Tournament of Appeals

Book excerpt: Canada's Supreme Court decides cases with far-reaching effects on Canadian politics and public policies. When the Supreme Court sets cases on its agenda, it exercises nearly unrestrained discretion and considerable public authority. But how does the Court choose these cases in the first place? From the several hundred requests for judicial review filed every year, how and why do the justices pick some cases but not others for review? Tournament of Appeals investigates the leave to appeal process in Canada and explores how and why certain cases "win" a place on the Court's agenda and others do not. Taking the approach that the process mimics a sports tournament, this study raises several vital questions. For example, is there an elite Supreme Court "bar" that routinely wins the tournament? Do the Court's rules affect the tournament's outcomes? Or does winning and losing reflect the resources of the parties? As players in this tournament, how do the judges play the game and how does it affect their votes to grant or deny judicial review? Drawing from systematically collected information on the process, applications, and lawyers that has never before been used in studies of Canada's Supreme Court, Roy B. Flemming offers both a qualitatively- and quantitatively-based explanation of how Canada's justices grant judicial review. The first of its kind, this innovative study will draw the attention of lawyers, academics, and students in Canada as well as in the Commonwealth, and European countries whose high courts share many features of the appeals process in Canada.