An Appeal to Reason: A Review of Roy B. Flemming, Tournament of Appeals: Granting Judicial Review in Canada

Abstract

The Supreme Court of Canada has great discretion in control over the contents of its docket. Annually, it receives somewhere between 500 and 600 leave to appeal applications and generally decides to hear somewhere around 100 of those cases. Why do some appeals reach the Court while others do not? In his slim but stimulating study, Flemming addresses the leave process as a prize to be sought - how does the Supreme Court of Canada set its agenda through deciding on the winners in this tournament and what are the implications of that agenda-setting? As with many areas of judicial process, this question occupies a voluminous American literature, with which Flemming is well versed, and a sparse Canadian literature to which Flemming makes an important and worthwhile, if somewhat incomplete, contribution.

This review is divided into three sections. The first section explores Flemming's claim that the Court deploys the leave process as a means of agenda-setting. The second section examines the "tournament" metaphor and the meaning Flemming attributes to it from his comparative perspective. Underlying the claims explored in the first two sections of this review is the assumption that we must examine motivations for deciding leave to appeal applications in indirect ways, because the Supreme Court does not provide direct justifications of its leave decisions through reasons. Finally, in the third section, I question this assumption and argue for revisiting the Court's rationale for exercising this critical discretion without justification.