The Supreme Court of the United States is certainly a hot bench. J. Harvie Wilkinson III of the United States Court of Appeals for the Fourth Circuit, a senior and respected judge, recently commented that SCOTUS is getting “hotter and hotter and hotter.” According to an October 2013 article in The New York Times, some SCOTUS judges have acknowledged “that things had gotten out of hand in their courtroom, with their barrage of questions sometimes leaving the lawyers arguing before them as bystanders in their own cases.” Chief Justice John Roberts has said of this trend, “It is too much . . . ” Although, of course, no one has to worry about Justice Clarence Thomas, who has not asked a question during oral argument for eight years.
In the U.S., academics tirelessly study the oral antics of SCOTUS judges. One analysis has even quantified the ability of judges to elicit laughter (improbably, Judge Ruth Bader Ginsburg was found to be the funniest SCOTUS justice). The judges incessantly talk in public about themselves and their habits. Newspapers put every SCOTUS issue under a microscope. But it’s a different story in Canada. I couldn’t find anything, academic or otherwise, about the interrogatory proclivities of Supreme Court of Canada justices. Come on, assistant professors, get to work! Tenure awaits.
To try and get a fix on this pressing question, admittedly in a somewhat slapdash and certainly unscientific way, I settled down one evening, Scotch in hand, to watch archived webcasts of recent SCC hearings. Anyone can watch them on the court’s web site. (Who watches this stuff, by the way, apart from me and the odd unemployed guy living in his parents’ basement?)
I started with my old favourite, Canada v. Bedford, heard last June, with judgment given this past December. You remember Bedford? If not, read this month’s cover story. In a unanimous judgment, the Supreme Court struck down, as contrary to s. 7 of the Charter of Rights and Freedoms, provisions of the Criminal Code that were found to limit sex workers’ ability to protect themselves. These provisions made it illegal to run a bawdy house, communicate for the purposes of prostitution, and live off the avails of prostitution.
Bedford was certainly a hot case, but was the Bedford bench hot? There was robust and persistent, but not excessive, questioning, particularly from Chief Justice Beverley McLachlin and justices Louis LeBel, Thomas Cromwell, and Rosalie Abella. It wasn’t too hard to spot the court didn’t have much sympathy for the attorney general of Canada’s position. But, on the whole, the behaviour of the bench seemed restrained and polite.
I moved on to another hot, incandescent even, case: the Marc Nadon reference, heard in January. It’s no surprise there was a good deal of questioning in this one; the reference came close to home and was politically super-charged. Justice Richard Wagner, a recent appointment from Quebec, led the way in questioning and talked a lot, often leaving counsel fiddling with their spectacles and looking irritated. Abella was not far behind in persistence. Most of the other judges weighed in. It was hard to read where they were going, and I was as surprised as you were when, in March, the court poked the prime minister in the eye and ruled Nadon was ineligible for appointment to the coutnry’s top court.
It was time for something completely different. I looked for a dull civil law case and found Bank of Montreal v. Marcotte, a Quebec consumer protection class action from February. The issues were whether foreign exchange conversion costs were properly characterized and disclosed on bank credit card statements, and what level of government has jurisdiction over this aspect of the banking system. The judges, particularly LeBel and Marshall Rothstein, threw out some probing questions, and it was all surprisingly interesting and lively, maybe even a little bit hot. (LeBel got pretty testy — very testy — once or twice.)
Watching these webcasts was amusing, but wasn’t really getting me very far. I needed a different approach. So I sent an e-mail to Earl Cherniak, a seasoned and respected advocate who has appeared many times before the Supreme Court. “Hey Earl,” I asked, “what do you think, is the Supreme Court of Canada a hot bench?”
“Yes it is,” he replied, but his definition of “hot bench” was nuanced. A hot bench, Cherniak wrote, is “a bench that has read and digested the material and comes prepared with real questions to ensure understanding and test the limits of the arguments made and the court’s understanding of them, and to try out other arguments or theories that occur in the course of the review. . . . It does not mean rude or improperly interrupting counsel (usually). But it does mean that counsel can rarely get out a prepared argument, since the bulk of the hour will be spent responding to questions.” Earl warned, “Being able to get out a prepared argument is a bad sign, because it means they have no real interest in your arguments.”
In other words, a hot bench — in Canada, at least — is a serious and responsible bench, an engaged bench, not just a bunch of judicial grandstanders, each trying to outdo the other. That’s what we want, and that’s what we’ve got. The Supreme Court of Canada is a hot bench.
Philip Slayton’s latest book is Bay Street: A Novel. You can read the first chapter at baystreetanovel.com.