Day Eight: Anna Su

University of Toronto

There are many reasons for judges (especially at the highest court) to write separate dissenting opinions. The first, in my view, is that it sets forth clear positions on the major legal issues of the day, ready to be taken on anew in a future judgment. In that sense, it is the Supreme Court that becomes the venue for important legal debate, especially for novel constitutional questions. It should not only be the task of academics to recognize and reflect on these significant controversies and to lead the intellectual discussion. A second, more canonical, reason for dissents is that some judge might perceive its truth somewhere down the road and it becomes law in the future. Of course, it might not always happen. But at the very least, at that moment, the possibility that judges can dissent can somewhat improve the majority opinion. Or at least one would hope. I chose these three opinions because they 1) clearly identify a recurring debate in constitutional law, and 2) I hope they could be a prompt for future justices to reconsider how they look at cases in that particular subject.

Justices Binnie and Lebel in Chaoulli v Quebec (Attorney General), 2005 SCC 35, [2005] 1 SCR 791

“This does not mean that the courts are well placed to perform the required surgery.”

In their joint dissent in Chaoulli, Justices Binnie and Lebel emphasized a minimalist role for the judiciary in deciding the question of whether the prevailing single-tier health care system in Quebec was compliant with the s.7 guarantee under the Charter. Both justices would have upheld the Quebec prohibition on private health insurance as they questioned the appropriateness of the court passing judgment on what constitutes “reasonable health services”. The dissent is persuasive in holding the dispositive effect of the phrase “principle of fundamental justice” – the bread and butter component of s.7 litigation – under close scrutiny. Indeed, as the dissent went, a legislative policy cannot be deemed arbitrary just because we may disagree with the decision. The dissent acknowledged that the existence of waiting times is certainly a public concern and that a two-tier health care system would have a negative impact on the integrity, functioning and viability of the public system, but it expressed skepticism that this is within the purview of courts to evaluate.

Over the course of its s.7 jurisprudence, the SCC has given the phrase “principles of fundamental justice” substantive content by defining them as principles against arbitrariness, vagueness, overbreadth and gross disproportionality. Arbitrariness in particular, refers to the relationship between the means adopted and the policy objective. The dissent shows the indeterminacy of this standard. In contrast to the characterization of the majority, the dissent showed an equally plausible and clear relation between the prohibition against private health insurance and the preservation of access to a health system based on need.

There will be many more cases to be litigated under s.7. A prominent one in the offing is the recently filed suit by minors against the federal government for violating their s.7 rights to life, liberty and security of the person for, among others, its failure to curb greenhouse gas emissions that is incompatible with a stable climate system. The question of whether courts are the right venues to seek relief thus remains evergreen. The broad themes of the Chaoulli dissent illustrate the limitations and possibilities of s.7 case law.

Justice Abella in Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567

Justice Abella’s spirited dissent began with a succinct encapsulation of what the s.2(a) doctrinal framework is about. Freedom of religion is an important constitutional value. Accordingly, there is a high threshold to be met by any infringing measure. It is a very good illustration of what it means to take freedom of religion seriously in a pluralistic society, regardless of the final outcome. In this case, the controversy was whether the Hutterites were entitled to an accommodation from the mandatory photo requirement in drivers’ licenses on the grounds that their religion forbade them from having their photos willingly taken. Justice Abella laid out the drastic harm to the constitutional rights of the Hutterites, absent such exemption, since it would not allow them to maintain the autonomous and insular nature of their communities without any driving privileges.

This point is greatly appreciated especially in juxtaposition with how the majority opinion disposes of this argument, which suggested that the Hutterites could avail of third-party transport for necessary services. In his landmark essay Nomos and Narrative, the late legal scholar Robert Cover wrote about the jurispathic function of courts—that is, their ability to quash other commitments and forms of interpretation when they are incompatible with national norms. Religious freedom cases brought before courts often highlight this ability. In such cases, courts assert one law, often the state’s, to the rejection of all others. I am always reminded of this when I read opinions that make short shrift of the constitutional promise to celebrate pluralism and its guarantee to protect religious liberty. Justice Abella’s dissent in Hutterian is not one of them.

The dissent also fleshes out what proportionality stricto sensu in the Oakes test looks like. As the majority points out, this stage has not often been used in Charter cases.

Justice L’Heureux-Dubé in R v Van der Peet, [1996] 2 SCR 507

The dissent by Justice L’Heureux-Dubé in Van der Peet offers an explanation of why the ideal of legal reconciliation (one of the many dimensions of reconciliation) between Canada and its indigenous population remains an aspiration, rather than reality. Professor John Borrows, for instance, still criticizes the originalist framework for proving aboriginal rights that Van der Peet has ushered in and urges lawyers and academics to reject history as the sole determinant of legal analysis under s.35. But in 1996, Justice L’Heureux-Dubé already rejected the frozen rights approach she saw the majority opinion to be taking, and emphasized that “the notion of aboriginal rights must be open to fluctuation, change and evolution, not only from one native group to another, but also over time.”

In particular, her approach to interpreting aboriginal rights rejects the reliance

on the proclamation of sovereignty by the British imperial power as the “cut-off” for the development of aboriginal practices, traditions and customs overstates the impact of European influence on aboriginal communities. Taking British sovereignty as the turning point in aboriginal culture assumes that everything that the natives did after that date was not sufficiently significant and fundamental to their culture and social organization.  This is no doubt contrary to the perspective of aboriginal people as to the significance of European arrival on their rights.

Moreover, “crystallizing aboriginal practices, traditions and customs at the time of British sovereignty creates an arbitrary date for assessing existing aboriginal rights”.

And finally, Justice L’Heureux-Dubé writes:

the “frozen right” approach imposes a heavy and unfair burden on the natives: the claimant of an aboriginal right must prove that the aboriginal practice, tradition or custom is not only sufficiently significant and fundamental to the culture and social organization of the aboriginal group, but has also been continuously in existence, but as the Chief Justice stresses, even if interrupted for a certain length of time, for an indeterminate long period of time prior to British sovereignty. This test embodies inappropriate and unprovable assumptions about aboriginal culture and society. It forces the claimant to embark upon a search for a pristine aboriginal society and to prove the continuous existence of the activity for “time immemorial” before the arrival of Europeans.


Dissents in Canadian constitutional law opinions are far from being nasty “body slams,” as Dahlia Litwick describes dissenting opinions in the US Supreme Court, but they fulfill similar functions. At the very least, they enhance the legitimacy of judicial institutions since they reinforce the impartiality and independence of judges. There should be more of them.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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