Trust, but verify: Why reasons are required in leave application process

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In today’s Canadian Lawyer article, “Trust not reasons, required in leave application process: A response to Philip Slayton“,  Jean-Marc Leclerc responds to Phillip Slayton’s Canadian Lawyer article entitled Justice is in the details.  Slayton’s key argument rests on lack of judicial transparency:

There are two big problems with this lack of transparency. First, in any individual application, justice is not seen to be done. We just don’t know what happened and can’t evaluate it. This is a serious flaw in the court’s process. Second, no guidance is given to the profession and the country about what kind of applications are likely to be successful — about what the court considers to be of legal or public importance. We have to guess, which is no good at all. Both of these problems would be solved if written reasons, however brief, were given, at least when an application for leave to appeal is denied.

But how realistic is it to expect the Supreme Court to give reasons? What about what the two judges told the Toronto lawyer who wrote to me, that there just isn’t enough time to do it? I don’t find that excuse very convincing. Around 600 applications for leave to appeal are filed in a typical year. It used to be that a hundred or more of these were successful, giving the court a substantial workload of research, hearings, and judgment writing. But recently, the annual number of successful applications has dropped dramatically, to somewhere around 60. No one seems to know why — how could they in the absence of reasons — and it remains to be seen if this is a long-term trend. In the meantime, the judges have less to do. Perhaps some of the time freed up could be usefully spent explaining why applications failed (reasons why an application has succeeded seem unnecessary). The reasons need not be lengthy and elaborate; in most cases, a page or two would do. Maybe, sometimes at least, those three-judge memos recommending disposition of an application could be adapted to do the job. And perhaps the judges’ law clerks could help, as they do in the Supreme Court of the United States where, as a result, they have been described as the “junior court.” I’m told that today Canadian clerks have little to do with leave to appeal applications.

There is nothing glamorous about the leave to appeal process. It is not the stuff of front-page newspaper stories, but it is where individual justice is meted out and the Supreme Court’s docket is shaped. Justice is often in the details. We need to know details. We need to have reasons.

Leclerc,  a partner at Osler Hoskin & Harcourt LLP in Toronto and former  law clerk at the Federal Court of Appeal and the Supreme Court of Canada, is not overly concerned with this perceived lack of transparency. Citing the late Justice Sopinka’s 1997 speech about “unfettered discretion” in the leave to appeal process, Leclerc suggests that a judge’s informal speech, a  travaux preparatoires, of sorts, is a reliable and sturdy legal compass upon which litigants and counsel may navigate the precedential waters of the Supreme Court of Canada. Leclerc writes,

In his speech, Sopinka explained that the court has an “unfettered discretion as to when leave should be granted.” He said: “We are not a court of error and the fact that a court of appeal reached the wrong result is in itself insufficient. This is still the case if the court of appeal has misapplied or not followed a judgment of this Court.” The court will not grant leave unless the failure to follow its decisions becomes “an epidemic,” he explained.

Most lawyers would agree this is a valid reason for the Supreme Court to deny leave to appeal. It does not grant leave simply because there is an error of law. But for any litigant, likely having spent many years and lots of money to arrive at the leave to appeal stage, what would his or her reaction be to being told by the Supreme Court that although it believes there was an error of law in the decision, leave to appeal was denied because there is no issue of public importance? It is almost certain that person would feel a denial of justice, rather than an affirmation.

The example illustrates another important reason why it is impractical to require reasons for denying leave. If part of the court’s reasons for denying leave involved its view that there was no error of law, or if the court denied leave even though there was an error of law, part of the obligation to give reasons would be a requirement to explain why.

Leclerc’s arguments are unpersuasive.

The principle behind a court providing reasons is to not simply to create precedential value based upon the doctrine of stare decisis. Only statements of law are binding;  the ratio decidendi or reasons for decision are binding; the rest is obiter dictum, or “by the way”.

In England, the former rule under which courts were bound by their own prior decisions was reversed by the House of Lords (now the Supreme Court) which declared that it considered itself no longer formally bound by its own precedents and pronounced its intention “to depart from a previous decision when it appears right to do so.”: (see, Practice Statement HL Judicial Precedent [1966] 1 WLR 1234; [1966] 2 Lloyd’s Rep 151; 110 SJ 584 HL [1966] 1 WLR 1234.)

However, the doctrine of stare decisis is not absolute.

In David Polowin Real Estate Ltd. v. The Dominion of Canada General Insurance Co. and Seven Other Appeals, (2005), 76 O.R. (3d) 161 at 190-191 (C.A.) per Laskin, J.A. (Simmons, Cronk, Armstrong JJ.A. and Then J. (ad hoc) concurring),  the five-member panel of the Ontario Court of Appeal reconsidered and overruled one of its own decisions interpreting an aspect of insurance law. Laskin, J.A. made the following admonition:

The values underlying the principle of stare decisis are well known: consistency, certainty, predictability and sound judicial administration. Adherence to precedent promotes these values. The more willing a court is to abandon its own previous judgments, the greater the prospect for confusion and uncertainty. “Consistency”, wrote Lord Scarman, “is necessary to certainty – one of the great objectives of law”: see Farrell v. Alexander, [1976] 1 All E.R. 129, [1977) A.c. 59 (H.L.), at p. 147 All E.R. People should be able to know the law so that they can conduct themselves in accordance with it. Adherence to precedent also enhances the legitimacy and acceptability of judgemade law, and by so doing enhances the appearance of justice.

Laskin J.A. referred to five factors the Supreme Court of Canada identified as relevant to deciding whether to overrule a prior decision:

... [W]here a previous decision does not reflect the values of the Canadian Charter of Rights and Freedoms; where a previous decision is inconsistent with or “attenuated” by a later decision of the Court; where the social, political, or economic assumptions underlying a previous decision are no longer valid in contemporary society; where the previous state of the law was uncertain or where a previous decision caused uncertainty; and, in criminal cases, where the result of overruling is to establish a rule favourable to the accused.

Instead of focusing on phrases such as “manifestly wrong”, the approach I prefer … calls on the court to weigh the advantages and  disadvantages of correcting the error in a previous decision. This approach focuses on the nature of the error, and the effect and future impact of either correcting it or maintaining it. In doing so, this approach not only takes into account the effect and impact on the parties and future litigants but also on the integrity and administration of our justice system.

In the context of leave applications, a litigant that is granted leave to appeal is not guaranteed success on appeal. The leave to appeal grant only speaks to the issue of “national importance” or “public importance”.

Leclerc appears more concerned with the additional workload which may hoited upon the Court’s law clerks, stating:

Like it or not, those reasons would become part of Canadian law. Scrutinized by lawyers and judges. That could mean the Supreme Court would be required to make 500 additional decisions every year on important principles of law in cases in which leave is denied. Given the new importance of these denial decisions, it is something that would require the input and involvement of the entire court and their law clerks, adding complexity and delay to the leave to appeal process.

Frankly, equal access to justice, not law clerks’ work hours, should be the overriding concern for the Canadian judicial system.

According to the Supreme Court of Canada website:

As many as 600 leave applications are reviewed very carefully each year by a panel of three judges who decide whether a case should be granted leave to appeal or not. Reasons for their decision are never given. The Court, however, only grants approximately 80 applications for leave to appeal a year, which represents 10 to 12% of all applications for leave to appeal filed.

If the Court denies your application for leave to appeal, it is not expressing an opinion as to whether in its view the lower courts were right or wrong, but only that it has concluded that the case does not raise a question of sufficient public importance to be decided by the Court.

Public confidence in the legal system is predicated upon public perceptions of fairness and justice and the Rule of Law. There is an intrinsic societal value in a court providing written reasons: it explains to the unsuccessful litigant why they lost and provides guidance to future litigants on the types of cases that may or may not meet the test of “national importance”. What is of “national importance” is clearly subjective if the the test is based upon “unfettered discretion”. Without written reasons, the public and the litigants are left to speculate on why their leave application was denied. The public’s perception of the Court and the judicial system would be promoted if it  expressed an opinion  on errors of law, and the reasons why the questions raised were not of sufficient public importance to be decided by the Court. Was it perhaps not a unanimous thumbs-down? Did one of the three justices dissent but was overruled? How did the law clerk or clerks frame the legal issues for the Court?

Not all appellants seek leave to appeal to Canada’s highest court. The legal costs are not insignificant. Yet, written reasons on leave applications would sedulously foster greater certainty and predictability for current and future litigants. More importantly, as the former and late President Ronald Reagan once said, “Trust, but verify”. In an age of cynicism and distrust of governments and the legal system, providing written reasons can only enhance public trust and confidence.