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Thursday Thinkpiece: By the Court–Anonymous Judgments at the Supreme Court of Canada

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By the Court: Anonymous Judgments at the Supreme Court of Canada

Authors: Peter McCormick and Marc D. Zanoni

ISBN: 9780774861724
Publisher: UBC Press
Page Count: 268
Publication Date: March 1, 2020

Regular Price: $32.95 (paperback)

Excerpt: From the Preface

This book represents an unusual co-authoring partnership, between a senior (and now emeritus) faculty member on the one hand and a graduate student on the other. Indeed, it is sufficiently unusual to call for an explanation.

Marc Zanoni came to the University of Lethbridge to work on a Master of Arts degree in political science, to be supervised by Peter McCormick. After some discussion of alternatives, it was decided that the thesis topic would involve an examination of the Supreme Court of Canada’s By the Court decisions – those decisions that are not attributed to any specific individual but mysteriously and cryptically to the Court.The thesis project was originally conceived in terms of the chronology, inventory, and typology found in Chapters 8 and 9 of this book.

This plan quickly went off the tracks, however. A routine element of any thesis is the literature review, which situates the project in relation to the work that has already been done on the subject. The first sign that there would be nothing routine about this master’s thesis was the discovery (which still surprises us every time we mention it) that there was simply no academic literature on the subject. Although most court-watching academics are well aware that such decisions appear from time to time, and that at least some of them have been extremely important, there were no books, no articles, no focused discussion of any kind of the genesis or the parameters or even the frequency of the phenomenon. So much for the literature review, which gave Zanoni nothing to go on save for passing references and occasional brief footnotes.

As an alternate starting point, then, Zanoni set to work checking out what has been generally accepted as the starting point for the practice that we refer to in this book as the “standard story” and the “Laskin thesis” – namely, the Laskin court’s two language decisions of 1979 (Blaikie and Forest), often thought of as picking up on the per curiam practices of the United States Supreme Court. The plan was for him to work through the relevant judicial biographies on the one hand and academic accounts of these two specific decisions on the other, to explore and document the background that everyone was taking for granted. This might or might not unfold in such a way as to become a useful part of a revised thesis proposal in itself.

This inquiry also went in an unexpected direction, however. This was partly because many of those academic accounts focused on the content and implications of the two decisions, one focused on Manitoba and the other on Quebec, without even mentioning the unusual anonymous delivery format, which gave Zanoni nothing to work with. A greater problem was that the assumptions built into the standard story were simply not borne out, as will be explained in Chapter 7. This was some-what embarrassing because some of McCormick’s earlier publications had become part of the footnote trail for that standard story. What had been initially contemplated as a straightforward introduction morphed into a genuinely original inquiry into the questions no one else had even considered: tracking down the “who” and “when” and “why” of the real first By the Court decisions. Readers are free to imagine how Zanoni felt as his literature review came up empty and his attempts to document “what everybody knew” fell through, after months of hard work with nothing much to show for it. Fortunately, this last reframing of the inquiry proved fruitful, although carrying it through required scouring through the Supreme Court Reports all the way back to 1875, and then following up with an exploration of the Supreme Court archives that was initially scheduled for several days but actually lasted several weeks.

The outcome was a revised thesis project that now appears in reduced form in Chapters 6 and 7, “Early History: The ‘Minor Tradition’” and “Emergence: The Birth of the ‘Grand Tradition.’” Chapter 7 began as a draft chapter for the thesis, was turned into a paper that Zanoni presented at the 2014 Canadian Political Science Association (CPSA) conference, and then became a co-authored article in the Manitoba Law Journal. Although that inquiry had already pushed By the Court back a dozen years earlier than the “standard story,” Zanoni’s scouring of the Supreme Court Reports suggested that such decisions were drawing on even earlier court practices, and the story of this extended early evolution became the new focus of the thesis. Chapter 6 reflects Zanoni’s weeks of toil in the Supreme Court archives, working toward an understanding of what he called the “minor tradition” of By the Court. That accomplished, he headed off to a PhD program in public policy at the University of Guelph. Chapter 6 is a considerably shortened version of the MA thesis, and was initially presented by Zanoni as a paper at the 2016 CPSA conference. Chapter 4 also began life as an introductory segment in the 2014 CPSA conference paper.

However, Zanoni had uncovered enough to make the By the Court project something that was clearly much too large and ambitious for a master’s thesis, leaving us with a much larger story still waiting to be told. For one thing, the chronology, inventory, and typology originally contemplated still needed to be tackled (Chapters 8 and 9). In addition, the academic responses to our conference papers and journal articles demonstrated the necessity of defending the originality and the uniqueness of the Canadian practice (Chapters 4 and 5), since both were often challenged. It was also obvious that we needed to defend our assumption, perhaps not entirely self-evident, that the decision presentation format itself really matters in the first place (Chapter 3). Finally, we had to establish the conceptual frame within which to locate this new development, which after a couple of false starts is now identified in terms of the “third phase” of Supreme Court judgment delivery. These were the elements of the larger project that McCormick was best qualified to tackle on the basis of three decades of research into appellate courts in general and the Supreme Court in particular.

The book is therefore not the product of collaboration in the usual sense of two authors working through circulated drafts to generate a single unified voice; rather, it consists of separate segments with different lead authors. The pivotal Chapters 6 and 7 are essentially Zanoni’s; the others are McCormick’s, with a more collaborative conclusion. Presenting the book as a co-authorship is the only fair way to reflect the basic reality that without the prompting of Zanoni’s project, without his discovery that accepted truths were not truths at all, without his persistence in chasing down unanticipated aspects of the practice, and without his diligence in sifting through the archives and decoding those records to correct our simplistic assumptions about the every-case journey from argued hearing to reported outcome, the core discoveries of Chapters 6 and 7 would never have been made and this book could never have been written. Without Chapters 6 and 7 to anchor them, the other chapters would have lacked the central link that made them useful parts of a single larger story. Co-authorship was the only honest presentation of this product; relegating the graduate student to an enthusiastic foot-note appended to two chapter titles would have been both unfair and misleading. The unusual origins of this book project undoubtedly still show through to some extent in terms of a different writing style in these two central chapters.

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