by Florian Sauvageau, David Schneiderman, and David Taras. Vancouver: University of British Columbia Press, 2006. 272pp. Hardcover. $95.00. ISBN: 9780774812436. Paperback. $25.95. ISBN: 9780774812443.
Reviewed by DeLloyd J. Guth, Professor of Law and Legal History, University of Manitoba. Email: djguth [at] cc.umanitoba.ca.
This book’s title is a triple tease. The Supreme Court of Canada may give its latest word in deciding a case, but it remains willing and able to modify its previous word on point. And what a disaster it is to have any member of the media, or thirdly these three authors, handing down a last word on anything.
This book will not be the last word, but it does add substance to other more fragmentary analyses of the relationship that Canada’s highest court enjoys with the print and television (but no mention of radio!) media. Kirk Makin and Cristin Schmitz, among others like Stephen Bindman before them, provide intelligent media commentary that explicates Court decisions with respect for their authors. By contrast, academic studies have tended to offer patchworks of mixed support and respect, at best. There is something grudging in books by Ian Brodie (2002), Lydia Miljan and Barry Cooper (2003), by F. L. Morton and Rainer Knopff (2000), as well as, for example, in articles by Peter Russell, Andrée Lajoie, Kent Roach, John Saywell, Jacob Ziegel, and Peter “the case-counter” McCormick. Harshest criticisms of the Court, it should surprise no one, come mainly from Québec and Alberta. The established print and television media remain gentle by comparison.
THE LAST WORD, by Florian Sauvageau, David Schneiderman and David Taras, is a revelation, a documentary and a contextualization of four controversial Supreme Court of Canada judgments: VRIEND (1998), the QUÉBEC SECESSION REFERENCE (1998), MARSHALL (1999), and SHARPE (2001). Each gets a separate chapter. The methodology is consistent: the authors narrate the case at trial and appeal, the actors and arguments are introduced, then a quantitative survey of media coverage (often several hundred reports) is presented, followed by an analysis of the Court’s text and reasoning, with a brief conclusion about each case’s legal significance.
Sauvageau, Schneiderman, and Taras emphasise that in VRIEND the Court made the issue the Charter’s notwithstanding clause, thereby avoiding the moral question about equal protection of law for gays and lesbians. The media helped by dropping the politically hot issue of public morality, making “the province-as-deviant” the focus without explaining the legal reasoning in the decisions. In the SECESSION REFERENCE, the Court pushed federal parliamentarians to confront responsibilities, which soon produced the Clarity Act (2000/SC, c. 26); and then in turn Québec legislators pushed back with their Fundamental Rights Act (2000/SQ, c. 46). The media, [*89] except for Québec at election time, has since abandoned this issue entirely. The Court created its own mini-crisis in its two MARSHALL decisions, with the second rescuing bureaucrats in the Maritimes from the first. Sauvageau, Schneiderman, and Taras find fault with a media that rushed, before and after, into complex legal issues with ignorant guns blazing, eager to shoot down Aboriginal treaty rights without reference to law and history. Finally the authors assert that in SHARPE the Court continued to defer to parliament’s role, rather than its own role, in law reform, despite moments of media feeding-frenzies over child pornography, which everyone opposes and no one defines.
Of the book’s six chapters the most enlightening is the last, entitled “Judges and Journalists.” It spotlights Chief Justice Brian Dickson, from 1984 to 1990, for developing “the most open court in the world;” but Sauvageau, Schneiderman, and Taras remain frustrated by the traditional “vacuum created by the silence of the judges” (p.24). How, when and what should an appellate (or trial) justice say about any case after the recorded judgment? Both the media and public archives are eager to obtain reflections and papers, in the struggle for control over a judge’s reputation and the stare decisis issues involved. For immediate control, the Court created its own communications system when Dickson made its Executive Legal Officer its sole liaison for the media. This has worked well for the Supreme Court of Canada and for reporters, for whom the Court’s “credibility is largely unshaken and unchallenged” (p.223).
Beyond this, Sauvageau, Schneiderman, and Taras do not venture. Is this model applicable to other Canadian courts of law? The authors do not say. They take for granted that some “court-media relationship” is necessary, even desirable, but are not interested in extending the analysis and issues into the worlds of police-beat, magistrate or trial court reporters. Second, there is little thoughtful discussion of what the media-informed public needs to know, indeed deserves to know, about their courts of record and the judges, lawyers and parties in civil and criminal cases. Related to this, third: what constitutes quality in media coverage of any legal system and how can we measure this? Again, there is no serious attention beyond anecdotal examples. Fourth, we get little mention of the tabloid treatment of crime, which has sold newspapers since at least Henry Fielding’s London circulars in the 1740s. The culture of victimisation and sensationalism, centred on criminal cases seriatim, sells even for proceedings at the Supreme Court of Canada. Fifth, and most vitally, what does the “court-media relationship” tell us about media ownership and editorial politics? Again, we read very little. Sixth, Canada has not had a popular academic exposé literature, as in the United States beginning with THE BRETHREN (1979): why not? And seventh, because the media are constantly creating a research engine with its court case reports, Sauvageau, Schneiderman, and Taras need to address the media’s archival and public memory responsibilities, because newspapers particularly are often the only long-term record for reconstructing individual cases.
Such contextualizing topics help to explain ultimate control over any court’s judgment: who does the “spinning,” and [*90] how much life will that spin have alongside the actual judgment? THE LAST WORD approvingly narrates how the Supreme Court of Canada and the Canadian media establishment sustain relationships that distinguish judge-made from politician-made law. It offers a commendable beginning for studies of the two-way street between courts and legislatures, and for the politics mediated by reporters, news-readers and editors. This book is published in the “Law and Society Series” of the UBC Press and needs to be read alongside two other books in that series: Flemming (2004) and Ostberg (2007).
Brodie, Ian. 2002. FRIENDS OF THE COURT: THE PRIVILEGING OF INTEREST GROUP LITIGANTS IN CANADA. Albany: State University of New York Press.
Flemming, Roy B. 2004. TOURNAMENT OF APPEALS: GRANTING JUDICIAL REVIEW IN CANADA. Vancouver: University of British Columbia Press.
Miljan, Lydia, and Barry Cooper. 2003. HIDDEN AGENDAS: HOW JOURNALISTS INFLUENCE THE NEWS. Vancouver: University of British Columbia Press.
Morton, F.L., and Rainer Knopff. 2000. THE CHARTER REVOLUTION AND THE COURT PARTY. Peterborough, ON: Broadview Press.
Ostberg, Cynthia L. 2004. ATTITUDINAL DECISION-MAKING IN THE SUPREME COURT OF CANADA. Vancouver: University of British Columbia Press.
Woodward, Bob, and Scott Armstrong. 1979. THE BRETHREN: INSIDE THE SUPREME COURT. New York: Simon & Schuster.
R. v. MARSHALL,  3 S.C.R. 456.
R. v. MARSHALL,  3 S.C.R. 533.
QUÉBEC SECESSION REFERENCE,  2 S.C.R. 217.
R. v. SHARPE,  1 S.C.R. 45.
VRIEND v. ALBERTA,  1 S.C.R. 493.
© Copyright 2008 by the author, DeLloyd J. Guth.