Law Times

PAGE 4 NEWS APRIL 28, 2008 / LAW TIMES Cases Filed Complete applications for leave to appeal Notices of appeal as of right Applications for Leave Submitted to the Court Granted (pending) Percentage granted Appeals Heard Total number As of right By leave Hearing days Appeal Judgments Total number Delivered from the bench Delivered after being reserved Unanimous Split Percentage of unanimous judgments Appeals standing for judgment at the end of each year Average Time Lapses (in months) Between filing of application for leave and decision on application for leave Between date leave granted (or date notice of appeal as of right filed) and hearing Between hearing and judgment 3.5 10.9 2.8 3.9 12.0 2.8 5.2 11.1 5.4 5.4 12.5 5.8 DD LT RX3RDA-12 OP ad 4/21/08 11:40 AM Page 1 4.3 11.4 5.6 5.7 12.2 5.6 3.9 10.5 5.1 3.7 9.4 4.0 3.7 9.1 5.2 3.4 7.7 5.9 3.5 9.0 6.6 All applications for leave, appeals, and judgments are counted by individual file number. * This percentage will change once all pending leave applications are decided. All information taken from the Supreme Court of Canada Monahan: country well served by top court T Supreme Court of Canada — Summary 1997 to 2007 1997 1998 637 34 615 68 11 104 37 67 76 107 44 63 75 32 70 20 604 30 572 70 12 106 30 76 71 92 33 59 70 22 75 34 1999 585 15 458 60 13 75 19 56 55 73 20 53 53 20 73 33 2000 642 17 640 84 13 78 14 64 57 72 15 57 52 20 72 39 2001 621 21 668 79 12 96 17 79 62 91 20 71 75 16 82 44 2002 523 13 498 53 11 72 16 56 51 88 20 68 61 27 69 25 2003 550 12 609 75 12 82 16 66 56 81 19 62 62 19 76 25 2004 568 12 559 83 15 83 13 70 61 78 16 62 57 21 73 32 2005 544 16 575 65 11 93 13 80 62 89 17 72 65 24 73 35 BY ROBERT TODD Law Times 2006 2007 506 7 477 602 16 629 55 64(83) 12 10* 80 13 67 56 79 4 75 63 16 80 35 53 10 43 46 58 2 56 36 22 62 30 is well served by its top court, even though it rendered fewer decisions in 2007. "This past year, they were not he dean of Canada's larg- est common-law law school says the country rendering as many judgments as in the past," says Osgoode Hall Law School Dean Patrick Monahan. "Those are one-year trends only, and I think over the long term, the court is extremely strong and some of the directions in this past year were, overall, positive." Monahan made the comments fol- lowing the release of his annual review of constitutional cases at the Supreme Court of Canada at the 11th annual Consti- tutional Cases Con- ference at Osgoode. The continuing legal education program, which took place earlier this month at the Toronto university, is considered the leading national forum on constitutional law, and brings together academics, private practitioners, and govern- ment lawyers. Monahan noted that, in 2007, the court have regard to the conse- quences of its decisions." Monahan also pointed to a ten- dency by the court in 2007 to move away from balancing. For example, in the Baier v. Alberta case, which dealt with legislation limiting school workers from seeking posi- tions as school trustees, the court found that the limitation does not violate s. 2(b), and so a consider- ation under s. 1 was not necessary. "What that really suggests is that, Patrick Monahan by balancing tests, it's an approach that says the courts will balance a variety of factors, and the way in which that balance might work in an in- dividual case might not be very clear in advance. As opposed to trying to draw more of a bright line that would give a fair bit of guidance to future courts and litigants," says Mo- nahan. "There was some greater willing- ness to set more of a bright line in some of these freedom of expression cases." In R. v. Hape, meanwhile, the With over 20,000 Office Products finding what you want is easy. D&D the Supreme Court decided only 58 appeals — the fewest in the court's modern era. Under Chief Justice Beverley McLachlin the court has averaged about 82 ap- peals per year, versus 111 per year under the previous court of chief justice Antonio Lamer. But despite taking fewer cases, Monahan tells Law Times that the top court showed "concern" in 2007 regarding open-ended Charter rights that could prove costly — both in time and money — to the system. "There's a note of caution in Canada's Largest Supplier of Indexes Available in complete sets or packages of individual numbers Buy the numbers or letters you require, no waste helps to save our trees Sets from 1-2000, letters A-Z Buff or White with up to 30% post consumer waste yourONE source supplier for dyedurhambasics.ca • 1-888-393-3874 • Fax: 1-800-263-2772 OFFICE & FURNITURE PRODUCTS Office & Furniture Products • Corporate Promotional Products Printing & Graphic Services • Law Office Essentials Corporate Supplies • Search & Registration Services www.lawtimesnews.com C court found that the Charter does not apply outside of Canada. The court "set a more definitive line" with that ruling, says Monahan, and the effects of that decision were demonstrated this year when Am- nesty International brought litiga- tion to the Federal Court on behalf of detainees over their transfer to Afghan authorities. "Based on the Hape case, the some of the court's judgments in the past year," says Monahan. "Par- ticularly a concern over creating entitlements that would require governments to spend significant amounts of money without neces- sarily a way of controlling that." Monahan noted in his presenta- tion, a copy of which was obtained by Law Times, that positive rights claims in 2007 proved harder to establish at the Supreme Court than negative rights claims. He noted that, in the British Coulmbia v. Christie case, a claim for state- funded counsel was turned down, and in the Little Sisters Book and Art Emporium v. Canada case, a claim for advance costs was rejected. "I generally think this is a wel- come approach," says Monahan. "It's necessary and appropriate that Federal Court in the Amnesty Inter- national [v. Canadian Forces] case said this case can be dismissed at a preliminary stage and is not neces- sary to go to trial because there's a very clearly defined legal rule that the Supreme Court of Canada has set forth," says Monahan. "That illustrates how you can get much clearer guidance in some of these cases than might have been the case in earlier years." Monahan also weighed in on the issue of replacing retiring Justice Michel Bastarache. "It's potentially a significant ap- pointment," says Monahan. "Jus- tice Bastarache was a central fig- ure in the court in the last couple of years. He's part of a group that tends to be in the majority. He did not dissent in any of the Charter cases in 2007. "So if the replacement for Justice Bastarache, who I think we assume would come from Atlantic Canada, if the replacement is of a similar approach, the direction we've seen will likely continue. On the other hand, if the replacement is from a different perspective, this may well change." 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