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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. . . . 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. one and generally make a written recommendation for the other six judges to consider. These recommendations are dealt with at monthly meetings of the entire court. The process typi- cally takes about three months, which in the judicial world is pretty fast. But, no matter how conscientious the justices are, there's still the problem of no reasons given, which can lead to the kind of misapprehension and doubt exhibited by my Vancouver correspondent. Section 40 of the Supreme Court Act says an appeal lies where "the court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed fact and law involved in that ques- tion, one that ought to be decided by the Supreme Court." This ponderous and vague formula gives the court almost unlimited discretion to accept or reject an application. These days, for every leave to appeal granted, at least seven or eight are rejected. That is presumably because they are regarded as of no legal or public importance, but nobody knows why the judges regard them this way. No explanation is offered. 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 appli- cations 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 suc- cessful 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 applica- tion 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 rec- ntitled-11 1 ommending 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 pro- cess. 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. Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm. He has just released his latest book, Mighty Judgment: How the Supreme Court of Canada Runs Your Life. Visit him online at philipslayton.com. "When you've had cancer, every day is a gift." "Thanks to the groundbreaking research, the care of Dr. Messner and the compassion of the whole team at the Princess Margaret Hospital, I'm here today." A gift left in your Will can save lives. If cancer is your cause, support one of the top 5 cancer research centres in the world. To learn more about planning your gift, call 416-946-2295 or email legacy@pmhf.ca www.pmhf.ca www.CANADIAN Lawyermag.com M AY 2011 17 4/12/11 4:12:08 PM -Chris T ayl or See Chris T a yl or's s t ory at