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opinion and troubling issues remain, issues that go to the heart of Canada's political and legal culture and detract somewhat from what has been accomplished at the Supreme Court. Canadians are highly deferential to public institutions. This enables the people who run those institutions, if they are so inclined, to get away with disclosing only what they want, handing out dribs and drabs of information that are gratefully lapped up by citizens who have been taught to expect little. This is bad for democracy, which depends on the free and vigorous flow of information and opinion. Could it be that a "passive" open court principle — making formal information available to those who assiduously search it out, content simply with not placing Kafkaesque barriers in their way — is not enough? Which brings me to Bob the famous Woodward, American journalist best known for his role in uncovering the Watergate scandal. Woodward is co-author of The Brethren, the first modern mass-market book about the U.S. Supreme Court, published in 1979 and still in print. The Brethren has been followed by a slew of simi- lar and excellent accounts of the high- est American court — most recent- ly, Jeffrey Toobin's The Nine, and Jan Crawford Greenburg's Supreme Conflict. These books enable citizens who are not lawyers to understand the U.S. Supreme Court much better, and have helped fuel great and appropriate public interest in what the Supreme Court does. Woodward gave a speech in Calgary this past April. He talked about his journalistic methods which, judging by newspaper accounts of what he said, consist mostly of good old-fashioned nosiness combined with shoe-leath- er. In his Calgary speech, Woodward described how easy it is in the United States for a journalist to get access to the highest governmental sources. For his recent book on the Iraq war, he interviewed George W. Bush for more than seven hours. Tom Flanagan, for- mer chief of staff to Stephen Harper, was part of the Calgary program. The National Post reported Flanagan's com- ment on what Woodward described: "No prime minister in Canada would give you seven minutes. . . . There's like light years of difference between Canada and the United States." Woodward's response? "What I worry about is secret government. . . . Democracies die in darkness." It's pretty easy to accept Woodward's point when it comes to Canadian pol- iticians. They should be much less secretive. They should be out there aggressively telling us what we need to know. Flanagan's "seven minutes" comment about our prime minister says it all. But should a similar analy- sis be applied to the courts? Should judges, including the chief justice of Canada, be more freewheeling in com- municating with the public and the media? Does the Canadian judiciary have something to learn, say, from Antonin Scalia of the U.S. Supreme Court? Scalia is sometimes described as the Arnold Schwarzenegger of American jurisprudence, and is both admired and heavily criticized for can- didly expressing his strong views, in and out of the courtroom. I talked to an eminent litigator about this, someone who has appeared before the Supreme Court of Canada many times. As we ate lunch in a rather louche restaurant showing horse races on a huge television, I asked him: should Canadian judges belly up to the public bar with less compunction? Should our judges be more muscular in public? He was appalled at the idea, although I wasn't quite sure why. Just that good old Canadian reserve and deference to authority? No, he assured me, some- thing to do with preserving respect for judges and safeguarding judicial inde- pendence. As for me, I think Woodward is right. Democracy withers if its institutions are given undue deference. And it dies in darkness. Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm. Visit him online at philipslayton.com www. C ANADIAN Law ye rmag.com JULY 2009 31 ntitled-3 1 6/16/09 3:26:49 PM Presented by ADMIN PROFESSIONALS August 13 – 14 | Toronto October 5 – 6 | Vancouver HEALTHCARE M&A FORUM September 9 – 10 | Atlanta EMPLOYEE TERMINATIONS September 14 – 15 | Halifax September 21 – 22 | Ottawa September 28 – 29 | Calgary ABORIGINAL LAND FORUM September 14 – 15 | Vancouver COMMERCIAL INSOLVENCY September 14 – 15 | Calgary DRUG DELIVERY SUMMIT September 21 – 22 | New Jersey E-DISCOVERY and E-DOCUMENTS September 30 – October 1 | Halifax October 19 | Montréal B.C. NATURAL GAS FORUM September 30 – October 1 | Calgary MOTOR VEHICLE ACCIDENT September 30 – October 1 | Toronto ATLANTIC CANADA POWER SUMMIT October 5 – 6 | Saint John ENTERTAINMENT SUMMIT October 19 – 20 | Toronto CLINICAL TRIALS October 19 – 20 | Toronto INFRASTRUCTURE PROJECTS October 19 – 20 | Toronto CFO SUMMIT October 21 – 22 | Toronto E-HEALTH October 21 – 22 | Halifax October 26 – 27 | Calgary ABORIGINAL LAW October 26 – 27 | Toronto Media Partner ENROLL TODAY! 1 888 777-1707 www.insightinfo.com