited any discernible trend over the past ten years -- anywhere between 500 and 650 applications for leave have been received by the court each year between 1997 and 2008.

No matter the reason for the current decline, our Court's docket may start to fill up again as challenges are launched to many of the "law and order" amendments to the Criminal Code recently passed by the Conservative government. The Globe and Mail reported on this issue in late November, quoting Justice Department sources who suggested that some bills were introduced and passed despite internal warnings that they may not meet Charter standards. (The original Globe story is now available only to subscribers, but it is reproduced here.)

Should we be concerned about this trend? I don't think so. Even with fewer cases decided over the past decade, the Court has still been busy modifying and changing the law on any number of topics, from evidence (R v. Grant 2009 SCC 32) and defamation (Grant v. Torstar 2009 SCC 61) (to give two recent examples) to collective bargaining (BC Health Services 2007 SCC 27) to the duties of boards of directors (BCE Inc. v. 1976 Debentureholders 2008 SCC 69) to health care (Chaoulli v. Quebec 2005 SCC 35) to the interjurisdictional immunity doctrine (Canadian Western Bank v. Alberta 2007 SCC 22). Check back over the coming weeks and months as TheCourt.ca editors suggest their picks for the judgments of the decade and of last year.