It was a formidable challenge to select only three Supreme Court dissents. To make the choice more manageable, I decided to stick to Charter case law, and to focus on opinions that I personally found persuasive. That left out a number of notable opinions, such as William McIntyre’s uncompromising yet necessary challenges to his colleagues during the 1980s. That sort of divergence adds to the jurisprudential project, which regrettably is not always in evidence in many dissents produced today.
In selecting my three opinions, I also thought about the purpose and value of the dissenting voice. I prioritized the willingness to challenge orthodoxy, to articulate hard truths or to recognize doctrinal deficiencies. I looked, too, for powerful writing.
In this 2009 case, a 6-1 majority upheld a provincial law that permits judges to order medical treatment for non-consenting minors under the age of 16. Justice Ian Binnie wrote a dissent.
A.C., a 14-year-old Jehovah’s Witness, refused a life-saving blood transfusion. Medical experts concluded that she had the requisite capacity to make that decision. Nonetheless, because the legislation set out more stringent criteria for persons under age of 16, A.C. was administered the transfusion. She argued that the law violated her Charter rights.
The majority judges determined that it was possible to interpret and apply the legislation in a constitutional manner. However, on the basis that A.C.’s own situation was moot (since she was no longer in care), none of them pronounced on whether she had been deprived of her Charter rights, or indeed whether someone under the age of 16 could ever refuse life-saving treatment.
Justice Binnie recognized that A.C. sought the freedom to make what most people would view as a terrible mistake. But, if an otherwise capable person has the right to make that choice, on what basis might A.C. be denied? In Binnie J’s view, the state had not offered any justification for that denial.
In preferring the safer terrain of statutory interpretation, Justice Binnie said, the majority had not actually responded to A.C.’s claim. The issue was not whether something like a “best interests” test (the focus of much of the majority decision) could be rendered more consistent with the Charter. The question was whether the state could substitute that test for the wholly different one: whether a person has the capacity to make a particular decision. If a “mature minor” has that capacity, Binnie J. argued, the basis for applying a best interests test disappears. Consequently, his colleagues had not lived up to the Charter’s promise. Binnie J. strongly implied that the majority’s reluctance to fully enter into the debate was grounded in both disbelief that anyone would refuse medical care, and suspicion of the faith-based context of A.C.’s choice. While it is valid to seek to protect children who lack capacity, there is no relationship between that goal and removing the choice from children with capacity. Thus, the deprivation of A.C.’s section 7 right to direct her own medical treatment was arbitrary.
If the autonomy rights the Charter guarantees are to be meaningful, they cannot be limited to choices that a majority of persons understand and respect. Justice Binnie’s unstinting embrace of principle makes this one of my favourite dissents. His approach holds valuable lessons today, as our society confronts difficult questions surrounding medical aid in dying
R v. Hall, 2002 SCC 64
A 2002 case about bail, Hall features a powerful dissent authored by Justice Frank Iacobucci (joined by Major, Arbour and Lebel JJ.)
Section 11(e) of the Charter states inter alia that no person may be denied bail without just cause. In the 1992 case of R v. Morales, the Supreme Court assessed criminal provisions permitting bail to be denied if “necessary in the public interest”. A majority found those words vague and, thus, unconstitutional.
Some years later, Parliament amended the law so that even where a flight or public risk is not established, detention is permissible “where [it] is necessary in order to maintain confidence in the administration of justice” considering the strength of the case, gravity and circumstances of the offence, and the potential for a lengthy sentence. The Hall trial judge found that the highly charged aftermath of a murder and the strong evidence underlying the Crown’s case made it necessary to detain the defendant. The Supreme Court upheld that ruling, and the law permitting it, as a rare case in which pre-trial detention on a “tertiary ground” was justified.
Justice Iacobucci’s dissent was excoriating. He accused the majority of abandoning the presumption of innocence and its concomitant right to liberty. He took exception to the suggestion that “a well-functioning bail system” requires the occasional power to deny bail for a purpose unrelated to trial attendance or public safety. He pointed out the pernicious systemic effects of pre-trial detention, such as inducing guilty pleas and inhibiting defendants’ ability to participate in their own defence.
Iacobucci J. was especially disturbed by the idea that confidence in the administration of justice may require detaining someone on the basis of nothing more than (often flawed, even irrational) public sentiment. In his view, the justice system should educate and protect against such attitudes, not coddle them. Given the specific context and the values engaged in pre-trial detention, the amended ground for denying bail was equally as deficient as its predecessor.
Hall was issued during the heyday of the idea that Charter rulings are part of a “dialogue” between courts and legislatures (a concept of which I have long been skeptical). Justice Iacobucci was one of the strongest proponents of dialogue (see, most notably, his decision in Vriend v Alberta). Yet, giving the dissent special force and resonance, he specifically critiqued the idea that “dialogue” could justify the majority’s approach. He called Hall an example of “how dialogue can break down”. Although Parliament purported to respond to Morales, it had not demonstrated due regard for the constitutional standards set out in that case. It had simply re-issued the “public interest” ground by another name. By failing in turn to uphold fundamental freedoms and liberty, the Court majority had “transformed dialogue into abdication” and misconceived its role under the Constitution.
My final entry deals with process and litigation. As I have written elsewhere, the mechanisms by which people ensure the constitutionality of legislation is vital to the rule of law. Little Sisters 2 powerfully illustrates the troubling thinness of constitutional process. In addition, its dissent includes a rare and striking mea culpa.
In 2007, the Supreme Court refused to uphold an interim costs award to the Little Sisters Bookstore. In earlier litigation the bookstore had established long-standing discrimination against it by Canada Customs especially in relation to the LGBT materials it imported. In a majority opinion written by Ian Binnie, the Court decided against any section 52 remedies. Relying on government assurances that the regime had been fixed, Justice Binnie issued only declaratory relief under section 24(1) of the Charter.
Believing that it continued to be the subject of discriminatory seizures, Little Sisters launched a new action. Having already spent hundreds of thousands of dollars, it sought advance costs. The B.C. Supreme Court awarded them, but on appeal the order was set aside. A majority of the Supreme Court affirmed the latter decision on the basis that the new claim was a fact-based dispute with no broader public interest.
While advance costs do not enjoy unqualified support in the legal community, it is difficult to think of a Charter case in which they would be more justified. In Little Sisters 2, the strongest advocate for the bookstore turned out to be Justice Binnie. In his dissent, he implicitly recognized the paucity of his original remedy:
I differ from my colleagues about what is truly at stake in this appeal… In my view, Little Sisters No. 1 provides more than “important context” [as my colleagues describe it]. The ramifications of that decision go to the heart and soul of the appellant’s present application. … This case is not the beginning of a litigation journey. It is 12 years into it. […]
The present application…comes before us precisely because the appellant says that the Minister’s assurances proved empty in practice, that the systemic abuses established in the earlier litigation have continued, and that (in its view) Canada Customs has shown itself to be unwilling to administer the Customs legislation fairly and without discrimination… [W]as the Minister as good as his word when his counsel assured the Court that the appropriate reforms had been implemented?
For Justice Binnie, failing to grant Little Sisters advance costs risked putting the state beyond the reach of judicial review. The public interest lay in having the claim ensue – even if paid for by the State. It was a refreshing, if belated, acknowledgement of the systemic barriers faced by many constitutional litigants.