KEEPING FAITH: THE NEED FOR MORE PLAIN-LANGUAGE SUMMARIES OF JUDICIAL DECISIONS

Canadian courts have repeatedly said judges must explain their decisions to all Canadians. This obligation is said to be inherent to a fair, transparent, accessible judicial system.

Judges aren’t shirking this obligation. They issue thousands of reasoned decisions every year. Yet most Canadians never read them. If asked, Canadians would likely say they lead busy lives. They simply lack time to grapple with technical jargon and complex legal principles, especially with the increasing length of many judicial decisions. Understandably, rather than read a judge’s actual words, most Canadians will rely on media summaries.

This reliance makes sense. The media play a fundamental role in our judicial system. They’re the information surrogates for the majority of Canadians who’ll never read a judicial decision or enter a courtroom. As the Supreme Court of Canada plainly recognized during the recent hearing over Barry & Honey Sherman’s estate records, the media are the public’s watchdog.

But what happens when the media’s coverage of judicial decisions isn’t fair or accurate. More importantly, what should we do about it.

Last month’s media cycle included news about a constitutional challenge to British Columbia’s medicare system. In a landmark decision, Justice John I. Steeves decided the system complies with Canada’s Charter of Rights and Freedoms. Yet hours after the decision’s release, headlines read “B.C. Supreme Court rules against private healthcare in landmark case”; “B.C. Supreme Court rules against legalizing private health care following decade-long battle”. These headlines were quite misleading. British Columbia had legal, private healthcare and private health insurance long before this constitutional challenge. Justice Steeves’s 880-page decision did nothing to alter this status quo. 

Two days before, an even more troubling headline was published about a different legal matter. It read “Federal AG Lametti interfered in court business: Judge”. This headline made an incredible suggestion: by interfering with court business, Minister Lametti interfered with judicial independence, a fundamental democratic cornerstone. But no judge decided that Minister Lametti interfered with court business. What Chief Justice Marc Noël of the Federal Court of Appeal actually found was benign. The Federal government’s interpretation of legislation was incorrect and shouldn’t be followed. Such a finding is ordinary business for our federal courts whose primary task is reviewing the Federal government’s actions—including government interpretations of Canadian laws.

These summer headlines were equally troubling: “Ontario court throws out law barring self-induced intoxication as defence for sexual assault”; “Ontario Court of Appeal rules intoxication can be used as a defence in sexual assault and violent crimes cases”. 300,000 people signed a petition calling for the decision’s appeal. But anyone who found time to read the 110-page decision would realize these headlines were wrong. The Court of Appeal for Ontario was clear. Self-induced intoxication never was and likely never will be a defence for sexual assault.

Long or complicated judicial decisions don’t relieve the media of their obligation to be fair and accurate. That said, our judges are obliged to explain their decisions to all Canadians, including the media. We shouldn’t have to conquer an 880-page document or untangle multiple headlines to understand why our judges decided as they did. We should be able to quickly and easily understand how judicial decisions affect us.

The Chief Justice of Canada, Richard Wagner, has plainly recognized the importance of this understanding: “It is hard to have faith in something if you don’t understand it”; “The more people will know about the judicial system, the more they will keep faith in the system.” This sentiment isn’t hollow. Under Justice Wagner’s leadership, the Supreme Court has actively sought to increase public accessibility and understanding of its decisions. These efforts could even assist and improve media reporting.

In 2018, the Supreme Court became one of the only courts in the world that publishes accessible plain-language summaries with its oral and written decisions. These “Cases in Brief” even include media-style headlines. They’re easy to read and understand: “anyone interested can learn about the decisions that affect their lives.” This month, the Supreme Court even invited the media to republish these summaries—free of charge and in their entirety.

Most Canadian courts haven’t yet followed the Supreme Court’s lead. The British Columbia Court of Appeal and the Nova Scotia Court of Appeal also issue very short summaries with most written decisions. And the Federal Court and Federal Court of Appeal occasionally provide them with some major decisions.

If courts want to ensure public faith, all courts should follow the Supreme Court’s lead. At minimum, they should release reader-friendly summaries—with their own media headlines—for all decisions that garner media attention. If courts lack capacity, governments should assist.

We must ensure that Canadians actually understand the decisions that affect their lives. After all, these decisions are more than words on paper. They’re the very fabric of our legal system.