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Thursday Thinkpiece: McCormick on “by the Court” Decisions

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‘By the Court’: The Untold Story of a Canadian Judicial Innovation

Peter McCormick
Osgoode Hall Law Journal, Vol. 53(3), 2016, Forthcoming

Excerpt: pp 1-6, 18-27. Footnotes omitted. They can be found in the original via the link above.

What do the BCE case of 2008, the Securities Reference case of 2010, the Senate Reform Reference case of 2014, and the Carter (assisted suicide) case of 2015 have in common? All are unanimous decisions of the Supreme Court of Canada in which the reasons for judgment – the explanation as to why the outcome is the legally and constitutionally appropriate one – are not attributed to any specific named judge or judges on the Supreme Court, but rather to a mysterious entity called THE COURT.

There are not very many Supreme Court decisions that take this form. Indeed, there was a time not that long ago when no headline-­worthy decision ever did – this is a practice that emerged on an identifiable date with a trackable history. Moreover, it is a purely Canadian story – it is not part of the legacy of English law, not something that crossed from south of the border by imitative osmosis, not an idea copied from anybody else. It is something that was developed by Canadian judges, that emerged in response to a very specific Canadian event, and that has evolved since that first experience. This article will identify and explore this underappreciated and understudied judicial innovation.

Who Cares? Defending the Topic

Given that “‘By the Court’ studies” are a barren wasteland, I begin by defending my choice of topic. It is striking that there is no literature for me to review as an introduction to the topic – not a single journal article, let alone a book, has ever focused on this phenomenon. Bzdera set the basic frame twenty years ago when he described the anonymous unanimous judgment as a standard high court device for constitutional questions on federalism issues – but the citations that accompany this bold claim bear on the “unanimous” rather than the “anonymous” aspect. Although specific exemplar cases are often discussed in the literature – given the profile of some of them, how could they not be! – their anonymity is routinely ignored. At most, there are passing comments, often relegated to footnotes, noting without expansion or commentary that the Court sometimes but infrequently uses anonymous judgments in constitutional cases.

Judicial biographies are little better. There are three excellent biographies that should be of real assistance – those of Laskin, Dickson, and Wilson – but they are not. The Laskin biography takes notice of only one of the several ‘By the Court’ decisions that happened on Laskin’s watch, confidently insisting that although no author is indicated, the turns of phrase are characteristic of Laskin – it says nothing about why anonymity was chosen in the first place, or who took the initiative, or how it was decided which specific cases from the broader caseload would take this form. One imagines the justices sitting around a table, one of them suggesting this novel practice and others responding with either enthusiasm or reluctance – but if any such meeting ever took place, the otherwise excellent biography has nothing to say about it. Similarly, the Dickson biography declares that although two specific decisions were reported as ‘By the Court’ judgments, Dickson’s own papers put it beyond doubt that Dickson himself wrote the reasons in question – but, again, there is no discussion of why the impersonal label was used at all, no indication of why Dickson did not assume individual responsibility in the usual way, no hint of a broader practice or policy. All three biographies attach considerable importance to the unanimity of some of the Supreme Court’s most important decisions; none take any real notice of the more unusual feature of anonymity. ‘By the Court’ seems to be all but invisible, except when it is explained away.

And yet, today – after a tumultuous half decade that has included the Securities Reference, Nadon, and the Senate Reform Reference, and Carter – it is no longer possible not to notice the part that ‘By the Court’ played in ratcheting up tension of the Court’s public contretemps with the Harper government. ‘By the Court’ is clearly unusual and unquestionably important, at least sometimes, and yet it remains under-­explored to the point of utter neglect. This omission calls for redress, which this article will attempt to provide.

Broader Theoretical Attractions

There are two important theoretical issues that ‘By the Court’ judgments highlights in a dramatic way.

The first is the presentation factor, the suggestion being that the way the Court presents itself and its decisions (especially but not only the major ones) is a significant element of what the Supreme Court is doing at any specific point in its historical evolution. The content of a major judgment is of course important, but the packaging is important as well; given that the words in a judgment constitute the Court’s only way of exercising its influence, it would be strange indeed to suggest that the mode of presentation simply does not matter, that the Court just dashes things off without any thought about how to shape and structure it to best effect. Thinking of this as the product of conscious and shared choices is made more credible by the fact that our Court’s self-­presentation style has evolved through identifiable stages, and has recently settled on a regular format that is globally unique in a number of ways.

McLuhan famously said that the medium is the message; as a more modest variant, the present suggestion is that the packaging matters. Henderson warns us never to treat any aspect of the way a national high court delivers its reasons as something minor, to be shrugged off as an idiosyncratic accident of whim or personality. Rather, the way the Court presents itself must be understood as the consciously shaped product of the institution’s reaction to the threats and challenges and opportunities of its immediate historical context, constrained by the expectations of continuity that underpin its legitimacy. Although Henderson was writing about the United States Supreme Court, and specifically about the frequency of minority reasons, this observation has broader applications. The period of the modern high style of “By the Court” judgments is the period of our Supreme Court’s emergence as a major national institution, a constitutional court in the fullest sense of the term and a significant player in the major political controversies of the day. Recent decades have seen a considerable degree of constitutional turmoil and change, but arguably the most important consequence been the emergence of the Supreme Court of Canada to a national profile. And many of the decisions that make this observation the most convincing have been delivered ‘By the Court’.

The second issue is “the many and the one”– less cryptically, the panel court paradox of the unavoidable tension between individualism and institutionalism. On the one hand, the Court is nine fiercely independent professionals, each with a unique sense of priorities and values and a strong desire to see those priorities and values appropriately reflected in Canadian law during their service on the Court; only rarely will these perfectly coincide with the parallel preferences of any of their colleagues, let alone all of them. On the other hand, the Court is (especially today)a major national institution whose preferably unified decisions are expected to deliver finality, certainty, and clarity, especially on the larger issues; this calls for leadership (and therefore followership) and compromise. The first wing of this paradox pulls the Supreme Court toward the fragmented individualism of solo reasons, the second toward a preference at least for solid majorities and at best for unanimity. The Court’s location on this continuum is constantly being renegotiated with different answers for different time periods, for different Chief Justices, for different mixtures of personalities, for different sorts of issues and different types of law. The old seriatim style, where every judge wrote free‐standing reasons without reference to those of anyone else, represents one extreme end of this continuum; the “By the Court” style, with a single judgment that does not even acknowledge a lead author, is the other extreme. This contrast is rendered all the more fascinating by the fact that there was a clearly identifiable date when our own Supreme Court switched abruptly and decisively (and therefore, presumably, deliberately) from the one to the other for certain important purposes.

From List to Story

When I started on this project, I was confident that I knew the general outlines of the history of ‘By the Court’. That story would have started with Laskin, who (I then thought) was directly involved in the emergence of the innovation, but whose use of ‘By the Court’ was as tentative and occasional as the term “emergent innovation” implies, the more so because it began only rather late in the Chief Justiceship when his health was already failing. The story would have continued with a more frequent and enthusiastic use of the device under Dickson’s leadership,with almost a dozen solid examples that included some of the must urgent and controversial issues of the day as the language question continued to heat up and the Charter jurisprudence began to take shape. I would have described this as the “coming of age” of the practice, constrained first by the short period during which Dickson served as Chief Justice and second by a paucity of the federal reference cases that had already seemed to be earning pride of place for the practice. Lamer, however, delivered a mixed message. On the one hand, with half as many ‘By the Court’ decisions as Dickson in a Chief Justiceship that was twice as long, seemed to point to a gradual decline, a possible ending of the “glory days.” It is particularly striking that Quebec Sales Tax Reference in 1994 is the only unanimous decision on a federal reference question in the last fifty years that was NOT “By the Court”. On the other hand, the Quebec Secession Reference is arguably the quintessential ‘By the Court’ judgment, the poster‐child that would lead off any focused discussion of the practice. Finally, McLachlin seemed to represent a significant revival, with a constitutional “By the Court” decision in the first six months and a subsequent per‐year delivery approaching that of the Dickson Court. This would have been a story with no clear trajectory, perhaps only highlighting the discretionary role of Chief Justices, which would leave things very much open after 2018 when McLachlin retires and a new Chief Justice chooses whether to step on the gas or the brakes.

I would now back away from much of that description and will instead use the preceding chronology to deliver rather a different message. And I will do so by drawing identifying three substantively different sets of ‘By the Court’ decisions, describing how their interplay over time generates rather a different conclusion.

First, the reactive conversation set

The most obvious subset of the ‘By the Court’ lists above is the cases involving answers to reference questions from government. I describe it as “reactive” for the obvious reason that the government has to have made the decision to ask the question in the first place; I call it a “conversation” because, as I will argue at more length below, the ‘By the Court’ device turns this into a conversation between government as an institution and the Supreme Court as a unified institution.

The reference process is an unusual aspect of Canadian practice that permits the government to put hypothetical or anticipatory questions before the Court. This makes them quite different from normal appeals, which involve cases that arise out of specific concrete circumstances, that come with a context that has been judicially explored by the lower courts, that have an established set of relevant facts that have been tested through an adversary process, and that are essentially retrospective, arriving at general and abstract questions only as they emerge from those concrete fact and law circumstances. By contrast, reference questions make the Court function in a way that makes it more like a legislature: it is asked to work in a judicial-­factual vacuum, answering hypothetical questions in general terms, and implicitly committing itself in advance to rules or principles that have not been tested in concrete circumstances or sounded out in lower court proceedings.

To consider references from the federal government first: the use of federal references is subject to an easily visible ebb and flow, with periods of intense usage alternating with intervals of their complete absence – three in three years in the 1950s, followed by none for a decade; only one in the dozen years before 2010 but then six in five years – but on my count there have been 29 of these since the end of World War II, and these are shown in the table.

Table 5: Supreme Court decisions in federal reference cases, 1946‐present
McCormick Table 5
*= federal references to Federal Court, appealed to SCC

Pushing the list back to 1946 highlights the dramatic change represented by Truscott in 1967. In the twelve years after the end of World War II, there were nine federal references. All were dealt with in the seriatim style: every judge on the panel wrote his own freestanding reasons without referring in any way to any of the others or adopting any part of them. These separate reasons may have covered very similar ground and reached very similar conclusions, but the multiple independent versions needed to be parsed closely to find the real core of an institutionally supported position. The abolition of appeals to the Judicial Committee of the Privy Council in 1949 had no effect on this judgment delivery style.

But Truscott is the great watershed–every single reference case before, but not a single such case afterward, was dealt with seriatim. There have been 20 reference cases in and after 1967; thirteen were unanimous, and fourteen were resolved by joint judgments, anonymous in the sense that they lacked the normal author‐identifying attribution. The overlap of those two categories goes someway to explaining why ‘By the Court’ has generally been taken as implying both unanimity and anonymity: only one post‐1967 reference case was unanimous without being anonymous, and only two were anonymous without being unanimous.

The significance of ‘By the Court’ in this situation is that it effectively positions the Supreme Court as a unified institution providing the other half of a conversation about national governance with the federal government. It is not that the government was not bound by the actual outcome of previous reference cases; and it is certainly not to deny that some had significant impact. The point is rather that there was no clear unified statement from the Court as an institution, no single firm collective declaration of the law and the reasons for it. It is the clarity of this product in the directly policy-­relevant moment of a federal reference that makes ‘By the Court’ a significant element in the emergence of the Court as a major national institution. But one major implication of this powerful opportunity for influence is that it is necessarily reactive: one can only answer a question when and if one has been asked the question in the first place.

To this point I have been discussing federal reference questions, but in Canadian usage the provinces have also given themselves the parallel power vis-­à-­vis their own provincial highest courts, with an option of appealing that decision to the Supreme Court itself. It is also worth noting, however, that these cases are not normally resolved through ‘By the Court’ decisions. Despite an early appearance to the contrary when the Laskin Court used‘By the Court’ for provincial references as regularly and as often as federal references – the set includes the Patriation Reference, the Quebec Veto Reference, the Exported Natural Gas Reference, and McEvoy – only a single more recent provincial reference (Firearms Reference) has been dealt with this way. This is despite the fact that the Supreme Court has dealt with as many provincial as federal references in the last fifty years, that most of them have been unanimous, and that a number of them have dealt with major constitutional issues.

As a first important finding, then: ‘By the Court’ has been developed as the Court’s preferred way of dealing with federal (but not provincial) reference cases, provided unanimity can be achieved but on occasion even when it cannot.

Second, the judicial institutional set

The second set of ‘By the Court’ judgments involves cases that deal with issues that relate directly to the judiciary as an institution, sometimes focusing on the Supreme Court itself and sometimes involving more general matters. The suggested list is:

Table 6: ‘By the Court’ decisions: the judicial institutional set
McCormick Table 6

Two reference cases (Truscott and Nadon, the artistically neat book ends of the set) are included again here as well as in the previous section; in a way, they seem to volunteer for such “double counting” because they are two of only a handful cases which use an impersonal attribution style despite a divided panel.

Truscott has been discussed above as an unusual challenge to the prestige of the Supreme Court. Nadon was comparably embarrassing, dealing with a unique challenge to the validity of an appointment to the Supreme Court as well as obliquely raising unsettled questions about the constitutional amending formulae as they relate to the Supreme Court itself. Wewaykum and Mugesara both involved recusal issues on the Supreme Court, these being critically important to the judiciary because they go to the question of impartiality. Marshall 2 was a unique institutional response (an extended denial of an application to reconsider “Marshall 1”) to an unexpected and unwelcome public reaction to the earlier decision which had been understood (in a way which Marshall 2 said was unjustified) very expansively. Tobiass and Provincial Judges Association are two cases in an extensive string of important (and usually not unanimous) cases revolving around judicial independence issues. And although the “up front” issue in Ahmad was the recurrent dilemma of the balance between individual rights and national security, the major substance of the decision dealt with the jurisdiction of the provincial superior (“Section 96”) courts, and whether a legislative assignment of certain aspects of the case to the Federal Court did or did not violate that jurisdiction.

This is not to say that all cases involving judicial institutional questions, or even all such unanimous cases, are dealt with through the anonymity of ‘By the Court’. Clearly the most important recent case dealing with the judiciary was the 1997 Remuneration Reference, which could have been a joint judgment even over top of LaForest’s vigorous dissent, like Truscott and Nadon, but it was not. Although not as clear‐cut as the first, this set seems firmly enough established to justify identifying judicial institutional matters as a second focus for ‘By the Court’ decisions.

Third: The proactive set

The third use of ‘By the Court’ is the proactive set: the Court decides on its own initiative and for its own reasons that an issue arising in a “normal” appeal (that is to say, not a reference case) deserves this unusual decision format. The label is “proactive” because the decision to elevate the matter to this decision format is made by the Court itself, without any clear external trigger (a federal reference, a judicial institutional issue) to indicate clearly and ahead of time that a case was likely to be decided ‘By the Court.’ In one sense, this is simply a residual category, the cases that are left when those that can be assigned to other categories have been removed. But in another sense, this is the most intriguing and potentially exciting use of ‘By the Court’, involving the most discretionary and inherently open‐ended deployment of this new judgment‐presentation device, and a standing opportunity to create or to continue or reinforce or expand a precedent in a particularly emphatic way.

Table 7: ‘By the Court’ decisions: the “proactive” set
McCormick Table 7

What is most striking about the list is the extent to which it tilts late – well over half of the cases listed (and two thirds of them if we unfold for separate counting the companion cases of Powley/Blais and Solski/Gosselin/Okwuobi) are decisions of the McLachlin Court, and they are spread from the very beginning (Latimer, Burns) right through to the most recent decisions (Carter and Smith) of her Chief Justiceship. If it can be said to have a center of gravity, the major element is the Charter and the secondary element is constitutional language issues – this offsetting the fact that the all but invariant focus of the reference cases has been federalism questions.

The mystery that we are left with is why some cases have been selected for this unusual judgment-­delivery format while others have not. At time of writing, the McLachlin Court has handed down more than a hundred unanimous constitutional law decisions that meet some minimal threshold (arbitrarily but not unreasonably: reserved judgments over 5,000 words in length), of which fewer than one in six attracts this anonymous treatment. A further question is whether the single recent foray beyond the constitutional law field – namely the landmark decision in BCE – is a one‐of-­a-kind aberration or an early sign of a possible expansion of the practice.

Telling the story: revised version

My initial story line for ‘By the Court’ as described above must therefore be revised in several important ways:

  • First, as already detailed, the device was not invented by Laskin himself or by the Laskin Court. The “minor tradition” was part of Supreme Court practice almost since the Court’s earliest days; and the transition to the modern “grand tradition” occurred before Laskin became Chief Justice (indeed, before he had even joined the Court). The central figure in the initial emergence of the modern practice is therefore not Laskin but Cartwright.
  • Second, it seems unlikely that Laskin himself played a major part in the revival or continuation of the grand tradition. For one thing, he had earlier spoken on the other side of the issue. The idea of a “single judgment” format, attributed to no one or nominally to the senior member of the panel, had emerged immediately after the end of appeals to the Judicial Committee in 1949; the question was whether the new status of the Supreme Court called for a new style of judgment‐delivery. The most vociferous opponent of the idea when it was debated by the Canadian Bar Association was Bora Laskin, who was concerned first that it would silence minority voices on the Court and second that it would convey a misleading impression of simplified certainty on nuanced legal issues. Experience can of course change such preferences, but this volte face seems unusually total, especially in the absence of any explicit recantation. For another, Laskin missed out on the intra‐panel deliberations in Blaikie, and was not even included in the panel for the later‐filed Forest, for health reasons – he was hospitalized in Vancouver for most of the 1979 fall term and returned to Ottawa only early in December and to full duties on the Court toward the end of the following January. The revival of ‘By the Court’ on the Laskin Court in 1979 seems to have happened during the only half‐term when Laskin was not a regular full participant in the Court’s internal interactions.
  • Third, a good part of the Dickson Court’s apparent embrace of ‘By the Court’ seems to have been an administrative device to accommodate the unusual pressures of poor health and rapid personnel turnover on the Supreme Court in the late 1980s, as indicated above; several of them seem to have involved finding the least misleading way of dealing with unusual problems when the initial drafters of a set of reasons could not, for one reason or another, be attributed in the normal way. A couple of others –Dorval and Wigman – are curious counter‐examples to the otherwise powerful generalization that ‘By the Court’ is used for constitutional decisions. If Laskin’s use of ‘By the Court’ was reluctant, Dickson’s use of it is –first impressions to the contrary notwithstanding – somewhat fitful and unfocused.
  • Fourth, the picture of the Lamer Court as something of a retreat in the use of ‘By the Court’ is harder to support when I have just finished arguing that the Dickson Court’s use of the device was considerably more constrained and qualified that it might have appeared at first glance. Assessing Lamer’s use of ‘By the Court’ is challenging: on the one hand, six cases in ten years is not a particularly impressive count; but on the other hand, one of those six was the Quebec Secession Reference, the poster-child of a high-­profile high‐stakes constitutional decision. What tilts the balance toward my judgment of Lamer’s use of the device as constrained is the only example in fifty years of a unanimous opinion in a federal reference question (Quebec Sales Tax) that was not handled ‘By the Court’, a striking departure from what seemed to be the single most generalizable rule in the use of ‘By the Court’.
  • Fifth, these considerations all combine to make McLachlin’s use of ‘By the Court’ by far the most striking of the set. Her deployment of the device has been more frequent, more consistently applied to major cases, and more explicitly focused on constitutional issues of some significant profile; further, it has recently extended for the first time to a landmark decision (BCE) that is not related to constitutional matters. A string of the McLachlin Court’s ‘By the Court’ judgments on federalism issues generated a degree of public confrontation between Court and government that is unprecedented in recent Canadian history. But what is even more striking is that the “pro-­active” use of ‘By the Court’, which is to say the ones that cannot be explained as “accidents” or responses to federal references or dealing with judicial institutional matters, has stepped up so dramatically – “unfold” the companion cases for separate counting, and we can say that the McLachlin Court accounts for fully two thirds of all of these cases. If the Laskin Court revived the practice, the McLachlin Court seems on the way to invigorating it and sending it down this proactive channel.

Conclusion

‘By the Court’ decisions have been a surprisingly under-­explored dimension of the Supreme Court’s performance, but fifty years on we can see that there have been about fifty examples of what I have styled the “grand tradition.” This style of anonymous judgment has generally been focused on constitutional issues down three different tracks: first, reactively to federal but not provincial reference cases; second, defensively on issues impacting directly on the judiciary; and third, proactively on constitutional issues at the Court’s internal discretion. ‘By the Court’is a uniquely Canadian development that dates back half a century and has embraced five different Chief Justiceships from Cartwright to McLachlin.

The McLachlin Court has transformed this commentary, to such an extent that it is not too much to say that ‘By the Court’ has finally come of age. It has been used by the Supreme Court often enough and importantly enough to establish the pattern of conscious and strategic deployment that one has trouble detecting for the earlier Chief Justiceships. This raises the reason of why it has done so, of what is really going in in this important shift in how the Court handles some of its major cases, and neither in any of its reasons nor in a formal statement nor in the public speeches that the justices often make these days has there been the slightest hint of a focused answer. By way of speculation, then: it may be that McLachlin is concerned that the normal judicial attribution style, especially when the Chief Justice in recent decades has been assuming the responsibility of delivering a disproportionate share of the Court’s major decisions, runs the risk of excessively personalizing those major decisions. Even more emphatically than the “normal” unanimous judgment, ‘By the Court’ depersonalizes and thereby institutionalizes the Court’s most important doctrinal statements.

Paradoxically, however, this depersonalization is accompanied by a very personalized element: what will happen when McLachlin herself reaches retirement age in 2018? Will her replacement continue the expansion and regularization of the practice, or allow it to fade (as it vanished under Fauteux after the innovations of Cartwright)? The way that the practice has continued or even accelerated with something now approaching a complete change in the membership of the Court suggests that continuation is rather more likely than atrophy. The impression remains that the ‘By the Court’ has some institutional momentum behind it even while it establishes a clearer focus in its deployment, such that it may be becoming a significant and permanent element of how the Court does its major business, and perhaps not just its constitutional business.

In any event, McLachlin has done enough that we should now connect the device in its fully developed form not with any of her predecessors but with her own vigorous deployment of it. ‘By the Court’ has now come of age as an innovative and uniquely Canadian practice for particularly important decisions, primarily but perhaps no longer exclusively with respect to constitutional law, and in the process it has become a more reliable marker of a decision that deserves particular notice. Chief Justice Cartwright was the initial innovator; Chief Justice Laskin presided over its revival; but Chief Justice McLachlin has made it a significant feature of her Chief Justiceship. Given that I have identified 1967 as the year when the “grand tradition” emerged, we are now mere months short of a fiftieth anniversary of the practice, which makes this an appropriate time, and this article an appropriate way, to acknowledge it.

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