As discussed earlier this week, on February 9th, the Supreme Court of Canada unanimously upheld an Act Respecting First Nations, Metis and Inuit Children, Youth and Families (Bill C-92). One interesting aspect of the decision from a jurisprudential perspective is that the SCC delivered the reasons without attribution to an authoring justice, instead writing as simply “The Court.”
Scholars Peter McCormick and Marc Zanoni have studied this anonymous “By the Court” style, which is original and unique to the SCC. [1] They posit that the SCC’s decision to attribute a decision in this way goes beyond unanimity, and univocality to instead signal “something more, a greater degree of solidarity that implicitly invites a greater degree of attention.” [2] This type of attribution tends to occur primarily with constitutional cases, especially reference and federalism cases. [3]
The SCC may also decide to use this format in highly controversial or polarizing cases. [4] By not attributing the decision to a single justice, no one person will be required to take the brunt of the pushback from those who disagree strongly with the decision. This may be the reasoning behind the decision in this case, as there are people who disagree or are threatened by the expansion of Indigenous jurisdiction.
Further, this was one of the first cases heard by Justice Michelle O’Bonsawin, the first Indigenous justice to sit on the SCC. By utilizing a By the Court authorship style, the SCC may be protecting O’Bonsawin from stakeholders in the decision (from all sides of the debate) from reading too far into her involvement (or potential lack of involvement) in the writing of the decision.
Regardless of the exact logic of the SCC, the Bill C-92 Reference case now takes its place amongst the other “By the Court” cases that have helped shape the legal landscape of Canada, including the Quebec Secession Reference and the Same-Sex Marriage Reference, as well as Powley.
Until next time,
The ReconciliACTIONyeg Team
Peter McCormick & Marc D. Zanoni, By the Court: Anonymous Judgments at the Supreme Court of Canada (Vancouver: UBC Press, 2019) at 5.
Ibid at 14.
Ibid at 190.
Ibid at 173.