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August 14, 2001

Supreme gridlock

National Post

On Sunday, Beverly McLachlin, Chief Justice of the Supreme Court of Canada, announced that the country's lower court judges will be provided with a standard template that tells them how to instruct juries in plain simple English. Madam Justice McLachlin says the new directions will "crystallize ... legal principles in an understandable, clear form that we hope members of the jury could understand." Sounds good to us. But we would be even happier if Madam Justice McLachlin's own Supreme Court would crystallize legal principles in an "understandable, clear form" themselves.

The same day she announced the new jury instruction guidelines, Madam Justice McLachlin complained publicly that her Court is straining under its workload, and that the Justices require more staff and physical space. Yet that claim does not match the numbers. The Court heard 75 cases in 1999 and 78 cases in 2000, the year Madam Justice McLachlin became Chief Justice. But from 1990 to 1998, the annual average was 117. The Court had 55 hearing days in 1999 and 57 in 2000. In the nine years before that, the number was never less than 70. The problem at the Court is not that it has too many cases to hear, but that it is making too much work out of its cases. The average length of judgments released in the years 1999 and 2000 was 37.5 pages -- 26% more than the average established in the nine previous years.

The reason SCC cases are getting longer is clear to anyone who makes a regular practice of reading them. Justices frequently stray from black letter law in order to engage in free-form discussion of social policy and comparative law. High profile decisions invariably invite concurring opinions, with several Justices rephrasing the Court's judgment in the language of his or her pet legal theory. The result is often a tangled jumble. The Court's September, 1999 Marshall decision put the Atlantic fishery into such confusion that the Justices felt compelled to issue a clarification two months later. The Court's decision in U.S. v. Burns, a judgment released last February that requires Canada to seek assurances that extradited criminals will not be executed, contains more than 24,000 words. For long stretches, it reads more like a think-tank report on capital punishment than a judicial decision. Some Justices delight in obscure authorities. In a case released last June, Madam Justice Claire L'Heureux-Dubé invoked the jurisprudence of the Supreme Court of India in weighing the validity of a lawn-care by-law issued by the town of Hudson, Que.

Madam Justice McLachlin is correct on one point, however: The Court should be permitted more discretion with regard to case selection. Unlike the U.S. Supreme Court, Canada's high court is legally required to hear certain types of appeals. Over the last decade, these cases -- appeals "as of right," as they are known -- have taken up between a quarter and a third of the Court's caseload. The Justices generally hear these cases merely for form's sake. After dutifully listening to the appellant's arguments, the Justices in attendance frequently dismiss the appeal summarily -- often without even bothering to hear the respondent side. By amending the Criminal Code to eliminate the "as of right" category, Parliament would free up a significant chunk of the Court's resources without compromising the dispensation of justice is any significant way.

Madam Justice McLachlin wants Ottawa to provide the Supreme Court of Canada with more resources. But the best approach would be for her Court to do more with what it already has.

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