For obvious reasons, these concurrences tend to be individual efforts--66 per cent of all concurrences, but 73 per cent of all ditto concurrences, are signed by a single judge.
The seriatim style is normally not an individual effort; almost two-thirds of all concurrences, but less than two-fifths of seriatim concurrences, are signed by a single judge.
It could be that none did, that the original bloc of judges held firm and that the challenger wound up simply writing an unusual separate concurrence with extraneous material included; but I find this unlikely, the more so because the sixty-three swing concurrences mentioned above show that judges do change their minds after conference.
Combined with the number of swing concurrences, it also suggests a reason why judges are willing to invest time and effort in writing separate reasons: they do so because they have a not-insignificant chance of prevailing, of persuading enough of their colleagues that their reasons should become the judgment of the Court.
In this case, I am relieved that this category is needed for barely 2 per cent of the total concurrences.
In Burlingham, the only example from the twenty-five concurrences to have a clear substantive content, Justice L'Heureux-Dube wrote an individual dissent severely criticizing the majority for reverting to a formalist approach to decision making ("reminiscent of .
Clearly, these separate concurrences do hot amount to very much.
I have tried to show that separate concurrences are a regular and ongoing aspect of the work of the Supreme Court of Canada, whose judges invest a considerable amount of time and effort in preparing them.
The numbers--six hundred concurrences in twenty-three years--suggest vigorous ongoing activity, but in fact this is overwhelmed by the ebb and flow that saw a steady rise in the use of separate concurrence to a dramatically high peak in 1995-1996, followed by steady decline.
Separate concurrences are particularly useful in this context because they resist a simple winner-loser dichotomy and suggest a variety of directions in which the prevailing point of view could be nudged in future.
7) This selection is not altogether arbitrary, because by the end of the Laskin Court, the Court was exhibiting the most unified decision-delivery practices in its history, with more unanimous decisions, fewer dissents and separate concurrences, fewer cases with multiple minority decisions, and a total absence of plurality decisions.
See Peter McCormick, "Second Thoughts: Supreme Court Citation of Dissents & Separate Concurrences, 1949-" (2002) 81 Can.