492 V O L . 7 5 P A R T 4 J U L Y 2 0 1 7 THE ADVOCATE
are few evident clues in demeanour and presentation as to the credibility
and reliability of what is said. The context and reasoning are what inform
us as to whether what is being said is real. Otherwise we may be left believing
what most accords with our pre-existing views and sympathies. This is
a sad loss of the opportunity to have our views either strengthened or
changed (a scenario propounded by John Stuart Mill) based on the need to
engage with the reasoning of others.
Obviously most commentators are private citizens rather than officials
tasked with fulfilling a public function, like a judge. We certainly cannot
force commentators to enunciate their reasoning; we carry no stick. However,
just as a commentator is at liberty not to give reasons, we are at liberty—
and wise—not to give much if any weight to a conclusion apparently
reached in their absence. Perhaps the prospect of more attention for reasoned
statements will be a carrot—we did promise vegetables—encouraging
commentators to change their ways.
We similarly do not expect a decision maker to give much weight to what
we as counsel say if we do not set out the reasons for the conclusion offered.
(There may be an exception for certain confident senior counsel whose
presence may be enough, in their mind, to sway the court, and perhaps
sometimes is.) We know we need to set out the steps that get us from the
facts to the conclusion we wish to achieve for our client. This is why we
work and re-work written submissions, practice our oral arguments and
think through potential questions we might be asked. Why should it be easier
for a commentator, working for goals and perhaps clients of his or her
own, to convince us of anything?
Not all sources are equal. Even when only law-related sources are considered,
we have a vast array from which to choose. We can research the law
of countries around the world, and the law of particular states or provinces
within countries. We can read commentary on the law in addition to the law
itself. How many of us have been tempted—given the large pool literally at
our fingertips—to dabble in researching and even to cite the laws of lesserknown
reaches of the Commonwealth or the laws of Louisiana?
Some of us who fall within that category might also remember the reaction
of the senior counsel or decision maker to whom we presented work
product citing obscure legislation or practices in a civilian system. (That
reaction likely was not favourable.) It might only have been at that point
that we remembered that above all what counts is what the Supreme Court
of Canada has said, as the top of an orderly hierarchy of binding and/or persuasive
Likewise not all news sources should be given equal weight.