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OP I N ION BY PHILIP SLAYTON TOP COURT TALES Justice is in the details The allowing – or not – of leaves to appeal to the Supreme Court of Canada could be made somewhat more transparent. criminal cases). The judges, standing at the courtroom door so to speak, may deny you admission, and generally do. It's a critical juncture in the life of a case and in the pursuit of justice. A retired Supreme Court judge told me, "If we don't grant leave when we should, jus- tice has been denied." Another retired judge echoed these words when I spoke to him. And yet, despite their importance, Y applications for leave to appeal don't attract much attention. There's an awful lot of them. Many are thought frivolous. Applications are handled quietly behind closed doors. No reasons are given for their disposition, so there's nothing on paper to dissect and criticize. Recently I heard criticisms of the leave to appeal process from two senior practitioners, one in Toronto and one in Vancouver. My Toronto correspondent felt strongly that written reasons should be given for accepting or denying leave to appeal. He said he had raised the issue with two of the current members of the court, and each replied that justices did not have enough time to give reasons. This, wrote the Toronto lawyer, "leaves the litigants and the bar in a difficult and unsatisfactory position." My Vancouver correspondent had a more complex point. He pointed out that Rule 19 of the Supreme Court allows the registrar to accept or reject any docu- ment that someone seeks to file. What ou can only appeal to the Supreme Court of Canada if it lets you (there are limited excep- tions to this rule in is the extent of this power, he wondered, and how does the registrar use it? Leave to appeal documents he had tried to file were rejected by the registrar, unrea- sonably so he thought. "Since reasons for judgment are never given on leave applications, it is at least suspect that the registrar is making all the decisions," he wrote in an e-mail to me. To deal with the last point first, I don't think for one minute that the registrar is 16 M AY 2011 www. CANADIAN Lawyermag.com deciding the fate of applications for leave to appeal. I've interviewed a number of Supreme Court judges recently, some retired, some sitting. Almost all, includ- ing Chief Justice Beverley McLachlin, told me how seriously they regarded applications for leave to appeal and how hands on the justices are. A Supreme Court judge spends, on average, about half a day a week considering applica- tions. Three-judge panels consider each Dushan Milic