After the conference, whoever is assigned gets started and the memos begin to flow out between all nine of you continuously?
The procedure in the court has changed under Chief Justice McLachlin. Instead of starting off – as we did in Quebec Secession – pointing the finger at the most recent appointee and demanding of him, we have a general discussion of the different issues and what perspective different judges have on what the case is all about. The important issues and a preliminary view of how they should be decided. The very good reason for that is, if I were to go first and I pontificate on my perspective and then I hear different points of view, I’m not so sure that what I said was so infallible. I don’t want to feel dug in or look like putty. So it’s better to have this ventilation of perspectives and then go around the table with the most recent appointee going first.
Then, there is the assignment of the judgment writer. The memos don’t start until a draft is circulated. If, at the conclusion of the court conference, there is a consensus that we need to do more thinking before we are ready even for somebody to start drafting, then somebody may be assigned to draw up a memorandum listing the issues and different ways of approaching the issues. Then, we might have a re-conference.
We get to the point where somebody might do a draft. That is the starting point for these comment memos. I want to discuss the timing of the post-hearing conferences because a lot of lawyers used to believe – although I think they are now enlightened – that after the hearing the judges just went off for weeks and thought to themselves and ultimately started writing a decision and somehow a result would emerge. In the Supreme Court, as in almost every court – but certainly in the final courts I’m aware of – there has to be a meeting soon after the hearing because you can’t start the process of reducing a case to a decision until you know where your colleagues stand.
It is driven by the fact that we are nine judges. There is no point in assigning me to draft a judgment if I have no idea what my colleagues think. In order to, as Justice Estey used to say, ‘get this baby airborne,’ you need to have a sense of where your colleagues are at. And you can’t do that until after the hearing, when all the arguments are fresh and you can have a very concise, compressed debate because you are all on the same page.
Some judgments take as much as 14 or 15 months to release these days. Presumably these are ones where memos fly back and forth and you just can’t get consensus. Is there always a re-conference in those cases?
Frequently. It depends on the nature of the disagreement. If there appear to be issues that are irreconcilable, that’s one thing. Quite often, the issue is that different judges see the questions differently. In those cases, it’s useful to re-conference because perhaps, by discussion, we can at least have a consensus of what the case is about.
I relate this back to my years as an advocate and this perennial question of whether oral argument in the Supreme Court makes a difference. I think it makes a huge difference – not in the detail, but on this precise point of how you frame what the case is all about. Good appellate counsel will persuade the court, for example, in the child porn case [Sharpe] that the case is about harm to children. If the court concludes that is the question raised by the appeal, then you tend to vote in one direction. But if an advocate persuades the court that the case is about freedom of expression and artistic development and experimentation, then the ball starts rolling in a different direction.
It’s the art of the advocate to frame the question in a way that suits his or her interest. I think that much the same happens at the court conference. The effective judge is the judge who frames the question in a way the other judges accept as a legitimate characterization of what we have to decide.