I think another interesting thing is the shelf life of a judge. Because we all think we are part of the historical process. But reality is that, within five or ten years somebody takes up what we have said and says it better or says it more recently. So the old judges kind of fade into the wallpaper.
You have gone from a high of about 160 judgments to a low of about 60. What does that reflect about the productivity of the court?
In terms of how gruelling it is, I would say that I spend as much time working on the Supreme Court as I did with a full litigation practice at McCarthy’s. Essentially, you are working all the time. It’s demanding because even if we heard 60 appeals a year, 60 appeals is an enormous amount of paper. One of those cases might represent a trial that took six months. So, I think the statistics are essentially meaningless if you just do a nose count of how many cases are heard.
Secondly, the number of leave applications has been declining. In fact, the work in the courts has been declining. We have never, in my almost 14 years on the court, turned a case down saying: “We’ve got too much on our plate, so let’s limit it.” On the contrary, the court is actively looking for cases to bring up. If you look at the leave applications, supposing we get 700 leave applications a year. I think about a third of those are self-represented litigants. Another third are lawyers who are simply irritated at the outcome. They take the reasons for judgment, staple a notice of application for leave to appeal to it and send it to Ottawa. It raises no legal issue of significance.
So, you are really dealing with about a third of those as potential candidates. In a lot of them, what the lawyers really wants is a retrial. A lot of them apply to legal issues that the Supreme Court has already dealt with. If we brought them up, we would just be repeating what we have already said.
In some other cases, there is a very controversial provision in a statute and the court says: Let’s allow a little bit more time to get more perspectives on how this rule operates in practice before we try to give it a definitive pronouncement. There is a little bit of strategizing about whether something is ripe for a decision.
By and large, we are trying to find cases that justify a legal opinion from nine judges that will add anything to what has already been said by a Court of Appeal.
So, rather than avoiding some of the tougher or more contentious cases – as some people say the court does – it is really the opposite? You are looking for more, but they aren’t necessarily there.
It is absolutely the opposite. One of the things that always impresses me about the court is that it’s like a freight train that is moving inexorably. You come in the morning and hear a case that is highly controversial. Views are sharply divided. But the train keeps moving. A decision is produced. At the end of the day, we will all be alive and on speaking terms. We’ll be facing a new slew of decisions. You don’t have the luxury of saying: ‘Well, we don’t want to decide this case.’ In the United States, they have this opting out where they can say: ‘leave improvidently granted.’ They pretend the case never existed. We approach the fall docket and you see maybe 30 or 40 cases on it. Some of them are highly controversial but the freight train will get through it.
So lawyers are wrong if they say it’s a chicken-and-egg thing, that they don’t seek leave to appeal because the court is down to only hearing 60 cases a year?
They are getting it very wrong. To some extent, it depends on our ability to see an important legal issue. We rely on the lawyers, to some extent, to bring that out. In many leave applications, the lawyers have no idea what the rules are, what they are looking for. They spend the whole time arguing about whether the Court of Appeal was right or was wrong. We don’t care whether the Court of Appeal was right or was wrong. If it’s an important legal question, we will take it even if we think, on a preliminary basis, that the Court of Appeal was probably correct. Just as often, we will take one where we think the Court of Appeal was probably wrong. But the lawyers don’t see it that way.