SCC’s growing number of oral judgments draw bar’s fire but court says appeals get ‘all the attention and resources they require’

Law360 Canada (December 20, 2018, 1:42 PM EST) -- The Supreme Court’s growing practice of deciding as-of-right criminal appeals from the bench without written reasons has again drawn fire from the bar, with one prominent counsel publicly demanding more “transparency” from the court this week, while another suggested the court is leaving the impression that as-of-right appeals are “second-class citizens” on its docket.

An examination of the Supreme Court’s judgments this year by The Lawyer’s Daily confirms that the phenomenon of the judges issuing only brief oral reasons from the bench, which began emerging in 2014, grew again in 2018 — comprising nearly one-third of the judgments that the court has handed down this year (19 of 60 judgments).

Of those 19 oral judgments delivered without written reasons, 16 came in as-of-right criminal appeals sparked by a dissent in the Court of Appeal below, i.e. just three came in cases granted leave to appeal (two of those three were non-criminal cases). There were interveners in four of the cases dealt with orally.

(By comparison, in 2017 the judges issued brief oral judgments from the bench — without written reasons to follow — in almost one-quarter (16) of the 67 judgments they rendered that year.)

Nader Hasan of Toronto’s Stockwoods Barristers calls the as-of-right appeal “an important safety valve against miscarriages of justice.”

“The practice of dismissing as-of-right appeals from the bench leaves the impression that as-of-right appeals are the second-class citizens of Supreme Court of Canada cases,” Hasan told The Lawyer’s Daily. “That should not be. Those cases are there because one out of three eminent jurists in the provincial court of appeal believed their colleagues made an error in a matter.”

Hasan was at the Supreme Court last week on behalf of the intervener Criminal Lawyers’ Association in R. v. Culotta 2018 SCC 57 — an Ontario as-of-right appeal on the exclusion of evidence which culminated Dec. 13 in the judges splitting 3-2 to orally dismiss the defence appeal from the bench — “substantially for” the respective reasons of the Ontario Court of Appeal’s majority and dissenting judges below.

Hasan suggested the precedential value of Culotta is limited — particularly outside Ontario, “given that the majority of the Supreme Court did not offer any further elaboration on what its ‘substantial’ endorsement means.”

(However when The Lawyer’s Daily looked at the top court’s entire oral output in 2018 it was clear that the 19 oral judgments from the bench varied considerably in length and detail (presumably reflecting what the judges thought was needed to explain their judgments in the appeals, many of which called only for error correction) — all the way from endorsing fully or substantially reasons from the courts below to rendering specific and detailed decisions, some spanning hundreds of words.)

Prominent criminal lawyer Frank Addario also took issue with oral judgments in an opinion piece published in The Globe and Mail Dec. 17, headlined “Where’s the transparency in our highest court?” “Deciding cases from the bench without explanation is not transparent,” he argued in the op-ed co-authored by James Foy of Toronto’s Addario Law Group. “Dumping cases from the bench means more mystery and fewer explanations for Canadians. The failure to answer the ‘how’ and the ‘why’ will not go away without more effort from the court itself.”

Asked why the court opts for brief oral judgments, most often in as-of-right appeals, Supreme Court of Canada executive legal officer Renée Thériault told The Lawyer’s Daily “whether the cases come to the court by way of leave to appeal or as of right, the court gives them all the attention and resources they require.”

Thériault explained that as the final general court of appeal for Canada, “the Supreme Court has a mandate to rule, first and foremost, on questions of public importance, including such issues of a nature or significance warranting a decision on its part.”

“From a case management perspective,” she said by e-mail, “cases may be heard with a smaller bench (as permitted by s. 75 of the Supreme Court Act) or in a shorter time frame. Supreme Court Rule 71(5.1) expressly provides that the time allotted for oral argument may be reduced in an appeal as of right.”

(The court sat only five judges in 12 of the 16 as-of-right cases that were determined from the bench orally in 2018.)

“Likewise,” Thériault explained, “disposition of the matter by reference to reasons expressed by the courts below may be all that is required depending on the circumstances, especially in cases where the issue at hand is of limited scope with little more needed on the part of the Supreme Court.”

In his op-ed, Addario took issue with the notion that little more is needed from the court, in some cases, than its endorsement of reasons in the court below.

“If people know why cases are decided, they have more confidence in the product,” he wrote. He challenged what he said was the court’s reversal last fall, in the as-of-right appeal of R. v. Ajise 2018 SCC 51, of “an established precedent meant to prevent wrongful convictions.”

In Ajise, the unsuccessful appellant argued that his trial was unfair, and that his fraud conviction was a miscarriage of justice. But two of three judges on the Ontario Court of Appeal below held that the errors at his trial were harmless, and they used the Criminal Code’s “curative proviso” to uphold the accused’s conviction — i.e. the majority concluded there was no substantial wrong or miscarriage of justice despite the errors, even though the Crown did not expressly raise or rely on the proviso. The Supreme Court dismissed Ajise’s appeal Nov. 16, without hearing argument from the respondent Crown, adopting the reasoning from a paragraph it quoted from the Ontario Court of Appeal’s majority judgment below.

“The Supreme Court overturned its own rule that a court should not invoke the rule of inevitable guilt without a prosecutorial request,” Addario charged. “An established rule designed to protect civil liberties, was as tossed aside in Mr. Ajise’s case without explanation.”

But Justice Malcolm Rowe’s oral reasons, on behalf of the Supreme Court’s unanimous five-judge panel, do in fact endorse and quote the conclusion and reasoning of the Appeal Court’s majority below, stating, in part, that the Crown’s “lines of argument amounted in substance to a submission that even if there was an error in admitting the evidence or in failing to conduct a voir dire [at trial], no substantial wrong or miscarriage of justice had occurred and the appeal should be dismissed on that account.”

Over the years, the Supreme Court has sought — but never attained — full control over its docket. Developments in the 1970s and 1990s gave the judges more control over which cases they heard, and so reduced their focus on error correction in individual cases, while expanding the court’s modern role of developing the law and providing national guidance.

However, the criminal bar has been loath to give up all as-of-right appeals — seeing them as the last bulwark against miscarriages of justice.

In 2017, as-of-right appeals still made up more than a quarter of appeals decided that year, according to the court’s own published statistics.