And Justice For All

Ever play the lotto? Do you feel like a game of chance? The Supreme Court of Canada (“SCC”)  is very picky about the cases it will hear. You have read here at The Court about many cases that seemed to get away from them. It makes one wonder about how these sorts of decisions are made. It is certainly not a very transparent process. What if you had to put money on the outcome of your appeal?

Let us say you file an application for leave to the Supreme Court of Canada (or have appeal as a right). We know that in 2006, 11% of the applications for leave submitted to the SCC were actually heard by the court. From the start, it does not look good for you. The SCC seems to weed out the vast majority of cases as not being worth their time. But, it seems that there some cases that have a better chance than others. For example, in 2006 17% of the applications were procedural law (97 cases). However, only 5% of the cases heard dealt with procedure (28 cases). What happened to the other 59%? They lost their bet. There are other classifications, like criminal law, where nearly all the appeals are heard by the court. Choose your game wisely.

Once you are in, the chances of winning or losing are much better. In the past 10 years, the split has been relatively even. Even the most lopsided year it was only a 70/30 split. In fact, over the past 10 years there was only a slight bias to allowing appeals (52%). Most casinos would not stay in business with odds that even.

Let us add in another factor. At Vegas, you know (or at least hope) that when you roll the dice there is an equal chance that any one of the six sides will come up. Sitting behind the bench there are nine judges. Let us replace them with coins. You get nine flips, and have to get five of those flips to go your way. Wait, but surely the judges aren’t just random? Surely the merits of the case have something to do with it?

Of course they do. But not always in the way that you think. In a recent work by none other than our own Prof. James Stribopoulos there are some exciting revelations. In his examination of the Court of Appeal of Ontario he found statistically significant connections between the subject matter of the case, the gender, political affiliations and composition of the bench. This factor weights one side of the coin heavier than the other and is going to make that coin toss less than 50/50.

A lawyer would never take a case to court without examining the merits of the case. Somewhere, deep in the brain of every litigator is a chart. Cases get put on that chart based on the lawyer’s subjective impression of the success of the case based on the merits, and (cough) their own skill as a litigator. On our imaginary scale, the cases range from Slam Dunk to Total Stinker and all points in between. If we put the chart on the wall, we might even be able to assign numerical values to the ratings.

Given that there are statistically significant steps in winning the case, would it not be prudent to make some sort of assessment of its chances with our high court? If we do that are we not much better than bookies?

Without too much analysis of the efficacy and morality of gambling, week after week, millions of Canadians play the lotto. Some, maybe even most understand that their chances are slim. The result of their loss is that many other Canadians have government funds available for their charities. If those people stopped playing because they knew the odds, Canada might be worse off. Looking at the numbers for 2006, more than 500 Canadians played the Supreme Court Loto that year. Maybe if they all knew the chances of success, they would not play anymore. The loss to the law in Canada would be immeasurable.

But at least I wouldn’t have so many cases to study this time of year.