“By the Court”: The Untold Story of a Canadian Judicial Innovation

What do the BCE case of 2008, the Securities Reference case of 2010, the Senate Reform Reference case of 2014, and the Carter (assisted suicide) case of 2015 have in common? All are unanimous decisions of the Supreme Court of Canada in which the reasons for judgment—the explanation as to why the outcome is the legally and constitutionally appropriate one—are not attributed to any specific named judge or judges on the Supreme Court, but rather to a mysterious entity called THE COURT. Very few Supreme Court decisions take this form, and there was a time not that long ago when no headline-worthy decision ever did—this is a practice that emerged on an identifiable date with a trackable history. Moreover, it is a purely Canadian story—it is not part of the legacy of English law, not something that crossed from south of the border by imitative osmosis, not an idea copied from anybody else. It is something that was developed by Canadian judges, that emerged in response to a very specific Canadian event, and that has evolved since that first experience. This Commentary identifies and explores this underappreciated and understudied judicial innovation