Canadian Lawyer

16 M a y 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m by PhiliP Slayton top Court talEs The SCC bench is hot! And by that we mean a serious, responsible, and engaged group of judges. A "hot bench." This titil- lating expression has nothing to do with sex- ual allure or erotic prac- tices. It refers to a court where judges frequently and aggressively interrupt lawyers with questions. In the United States there's even a TV show starting this fall called Hot Bench, pro- duced by Judy Sheindlin (who makes $45 million a year for her court show Judge Judy). At least one real judge is leaving the real bench to join the cast of Hot Bench, further evidence the worlds of entertain- ment, law, and politics are becoming one big playground. The Supreme Court of the United States is certainly a hot bench. J. Harvie Wilkinson III of the United States Court of Appeals for the Fourth Circuit, a senior and respected judge, recently commented that SCOTUS is getting "hotter and hotter and hotter." According to an October 2013 arti- cle in The New York Times, some SCOTUS judges have acknowledged "that things had gotten out of hand in their courtroom, with their barrage of questions sometimes leaving the lawyers arguing before them as bystanders in their own cases." Chief Justice John Roberts has said of this trend, "It is too much . . . " Although, of course, no one has to worry about Justice Clarence Thomas, who has not asked a question during oral argument for eight years. In the U.S., academics tirelessly study the oral antics of SCOTUS judges. One analysis has even quantified the ability of judges to elicit laughter (improbably, Judge Ruth Bader Ginsburg was found to be the funniest SCOTUS justice). The judges incessantly talk in public about themselves and their habits. Newspapers put every SCOTUS issue under a microscope. But it's a different story in Canada. I couldn't find anything, academic or otherwise, about the interrogatory proclivities of Supreme Court of Canada justices. Come on, assis- tant professors, get to work! Tenure awaits. To try and get a fix on this press- ing question, admittedly in a somewhat slapdash and certainly unscientific way, I settled down one evening, Scotch in hand, to watch archived webcasts of recent SCC hearings. Anyone can watch them on the court's web site. (Who watches this stuff, by the way, apart from me and the odd unem- ployed guy living in his parents' basement?) I started with my old favourite, Canada v. Bedford, heard last June, with judgment given this past December. You remember Bedford? If not, read this month's cover story. In a unanimous judgment, the Supreme Court struck down, as contrary to s. 7 of the Charter of Rights and Freedoms, provisions of the Criminal Code that were found to limit sex workers' ability to protect themselves. These provisions made it illegal to run a bawdy house, communicate for the purposes of prostitution, and live off the avails of prostitution. Bedford was certainly a hot case, but Jeff szuk

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