I am honoured to be asked to provide three of my favourite Supreme Court of Canada dissents.
I enjoyed reading dissents in my free time even before I was even accepted into law school. Picture me: I am in the lunchroom at one of my summer warehouse jobs in the middle of the night. Everyone else is watching Family Guy or doing Sudoku. And then there is me, alone in the corner, reading and revelling in stacks of paper printouts of SCOTUS dissents from the 2000s (read this fascinating piece behind one of them). Yes, I was a nerd and a sucker for judicial zingers.
Reference re Remuneration of Judges of the Provincial Court (P.E.I.),  3 S.C.R. 3 (La Forest J.)
This decision was released just days before Justice La Forest retired. La Forest’s dissent in this case was a bit of a “mic drop”.
The issue was whether and how s. 11(d) of the Charter protects against a reduction of provincial judge’s salaries because it guarantees those charged with an offence the right to “an independent and impartial tribunal”.
La Forest was, by polite Canadian standards, scathing in addressing the majority’s analysis that the preamble to the 1867 constitution means government cannot interfere with the judiciary. He called the majority opinion “historical fallacy” (para. 311), “strained” reasoning (para. 322), “made of insubstantial cloth” (para. 313), a “dubious theory of an implicit constitutional structure” (para. 319) and “entirely misapprehends the fundamental nature” of the constitution (para. 318):
The express provisions of the Constitution are not, as the Chief Justice contends, “elaborations of the underlying, unwritten, and organizing principles found in the preamble to the Constitution Act, 1867 ”… On the contrary, they are the Constitution. To assert otherwise is to subvert the democratic foundation of judicial review. (para. 319)
And if that was not enough, La Forest suggested the Court’s majority opinion hurt the legitimacy of the judiciary itself: the legitimacy of the courts are imperiled “when courts attempt to limit the power of legislatures without recourse to express textual authority” (para. 316):
Given that the express provisions dealing with constitutional protection for judicial independence have specifically spelled out their application, it seems strained to extend the ambit of this protection by reference to a general preambular statement. (para. 322)
On the heels of this, La Forest could not agree that the Charter mandates there be an independent judicial compensation commission to deal with judicial compensation. “Requiring commissions a priori, however, is tantamount to enacting a new constitutional provision to extend the protection provided by s. 11 (d)” (para. 344).
The opposite is true – that the constitution does not mandate a salary commission for judges – “because it is grounded in reason and common sense” (para. 334). To La Forest, the majority’s “result represents a triumph of form over substance” since they acknowledged the government may ignore the commission’s recommendations in some circumstances (para. 343).
La Forest was also highly critical of the Court causing waves without a mandate to do so. The Court should not “venture forth on this uncharted sea” by making a decision with significant ramifications on an issue “where only the briefest of allusion to the issue was made by counsel” (paras. 301, 324). The Court in 2018 understood this when it alerted the parties it was potentially reconsidering Dunsmuir.
Overall, La Forest’s language and reasoning makes for a highly readable and compelling dissent. It is unfortunate we could not get a counter-response to this dissent.
Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 (Abella J./LeBel J.)
Like some others have said, there is a lot to like about Justice Abella and LeBel’s dissenting opinions in this case. Abella wrote separately, and was joined by LeBel, who also wrote separately.
This case upheld the Province of Alberta’s ability to require Hutterites be photographed in order to drive.
Although the tone of Abella’s dissent is relatively demure, there were a few zingers. Justice Abella took aim at both Chief Justice McLachlin’s majority opinion and the government’s arguments. Abella said the government’s evidence justifying the infringement wasn’t “anything more than a web of speculation”.
According to Abella, the majority’s “analysis fully flounders” at the proportionately stage of Oakes. She then offered this devastatingly simple retort:
The fact that Alberta is seemingly unengaged by the impact on identity theft of over 700,000 Albertans being without a driver’s licence, makes it difficult to understand why it feels that the system cannot tolerate 250 or so more exemptions.
In their dissents, Abella and LeBel explicitly recognized the communal and associative nature of religion. This was something that had been largely absent from freedom of religion jurisprudence. They rejected the notion that the Hutterites should simply find third party transportation: “This balance cannot be obtained by belittling the impact of the measures on the beliefs and religious practices of the Hutterites and by asking them to rely on taxi drivers and truck rental services to operate their farms and to preserve their way of life” (para. 201, LeBel J.). The emphasis of community in religion would be later recognized in Loyola, Mounted Police, and (to a degree) TWU.
Justice Abella built off of her dissent in this case in her later dissent in R. v. NS: “It is unclear to me how a claimant’s ‘strength” of belief…affects the protection a claimant should be afforded under the Charter” (para. 89). Conversely, Abella appeared to walk back from this in TWU, when she found as part of the majority that exercising a communal right that was a “preferred” practice rather than a “necessary” one means the interference in a right is “limited” (TWU, para. 88).
Abella and LeBel’s dissents expose how easily minority rights can be trampled by tenuous and weak claims by the government that minorities cannot be accommodated.
Dunsmuir v. New Brunswick, 2008 SCC 9 (Binnie J.)
While technically a concurrence, Justice Binnie’s opinion in Dunsmuir is really an alternative approach to the majority’s reimagining of the standard of review. It is an opinion that has simmered with me ever since the rendering of Dunsmuir caused havoc during my administrative law class.
Citing Romeo and Juliet, Binnie called for a “broader reappraisal” of judicial review than replacing administrative law nomenclature the majority called for: “Judicial review is an idea that has lately become unduly burdened with law office metaphysics. We are concerned with substance not nomenclature….Every hour of a lawyer’s preparation and court time devoted to unproductive “lawyer’s talk” poses a significant cost to the applicant. (para. 122, 133). Binnie later managed to incorporate his “law office metaphysics” line in another case. It is a great phrase.
Binnie, who was directly appointed to the Supreme Court from being a lawyer, identified a compelling problem that the Court’s recent landmark Vavilov decision admitted (para. 21) that Dunsmuir failed to alleviate. Lawyers cannot predict the standard of review, which may determine the disposition of a case:
Litigants understandably hesitate to go to court to seek redress for a perceived administrative injustice if their lawyers cannot predict with confidence even what standard of review will be applied….A victory before the reviewing court may be overturned on appeal because the wrong “standard of review” was selected. A small business denied a licence or a professional person who wants to challenge disciplinary action should be able to seek judicial review without betting the store or the house on the outcome . . . .
As a lawyer, my response to this is an enthusiastic “yes!”. Clients review an administrative decision because they feel a decision-maker got it wrong. It is difficult to explain to them that their success may hinge on “law office metaphysics”.
Lawyers are preoccupied with arguing “standard of review” and not “on the who, what, why and wherefor of the litigant’s complaint on its merits” (para. 154).
Binnie had proposed a more predictable way of choosing the standard of review than the majority. He said that reasonableness should be presumed (later adopted in Vavilov), absent a statutory right of appeal or pure question of law or jurisdiction. As a lawyer, the perspective of lawyers/clients and offering predictability is appreciated.
Binnie also rightly saw what was glaringly missing in the majority’s opinion and what courts have struggled with ever since. That is, how “reasonableness” review ought to operate and how “court and litigants can plug in the relevant context” into the review (para. 151). Dunsmuir’s majority opinion is surprisingly scant on this. Administrative law lawyers have since had a “fun” time extrapolating para. 47 of that opinion.
Binnie fleshed out reasonableness review in a way Dunsmuir’s majority had not. Although Binnie insisted his approach could be done “without traumatizing the participants” (para. 153), I am not so sure administrative law will ever be trauma-free.