Template talk:SCCOpinionKey

This template is badly flawed

This template is clearly just borrowed from the equivalent US Supreme Court template (Template:SCOTUStablekey) and is badly flawed. This template just uses the terminology from the US Supreme Court, to describe the decisions of the Supreme Court of Canada, rather than using the terminology that the SCC itself uses. In my opinion, it needs to be completely re-worked to make it accurate for Canadian Supreme Court descriptions.

• "Delivered the Court's reasons" — SCOTUS: means a decision that has the support of a majority, even if that is 5-4; SCC — means a unanimous decision only. There should be two categories here: "Unanimous decision" and "majority decision"

• "Joined the Court's reasons" — in SCOTUS, "joined" means that a judge has supported the majority decision; the term "joined" is not used in the SCC; instead, the term is "concurring in the majority reasons".

• "Filed a concurrence" — SCOTUS term for a judge who agrees with the majority, but has written a separate set of reasons; SCC doesn't use "filed"; generally "concurred in the result" or "separate concurring reasons".

• "Joined a concurrence" — SCOTUS term "joined" not used in SCC; better term would be "concurred in concurring reasons"

• "Filed a dissent" — "filed" is SCOTUS term; not used in SCC; "dissenting reasons" is term used.

• "Joined a dissent" — "joined" is SCOTUS term; not used in SCC; "concurred in dissent"

• "Filed a concurrence/dissent" — "Filed" is SCOTUS term; not used in SCC; "Concurring in part/dissenting in part" is used in SCC

• "Joined a concurrence/dissent" — "Joined" is SCOTUS term; not used in SCC; "concurred in concurence in part/dissent in part"

Then, in the notes:

• "Decisions that do not note a Justice delivering the Court's reason are per coram."

• The SCC does not use the term "Per coram". The term used is "The Court".

• "Multiple concurrences and dissents within a case are numbered, with joining votes numbered accordingly. Justices occasionally join multiple reasons in a single case; each vote is subdivided accordingly."

• This is SCOTUS practice, but is not done in the SCC.

• "Multiple unnumbered reasons are jointly written or delivered."

• This is SCOTUS practice but is not the case with the SCC. There can be cases where each judge writes, or there are several sets of reasons given, but that does not mean they are jointly written or delivered unless the decision actually says so.

• "Decisions that are given orally from the bench are denoted by a "V"; per coram decisions delivered orally from the bench only note a "V" on the most senior justice on the panel."

• This is not accurate. When the Court gives a unanimous decision from the bench, it is not necessarily the most senior justice who gives the decision. The template should indicate which justice gave the oral decision, and also if there is a dissent from the bench, which justice gave the oral decision. I think "O" would be a better indicator, since they are referred to as "Oral decisions". The term "per coram" is not used by the Court, as mentioned above.

• "An asterisk ( * ) in the Court's opinion denotes that it was only a majority in part or a plurality."

• This can happen in SCOTUS, since a "judgment of the Court" is a majority; in SCC, a decision of "the Court" is unanimous.

I've not provided examples to back up this analysis, but I can provide cites to SCC decisions to illustrate these points if desired.

I think an entirely new template is needed, implemented on a going forward basis; too much work to try to change all the existing usages of this template all at once.

Mr Serjeant Buzfuz (talk) 14:43, 6 May 2023 (UTC)

I agree with the concerns raised, and also that the best solution is to create a new template. It will be necessary to go through all of the affected articles on a case-by-case basis, and having a new template to move to will make that process much easier. Sticking as close as possible to the language used by the Court itself in their published reasons will both improve clarity and avoid original research, whch could mean something like:

Delivered reasons for judgment	Concurred with reasons for judgment
Delivered concurring reasons	Concurred with concurring reasons
Delivered partially concurring reasons	Concurred with partially concurring reasons
Delivered reasons dissenting in part	Concurred with reasons dissenting in part
Delivered dissenting reasons	Concurred with dissenting reasons

I'm trying to look through relatively unusual results that are challenging to capture:

1. "Reasons for judgment" is not always synonymous with "Majority reasons". In 2018 SCC 40 the Court was unanimous in outcome, but split 3-3-2-1 in reasons. One set of reasons is identified as "Reasons for judgment" and the others as concurring reasons. Given the tie, I'm not sure how that was decided; possibly just by seniority.
2. "Partially conurring" and "Dissenting in part" are distinct. (2009 SCC 23 has both.) Though we could combine them in the colour coding to simplify the chart.
3. Reasons can be jointly authored. It might be advisable to add a number to every set of reasons to make it clear when this is happening, and when they are separate reasons.
4. I think anything more specific can likely be folded into the above. For example, "Reasons Dissenting on cross-appeal" from 2013 SCC 71.

--Trystan (talk) 17:47, 6 May 2023 (UTC)

That looks good, Trystan! One suggestion is to add two more boxes: "Did not participate in judgment" and "Not on the Court at time of hearing". The "Did not participate" would apply to any judge who was at the hearing but did not participate, because of death, resignation, illness, or "ahem" other reasons (Looking at Brown J...). "Not on the court" would apply to cases heard in 2022 prior to O'Bonsawin being appointed, for example. Mr Serjeant Buzfuz (talk) 18:46, 6 May 2023 (UTC)

R. v. Rahey, [1987] 1 S.C.R. 588 is a tricky one: the Court split 2-2-2-2, and Chouinard J. died.

Another one is R v Morgentaler, [1988] 1 SCR 30: 2-2-1 majority, 2 dissenting: Dickson-Lamer; Beetz-Estey; Wilson all in favour of allowing the appeal, but for different reasons; McIntyre-LaForest dissenting. (Although Dickson did get a unanimous Court on some of the ancillary issues, like jury nullification.) Mr Serjeant Buzfuz (talk) 18:57, 6 May 2023 (UTC)

Would we want another box for "By the Court"? Unanimous & anonymous, so there is no-one judge who is delivering the judgment. Mr Serjeant Buzfuz (talk) 19:02, 6 May 2023 (UTC)