The Supreme Court of Canada Visits UVic Law
As a part of several events held throughout the country to celebrate the 150th anniversary of the Supreme Court of Canada (SCC), the Faculty of Law was honoured to welcome judges to UVic for a series of discussions with Law students. On Feb. 3, students had the chance to participate in sessions with three members of the Court, Chief Justice Wagner, and Justices Karakatsanis and Kasirer, on the topics of Judicial Independence, Access to Justice and Constitutional Pluralism. Moderated by professors Rebecca Johnson, Rob Lapper, KC, and Val Napoleon, the discussions gave students the unique opportunity enhance their understanding of judicial reasoning and further understand real-world judicial practice.
These sessions with Supreme Court Justices both allowed students to engage with members of Canada’s final court of appeal, and emphasized the role that academic scholarship plays in shaping and interpreting the law. In celebration of the SCC’s 150th anniversary, we’re highlighting some of the ways UVic Law faculty members have engaged with the SCC’s jurisprudence and contributed to the broader legal discourse around the process of judging though their research. Often focusing on the patterns and implications of SCC judgments, their work both enriches how law is taught to the next generation of legal professionals and influences broader legal practices and policies.
UVic Law scholarship and it’s intersection with decisions of the SCC
“Common Sense” in Legal Judgements
Patricia Cochran, Associate Professor and Associate Dean, Administration and Research, dedicated her PhD research to understanding the use of “common sense” in legal judgements, particularly in SCC cases. In her book “Common Sense and Legal Judgement: Community Knowledge, Political Power and Rhetorical Practice”, she questions what it means when a judge uses the phrase, and whose “common sense” should inform the law.
Cochran describes her work as being about the methodological lenses through which the work of legal judgement can be appreciated. She agues that common sense, when used without adequate reflection, can pose a threat to the quality and legitimacy of legal judgement.
"Judges can say they are using “common sense” as a form of reasoning, but its application and implications can be quite complex and sometimes problematic." - Patricia Cochran
Her work shows that while common sense is a fundamental part of decision-making, it is rarely explicitly acknowledged in legal judgments. This selective invocation can sometimes serve to close debate or reinforce conservative thinking. She emphasizes the need to critically examine whose common sense is being invoked and the potential biases that may come with it. At the same time, Cochran argues that common sense should not be dismissed outright.
“I have found that there are reasons to be careful about common sense, however I encourage all of us to think about common sense as properly a part of good legal judgment, including in complex cases of the SCC," Cochran says. "It's about finding a balance and being mindful of the different perspectives that common sense can encompass."
Understanding Judicial Dissent
For over a decade, Professor and Graduate Program Director Rebecca Johnson, along with her colleague Marie Claire Belleau, have studied judicial dissent and its implications for democracy and legal decision-making. Their research demonstrates how judicial dissent, when a judge or judges disagree with the majority opinion in a legal case and write a dissenting opinion, is crucial for democratic accountability. Focusing on understanding how judges engage in disagreement, they show the importance of analysing more than just the final verdict.
"What we’re interested in is not so only the outcomes in particular cases, but also how judges engage in disagreement in ways that make those disagreements public. That way, as a public, we have access to the conversation, and not only the answer." - Rebecca Johnson
Through their work, they show that it matters to look at how judges disagree, not just what they disagree on.
They point to issues like hate speech, reproductive freedom, and same-sex marriage as being particularly relevant because of how the court’s perspective has changed over time. “Seeing these evolutions helps us see that judges are not totally separate from culture, but they are positioned to be able to help us see the structure of our large social disagreements in ways that helps it get articulated,” says Johnson. “It’s not like a sports game where one team wins and one team loses. Where people can see their positions made visible, it honors the integrity of people’s reasons.”
Johnson likens the process of judicial decision-making to the creation of a film, where there may be one director, but the end result is ultimately the reflection of many people’s work and opinions. SCC judges work together to produce judgments that reflect a collective effort, essential for addressing complex legal issues and ensuring diverse perspectives are considered.
Acoustic Justice
Professor and Director, Cultural, Social and Political Thought Program, Sara Ramshaw's research focuses on the concept of acoustic justice, which examines how listening practices in courtrooms can impact the fairness of judicial decisions.
“Through looking at listening practices at the trial level and interviewing judges who were hearing family law cases, we sought to understand how the individual circumstances impact decision making,” says Ramshaw. As litigants who have more social disadvantages and may not use the same language of the law could be treated less fairly, Ramshaw works with judges to offer solutions on how to adjust their listening practices to get a more just decision.
“My research is all about law as being fundamentally improvisational, in that it's using the rules that currently exist and acknowledging that every situation is new,” says Ramshaw. “Every case and every litigant are a unique circumstance, and it’s essential that all judicial levels to listen with both ears and eyes and consider the broader context of each litigant's situation.”
In her current work, Ramshaw aims to apply this research to develop workshops aimed improve judges’ listening practices. Promoting improvisation and advocacy, she envisions training programs that help judges become better listeners. This initiative is particularly relevant given the increasing number of self-represented litigants, who may not be familiar with courtroom protocols. Effective listening skills are crucial for judges to understand and fairly adjudicate these cases.
“With the rise of self-represented litigants, there are more scenarios where everyone in the courtroom won’t have the same level of experience. So instead of judges saying, “I can’t hear you”, meaning, “I'm not going to listen to you because you're not speaking in the manner that I would like you to speak”, these workshops and teaching tools will hopefully be able to offer tools to work on different listening practices." - Sara Ramshaw