Procedures of the Supreme Court of Canada

The procedures of the Supreme Court of Canada for hearing cases is established in the Rules of the Supreme Court of Canada, the Supreme Court Act, and by tradition.

Terms and sittings

Hearings of the Supreme Court take place exclusively in the Supreme Court building in Ottawa. The Court sits three times a year for three months at a time starting in January, April, and October. Every two weeks that the Court sits is followed by a two-week break making for a total of 18 weeks a year of hearings. The Mondays are often reserved for hearing motions regarding ongoing appeals. The remaining days of the week the Court is used for hearings. The Court will hear one or two cases a day beginning at 9:30 a.m.

Quorum of the Court requires five Justices, but most cases are heard by a panel of seven or nine Justices. The Chief Justice presides over each hearing, except when away, in which case the next most senior judge will take over the Chief Justice's role.

Hearings are taped for delayed telecast in both of Canada's official languages and are often aired on CPAC on Saturdays. The court's hearings are open to the public except for certain sensitive cases where a sealing order is enacted. There are three rows of benches reserved for public seating, which are generally taken on a first-come, first-served basis except where it is reserved by counsel or parties in the appeal.

Leave to appeal

Initially, all civil and criminal cases had the right to appeal to the Supreme Court. An amendment to the Supreme Court Act in 1975 required that parties wishing to appeal must apply for "leave to appeal". The only exception is a select type of more serious criminal cases which were said to have leave "as of right", as well as reference questions submitted to the Court by the federal government.

Appeal applications are considered by the justices in groups of three. Only cases which raise questions of national importance are granted.^[1] However, the reasons for their decisions are never given.

Hearings

On the bench, the Chief Justice of Canada, or, in her absence, the senior puisne justice, presides from the centre chair with the other justices seated to her right and left by order of seniority of appointment. At sittings of the Court, the justices usually appear in black silk robes but they wear their ceremonial robes of bright scarlet trimmed with Canadian white mink in court on special occasions and in the Senate at the opening of each new session of Parliament.

Historically, they were addressed as "My Lord/Lady" during sessions of the court, but this style of address was disapproved of by the current Chief Justice Beverly McLachlin, who has directed lawyers to use the simpler "Your Honour" or "Justice."

Each side is given one hour to make their submissions. Where there are multiple claimants or defendants they are required to split the time among them. However, in exceptional circumstances the parties may apply to the Court to have their time extended. Interveners are typically granted ten minutes to make their arguments.

Reasons

Once the hearing is complete the judges convene in the judge's conference room behind the Court room to discuss this case. They sit at a round table in the room and each judge gives their opinion of the case, starting with the least senior judge. Typically, once the discussion is complete the justices make a tentative decision of the case, and in most cases a decision will be arrived at by the end the day.^[2]

This practice was begun by Chief Justice Cartwright in the 1960s and was intended to reduce the amount of separate reasons that the court was generating at the time and to maintain relations among the judges.^[3]

Except where the decision is made orally in during the hearing, once a decision has been reached, an official reasons for judgment may not be made public for several months. During this time their decision may be rewritten several times, and there may be a significant amount of continued debate over how the propositions should be articulated and what should be left out. In the more divided cases, there is a possibility that a judge may switch sides and change the outcome of the case.

Notes

1. See the following: R. v. Gardiner, [1982] 2 S.C.R. 368 at 397, MacDonald v. City of Montreal, [1986] 1 S.C.R. 460 at 512 and R. v. Hinse, [1995] 4 S.C.R. 597 at 610, 629.
2. This is what Binnie has coined as the "sundown rule" http://online.cle.bc.ca/CourseMaterial/pdfs/2001/262_13_1.pdf
3. see C. L'Heureux-Dube, "The Dissenting Opinion: Voice of the Future?" (2000) Osgoode Hall Law Journal.

External links

• Supreme Court Rules