In Praise of the SCC

As was SCOTUS last week, the Supreme Court of Canada is a focus of some attention this week, with an historic appeal yesterday that might nullify an election and tomorrow’s release of a pentad of copyright-related decisions which will say a lot about fair dealing. None of this is of the server-crashing magnitude and political impact of the SCOTUS Affordable Care Act decision, but it does highlight what works well with the SCC and its judges:

This is one of those weeks where I beam in admiration for our highest court, and its judges. I am in awe of the fine institution that it is, in our imperfect legal, government, and political system.

Here are some points of praise that come to mind:

  • Today’s notice to the profession mandating electronic filing of memoranda of arguments in leave applications. And of course, electronic filing of appeals has been mandatory for some time, hence our – anyone’s – ability to view factums.
  • Simon Fodden’s recent analysis showing that the judges of the court tend to agree. I suggest those who have familiarity with the work of appellate judges in Canaada agree that approach their work seriously and with respect for legal principle, submissions, and analysis, despite fears of partisan or politically-driven decisions, and grumblings in favour of an electeed bench, that seem to recur with every round of judicial appointments. As Simon notes, a similar analysis of agreement in SCOTUS offers an interesting contrast. I’d also suggest those with that familiarity do an excellent job of maintaining their sworn confidentiality.
  • During coverage of Tuesday’s Election Act appeal, a reminder of how accessible the SCC is. Journalists and professors tweeted their impressions, and the Court itself made the proceedings available by webcast. It has been years since I’ve had the pleasure of watching proceedings first-hand. This tweet from law professor Carissima Mathen, who did attend the Election Act appeal, is apt:
  • Statements such as Chief Justice McLachlin’s “The Relationship Between the Courts and the Media,” remarks delivered at Carleton University in January, in which she emphasised the fundamental, constitutional principle of the open courts to address the question how journalists “after the ‘big story’” and judges, with “a penchant for nuance,” can co-exist:

    My answer is that they can and must, if we want to sustain a society built on the rule of law. Despite occasional discomfort, a free press and an independent judiciary must work together to foster a society committed to the rule of law. The rule of law cannot exist without open justice and deep public confidence in the judiciary and the administration of justice. And the media is essential to building and maintaining that public confidence.

  • The manner in which the court – with the equally praiseworthy collaboration of Lexum and the University of Montreal – releases its decisions: with notice, electronically, freely available, with precise and reliable headnotes.

(Now, let’s see what I say after reviewing the copyright decision…)


  1. Yeah, compared to the gong show that is the SCOTUS, I can admire the operations of the SCC. I base this solely on the process of making a decision about an election’s validity in Canada, as compared to the recent decision on “Obamacare.”

    I recall hearing the Chief speak in law school some years ago. I was duly impressed and felt that we were well served by our Chief. My feelings have not changed in the years since those law school days, notwithstanding the growth in my cynicism.