The Supreme Court of Canada’s ‘new transparency’ is anything but

Frank Addario and James Foy
Contributed to The Globe and Mail


Right after Richard Wagner was sworn in as Canada’s 18th Chief Justice, he promised a new era of transparency at the Supreme Court of Canada. He told Canadians that the Court has “to explain to the population who we are, what we do, why we do it and how we do it.” A Twitter account soon followed. At last, it seemed, a more modern open court was here.

The announcement was widely applauded. Demystifying courts and judges’ work makes justice better. If people know why cases are decided, they have more confidence in the product. When the justice widget is shrouded in mystery, the consumer is suspicious. Common sense dictates that the Court explain itself when it addresses hot button issues such as assisted suicide, prostitution or constitutional powers. This principle of the courts’ legitimacy is so well entrenched that it is never questioned.

But recent events suggest the Supreme Court still has a long way to go.

In a case this fall, the court reversed an established precedent meant to prevent wrongful convictions. And strangely, it did so without explaining why. If this is the new transparency, the country is in trouble.

The defendant, David Ajise, appealed his fraud conviction to three judges of the Ontario Court of Appeal, claiming his trial was unfair and his conviction was a miscarriage of justice. One judge agreed, and wanted to order a new one, pointing out the “catastrophic” consequences of conviction. The other two judges thought that if his trial was not perfect, the errors in it were harmless. Using a rule designed for cases of “inevitable guilt,” these two judges upheld the conviction.


The “inevitable guilt rule” was created by Parliament for cases when the prosecutor convinces the court that giving the defendant a second jury trial is a waste of time. Part of what the prosecutor must do is prove that there is no miscarriage of justice because the case is so strong a second trial would inevitably lead to a conviction. This is central to the Canadian program of preventing wrongful convictions. The majority judges in Mr. Ajise’s case borrowed this prosecution tool and slipped it into their toolbox, even though the prosecutor herself never relied on it.

So, off go Mr. Ajise and his lawyers to the Supreme Court of Canada with some big questions. Why would the court invoke the inevitable guilt rule without a request from the Crown? Is it the job of appeal judges to decide the defendant’s guilt without argument?

You might expect the Supreme Court would use Mr. Ajise’s appeal as an opportunity to explain, yet again, the importance of preventing miscarriages of justice, and the judicial role. But the case ended instead with a dull fizzle. Two weeks ago, the Supreme Court dismissed Mr. Ajise’s appeal after reflecting on it for some 11 minutes, and without even hearing the prosecutor’s argument. Its explanation? A cut and paste of the reasons of those two judges in the Court of Appeal. Oh, and those issues about miscarriages of justice raised in the case? Not a word.

Is this the best Canadians can expect from the court of last resort? Preventing miscarriages of justice is a big part of the judicial role. Explaining why and when appeal judges order new trials is the transparency ingredient in the wrongful conviction program.

One little noticed point about the case was that the Supreme Court overturned its own rule that a court should not invoke the rule of inevitable guilt without a prosecutorial request. An established rule, designed to protect civil liberties, was tossed aside in Mr. Ajise’s case without explanation. Not surprisingly, the reversal of precedent went completely unnoticed in the popular media.

Sixteen years ago, the Supreme Court scolded a trial judge for convicting a Newfoundland defendant a defendant, Colin Sheppard, without adequate explanation. Writing for the Court, Justice Ian Binnie said that transparency is the soul of the criminal court’s legitimacy: "Reasoned decisions [are] inherent in the judge’s role.” In other words, explain yourself to the parties and anyone else interested in the case. The practice of deciding cases with only a few words of explanation, often with just five of the nine judges sitting, calls into question the court’s commitment to transparency. This practice, which ducks the court’s policy making role at the apex of our legal system, is not new. Maybe the Court thinks some cases do not belong in the court of last resort. It might be the court wants Parliament to change the rules about what cases it is obliged to hear. But Canadians are owed that explanation, too.

Deciding cases from the bench without explanation is not transparent. While embracing social media is a positive step, transparency takes far more than 280 characters. Dumping cases from the bench means more mystery and fewer explanations for Canadians. The failure to answer the “how” and the “why” will not go away without more effort from the court itself.