Day 10: Bruce Ryder

Riding the waves of ascendant normative currents

Osgoode Hall Law School, York University

All judicial opinions are directed to adjudicating disputes and to the clarification and development of the law. Majority and dissenting opinions reach different conclusions of course; they also speak to different points in time. Dissenting opinions imagine and bring into view more distant legal futures. The dissenter hopes to have an impact on the development of the law further down the road, when anticipated injustices fostered by the majority’s position have been revealed.

Because the value of a dissent emerges over time, we ought to be cautious about lauding or condemning dissents early in their lifetimes. After a few decades have passed, we can ask: what impact has the dissent had on the development of the law? has the dissent shifted or ignited professional, judicial and scholarly debates about what the law ought to be?

The best dissents expose flaws in majority opinions and where they will take us. They deftly catch and ride the waves of ascendant normative currents in the law. They pose better questions, open new debates, and expand our critical imaginations about what a just future might look like. They invite us to dissent, not just from the majority, but also from the dissent itself. And by doing so they remind us that the best dissents are the ones that have not yet been written.

The three dissents I have chosen to highlight in the Supreme Court of Canada’s public law jurisprudence are Justice Beetz’ in the Anti-Inflation Reference, [1976] 2 SCR 373 , Justice La Forest’s in the Provincial Judges Reference, [1997] 3 SCR 3, and Justice McLachlin’s in Shell Canada Products Ltd v Vancouver (City), [1994] 1 SCR 231. Each has had an important impact on the subsequent development of the law, has advanced debates in professional and scholarly circles, and has invited us to pursue further critique beyond where the dissents themselves ventured.

Justice Beetz and the POGG Power

In his dissent in the Anti-Inflation Reference, Justice Beetz began by explaining in precise detail why the federal Anti-Inflation Act interfered with provincial jurisdiction “in a frontal way and on a large scale”. His concerns about federal interference with provincial autonomy resonated with the times – the Parti Québécois would be elected for the first time four months later. He explained why inflation was not a subject-matter that could be allocated to the national concern branch of POGG. To do so, he wrote, would “destroy the equilibrium of the constitution” since inflation lacked “a degree of unity that made it indivisible, an identity which made it distinct from provincial matters and a sufficient consistence to retain the bounds of form”.

Justice Beetz then turned to the emergency branch of POGG, describing its distinct contours, as he had with the national concern branch, with new conceptual clarity. The emergency power, he wrote, temporarily accords to Parliament all legislative powers necessary to deal with a crisis, including “concurrent and paramount jurisdiction” over matters that fall within (ordinarily exclusive) provincial jurisdiction. Resort to the emergency power, he said, “amounts to a temporary pro tanto amendment of a federal Constitution by the unilateral action of Parliament.”

The majority judges were willing to allow Parliament to rely on the emergency power despite the absence of any indication in the legislative history that it was doing so. Justice Beetz stood firmly against sanctioning such a cavalier approach to federalism and democratic deliberation. He insisted that “Parliament cannot enter the normally forbidden area of provincial jurisdiction unless it gives an unmistakable signal”. In the absence of such a signal, “[i]t is the duty of the courts to uphold the Constitution, not to seal its suspension”.

The Court has not had an opportunity to revisit the emergency power since 1976. Justice Beetz’ opinion on the required form of its exercise remains the dissenting view. But the force of his position is undeniable. It is, like all the best dissents, a law in the becoming, an imminent law set to bloom. It would be foolhardy for Parliament to attempt to invoke the emergency power by stealth ever again.

Justice Beetz’ comments on the national concern branch of POGG were powerful obiter dicta that later became the law when they were adopted by the Court in R v Crown Zellerbach Canada Ltd, [1988] 1 SCR 401 (1988) a decade later. The criteria Justice Beetz articulated – and whether those criteria need to be adjusted to give greater weight to the importance of national responses to problems of the scale and urgency of global warming – will be at the heart of the references on the validity of the Greenhouse Gas Pollution Pricing Act to be heard by the Supreme Court in March 2020. The new emphasis Justice Beetz gave to provincial autonomy in 1976 will continue to shape the evolution of the POGG power and Canadian federalism jurisprudence more generally.

Justice La Forest and Unwritten Constitutional Principles

Chief Justice Lamer’s extended obiter dicta in the Provincial Judges Reference, locating a guarantee of judicial independence applicable to all courts in the preamble to the Constitution Act, 1867, were a startling and self-serving expansion of judicial power.

Justice La Forest’s dissenting opinion was a lacerating critique of the majority’s overreaching dicta. He emphasized that if judicial review is not grounded in the provisions of the text of the constitution, the courts lack a democratically legitimate basis for placing limits on the powers of the executive and legislative branches of government. “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”, he wrote. “On the contrary, they are the Constitution.  To assert otherwise is to subvert the democratic foundation of judicial review.”

Remarkably, Justice La Forest’s powerful critique failed to pry any of his colleagues loose from the majority opinion. The Court has adopted Chief Justice Lamer’s dicta in a series of rulings on judicial independence. Nevertheless, Justice La Forest’s dissent has had a large influence. Much of the scholarship commenting on the Court’s use of constitutional principles has echoed his concerns. Apart from the Secession Reference, [1998] 2 SCR 217], the Court over the last two decades has rebuffed many attempts to use unwritten principles to fill gaps in the constitutional text. In British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49, [2005] 2 SCR 473, for example, Justice Major wrote that “protection from legislation that some might view as unjust or unfair properly lies not in the amorphous underlying principles of our Constitution, but in its text and the ballot box”.

The opinions in the Provincial Judges Reference and the Secession Reference stand, but otherwise the Court appears to have drawn a line in the sand on the gap-filling deployment of unwritten principles. The power of Justice La Forest’s dissent has played an important role in halting any further reliance on a methodology that raised serious questions about the legitimacy of constitutional judicial review.

Justice McLachlin, Racism, and Municipal Government

At issue in Shell Canada Products Ltd v Vancouver was the validity of a resolution of the Vancouver City Council refusing to do business with Shell until the company “completely withdraws from South Africa”. The municipal boycott of Shell was motivated by “moral outrage against the racist apartheid regime in South Africa”. Justice Sopinka’s majority opinion found that the resolution was not adopted for municipal purposes and also amounted to unauthorized discrimination against Shell. For these two reasons, he concluded that the resolution was beyond the scope of the city’s statutory powers.

Justice McLachlin’s dissent rejected the majority’s parochial approach to local government. She aligned herself instead with “the weight of current commentary” that supports “a more generous, deferential approach” to the exercise of municipal powers. A healthy respect must be given, she wrote, to “the democratic responsibilities of elected municipal officials and the rights of those who elect them”. The welfare of the city’s residents included their moral welfare. Moreover, the city’s power to enter into transactions necessarily entailed a power to discriminate between companies. She thus departed from the majority’s perverse expression of greater concern about discrimination against Shell than it did about the oppression of African peoples.

While the majority’s insistence on a strict separation of municipal purposes and global concerns has yet to be overruled, the approach outlined in Justice McLachlin’s dissent has had a strong influence on the development of municipal law over the past quarter century. Citing her opinion on multiple occasions, the Court has embraced a broad and purposive approach to the interpretation of municipal powers.

The opinions in Shell participated in a long-standing Canadian tradition of managing to say nothing about racism in cases about racism. Neither opinion mentioned the inter-relationships between forms of colonialism and racism across the British Commonwealth. Nor did the Vancouver resolutions have anything to say about the connections between racism at home and abroad, and the need to address the impacts of racism and settler colonialism on Indigenous peoples in the city. Future dissents – and majority opinions – are less likely to leave these issues unspoken.

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.

2 thoughts on “Day 10: Bruce Ryder”

  1. Dear Mr. Sirota and Mr. Mancini,

    Quite a few of your guest year-end posts have now chosen the Judges Reference dissent for special mention. I offered a comment on this dissent last week but you chose not to publish it. It seems to me, however, that with numerous scholars now singling out this dissent for praise, an alternate point of view is, in all fairness, required. This is particularly the case in that over the years Justice La Forest’s dissent has been often celebrated but rarely analyzed in detail.

    I suggest the following two points are critical.

    First, the only knock-out blow that Justice La Forest lands is against the majority’s extremely strained (some might say preposterous) suggestion that the Preamble somehow provides a basis to overrule legislation interfering with judicial independence. The “historical fallacy” at work here, as Justice La Forest calls it, is substantial. Having said that, it is important to note that the majority does not in fact use the Preamble to overrule the legislation at issue in the Judges Reference. The Preamble plays no part in the actual analysis in that decision. That analysis is based on the separation of powers, judicial independence, and the rule of law – none of which require the Preamble to take their place as part of the structure of the Constitution. Section 11(d), it is worth noting, also plays very little role in the core part of the Court’s analysis (paras. 123-146). Once the Preambular argument is taken off the table, Justice La Forest’s dissent is considerably less powerful.

    Second, while several celebrated passages on the legitimacy of judicial review (paras 314-316, 319) have been held up to support a very positivistic understanding of parliamentary sovereignty, these passages themselves lose much of their rhetorical power when the majority’s strained claims regarding the Preamble are set aside.

    Notably, Justice La Forest himself participated in three prior judgments of the Court where legislative or (what he refers to in the Judges Reference as) “super-legislative” texts were held to be vulnerable to unwritten principles and extra-textual structural imperatives. In OPSEU, he was part of the majority that stated, in obiter but very forcefully, that legislative power to curtail political freedoms could not prevail against the “basic structure” of the Constitution. In New Brunswick Broadcasting, he concurred in the view that unwritten principles could be used to halt the operation of the Charter. In MacMillan Bloedel, he was part of the majority that used the rule of law to read down federal legislation interfering with the core jurisdiction of the superior courts.

    Justice La Forest fails, in his Judges Reference dissent, to provide any cogent explanation for these decisions that can meet his rhetorically charged statements about the legitimacy of judicial review. His allusions to vague legislative provisions (such as sections 17 of the Constitution Act, 1867) granting democratic assemblies can hardly be used to justify overruling legislation or stopping the Charter. To do so would make a mockery of the very positivist basis of his claims about “express textual authority.” Section 96, it is worth noting, plays no part in the Court’s actual core jurisdiction analysis in MacMillan Bloedel, and at any rate, can hardly support overruling legislation on this ground, as Professor Hogg has noted in numerous publications. Justice La Forest does not even mention MacMillan Bloedel in his Judges Reference dissent, even though it was decided a mere two years prior to the Judges Reference.

    If a positivist approach to constitutional law is to be preferred, the text of Justice La Forest’s dissent should not be elevated on the strength of a couple of rhetorically charged points that obscure overall coherence.

    Perhaps the most interesting question raised by Justice La Forest’s dissent in the Judges Reference is where he would have fallen in the Secession Reference (decided shortly after he left the Court). It is hard to see him dissenting, given the overall shape of his career on the Bench. On the other hand, those central paragraphs on unwritten principles in the Secession Reference (paras. 49-54) don’t sit well with the stridency of the Judges Reference dissent. A concurrence would have required some delicate footwork.

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