Day Six: Carissima Mathen

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 1980sThat 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.

A.C. v. Manitoba (Director of Child and Family Services)2009 SCC 30

 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.

Little Sisters Book and Art Emporium v Canada (Little Sisters 2), 2007 SCC 2

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.

 

 

Day Five: Matthew Harrington

Religious dissent

Université de Montréal

One of the most disappointing trends in Supreme Court jurisprudence is the increasing tendency to treat religion as a purely individual, private matter. In hindsight, Syndicat Northcrest v Amselem, 2004 SCC 47, [2004] 2 SCR 551 and Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 SCR 256, which seemed at the time to open up a wide range of new claims based on freedom of religion, appear to have been a short-lived detour. Since those decisions, the Court has had difficulty attempting to define the extent and breadth of religion claims in the public square, especially when those claims involve the rights of religious groups. Three dissents, in particular, show how the Court is moving away from the traditional notion of freedom of religion and slipping into a mindset that privileges irreligion rather than neutrality.

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

Hutterian Bretheren marks a significant turning point in the Supreme Court’s approach to the protection of religious liberty under Section 2(a) of the Charter.  The case involved a challenge to Alberta’s requirement that persons seeking a driver’s licence submit to having their photo taken. The Wilson Colony objected on the grounds that taking a photo would violate the Second Commandment prohibition on the making of “graven images”. The majority rejected the claim, asserting that the deleterious effects on the Hutterites’ ability to practise their religion were minimal. This is because the law in question did not deprive the Hutterites of a meaningful choice concerning the religious practises at issue.  Instead, all the law did was “impose a cost” on their choice. In a rather shocking passage, the majority then cavalierly asserted that the Hutterites could simply hire people to drive them to doctor’s appointments or contract with commercial trucking firms to transport their supplies and produce.  After all, what was at issue was “not a right, but a privilege”.

In one of two separate dissents, Justice Abella rightly took the majority to task for failing to give adequate respect to the religious interests involved. Abella J rightly chided the majority for failing to adequately balance the competing interests. Her main focus was on the harm to the Hutterite community. She noted that the photo requirement deprived the Wilson Colony of any meaningful choice because it forced them into a position of either giving up their beliefs regarding the Second Commandment or give up the self-sufficiency of the community. In effect, the majority’s solution (“hire drivers”) forced them to abandon their independence. There was no choice: they either violate the Second Commandment and get photos, or violate their beliefs about community independence and hire drivers. Of equal significance was Abella J’s observation that the majority was essentially adopting a hierarchy of law when it described the issuance of driver’s licences as a “privilege”. Abella J rightly noted that Section 1 of the Charter knows no difference between laws that are compulsory and those that merely grant privileges. Thus, she correctly dismissed the suggestion that the government’s granting of a privilege (whatever that is) is somehow subject to some lesser form of scrutiny.

Justice Deschamps in Bruker v Marcovitz, 2007 SCC 54, [2007] 3 SCR 607

Brucker involved a claim for damages by a wife against her husband for his failure to grant her a religious divorce as stipulated in the civil divorce settlement agreement. The Supreme Court dismissed the husband’s religion claim on the grounds that he was being insincere, and that performing the religious act in question would impose only a non-trivial burden upon him.

Justice Deschamps’ dissent begins with the very basic observation that Canadian courts should not be in the business of determining whether religious obligations are valid or not. In this case, Mrs. Bruker was not seeking compensation for an inability to remarry under the civil law; on the contrary, she wanted to be paid for not being able to get a religious marriage. How could a civil court possibly assess damages for not being able to obtain the benefits of a religious rite? Closely related to this point is Deschamps J’s observation that a contract to perform a religious right is no contract at all. This is because a contract in Québec requires that it concern the performance of a “juridical act”, which is effectively something the civil courts can supervise. A religious divorce cannot be a juridical act since the granting of it requires the cooperation of religious authorities over whom the courts have no power.

Justice Deschamps clearly has the better argument, and one that is more consistent with the then-existing precedent. Under any other circumstances, it is hard to imagine a Canadian court requiring a person to take Holy Communion or even say the Lord’s Prayer against his will. After all, in Amselem, the court would not even require the claimant to honour a real estate contract. Yet, here, the court seemed oddly content to penalise a man for not participating in a religious divorce. In order to reach this result, the majority took upon itself to make a judicial determination of what Judaism required in the process of getting a divorce. Justice Deschamps was on firm ground in warning that the courts should stay far away from this type of entanglement.

Justices Côté and Brown in Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293

The TWU case may be the most unfortunate decision ever rendered by the Supreme Court. Couched in the language of diversity, the various opinions making up the majority reek of intolerance. It is clear from the outset that seven of the justices have no time for those who hold to the traditional view of marriage, and were willing to constrict the public square in such a way as to evict those who refuse to conform to current notions of equality. As in Bruker, the majority took upon itself to determine the appropriate content of a religious belief or practice.

The dissent by Justices Coté and Brown is an eloquent statement of what true diversity in a multicultural and multi-religious state entails. It reminds us of that real tolerance lies in ensuring that everyone has access to the public square — even those who hold opinions others might find offensive. Brown and Coté JJ correctly point out that a secular state is not one which enforces irreligion, but rather, which permits both the believer and the areligious to go about their business without hindrance or favour from the state. Thus, neither courts nor administrative agencies ought to be concerned with the “public perception” of what freedom of religion entails. On the contrary, the role of courts in these cases is “not to produce social consensus, but to protect the democratic commitment to live together in peace”. The fact that some people are offended by the TWU community’s beliefs should be of no concern to either the Law Society or the courts. The role of government is not to produce social consensus, but to protect the democratic commitment to live together in peace, even with people who have the temerity to hold opinions which we find reprehensible. Consequently, the result in TWU is to drive those who hold unpopular opinions from the public square.

Another significant aspect of the dissent is the criticism of Doré/Loyola framework. While the dissent notes that TWU was not a proper vehicle for reconsidering the Doré, it nonetheless criticised the majority for the deference it showed to the Law Society. In the view of the majority, an administrative decision-maker need only show that its decision “gives effect, as fully as possible to the Charter protections at stake given the particular statutory mandate”.  This effectively means that Charter rights are guaranteed only so far as they are consistent with the objectives of the enabling statute. Or, as Côté and Brown JJ noted, “[w]hen push comes to shove, statutory objectives — including, presumably, unconstitutional statutory objectives — trump the [Charter] right”.

Similarly, the dissent rejected the idea that “Charter values” are deserving of independent protection. More importantly, the dissent rightly rejected the idea that Charter values could be used to trump a specific Charter right. The obvious reason for this is that “values” are highly contested, so that allowing judges to decided cases on “shared” or “fundamental” values is an utterly specious exercise. As the dissenters write, “[i]t is therefore not open to the state to impose values that it deems to be ‘shared’ upon those who, for religious reasons, take a contrary view. The Charter protects the rights of religious adherents, among others, to participate in Canadian public life in a way that is consistent with their own values.” One hopes that a future Supreme Court will reconsider and abandon the Doré framework in its entirety, and reverse this intolerant decision.

Day Four: Jonathan Maryniuk

 

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.

We have been recently been living in a bit of a golden era for dissents.  But to remove any recency bias, I have chosen three of the following Supreme Court of Canada dissents from outside this era.

Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 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.

Day Three: Emmett Macfarlane

Among the panoply of difficult constitutional decisions rendered by the Supreme Court of Canada, there are many occasions when the majority of justices provide reasoning that can only be described as less than compelling (some might simply say ‘wrong’). The virtues of dissenting reasons – which, even on a highly consensual court like the Supreme Court, appear in roughly one-quarter of all cases – are multiple, and include presenting a counterpoint that might sharpen the overall decision, identifying weaknesses in the majority’s reasons, and, perhaps most importantly, providing a potential foundation for a future iteration of the Court to overturn itself (indeed, this has happened in cases involving assisted dying and labour rights.) 

An invitation to identify three favourite dissents poses a considerable challenge given the long list of candidates, but I’ve managed to settle on the following:

  • Dissenting opinion in R. v. Keegstra (1990), by Justice McLachlin (as she then was). 

The Keegstra case involved a Charter of Rights challenge to the criminal law against unlawfully promoting hatred. The majority upheld the law as a reasonable limit of freedom of expression. They did so in part on the basis that hate speech “is of limited importance when measured against free expression values … the state should not be the sole arbiter of truth, but neither should we overplay the view that rationality will overcome all falsehoods in the unregulated marketplace of ideas.” Moreover, hate speech subverts the democratic process by denying dignity to at least some segments of the community. The majority is dismissive of efforts to “prove a causative link between a specific statement and hatred of an identifiable group” and even states that requiring such proof of direct harm “would severely debilitate” Parliament’s objectives. Instead, it is enough that there is a risk of harm.

McLachlin’s dissent acknowledges the intuitive kinds of harm that hate speech can generate, particularly the pain and indignity it can inflict upon its targets. Yet she rightly questions the effectiveness of criminalizing hate speech. Indeed, the law is rarely enforced in Canada precisely because it does not capture that vast majority of hateful utterances. McLachlin also notes that hatred is notoriously broad, and that identifying it requires reliance on vague or subjective understandings. Importantly, this had already resulted in dramatic state overreach. She points to instances where copies of Salmon Rushdie’s The Satanic Verses were stopped by border authorities in a misguided effort to enforce the criminal provision. In another incident, arrests were made when pamphlets were distributed that happened to include the words “Yankee Go Home.”

The Keegstra dissent is a principled defence of free expression and the dangers of permitting state line-drawing on a vague basis like the promotion of hatred. McLachlin’s dissent correctly highlights the lack of evidence that hate speech laws mitigate hateful expression, the very real risk of state overreach, and the chilling effect such laws might induce. It is a shame that, when offered a chance to revisit the issue of hate speech in the statutory human rights context years later in Saskatchewan (Human Rights Commission) v, Whatcott, McLachlin essentially disregarded her own important points of caution.

The Chaoulli case involved, at its core, a fundamental principle of the design of the health care system – equity, specifically access to health care regardless of ability to pay – and whether a provision designed to protect it, the prohibition on the purchase of private medical insurance, violated the right to life, liberty and security of the person under section 7 of the Charter. Had there been clear evidence that the provision at stake in the case contributed to waitlists and delays in access to health care, this might have been a straightforward decision. But regardless of whether one supports, as a matter of policy, a greater role for private options in health care, everyone should be concerned about the majority’s capacity to properly assess the evidence at stake in the case.

In a remarkably frank and punchy dissent, Justices Binnie and LeBel excoriate their colleagues for their overconfidence and questionable assumptions in deciding that the law ought to be invalidated. Noting that their colleagues contend the failure to provide “public health care of a reasonable standard within a reasonable time” violated rights, the dissenters ask:

What, then, are constitutionally required “reasonable health services”?  What is treatment “within a reasonable time”?  What are the benchmarks?  How short a waiting list is short enough?  How many MRIs does the Constitution require?  The majority does not tell us.  The majority lays down no manageable constitutional standard.  The public cannot know, nor can judges or governments know, how much health care is “reasonable” enough … It is to be hoped that we will know it when we see it.

The dissent rightly criticizes the majority for a lack of deference to finding of facts at the trial level, for disregarding the majority of experts, and for failing to pay heed to comparative evidence that waitlists exist in countries with private options. In a particularly noteworthy passage for a Supreme Court of Canada opinion of any kind, the dissent notes bluntly that the “resolution of such a complex fact-laden policy debate does not fit easily within the institutional competence or procedures of courts of law.” Moreover, they note that a “legislative policy is not ‘arbitrary’ just because we may disagree with it.” If only this message was one Canadian justices heeded more often.

The Remuneration reference is one of the most dramatic cases of judicial overreach in Canadian history. In it, the majority of the Court mandated “independent compensation commissions” for judges based on the “unwritten principle” of judicial independence (grounded in the preamble to the Constitution Act, 1867 of “a Constitution similar in Principle to that of the United Kingdom” and an analysis of section 11(d) of the Charter, a plain reading of which comes nowhere close to imagining the requirements invented by the majority).

Justice La Forest’s partial dissent stands as the lone voice of reason on a Court wildly stretching and misapplying the concept of judicial independence. He describes the majority’s approach as “a partial usurpation of the provinces’ power to set the salaries of inferior court judges” under the Constitution Act, 1867. That the reference involved “an issue on which judges can hardly be seen to be indifferent, especially as it concerns their own remuneration” was not lost on him either. La Forest criticizes the majority for its view that the constitutional preamble is a source for limiting the power of legislatures to interfere with judicial independence. Indeed, the idea that the British Constitution imposes such limits on Parliament is ahistorical nonsense.

La Forest also correctly notes that judicial review is “politically legitimate only insofar as it involves the interpretation of an authoritative constitutional instrument. … That legitimacy is imperiled, however, when courts attempt to limit the power of legislatures without recourse to express textual authority.” It is unreasonable, in La Forest’s view, to assume changes in judicial salaries or discussions between the two branches of government about salaries impair judicial independence.

Honourable mentions:

The dissent in Daviault (1994), against a defence of extreme intoxication for offense of general intent like sexual assault.

The dissent in Saskatchewan Federation of Labour (2015), against constitutionalizing the right to strike.

The dissent in Reference re Supreme Court Act (2014), against a cherry-picked connection between the general eligibility requirements for Supreme Court justices and those for judges from Quebec.

The dissent in R. v. N.S. (2012), against the notion that requiring a sexual assault complainant to remove her niqab when testifying at trial protects the right to a fair trial.

The dissent in Sauvé (2002), in favour of deference to Parliament’s legitimate moral and philosophical objectives in denying the right to vote to those currently in prison for having committed serious crimes.

 

Day Two: Kerri A. Froc

The Power of Saying No

University of New Brunswick

The ability to reject traditional reasoning, to say “no”, is a central part of feminist critique and practice. Student groups introduced the “no means no” campaign into popular consciousness over two decades ago to emphasize the importance of sexual consent. While it lost purchase because of its seeming implicit burden imposed on women to communicate non-consent, the original idea behind it was to shift cultural values. Women’s “no” could no longer be devalued as meaningless, or a challenge to be overcome, worse yet, as a disingenuous way of saying “yes”. 

Feminists often have to say “no” a lot, in terms of positively asserting that they reject inequitable, conventional understandings and refuse to go along. In a patriarchal culture, that becomes read as “sex negative”, as overly sensitive, or as biased (as the Chief Justice of the Quebec Court of Appeal recently discovered). While saying “no” is often powerful and sometimes a moral imperative, it wears on you.  As Ahmed says:

[A] no can still be dismissed as impertinent in the sense of rudely bold or boldly rude and can be judged as an act of political vandalism. So many refusals are dismissed in these terms; you might be free to say no but your no is heard as destructive; hearings have consequences (becoming a killjoy is a consequence)… For feminism: no is political labour.

So, in the dissents I want to talk about, I celebrate the refusal to “go along” in favour of what might be professionally risky for the judge or simply a great deal of effort wasted or ignored.  They represent ways of thinking that deserve another look.

Justice Frank Iacobucci in Little Sisters Book and Art Emporium v Canada (Commissioner of Customs and Revenue), [2000] 2 SCR 1120

In Little Sisters, federal customs officials, under the auspices of holding back material they deemed “obscene” under the Customs Act, targeted a lesbian bookstore for discriminatory treatment. While the majority found that there was discrimination in application, this could not be attributed to the Act itself, as “Parliament is entitled to proceed on the basis that its enactments ‘will be applied constitutionally’ by the public service.” This was notwithstanding that customs officers were ill-trained to identify obscene material, and that the process for challenging improper decision-making was lengthy and cumbersome. The multipart, legalistic Butler regime to determine obscenity was deemed sufficient to guide officers – the problem was not that the Act but the individuals applying its rules.

By contrast, Iaccobucci refused this characterization – he saw the problems as systemic and “baked into” the regime established by the Act, leading to lack of training, turnover of officers, lack of procedural fairness for importers, as well as “superficial and context-insensitive” review of materials. He found accordingly that the Act “practically invites” violations of s.2(b) freedom of expression.  The framework needed to be completely rethought from the perspective of expressive rights. 

His seems to be an eminently appropriate approach where a regime is so flawed that it can be reasonably anticipated that its operation will very likely result in rights violations.  In the same way, manufacturers cannot avoid tort liability completely where they make products with built-in design flaws, notwithstanding that harm could be avoided if those using them did so perfectly (rather than like typical human beings). Surely, fundamental constitutional rights demand at least as much protection (especially as those affected cannot avoid the state’s “product”). History proved Iacobucci J. right – Little Sisters continued to be targeted notwithstanding government promises in the Supreme Court appeal that it had improved the administration of the Act.  Nevertheless, I have tried in vain to find any court decisions where his dissent on this point has been taken up and applied.

Justice Claire L’Heureux-Dubé in Thibaudeau v Canada, [1995] 2 SCR 627

To borrow a phrase, Thibaudeau is a terrible, horrible, no good, very bad equality decision, and the split amongst the judges is telling: the two female judges on the Court wrote separate dissents, with the male majority rejecting the section 15 claim. At issue was the treatment of child support under the Income Tax Act: it was taxable in the hands of custodial parents (98% of which were women) and a tax deduction for payors. Both justices analyzed the income tax regime through a gender lens, one that accounted for the realities of women raising children alone. The male judges relied on abstractions and legal fictions. 

The majority and concurring decisions found that there was no negative distinction, because in most cases there was a net tax benefit to the “family unit” (which no longer existed).  They thereby deemed egalitarian distribution of benefits to exist in families (even defunct ones!). This would notionally occur in separated families through “gross-ups” of child support to take into account tax consequences. If this version of “trickle down economics” did not occur and women had less money for their children, this inequality was “peculiar to specific cases” – the fault of individual judges or fathers not passing along tax benefits – and not the Income Tax Act. The justices refused to consider the unequal impact on custodial parents in their own right. 

In Thibaudeau, L’Heureux-Dubé J. gestures to the doctrine of coverture in underscoring how using the couple as the unit of analysis for adverse effects of the taxation rules obscures inequality.  She recognized the Act as the source of detrimental treatment because its “default” is that the benefit accrues completely to the non-custodial spouse and the detriment to the custodial spouse. The onus is on the custodial spouse to “wage an unremitting and costly battle, both emotionally and in the family law system,” if the family law system was to remedy the inequality completely through the gross-up mechanism.  Not only did this require judges to perform repeated calculations perfectly, it also did not consider the practical realities of separated family life with custodial parents – women – having less money for legal fees and needing to avoid antagonizing non-custodial spouses. Despite her reasons not carrying the day in court, Parliament was persuaded: child support became non-deductible, non-taxable in 1997.

This case is emblematic of the justice’s emphatic “no” to an analysis of a woman’s Charter case that is degendered and abstracted to the point of absurdity.  Constance Backhouse in her oeuvre, Claire L’Heureux-Dubé: A Life, documents the cost L’Heureux-Dubé J. pays for her rejections, including a fractious relationship with Justice (later Chief Justice) Antonio Lamer and a public, gendered attack by an appellate court judge following a sexual assault appeal popularly referred to as the “no means no” case, R v Ewanchuk, [1999] 1 SCR 330.

Her call to recognize the detrimental impact of default regimes that confer benefits to the more advantaged spouse would take nearly 20 years to be finally be recognized, in Quebec v A, 2013 SCC 5, [2013] 1 SCR 61.  Even then, the majority voted to justify provincial family law legislation excluding common law spouses under section 1 because it prioritized autonomy and “choice” of couples.   An approach that fully attends to conditions of subordination in which such “default” legislation operates has therefore yet to be fully embraced.

Justice Bertha Wilson in R v Morgentaler, [1988] 1 SCR 30

I wrestled with selecting the last “dissent”: do I adhere to the letter of these blog posts (dissents = a decision that is directly contrary to the majority on outcome) or the spirit (dissents = minority opinions that should have carried the day but didn’t)?  There are several other decisions in which I agree with the dissenters on outcome, but their reasons are not completely compelling. In the end, I decided to keep with the spirit and discuss an opinion that technically is a concurrence. 

At the time of Morgentaler (1988), Madam Justice Wilson was the only woman in a court that was not hospitable to women members, which makes her opinion even more remarkable for her refusal to “go along.” Relatively well known by now is that Justice Wilson departed from the majority by ruling that not only did the Criminal Code therapeutic abortion committee regime violate women’s security of the person due to its imposition of psychological trauma and unnecessary physical risk, any restrictions on abortion violated women’s right to liberty. She redefined liberty to include the right to make fundamental decision over one’s own life free from state interference, which included the decision as to whether to carry a pregnancy to term. In doing so, she created a more inclusive and objective conception of liberty over that gendered male. She remarked that the history of human rights had been “the history of men struggling to assert their dignity and common humanity against an overbearing state apparatus”, to the exclusion of “women’s needs and aspirations are only now being translated into protected rights”. Her conception of liberty came to inform majority decisions of the Court in cases like Blencoe v British Columbia (Human Rights Commission), [2000] 2 SCR 307.

Less cited, however, is how she found that the regime violated the principles of fundamental justice. She noted that Justice Lamer referred to other rights in sections 8-14 in interpreting fundamental justice in BC Motor Vehicles, thus leading her to surmise that the concept means not only procedural fairness but also consistency with other Charter rights and freedoms. Accordingly, “a deprivation of the s. 7  right which has the effect of infringing a right guaranteed elsewhere in the Charter  cannot be in accordance with the principles of fundamental justice.” The abortion regime also infringed women’s freedom of conscience given that the state sought to override women’s own moral decision-making. Consideration of other rights violations as a breach of fundamental justice is profound – it recognizes that the Charter as a whole is an embodiment of what is just. In an article called “Constitutional Coalescence”, I argued this does not necessarily mean that one does, e.g. a mini-s.2(a) or s.15 analysis within section 7, but that an interpreter views the former rights through a different (potentially wider) lens, one that goes beyond a hyper-individualized and procedurally-based notion of justice to one that considers systemic structures of subordination. This is in stark contrast to other cases in which the Court has been at pains to keep rights conceptually separate and has declined to consider all rights in multiple rights claims. This led to what I refer to in my earlier work as a “watertight compartments” approach to the Charter leading to complete rejection of claims involving multiple rights. Despite its potential enrichment to our understanding of Charter rights, Wilson J’s innovation has not explicitly been taken up by other judges.


As Carissima Mathen has written in relation to equality,  a divided decision “that is the result of failure to reach agreement on ‘deep’ issues is preferable to one that, as the price of unanimity, remains ‘shallow.’”  The dissents that I have highlighted reflect the potential depth of dissenting decisions, and into which I hope future justices will mine for their wealth. 

Day One: Dwight Newman

Three dissents of principle

Professor of Law, University of Saskatchewan

In considering some dissents of note, it is important to consider what factors make a dissent stand out. Amongst these are its intellectual coherence, its adherence to basic principle, and its tendency to stand up to a majority opinion with some surface allures. In some cases, such dissents of principle end up shaping the law in future, and that is the case in varying ways with all three of the dissents I will discuss here: the dissent of Beetz J. in the Anti-Inflation Act Reference, [1976] 2 SCR 373, the dissent of La Forest J. in the Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 SCR 3, and the dissent of LeBel J. in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567.

Beetz J. in the Anti-Inflation Act Reference

Justice Beetz, though not always attracting as much attention today, was an intellectual giant of his era. His dissenting opinion in the 1976 Anti-Inflation Act Reference, in which he stood up for fundamental principles of federalism, is a landmark judgment. In the case, Beetz J. wrote against the majority judgments upholding relatively popular legislation designed to combat severe inflation, including the lead judgment of Laskin C.J.C. supported by the future chief justice Dickson J.

In doing so, Beetz J. had to articulate tests for the so-called “peace, order, and good government” (POGG) power. While the majority mistakenly stated the POGG test too broadly and in ways that would harm Canadian federalism had they come to be applied in other cases, the tests articulated by Beetz J. could inform future jurisprudence, notably shaping the approaches of both the majority and the dissent in the 1988 decision in R. v. Crown Zellerbach Ltd., [1988] 1 S.C.R. 401

On the use of the national concern branch of POGG, Beetz J. actually obtained a majority even in the Anti-Inflation Act Reference itself, as Ritchie J.’s opinion signed on with Beetz J. on this issue. The judgment of Laskin C.J.C. had a peculiar ambiguity to it, not drawing clear distinctions between “national dimensions” and a “national emergency”, and Beetz J.’s dissent thus offered an appealing intellectual rigour by comparison to an approach that would have failed to offer meaningful constraints on federal power. Indeed, Beetz J. presciently warned against the dangers of the federal government inventing new powers by developing creative names for matters it sought to claim under the POGG power.

On the emergency branch, Beetz J. was ready to insist upon the need for transparency in any invocation of emergency powers, along with the other elements needed for the use of the power, including genuine temporariness.  Writing of the mixed body of evidence put forth in support of the federal anti-inflation legislation allegedly being focused on an emergency, Beetz J. showed his readiness to describe matters frankly: “I remain unimpressed” (p. 466). His dissent in the case continues to stand as a tour de force in resisting federal overreach.

La Forest J. in the Provincial Court Judges Reference

The dissent of La Forest J. in the Reference re Remuneration of Judges of the Provincial Court (P.E.I.) (Provincial Court Judges Reference), saw La Forest J. standing alone against a Court that claimed to find unwritten constitutional principles governing judicial salaries. The forthrightness of the judgment is stark, as La Forest J. wrote that “the approach adopted by the Chief Justice, in my view, misapprehends the nature of the Constitution Act, 1867” (para. 320) and he suggested that the approach adopted caused the very legitimacy of the Court to be “imperiled” (para. 316). Indeed, he saw the case as being about “the nature of judicial power” (para. 300) in so far as the rest of the Court dreamt up arguments not proffered by the parties to find unwritten principles in the preamble of the Constitution Act, 1867.

In doing so, the majority set the stage for the kind of reasoning they would end up using in the Reference re Secession of Quebec, [1998] 2 SCR 217 shortly thereafter. But it was La Forest J.’s resistance to judicially created principles that would later win out, as the Court had to take  steps in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 SCR 473 to fend off a surge in litigation grounded in alleged unwritten principles. The majority managed to use unwritten principles on judicial salaries and on secession but came to realize that such an approach was unmanageable for the judiciary as an institution. In Imperial Tobacco, it also indicated its arguably newfound respect for “the delimitation of […] rights chosen by our constitutional framers” (para. 65). While unwritten constitutional principles were convenient in a particular moment, the principled position is to seek to focus on the written text, and that was what La Forest J. defended. 

There has been over the years much talk that La Forest J.’s  resignation from the Court—essentially simultaneous with the release of the judgment in being announced weeks before the release and taking effect weeks after—was a mark of his profound disagreement with the decision, its methodology, and its implications for the upcoming cases. His dissent lives on as a defence of the rule of law.

LeBel J. in Alberta v. Hutterian Brethren of Wilson Colony

There are many important Charter dissents, and the dissent of LeBel J. in Alberta v. Hutterian Brethren of Wilson Colony might not be a common choice.  In some ways, the dissent of Abella J. in the same case has attracted more attention and defends some of the same positions as those within the dissent of LeBel J. But it is LeBel J.’s dissent that has a certain starkness and that marks more profoundly a certain commonsensical resistance to the majority’s convenience-oriented rejection of a religious freedom claim.

The facts concerned the religious freedom claim of a small group of 250 Hutterite farmers from some particular colonies in rural Alberta whose understanding of Scriptural principles against graven images took a particularly strict form: they took the view that they could not have their photographs on their driver licences. The province of Alberta had implemented a universal photo requirement to create a universal facial recognition database and removed an exemption previously granted to these 250 Hutterite farmers that would exclude them from the database, along with the 700,000 Albertans who did not have driver licences at all.   

While the majority opinion of McLachlin C.J.C. (erroneously) accepted the creation of the database itself as the government objective for purposes of analyzing any infringement and McLachlin C.J.C went so far as to suggest that the farmers in question could simply arrange alternative transportation, LeBel J. eviscerated the majority logic in a few lines. Writing against the judgment of McLachlin C.J.C. —who grew up in rural Alberta—it fell to LeBel J. to point out the importance of a driver’s licence in rural Alberta and to suggest that an appropriate constitutional balance was not 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). 

The defence of collective aspects of religious freedom resonating through various parts of LeBel J.’s dissent (and the subject of a beautiful passage about communities of faith at para. 182), also found in Abella J.’s dissent, won out in Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613.  There, McLachlin C.J.C. and Moldaver J., wth Rothstein J. also signing on, decided to state that LeBel J. had not actually been in dissent on the significance of religious communities and the collective dimensions of religious freedom (para. 93). Sadly, such reassurances may have come too late, as many understood the majority opinion in Hutterite Brethren as implicitly about worries about future cases involving Muslims, and the majority’s tolerance of government restrictions probably set a tone for the years to come. But, in principle, LeBel J.’s dissent came to be the law on these aspects.

Another, fascinating dimension of LeBel J.’s dissent also deserves more attention than it has received thus far. In his dissent, he also fosters new thought on the Oakes test for rights limitations, recognizing explicitly some problems in how it had come to be applied over the years. This thought was also prescient, and further rethinking of the Oakes test has emerged as an arena for ongoing discussion. Like other great dissents of principle, LeBel J.’s dissent in Hutterian Brethren sparkles with intellectual energy and stands on fundamental points of principle in ways that make it endure not as a mere minority report but as a light for the future.

It's That Time of the Year

Announcing the second edition of Double Aspect’s 12 Days of Christmas symposium

Last year, Double Aspect celebrated yuletide by reviving the tradition of festive subversion that used to accompany this once-rowdy season and hosting, for the 12 days of Christmas, a symposium featuring Canadian legal scholars’ least favourite Supreme Court decisions of the last half-century. We had a lot of fun doing it, and so, we believe, did our participants. Most of our readers seem to have enjoyed it too; indeed, one of them wrote a lengthy blog post of his own to say so. But some were not so happy. They thought our little party was a bit too noisy; that court decisions, and the judges themselves, are not to be criticized too harshly, and that we needed to be more positive about our judicial betters.

Be that as it may, Christmas is coming (indeed, it already has arrived here in New Zealand, but Double Aspect still runs on North American time), and so is the second edition of the Double Aspect 12 Days of Christmas Symposium! This time, we’ll throw our critics a bone, in a sense. We will be celebrating (some) judges and their opinions. But we will be celebrating them for having had the courage, and the wisdom, to stand up to their colleagues, and to dissent.

Dissents are fun! Judges have more freedom in writing them, not having to accommodate as many, if any, colleagues, and of course the choice to dissent already reflects a certain independence of mind, a willingness to be, if only for the purposes of this one case, an unconventional thinker and someone who will, very publicly, not go along to get along. But, for the same reason, highlighting dissents also has a serious point for us: they involve criticism, sometimes implicit and sometimes very explicit and quite harsh, of judges and judicial majorities. Criticism by (gasp!) other judges!

Yes, whatever the upholders of the courts’ authority might tell us, judges themselves think that their colleagues are sometimes wrong. Indeed, saying so once in a while is, I would argue, one of the most important jobs appellate judges have. A dissent keeps the majority honest by pointing out what might be the fudges or the weaknesses in its arguments; it charts an alternative course for the law, which the law may yet take in the future; and it alerts the rest of the legal community to the need to reflect on the outcome of the case, because reasonable people can and already do disagree about it. All this is for the good of the law, and all this deserves a little celebration here.

So we are grateful to friends and colleagues who have taken time out of their merrymaking to join ours. In no particular order, we are pleased to welcome:

  • Dwight Newman
  • Kerri Froc
  • Jonathan Maryniuk
  • Bruce Ryder
  • Carissima Mathen
  • Emmett Macfarlane
  • Chantal Bellavance
  • Matthew Harrington
  • Anna Su
  • Howie Kislowicz

And of course Mark and I will be taking part as well. We are also very grateful to Constitutional Forum/Forum Constitutionnel, and to its editor, Patricia Paradis, because they will be publishing the collected contributions as a special issue in the coming months.

We have asked the contributors to list and briefly describe three dissents from Supreme Court judgments in constitutional or administrative law, explaining why they are significant or interesting. Some, I take it, have adopted a rather large and liberal interpretation of the notion of dissent, and perhaps even of that of the Supreme Court, but we are looking forward to celebrating disagreement, critique, and misrule with them, and with you!