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Chief Justice Beverley McLachlin led the Supreme Court in more ways than one last year, reveals a Lawyers Weekly analysis of the Supreme Court’s jurisprudential output in 2009.

Not only did the chief justice write more majority opinions than anyone else last year — six — but she also did much of the court’s intellectual heavy lifting. She penned two judgments which revolutionized the law of defamation, and co-authored, with Justice Louise Charron, a landmark overhaul of the framework for the exclusion of evidence under s. 24(2) of the Charter.

Interesting patterns emerged when The Lawyers Weekly examined the quantitative and substantive written output of the nine judges in 2009, although it should be borne in mind this is merely a 12-month snapshot.

Looking at the opinions the individual judges wrote last year (as distinct from judgments they simply signed on to without comment) Chief Justice McLachlin and Justice Charron were the most solid majoritarians in the sense that they did the least concurring and dissenting, both wrote a total of nine majority or unanimous opinions, and Justice Charron wrote more unanimous judgments than anyone else — five.

Justice Charron and Justice Morris Fish spoke most often for the court on criminal law — although Justice Fish could also be dubbed “The Great Dissenter” since he authored in addition nine dissents — more than twice as many as any of his colleagues.

The judges who wrote the bulk of the common law for the nation last year — i.e. authored the largest total number of unanimous and majority opinions — were: Chief Justice McLachlin (9) and Justices Louise Charron (9), Louis LeBel (9) Marshall Rothstein (9), and Ian Binnie (8).

Justices Rosalie Abella and Fish also each authored a total of seven unanimous or majority judgments — a substantial number — but they both wrote in addition an equal or greater number of concurrences and dissents.

One could argue that Justice Marie Deschamps went her own way most often. She wrote just four unanimous or majority judgments, and penned a total of nine concurrences and dissents.

The court’s newest member, Justice Thomas Cromwell, showed an individualistic streak in his writings too. He dissented in four of the six opinions he wrote last year, but perhaps little can be deduced from this since he only began sitting at the beginning of 2009.

Below is a thumbnail sketch of each judge’s written output in 2009 (with apologies for the unavoidable significant omissions):

Abella

She wrote mostly on administrative, criminal, and family law as well as the Charter’s guarantee of freedom of religion. Highlights included: her unanimous judgment in Rick v. Brandsema, which recognized a common law right to full and honest financial disclosure in matrimonial property cases; A.C. v. Manitoba (Director of Child and Family Services), a majority ruling that children under 16 may make life and death decisions about their medical treatment if a court deems them capable of “mature, independent” judgment about their health; and Bell Canada v. Bell Aliant, a high-stakes unanimous decision about the CRTC’s exercise of its rate-setting powers.

Binnie 

He wrote for the court on division of powers, criminal, labour and administrative law, including the majority decision in Canada (Citizenship and Immigration) v. Khosa, a key administrative law ruling that stresses curial deference to expert administrative decision-makers while elaborating on the Dunsmuir standards of review; and Desbiens v. Wal-Mart which balances management and labour rights under the Charter’s s. 2(d) guarantee of freedom of association. A vigorous dissent in Lipson v. Canada decried the majority’s broad view of the scope of the general anti-avoidance rule (GAAR) in the Income Tax Act.

Charron

She wrote just one concurrence and no dissents, concentrating her efforts on speaking for the court in decisions involving extradition, tort (malicious prosecution), the constitution (official languages) and criminal law. She co-wrote the milestone majority rulings in R. v. Grant and companion cases which reconfigured the Charter’s s. 24(2) rules for excluding evidence, and wrote R. v. McNeil which recognized a new automatic Crown duty to disclose police disciplinary records and criminal investigation files involving serious police misconduct, and elucidated the common law regime for production of third-party records in criminal cases.

Cromwell

Despite his short stint on the Bench, he cranked out four dissents in criminal cases. He also penned the court’s unanimous judgments in R. v. Godin, which held that a 30-month delay in a straightforward criminal case was an unreasonable delay contrary to s. 11(b) of the Charter, and Galambos v. Perez, which overturned a far-reaching B.C. Court of Appeal fiduciary duty ruling that would have sparked unforeseen new ad hoc fiduciary obligations for lawyers and other persons deemed to have the upper hand in so-called “power-dependency” relationships.

Deschamps

She wrote a lot about procedure, both in civil (class actions) and criminal (joinder and severance of trials) cases. She wrote the majority judgment in Greater Vancouver Transit authority, holding that government entities may not disregard the right of individuals to political expression in public places, as well as the unanimous commercial law ruling in B.M.P. Global Distribution Inc. v. Bank of Nova Scotia.

Fish

He wrote more opinions, and more dissents, than anyone else: 19 opinions, including nine dissents. More than any other judge, the former criminal law barrister concentrated on only one legal area: criminal law. Just two opinions were non-criminal. Important judgments of his included: the unanimous rulings in R. v. Basi on disclosure and informer privilege, and R. v. Legare on the mens rea for Internet luring; the majority ruling in R. v. Khela on Vetrovec warnings; and his dissent in R. v. Bjelland, in which he and two others deplored the majority’s novel “unwarranted” constriction of trial judges’ broad discretion under the Charter’s s. 24(1) general remedy provision.

LeBel

He wrote 15 opinions, including some on criminal law, and was the court’s workhorse in the area of Quebec law, including rendering a unanimous, if controversial, judgment on minority language rights in Nguyen v. Quebec.

He also authored the majority judgment in Lipson v. Canada on GAAR, the most important tax decision in decades.

McLachlin

True to form, the chief justice’s dozen opinions ventured into the constitutional, criminal and non-criminal spheres. She collaborated with colleagues to write joint reasons more often than any of the judges (she co-wrote three judgments with Justice Charron and two opinions with Justice Rothstein).

In addition to the libel and Charter remedy landmarks she wrote or co-wrote, she penned the majority decision in Hutterian Brethren which held that Alberta can require members of a religious order to be photographed for their driver’s licences, notwithstanding their belief that the Bible bars them from having their photograph taken.

Rothstein

His 13 opinions fell mostly into the non-criminal sphere, but their subject-matter was diverse, including aboriginal law, tax law, commercial law and constitutional division of powers. He wrote the unanimous judgment in Shafron v. KRG Insurance Brokers (Western) Inc., which admonished judges not to rewrite or enforce unreasonable or ambiguous restrictive covenants in employment contracts. He also wrote the pivotal majority judgment in R. v. Bjelland, which shrank trial judges’ remedial discretion under s. 24(1) of the Charter.