Fast rulings from Supreme Court creating uncertainty about precedents it is setting, legal community says

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The Supreme Court of Canada ruled on all five of the cases it has heard thus far in its winter session on the same day it listened to the lawyers’ arguments.

These rulings from the bench mark an acceleration of a trend. The court is producing fewer in-depth rulings than in past years – bench rulings are usually just a paragraph or two – and a higher proportion of near-instant results.

Some members of the legal community say the court is at times creating uncertainty about the meaning of the precedents it is setting, or missing opportunities to develop the law, which they view as its chief job.

“A bench ruling is really unsatisfying for people who regularly practice criminal law,” said one such practitioner, Chris Rudnicki, citing decisions in sexual-assault cases from the fall. “It doesn’t help us to resolve these difficult issues, and punts the difficult questions down the road.”

At times, the court has ruled from the bench in major cases affecting the criminal-justice system. For instance, R v. Reilly, heard in November, was a case that could cause hundreds of criminal prosecutions to be dropped over delays in holding bail hearings. (Ryan Reilly was accused of assaulting his girlfriend, but a judge threw out the charges because Mr. Reilly waited 35 hours for his bail hearing rather than the 24 hours the Criminal Code permits.) Intervenors from the federal, Ontario and Quebec governments warned against drastic responses to the problem of bail delay.

The court decided the matter promptly, in two paragraphs, affirming the judge’s ruling but leaving uncertainty about what it sought to achieve in doing so.

In another case in November, R v. Chouhan, a centuries-old rule involving the selection of jurors was at stake; the federal government had put an end to peremptory challenges, which allow the Crown and defence a certain number of unexplained objections to potential jurors. The court decided it from the bench, upholding the federal ban, with written reasons yet to be released.

“It didn’t seem like what we had said in oral argument could possibly have affected them one way or another,” Dirk Derstine, a lawyer involved in the case, said in an interview.

Chief Justice Richard Wagner would not comment on why the court ruled from the bench in any particular case. But he said the court’s work gets the care it deserves.

“Each case is given the attention and resources it requires,” he said in e-mailed answers to questions from The Globe and Mail in December.

By the time lawyers appear, in person or by webcast, the Supreme Court already has a voluminous file on each case, including trial transcripts and written arguments from the parties directly involved and any intervenors. Oral arguments at times can change minds, and often can assist when the court develops a legal framework in a ruling.

The number of bench rulings was especially pronounced in the fall: 11 – nearly half of the 26 decisions the court produced.

It wasn’t always this way. Between 2006 and 2013, there were never more than nine rulings from the bench a year, and twice, only two. The total number of rulings in a year ranged from 56 to 75 in that period.

Then the number of bench rulings jumped. In 2014, there were 22 out of 77 rulings. By 2019, the second year under Chief Justice Wagner’s leadership, there were 25, out of 72 total rulings.

Why are some cases decided from the bench? And why so many more now?

One reason may be an increasing number of “as of right” appeals – mostly criminal cases in which the Crown or defence has an automatic right to be heard after an appeal judge dissents on a matter of law. The previous chief justice, Beverley McLachlin, advocated for an end to such automatic appeals, but Parliament declined.

Four of the five bench rulings last month were in automatic appeals, on subjects ranging from a historical sexual assault to a shooting in self-defence by a police officer. The fifth case related to medical malpractice.

During the fall session, eight of the 11 bench rulings came in automatic appeals. (In the bail and peremptory-challenges cases, the court had granted permission to appeal.) The court had 25 such appeals in 2019, up from 13 a decade earlier.

“I think there’s a history of the court chafing under the fact that there are certain cases where there is an automatic right of appeal,” said Eric Gertner, co-founder of the Supreme Court Law Review, adding that such appeals “aren’t necessarily cases in which important legal issues are being decided.”

Chief Justice Wagner has not advocated for an end to an automatic right of appeal.

“The court exists to perform a duty to deliver justice to Canadians,” he said in his e-mail to The Globe. “It hears the cases that our democracy requires be heard – whether they involve issues of national importance or whether our laws have determined that certain decisions are so momentous for an individual that they always require a second look, as in criminal cases where there is a dissent at the Court of Appeal or an acquittal has been overturned.”

He said there are a number of reasons for bench rulings, including swift justice. “In some cases, as when there has been a clear and reviewable error, access to justice militates in favour of an immediate decision. The Court of Appeal judge’s reasons, on which the Supreme Court will rely, may be complete and may not require anything further. To provide written reasons in such a case may only serve to create confusion and delay.”

The trend to prompt rulings has led, however, to some mockery, with Efrayim Moldofsky, a criminal-defence lawyer, tweeting that the bench rulings are “made-for-Twitter decisions,” and saying Canadians deserve “actual analysis.”

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