Day Nine: Leonid Sirota

The Roads Not Taken

Sometimes, as other contributors to the symposium have discussed, dissenting opinions chart the law’s future course. But at other times, they are only signposts for alternative paths which the law passes by, perhaps for the better. And sometimes, they point to the lost straight road, from which the law tragically deviates, never to return. The three dissents below belong to this last category.


1. Justice Beetz in Slaight Communications v Davidson, [1989] 1 SCR 1038

Slaight was an unjust dismissal case, in which a labour arbitrator sided with the former employee. The issue at the Supreme Court was the arbitrator could, consistently with the Charter, require the former employer to provide the employee with a recommendation letter bearing the employer’s signature but actually entirely dictated by the arbitrator, and further to refrain from saying anything else about the former employee. The majority held that he could. After all, there was a power imbalance between employer and employee that needed to be rectified, and anyway the employer was only required to state true facts, as established by the arbitrator.

Justice Beetz saw things differently. To force a person to state “facts in which, rightly or wrongly, he may not believe” is tantamount making him “tell a lie”. The outcome of an official fact-finding process cannot be equated with an objective, all-purpose truth, let alone be elevated into a dogma everyone must believe in. The state has no more authority to make a person proclaim what it, but not he, believes to be true facts than to make him proclaim what it, but not he, believes to be true opinions. Such an order “is totalitarian in nature and can never be justified under s. 1 of the Charter. It does not differ, essentially, from the command given to Galileo by the Inquisition to abjure the cosmology of Copernicus.”

Justice Beetz also rejected the arbitrator’s order that the former employer not say anything other than what the arbitrator required about the former employee. He pointed out that “one should view with extreme suspicion an administrative order or even a judicial order which has the effect of preventing the litigants from commenting upon and even criticizing the rulings of the deciding board or court”. Finally, while condemning the former employer, Justice Beetz pointed out that “under the Charter, freedom of opinion and freedom of expression are guaranteed to ‘everyone’, employers and employees alike, irrespective of their labour practices and of their bargaining power.”

All these points are important, and Canadian law is the worse for not having taken them more seriously. Most disturbingly, of course, we have seen in recent years recurring attempts to impose official dogma on dissenting individuals, whether by the Law Society of Ontario or by the governments of Canada and Ontario. But we also now have an asymmetrical Charter jurisprudence, notably in the realm of freedom of association, against which Justice Beetz correctly warned. And, while fortunately we have not seen attempts to stifle criticism of the judiciary or the administrative state by law, too many Canadian lawyers are intolerant of critiques of their judicial heroes.

2. Justice McLachlin (as she then was) in R v Keegstra, [1990] 3 SCR 697

Before she became, allegedly, the “Conscience-in-Chief” of Canada, or at least of the Central Canadian establishment, and a Chief Justice somewhat notorious for strong-arming colleagues into consensus, Justice McLachlin, as she once was, authored a number of important dissents. Famously, the one in Rodriguez v British Columbia (Attorney-General), [1993] 3 SCR 519 eventually, in effect, became Supreme Court’s unanimous position. The one in Keegstra did not. Even Chief Justice McLachlin, as she became, eventually resiled from it. That’s too bad.

In Keegstra, the Supreme Court considered the constitutionality of the Criminal Code‘s proscription of hate speech. The four-judge majority upheld it as a reasonable limit on the freedom of expression. Justice McLachlin wrote for three (on the freedom of expression issue) dissenters. Her opinion is, perhaps, a little fastidious, and contains little in the way of memorable language, but it is thoughtful and deserves to be considered even by those who do not ultimately agree with her. Indeed, having argued the substantive case against the criminalization of hate speech elsewhere on this blog (and Emmett Macfarlane having discussed them in his contribution to this symposium), it is the more general or procedural points that I would like to highlight here.

For one thing, Justice McLachlin was fundamentally skeptical of content-based regulation of speech, and much sympathetic to the American approach, the views all such regulation with great suspicion. For another, Justice McLachlin firmly rejected the attempt to equate hate speech with violence. Violence, she stressed, involved the use of physical force, not words, even hurtful words. Furthermore, Justice McLachlin refused to read down the Charter‘s protection of freedom of expression in the name of equality: “it seems a misapplication of Charter values to … limit the scope of that individual guarantee [of freedom of expression] with an argument based on s. 15, which is also aimed at circumscribing the power of the state”. Compare this to the use of “Charter values” to impose egalitarianism on private actors and eviscerate religious freedom in Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293!

Last but not least, consider Justice McLachlin’s insistence on the need for evidence to justify limitations on the freedom of expression. While acknowledging the appropriateness of some deference to the government on this issue, Justice McLachlin nevertheless wrote that, in order to avoid trivializing the justification of limitations on rights, “in cases … where it appears that the legislation not only may fail to achieve its goal but may have a contrary effect, the Court is justified in finding that the rational connection between the measure and the objective is absent”. Good intentions are not enough ― nor is the sort of ill-informed speculation, camouflaged as “common sense”, that has all too often sufficed in subsequent Supreme Court decisions.

Had just one vote gone the other way, and this opinion become the law, our constitution may well have been in much better shape than it is, far beyond the narrow issue of hate speech. As things stand, Keegstra has to count as one of the more significant missed opportunities in the Charter‘s history.

3. Justice Moldaver in Reference re Supreme Court Act, ss 5 and 6, 2014 SCC 21, [2014] 1 SCR 433, a.k.a. l’Affaire Nadon

In l’Affaire Nadon the Supreme Court was asked to opine on the eligibility of the judges of federal courts for appointment to the Supreme Court itself, and especially that of judges of the federal courts from Québec for appointment to one the Supreme Court’s Québec seats. It was, as readers will recall, a very high-profile and controversial case (more on which in a forthcoming book by Michael Plaxton and Carissima Mathen). The sort of case, in other words, in which the Supreme Court not infrequently issues unanimous opinions “by the court”. But Justice Moldaver’s dissent prevented the majority from giving itself this ultimate institutional imprimatur.

The majority held that, while judges of the federal courts were, as former lawyers, eligible for non-Québec seats on the Supreme Court, only current lawyers or current judges of the Québec’s superior courts could take one of the Québec seats. In doing so, the majority relied heavily on the idea that judges from Québec had to be not only experts in the civil law, but also representatives of Québec’s “social values”. This, they could not do without being current, not merely former, judges of Québec’s courts or members of the Québec bar.

For his part, Justice Moldaver dissected each of the majority’s arguments, and found them empty. In particular, as a matter of text, the two provisions governing eligibility for appointment ― the general one requiring judges to be or to “ha[ve] been” judges or lawyers of at least 10 years’ experience, and the specific one providing that Québec judges are to be chosen “from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province” ― are “inextricably linked”. If the 10-year rule applies to Québec seats, as the majority accepted, so must the eligibility of former lawyers.

As for purpose, Justice Moldaver rejected the majority’s claim that the eligibility criteria had anything to do with the representation of Québec’s alleged “social values”. Indeed, “[i]mporting social values — 140 years later — is unsupported by the text and history of the [Supreme Court] Act”. The majority’s interpretation leads to the absurd result that judges not only of the federal courts, but also of Québec’s provincial court, are ineligible for appointment, while a lawyer who has done no more than pay his fees to the Québec bar while not engaging with the law at all could be appointed; so could a former judge who rejoined the Québec bar for a single day. While Parliament might have chosen such absurd criteria for eligibility and said so, “when interpreting a statute to determine what the relevant criteria are — i.e. what Parliament intended them to be — absurd results are to be avoided”.

As I have said here before, the majority opinion was not only wrong but pernicious; in particular, its linchpin, the concept of “social values”, was just self-important twaddle. Justice Moldaver deserves credit for exposing its vacuity. Rumour has it that he did it at some cost to himself. His fortitude, then, is to be commended as much as his legal acumen.


Honourable mentions: Justices Brown and Côté in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293, which I described here as “probably the best opinion to come out of the Supreme Court in a long while”, and Justices Martland and Ritchie in Re: Resolution to amend the Constitution, [1981] 1 SCR 753, a.k.a the Patriation Reference, which I plan on discussing further in a post on unwritten constitutional principles in a not-too-distant future.

Author: Leonid Sirota

Law nerd. I teach public law and legal philosophy 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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