There is a reason why journalists should have beats, and why it can be dangerous to write about topics or institutions when you’re not familiar with them. There was a case in point yesterday in the National Post which was trying to sound some kind of alarm about what’s going on at the Supreme Court of Canada—except there’s actually no story here. I’m really not trying to pick on the reporter of the piece, because he’s a good journalist, but he just doesn’t know the file, and got swept up in what a particular lawyer was telling him without having a proper bullshit detector.
The supposed crisis is that the Court is hearing fewer cases lately, and a lot of what it is hearing is being decided in rulings from the bench, meaning they generally don’t release written decisions, and that this is somehow bad for developing case law. Because he talked to one lawyer who tracks stats, he figures that’s the story. Except it’s really not. They’re hearing fewer cases as a direct result of the pandemic, which slowed down the ability to hear cases at the trial court level, which then slows down appeals, which slows down their ability to get to the Supreme Court. They piece pooh-poohs that almost four years later this is still a problem, when of course it is. These things take a long time, particularly when courts were operating on a minimal standard for nearly two years. And because they were operating minimally, most of what they did hear were criminal cases, because they have timelines attached lest they get stayed for delays. That means that most of what does filter up to the Supreme Court are criminal cases, many of them as of right (meaning that at the appeal level, it wasn’t unanimous, so it automatically goes to the Supreme Court of Canada). That’s why a lot of these cases are being decided from the bench—there isn’t any matter of national importance being decided, so they have few needs for written rulings. In the Court’s current session, only two of the cases are not criminal because that’s how the lower courts have been operating. It’s a problem for sure, but it’s one because provinces aren’t funding courts adequately, and the federal government is too slow to make appointments to fill vacancies. This is not a Supreme Court problem.
Furthermore, the piece quotes from a literal constitutional crank—a particular law professor who is of the “burn it all down” school—because it’s a lazy journalist’s trick to make the piece sound more controversial or edgy. But here, he’s saying that he can’t believe they weren’t hearing certain cases without actually saying what he wanted them to hear, and then, out of nowhere, says the Court is going to have to expand, but doesn’t explain why. It makes no sense other than it’s piggybacking on an American issue that has nothing to do with our Court. There is also concern that the court’s decisions are a lot more divided these days and not unanimous without actually exploring that. This is largely because of the different styles of chief justice—under Beverley McLachlin, she strove for more unanimous decisions, and in the end, many of the rulings became so narrowly focused in order to achieve unanimity that they were largely useless for the purposes of developing case law. There is more dissent now because Richard Wagner isn’t concerned with achieving unanimity to the detriment of the decisions, and you have a couple of judges on the court who like to be contrarians. That’s not a bad thing. There is no crisis with the Supreme Court, and if the reporter had any grounding in the institution, he would have seen that there’s no smoke, no fire, and stats without context are useless.
Ukraine Dispatch:
The fighting is now inside the city of Avdiivka, which Russians have been trying to capture for months. There was another prisoner swap yesterday, with 100 exchanged on each side. President Volodymyr Zelenskyy has replaced the top army commander, looking for fresh ideas on how to push Russian invaders back. (More about the new chief here).
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