The Supreme Court has chosen to decide many cases orally from the bench after the hearings. In 2022, nearly one-third of the top court’s decisions were oral, while oral judgments were rendered in 37 per cent of the court’s decisions in each of the preceding two years.
Oral judgments, which range in length from a few sentences to hundreds of words, are most often handed down in criminal as-of-right appeals, but sometimes the court also renders them in non-criminal appeals for which leave was granted because the court considered them of public importance.
Chief Justice Richard Wagner
That situation changed for the better Oct. 13, when the Supreme Court posted a “Case in Brief” for R. v. Johnson, 2023 SCC 24, after the court 5-0 dismissed the as-of-right appeal from a double murder conviction. The Case in Brief outlines the legal issues involved, as well as the appeal’s background history, and includes a video link to a brief oral judgment delivered from the bench by Justice Nicholas Kasirer.
Johnson marks the first time the top court has issued a plain-language summary for an oral judgment, confirmed Stéphanie Bachand, executive legal officer and chief of staff to Supreme Court of Canada Chief Justice Richard Wagner.
“Beginning this fall, the court is now issuing Cases in Brief for judgments delivered orally from the bench,” Bachand said. “The Cases in Brief in these cases will be issued on the same day as the oral judgments and will include summaries of the facts, the lower court decisions, the issues on appeal before this court and the disposition. These Cases in Brief will be issued within a few hours of the hearing to include a link to the recording of the oral judgment that was read out from the bench. Once finalized, the print version of the judgment that was read out will be available on the court’s website, as is the current practice, and we will also then update the Case in Brief with the relevant link.”
For Johnson, the Supreme Court issued its standard same-day press release announcing the decision, but added, complete with hyperlinks to all of the following: “Watch today’s judgment being delivered orally. A plain language summary of the case is available. The written judgment will be available once it has been signed and issued.”
Stéphanie Bachand, Supreme Court of Canada executive legal officer
“The Cases in Brief are a helpful tool in that regard, for the public, the media and the legal community alike, and this was a logical next step,” she explained.
(The court first rolled out its plain-language summaries in a widely lauded initiative in 2018 — but only for written judgments.)
Bachand highlighted other new developments at the court that aim to promote an open and transparent court and public understanding of the judicial process. They include a revised social media communication strategy “to ensure our messages are as clear, timely and relevant as possible.”
“This has resulted in the development of a new visual identity, the use of more plain language, the daily announcement of hearings — in addition to the monthly announcement — as well as the addition of hyperlinks to facilitate access to live or recorded broadcasts and to case summaries on the court’s website,” Bachand disclosed. “These changes have been implemented at the beginning of the month.”
Bachand added that the Supreme Court also began posting more information last spring on its LinkedIn account, where the court has many followers in the legal community. Cases in Brief, which used to be posted only on X (formerly Twitter) are now also posted on LinkedIn.
The court is also working to modernize its website. Bachand invited users to fill in a brief survey on the Supreme Court’s website “to let us know what they like about the existing website and how it could be improved to meet their needs and expectations.”
The top court’s move to make plain-language summaries available for oral rulings follows the Supreme Court’s initiative last December to start to provide same-day press releases, with hyperlinks, that alert the bar, media and public about oral decisions from the bench and to post same-day video clips (with bilingual interpretation) of the judges’ oral rulings within hours or less.
The court’s stepped-up communications with respect to oral judgments, by rolling out same-day press releases with video links last year and plain-language summaries this month, came after a written request in May 2022 from the 303-member Canadian Parliamentary Press Gallery which asked the court to consider creating a joint court-media working group to explore how the court’s oral rulings could be more effectively and speedily communicated.
In response last December, Chief Justice Wagner wrote to the press gallery’s Supreme Court of Canada committee (of which Law360 Canada is a member) “I am pleased to inform you that the Supreme Court of Canada has recently implemented a new process to assist in the reporting of oral judgments rendered from the Bench. ... It is my sincere hope that this new process will further support your ongoing coverage of the court, including timely coverage of oral judgments. The court is always looking for more effective ways to ensure Canadians understand its judgments and its role in safeguarding the rule of law and our democracy.”
Lawyers have complained in recent years that the apex court’s growing use of oral judgments since 2014 makes the common law— as well as what the court does in a large part of its docket — hard to access, insufficiently transparent, and also hard to decipher at times.
For example, in 2021 the Supreme Court issued a 417-word oral ruling — expressly stating the court meant to “clarify” some law — yet the court did so using judicial shorthand, referring to paragraph numbers in other lengthy judgments, such that it obviously did not achieve the top court’s expressed goal of making its work product accessible, i.e. “easy to read, easy to understand, easy to find.”
Members of the criminal bar have also objected that the growth of oral judgments leaves the impression that as-of-right appeals —mostly as-of-right criminal cases — are “second-class citizens” on the high court’s docket. The Supreme Court has repeatedly told Law360 Canada, however, that “the court gives them all the attention and resources they require.”
Photo of Chief Justice Richard Wagner: Supreme Court of Canada Collection
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