Last year, Double Aspect celebrated yuletide by reviving the tradition of festive subversion that used to accompany this once-rowdy season and hosting, for the 12 days of Christmas, a symposium featuring Canadian legal scholars’ least favourite Supreme Court decisions of the last half-century. We had a lot of fun doing it, and so, we believe, did our participants. Most of our readers seem to have enjoyed it too; indeed, one of them wrote a lengthy blog post of his own to say so. But some were not so happy. They thought our little party was a bit too noisy; that court decisions, and the judges themselves, are not to be criticized too harshly, and that we needed to be more positive about our judicial betters.
Be that as it may, Christmas is coming (indeed, it already has arrived here in New Zealand, but Double Aspect still runs on North American time), and so is the second edition of the Double Aspect 12 Days of Christmas Symposium! This time, we’ll throw our critics a bone, in a sense. We will be celebrating (some) judges and their opinions. But we will be celebrating them for having had the courage, and the wisdom, to stand up to their colleagues, and to dissent.
Dissents are fun! Judges have more freedom in writing them, not having to accommodate as many, if any, colleagues, and of course the choice to dissent already reflects a certain independence of mind, a willingness to be, if only for the purposes of this one case, an unconventional thinker and someone who will, very publicly, not go along to get along. But, for the same reason, highlighting dissents also has a serious point for us: they involve criticism, sometimes implicit and sometimes very explicit and quite harsh, of judges and judicial majorities. Criticism by (gasp!) other judges!
Yes, whatever the upholders of the courts’ authority might tell us, judges themselves think that their colleagues are sometimes wrong. Indeed, saying so once in a while is, I would argue, one of the most important jobs appellate judges have. A dissent keeps the majority honest by pointing out what might be the fudges or the weaknesses in its arguments; it charts an alternative course for the law, which the law may yet take in the future; and it alerts the rest of the legal community to the need to reflect on the outcome of the case, because reasonable people can and already do disagree about it. All this is for the good of the law, and all this deserves a little celebration here.
So we are grateful to friends and colleagues who have taken time out of their merrymaking to join ours. In no particular order, we are pleased to welcome:
- Dwight Newman
- Kerri Froc
- Jonathan Maryniuk
- Bruce Ryder
- Carissima Mathen
- Emmett Macfarlane
- Chantal Bellavance
- Matthew Harrington
- Anna Su
- Howie Kislowicz
And of course Mark and I will be taking part as well. We are also very grateful to Constitutional Forum/Forum Constitutionnel, and to its editor, Patricia Paradis, because they will be publishing the collected contributions as a special issue in the coming months.
We have asked the contributors to list and briefly describe three dissents from Supreme Court judgments in constitutional or administrative law, explaining why they are significant or interesting. Some, I take it, have adopted a rather large and liberal interpretation of the notion of dissent, and perhaps even of that of the Supreme Court, but we are looking forward to celebrating disagreement, critique, and misrule with them, and with you!