Can We Be Friends?: A Conservative Reply to Leonid Sirota’s “Refusionism”

This post is written by Thomas Falcone

I was surprised, if a little taken aback, by Leonid Sirota’s recent declaration on Double Aspect that he is opposed to co-operation with conservatives whom he deems insufficiently committed to a rigid Hayekian philosophy. The reason for my surprise lay not in Sirota’s ideology laid bare – he is commendably transparent about his public philosophy – but more to the creeping suspicion I had that I may have played a small part in inspiring his writing.

Sirota mentions “conversations” he engaged in at the recent Runnymede Society Law and Freedom Conference in Toronto as prompting his exposition of the reason why collaboration with conservatives is indefensible. Now, Sirota is a bit of a rock star at any Runnymede Society event – and rightfully so. His contributions to Canadian jurisprudential thought surely vault him into that vogue category of “thought leader.” I myself have plastered Double Aspect articles penned by him onto slides I’ve used in graduate seminars. Sirota’s leading ideas on originalism in a Canada are extremely impressive, and (as I have told him myself!) I am mostly in firm agreement with his opinions on the administrative state.

But I am compelled to respond to his call for libertarians to reject “refusionism”, which is to say his belief that we cannot be friends, let alone political allies. Perhaps he is right.


It is unfortunate that in Sirota’s attempt to describe what he calls “right-wing collectivism” he doesn’t bother to engage with any of the thinkers he finds so frightening. To be fair, however, the very nature of conservatism makes it difficult to attribute unifying policies or ideas that form a singular coherence. Oakeshott’s old adage that conservatism “is to prefer the familiar to the unknown, to prefer the tried to the untried” is helpful only insofar as it helps to explain that what a conservatism will stand for, or against, or agree to over time and after collective consideration, will vary in different places and amongst different peoples. Roger Scuton’s refrain that the task of a conservative is to assure people that their prejudices (properly understood as a person’s gut feeling) are justified is thus perhaps more helpful than Oakeshott’s old formulation.

In a Canadian context, Ben Woodfinden’s recent long essay in C2C Journal on Red Toryism is surely the closest thing we have to a contemporary “manifesto” of the sort of reform conservatism loosely associated with the broader movement Sirota wants to pre-emptively divorce himself from. But Sirota is right that conservatives ought properly to understand the goal of politics as being attached to the promotion of the highest good. This isn’t nearly as scary as he makes it out to be.

Take the institution of private property, for instance. Conservatives rightly commit themselves to the steadfast protection of this institution. But why is private property so important? Surely it cannot be a sacrosanct institution in-and-of-itself, despite idolatrous libertarian suggestions that the primacy of private property will result in an almost supernatural “spontaneous” right ordering of society. We can find a hint of why conservatism is associated with this institution in Scruton’s invaluable The Meaning of Conservatism:

“Home is the place where private property accumulates, and so overreaches itself, becoming transformed into something shared. There is no contract of distribution: sharing is simply the essence of family life. Here everything important is ‘ours’. Private property is added to, and reinforces, the primary social relation. It is for some such reason that conservatives have seen the family and private property as institutions which stand or fall together.”

Sirota’s biblical pronouncements of Hayekian “warnings” to the contrary, I would submit rather confidently that the vast majority of Canadians – and surely universally conservatives! – would agree on a general scale that the family is an immutable social good, and ought to be defended as the primary organizing unit of our society. The rather modest suggestion that I would posit to conservatives is that when we evaluate public policy proposals we adjudicate their desirability against whether or not they help or harm our shared social goods, like the family. Devin Drover has proposed publicly-funded therapy for families to combat the mental health crisis plaguing our society. US Senator Josh Hawley has proposed cash subsidies to families as emergency relief in response to the Chinese coronavirus pandemic.

Surely another commonly held value amongst Canadians is that it is better to work than to be idle. Having a job ties us to our community, provides us with income, and fills us with a sense of purpose. The notion that the state ought to be “neutral” as to whether people choose have jobs or sit around smoking cannabis would be nonsensical to the average person on the street. But that is precisely the Hayekian proposition Sirota suggests is “the philosophically and morally right position”, whereby individuals are the sole arbiters of their own ends. It is also a position completely alien to a conservative to whom work is fundamental good.

Recognition of the importance of work – and, indeed, the primacy of production over consumption (another value Sirota rallies against in his piece) – is central to Oren Cass’ The Once and Future Worker. And yet Cass’ proposed policy response to our society’s moral devaluation of work is, characteristic for a conservative, quite modest. He proposes a direct wage subsidy to not only make work more monetarily valuable but also signal the state’s – and thus our society’s – value of work. From an excerpt of Cass’ book in The American Interest:

“The subsidy would be calculated relative to a target wage of, say, $15 per hour and make up half the difference—so someone earning a market wage of $9 per hour would receive an additional $3 per hour. Such a subsidy would have two major effects: first, a substantial raise for low-wage workers, making each hour worked more valuable and yielding more take-home pay; second, encouragement for less-skilled workers to take that initial step into the workforce and for employers to offer such jobs.”

My point here is not to provide a laundry list of bold policy ideas that combat the scourges of family decline, widespread opioid misuse, loneliness and social isolation, and widespread disengagement of young men from the workforce. My point, rather, is to suggest that these are good and fundamentally conservative ideas. They are also not the stuff of totalitarian nightmares as Sirota will have us believe.


Finally, I feel compelled to address Sirota’s concluding appeal to the Book of Hayek. Here he suggests that power itself is an evil and thus there should be no power. This is untenable and flies in the face of our contemporary political reality. Harvard law professor Adrian Vermuele has best expounded on the internal contradictions at the core of Sirota’s philosophy by coining the phrase “the liturgy of liberalism.” How is it that liberalism, supposedly so profoundly committed to principles of freedom and liberty, can so quickly turn to repress any intellectual heterodoxy? Vermuele’s work is profound and complex, but the basic problem is that a political philosophy underpinned by nothing more than the idea of “freedom” will forever look for new oppressions to dismantle.

And herein lies the crux of my departure with Sirota: while he suggests conservatism is the flip-side to the woke-ism phenomenon, it is in fact libertarianism that is a not-so-distant cousin of SJWism. Both are committed to a religious devotion of individual preference maximization and will ruthlessly supress any suggestion that time, tradition, community, or common sense may occasionally contain more wisdom than the proclivities of any one person. Power is real and always will be – and as US Attorney General Bill Barr has noted, it is currently being deployed by left-leaning liberals against conservatives. I doubt libertarians will be spared.

This all bodes poorly, perhaps, for the future of a long-term political partnership with Sirota. But it need not foreshadow the demise of any would-be friendship. To the contrary, I am confident that right-leaning politics would benefit mightily from a continued dialogue around these difficult issues – especially in these difficult times. He is also, as I mentioned, a brilliant legal thinker. The reality is also that I know libertarians in 2020 are unlikely to try to “cancel” or “deplatform” me and I would never utilize such tactics against a libertarian. The same cannot be said for progressives. This may be a thin basis for continued political co-operation but the stakes are too high to let our disagreements overwhelm us.

 

Thomas Falcone is an LLM candidate at the University of British Columbia Peter A. Allard School of Law. He holds a BA in philosophy and political science, an MA in political science, and an LLB from the University of London. He is co-president of the UBC Runnymede Society chapter. You can follow him on Twitter @thomas_falcone.

Bill 21 and the Search for True Religious Neutrality

The saga of Quebec’s Bill 21, An Act respecting the laicity of the State, trudges on. In December, the Quebec Court of Appeal upheld a Superior Court decision declining to suspend certain parts of the law – which prohibits front-line public employees from displaying overt religious symbols while on duty – until a full application for judicial review pursuant to the Charter of Rights and Freedoms could be heard. The applicants who sought the suspension claim that Bill 21 violates (among other things) the guarantees of freedom of religion and the right to equality respectively protected by sections 2(a) and 15 of the Charter. An appeal to the Supreme Court of Canada is expected to be heard on the suspension issue. Meanwhile, the Superior Court has ordered that three other Charter challenges which have been launched in the interim be heard at the same time as the original application for judicial review.

The Quebec government insists that Bill 21 is grounded in the constitutional principle of the religious neutrality of the state. Such descriptions, however, fundamentally misstate what religious neutrality ought to require of state actors. At its core, Bill 21 is inconsistent with the trajectory of religious neutrality in Canadian public law. Granted, this principle has been subject to conflicting scholarly and judicial visions of what the state’s constitutional obligations are vis-à-vis religion. Yet as I argue in this post, religious neutrality, holistically and purposively understood, ensures that the state treats religious adherents fairly by preserving equal space for their participation in public life.

Canadian conceptions of religious neutrality tend to fall along a spectrum. At one end we have those who see religious neutrality as essentially privatizing all aspects of religious belief. We might describe this as closed religious neutrality, to borrow language used by Janet Epp Buckingham. In its most extreme form, this type of neutrality seeks to purge any and all expressions of religious conviction from the public square. Only secular or irreligious worldviews can inform public discourse, and the state is prevented from even indirectly facilitating religious expression. Richard Moon describes this approach to religious neutrality as essentially relegating matters of religious faith to the private sphere, subject to a view that “[s]tate neutrality is possible only if religion can be treated as simply a private matter — separable from the civic concerns addressed by the state” (para 4).

On the other end of the spectrum we have what I call inclusive religious neutrality. Unlike closed approaches to religious neutrality, inclusive religious neutrality recognizes that the state is only one of numerous actors in the public square and has no jurisdiction to exclude religious perspectives from public life. Under this conception of religious neutrality, the state is permitted and even encouraged to preserve and create positive public space for religious adherents (such as, for example, by subsidizing charitable religious activities which pursue a common or public good) so long as it does so in an even-handed manner and does not privilege one religious group to the exclusion of others.

Inclusive religious neutrality affirms that the state is not competent to arbitrate religious debates, even where these disputes have public implications. This is subject to the obvious caveat that the state will always have a vested interested in curbing or discouraging objectively harmful religious practices. But beyond this otherwise narrow exception, it is rarely appropriate for the state to act in a way that has the effect of promoting or stigmatizing certain religious beliefs or practices. Inclusive religious neutrality is thus reinforced by equality-enhancing values which recognize that the state’s uneven support for certain beliefs suggests that those who do not adhere to these beliefs are less deserving of public citizenship.

Although not necessarily identified as such, the constitutional commitment to equality was one of the driving forces behind Chief Justice Brian Dickson’s oft-quoted decision in R v Big M Drug Ltd Mart, [1985] 1 SCR 295 [“Big M”], the first Charter-era ruling from the Supreme Court on freedom of religion. While the Chief Justice recognized that the guarantee of freedom of religion is grounded in principles of individual liberty, his reasons also highlighted why explicitly religious laws (in that case legislation requiring businesses to observe the Christian Sabbath) will run afoul of the Charter, noting that the “theological content of … legislation remains as a subtle and constant reminder to religious minorities within the country of their differences with, and alienation from, the dominant religious culture” (para 97).

On this point, Bruce Ryder has written at length about how the Canadian constitutional commitment to substantive equality intersects with the right of religious adherents to participate in public life as equal citizens. As Ryder explains:

[T]he Canadian conception of equal religious citizenship is not confined to a private or religious sphere of belief, worship and practice. Instead, a religious person’s faith is understood as a fundamental aspect of his or her identity that pervades all aspects of life. … They have a right to participate equally in the various dimensions of public life without abandoning the beliefs and practices their faith requires them to observe. In contrast, some other liberal democracies are more likely to insist that citizens participate in public institutions on terms that conform to the state promotion of secularism. On this view, equal religious citizenship is confined to the private sphere, and must give way to the secular requirements of public citizenship. (2)

Inclusive religious neutrality, as I have described it here, is inextricably tied to Ryder’s articulation of the concept of equal religious citizenship. Religious neutrality presumes that religion is no more or less immutable than the other grounds of discrimination enumerated in section 15 of the Charter. This is to say that religion is “constructively immutable”, which means that it is just as impermissible for the state to discriminate against someone because of their religious beliefs or identity as it is to discriminate on the basis of immutable grounds such as race or gender. While this point may seem trite, laws and policies like Bill 21 are a sobering reminder of the tendency of many state actors to treat religious belief as something which can be readily detached from a person’s core identity.

It should be clear by now that religious neutrality is more than a derivative duty imposed on the state by some combination of sections 2(a) and 15 of the Charter. Indeed, it would be a critical mistake to conclude that religious neutrality begins and ends with the text of the Constitution. The dyadic guarantees of religious freedom and religious equality, as the Supreme Court affirmed in Saumur v Quebec (City), [1953] 2 SCR 299 [“Saumur”], are “a fundamental principle of our civil polity” (342). Religious neutrality is thus a pre-existing, foundational and enforceable legal principle which explains why the Charter protects religious adherents. Without a proper understanding of what religious neutrality demands, there is no principled reason why the state should be prevented from pursing an ecclesiastical agenda or discriminating against religious adherents.

Granted, the very idea of religious neutrality, whether closed or inclusive, is ultimately a conceit. From a philosophical perspective, policy-making is a fundamentally normative undertaking. Whenever the state implements or pursues a given policy – no matter how benign – it is making a statement about what society ought to look like. Such declarations are informed by assumptions about what morality and justice demand. In this way, Benjamin Berger explains, “religion will have much to say about matters of broad public policy import”, in that the state’s adoption “of positions on such matters will … involve position-taking on matters of deep religious interest” (772).

When viewed from an inclusive perspective, however, the state’s duty of religious neutrality does not bestow the state with a “secularizing mission” – quite the opposite. Secularism, like all worldviews, is built on assumptions about divinity, society and what it means to be human. In other words, secularism is itself a religion. Although this may seem counterintuitive, religion, functionally defined, does not require faith in a higher deity or even the supernatural. As American political theologian Jonathan Leeman writes, “any and every position that a person might adopt in the political sphere relies upon a certain conception of human beings, their rights and their obligations toward one another, creation and God” (81). In this sense, Leeman explains, religion “determines … the worldview lens through which we come to hold our political commitments.” (Id) Thus, everyone is, to some degree, religious. This is why an inclusive approach to religious neutrality seeks to ensure that the state does not directly or indirectly support irreligious worldviews over religious ones. If irreligiosity is just another form of religion, then official state support for irreligion will favour some religious adherents (namely secularists, atheists and agonistics) over others.

Since the advent of the Charter, the Supreme Court has trended toward the inclusive conception of religious neutrality which I have outlined above. As noted, Dickson CJC’s reasons in Big M prevent majoritarian religions from excluding minority religious groups from public life. In the decades since this landmark ruling, the Supreme Court has articulated with increasing precision what the state’s duty of religious neutrality entails. The Court’s majority ruling in S.L. v Commission scolaire des Chênes, 2012 SCC 7 [“S.L.”] is particularly instructive, in which Deschamps J found that neutrality is realized when “the state neither favours nor disfavours any particular religious belief, that is, when it shows respect for all postures toward religion, including that of having no religious beliefs whatsoever” (para 32).

Justice Gascon’s majority reasons in the Supreme Court’s subsequent ruling in Mouvement laïque québécois v Saguenay (City), 2015 SCC 16 take Deschamps J’s observations from S.L. even further. A truly neutral public space, Gascon J noted, “does not mean the homogenization of private players in that space” since “[n]eutrality is required of institutions and the state, not individuals” (para 74). Religious neutrality thus protects the “freedom and dignity” of believers and non-believers alike, and in doing so promotes and enhances Canadian diversity (Id).

Bill 21 is a quintessential example of how a closed approach to religious neutrality excludes religious minorities from the full benefits of public citizenship, contrary to Gascon J’s vision of “a neutral public space that is free of discrimination and in which true freedom to believe or not believe is enjoyed by everyone equally” (Id). Despite what its proponents may argue, Bill 21 does not preserve a religiously neutral public space, but instead forces front-line public employees to give the appearance of irreligiosity to the extent that they want to keep their jobs. The Quebec government’s decree that these employees hide their faith-based identities while undertaking their public duties is actually an insistence that they adopt completely alien religious identities if they are to participate fully in public life. Such a policy is anathema to an inclusive conception of religious neutrality.

None of this is to say that the Charter challenges which have been launched against Bill 21 are certain or even likely to succeed. The Quebec government’s invocation of the section 33 override – allowing Bill 21 to operate notwithstanding violations of sections 2(a) and 15 of the Charter – makes the outcome of any application for judicial review uncertain. Yet as others (including on this blog) have observed, there are a number of compelling arguments to be made that section 33 does not insulate Bill 21 against infringements of section 28 (i.e. the equal application of the Charter to men and women) or violations of the federal division of legislative powers.

In a similar vein, a strong argument can be made that section 33 cannot be invoked to insulate Bill 21 against violations of religious neutrality, since this constitutional duty pre-dates and exists independent of the Charter. This is not to say that religious neutrality is an unwritten constitutional principle, per se, since unwritten principles cannot be used to fill in perceived gaps in the rights and freedoms guaranteed by the Charter. The unwritten constitutional principles which have been recognized by the Supreme Court (namely federalism, democracy, constitutionalism and the rule of law, and the protection of minorities) differ from religious neutrality in that the latter is grounded in specific pre-Charter constitutional protections which directly inform enforceable Charter guarantees. To use section 33 to override the state’s duty of religious neutrality would be, in the language of Saumur, to circumvent “an admitted principle” of Canadian public law (342). Advocates for the rights of religious minorities can only hope the courts will agree.

For a more thorough examination of the development of the principle of religious neutrality in Canadian law, see my paper “Inclusive Religious Neutrality: Rearticulating the Relationship Between Sections 2(a) and 15 of the Charter”, (2019) 91 SCLR (2d) 219.

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 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.

Two-Headed Judges

By Peter McCormick

If several judges on the Supreme Court of Canada suddenly sprouted two heads in their annual official photo, we would certainly take notice and would be looking for an explanation. But something similar has actually taken place in Supreme Court decisions without attracting either focused attention or a search for the reason why. More specifically – a significant number of Supreme Court decisions now routinely attribute judgments or minority reasons not to a single judge but to a pair (more rarely a trio) of judges. I leave aside for the moment the perhaps-not-unrelated phenomenon of the hydra-headed “By the Court” judgments,[1] which have been around for longer but are rather less frequent; my focus here is on the more numerous examples of this narrower form of co-authorship.

The practice is frequent enough and important enough to deserve attention.  Co-authored judgments are a recent development – the earliest significant example was R v Sparrow, [1990] 1 SCR 1075.[2] It rose beyond the sporadic only in the closing years of the Lamer Court, becoming more frequent and more routine (multiple examples every year) for the McLachlin Court.  To the Lamer Court’s 26 examples we can now add the 127 of the McLachlin Court and the 6 of the Wagner Court to date. Co-authorship involves minority reasons as well, with 46 examples for the Lamer Court, 72 for the McLachlin Court, and 11 for the Wagner Court. The total count is therefore 159 judgments and 129 sets of minority reasons in 30 years, for a Court that delivers about 60 reserved decisions a year. The practice only started in the late 1990s, but co-authorship has now become an ongoing feature of how the Supreme Court handles its business.

It might be suggested that perhaps the Court does this only for its more routine and less important decisions (although the count above already excludes the “from the bench” decisions that continue to make up about one-sixth of the caseload even after 1999 amendments limited appeals by right).  As I have elsewhere demonstrated at some length,[3] this “minor cases” reservation cannot be sustained.  Co-authorships are used proportionately most often for constitutional cases (Charter, federalism and aboriginal cases alike) and public law cases, most often for cases that have drawn larger numbers of interveners, and most often for cases with higher subsequent citation frequencies.  None of this says “routine” or “unimportant”.

Let me expand on this criterion of citation frequency.  Several different factors bear on how often a case is cited by the Court in later decisions, but citation counts remain a useful indicator of the ongoing impact of a decision.  More to the point, they provide a measure of how a specific judge’s influence endures beyond their own service on the Court, also showing the specific areas of law within which that persisting influence is the most important.  These are useful indicators indeed for assessing a judicial career.  It is therefore striking that the four most frequently cited decisions of the McLachlin Court (measured in “times cited per year since delivery” to level the playing field for the more recent decisions) are co-authored decisions; the four cases are Dunsmuir v New Brunswick, 2008 SCC 9, Housen v Nikolaisen, 2002 SCC 33, Bell ExpressVu v Rex, 2002 SCC 42, and R v Grant 2009 SCC 32.  Three further cases (R v Jordan, 2016 SCC 27, Canadian Western Bank v Alberta, 2007 SCC 22, and Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12) join them in the McLachlin Court “top ten.”

The blog of the Osgoode Hall law school TheCourt recently reinforced this point from another angle.  In a “where are they now?” post about the ten most recently retired Supreme Court justices, they reminded us of each judge’s most frequently cited decision.  For full half of them, including McLachlin herself, that involved a co-authored judgment.  The practice of co-authorship is not at the margins; it is right at the center.

These two-headed decisions clearly matter; how are we to account for their emergence? There are several possible reasons, none of which provides a completely satisfactory answer.

One explanation might be an unusually close partnership between judges who agree extensively on a range of issues, such that close collaboration flows naturally from this recurring congruence of views. This description clearly captures Cory and Iacobucci, who effectively invented the practice in the late 1990s. During their shared service on the Court, they posted the highest level of two-judge agreement of any pairing of judges; it is reasonable to see co-authorship as growing from this fertile soil of extensive agreement. But this explanation does not work for the complex network that has emerged more recently – on the McLachlin Court, every single justice was involved in some degree of co-authorship, most with several different partners.

A slightly more systemic answer might couch it in terms of alliances on a court that tends to fragment along predictable lines, with co-authorship reinforcing the solidarity of both “in-group” and “out-group” in the face of its chronic adversaries. But this explanation does not work either, simply because the network has been so extensive – there were no fewer than 45 different combinations of two or three judges who produced co-authored judgments on the McLachlin Court (slightly more if we extend the count to minority reasons). This is “bloc-eroding” behavior rather than “bloc-reinforcing” behavior.

A third explanation might be that it salvages a strong majority decision from multiple possible defections to an emerging separate concurrence.  In a private conversation some years ago, a former justice of the Supreme Court explained his own participation in at least some co-authorships in precisely these terms. This would make co-authorship part of the reason for McLachlin’s success in sharply reducing the frequency of separate concurrence compared with the preceding Lamer Court. This is perhaps mildly problematic given that such compromise can involve less a genuine meeting of minds than a degree of calculated ambiguity on central points of disagreement and a careful avoidance of problematic subsidiary issues; at least co-authorship does the service of highlighting this possibility.

A fourth explanation might be that it has a socializing function, with co-authorship linking established members of the Court with more recently appointed colleagues. Even for experienced judges elevated from provincial courts of appeal, the transition to the Supreme Court can be daunting.  However, such a disparity of experience between a pair of co-authors is much too infrequent to make this a pervasive explanation, although it may sometimes be a factor.

A fifth explanation might be that it sometimes represents an ambitious attempt to solve very large and deep-rooted problems in the Court’s jurisprudence.  The obvious example is Dunsmuir, with its ambitious recasting of the standards of review for administrative tribunals.  Double Aspect, in cooperation with the Administrative Law Matters blog, published an extended multi-part discussion of the case on its tenth anniversary last year.  Not only the most frequently cited decision of the McLachlin Court, it is also the most widely criticized; this and other blogs continually share expectations (which are just as continually frustrated) that some current case before the Court will provide the opportunity to revisit and adjust the Dunsmuir precedent, but this makes the point about how ambitious the undertaking was.

The search for a “why” is complicated by the fact that we do not even know the “when” of the formation of the writing partnership. Does it occur spontaneously during the post-hearing judicial conference, with the initial assignment of the writing of majority reasons? Nothing in the descriptions of this process either specifically mentions or specifically excludes the possibility of a joint assignment, and in a recent interview McLachlin suggested that at least some co-authorships emerge this way. Or does it occur after such an assignment, during the “circulate and revise” process and possibly under some prodding from the Chief Justice, like the salvage efforts described above? Clearly, this sometimes happens as well, but nothing in the physical appearance of the decision in the Supreme Court Reports gives any real hint as to which happens how often.

The benefit of the co-authorship practice is clear: it results in a more genuinely and visibly collegial court that presents an institutional face rather than an individualist one, that emphasizes pervasive agreement rather than division, that shows us a Court of persuasion and cooperation rather than polarization. As practised by the McLachlin Court, it eliminated the predictable blocks of the Lamer Court. Recall the “gang of five” who dominated the Court’s most important decisions for much of the 1990s, with the other judges (most notably L’Heureux-Dube and McLachlin) obliged to do much of their own writing in minority reasons.  No such persisting fragmentation has been seen for the past twenty years. There was more to the McLachlin Court’s unity and collegiality than co-authorship, but co-authorship was definitely part of it.

However, such benefits are always purchased at a price. For one thing, it is harder for lower courts or academics to unravel the nuances. We can sometimes clear up some ambiguities in the wording of a judgment by comparing the immediate decision with earlier reasons written by the same judge, or we can track the evolution of a judge’s thinking (with hints of where it might go next) by seeing how it is cited and applied in the same judge’s later reasons. This becomes more difficult if we cannot be sure which of a pair of judges might have written the particular passage or might be making the later citation. By the same token, the device depersonalizes the decision and diffuses the assignment of criticism or blame.

For another, it undercuts the venerable common law tradition of accountability, of the clear responsibility of the specific individual judge to which those reasons are attributed.  This is already attenuated by the “circulate and revise” procedures of the Supreme Court, such that a collegial dimension already pervades the final version – but even if we are looking at “lead authorship” rather than genuine “solo authorship”, the accountability dimension is real, and traditionally it has been important.[4]  It is clearly eroded by a pervasive co-authorship practice focused on the Court’s more important (in terms of subject matter), more controversial (in terms of interveners), and more influential (in terms of citation counts) decisions. 

Where is co-authorship taking us, and should we welcome the journey? The next time a two-headed judge raises its head in the Supreme Court Reports, these are the questions to ponder. We can debate whether it is taking us to a better place, but it is certainly taking us to a different place, all the more intriguing because no comparable court seems to be embarking on anything similar.


[1] Shameless plug: to know more about “By the Court’ judgments, keep an eye out for a fall 2019 UBC new release entitled By the Court: Anonymous Judgments at the Supreme Court of Canada.

[2] Or, one might suggest, Irwin Toy in 1989, although I have been assured that this was actually a “By the Court” judgment that “went sideways” at the last moment rather than an intentional three-judge-shared set of reasons.

[3] Peter McCormick, “Duets, Not Solos: The McLachlin Court’s Co-Authorship Legacy” Dalhousie Law Journal, Vol. 41 (2018), 479.

[4] Mitchel Lasser makes this point very forcefully in his excellent Judicial Deliberations: A Comparative Analysis of Transparency and Legitimacy (OUP, 2004)

When Judicial Disagreement Doesn’t Matter

What does it mean for an appellate court’s decision to be unanimous?

By Peter McCormick

To begin with the obvious: common law appellate court decisions include two major elements.  The first is the outcome – crudely, who won? – that takes the dichotomous form of“appeal allowed” or “appeal denied”.  The second is the reasons for judgment, that take the form of a legal essay, sometimes of extended length, explaining why that outcome is the appropriate one and how it is grounded in existing law.  Put more formally: an appeal court decision responds to two imperatives, the first being to provide a definitive resolution to a specific legal dispute, and the second being to provide the reasons for that outcome in such a way as to provide useful guidance to lower courts and future litigants.

From this it follows that there are two different types of judicial disagreement. A member of the panel may disagree with the outcome, saying that their colleagues got the winner wrong – we call this type of disagreement a“dissent”.  Or they can agree with the outcome but disagree, or at least not completely agree, with the reasons given to explain and justify that outcome – in Canadian usage we call this a “separate concurrence”.

Dissents have drawn a voluminous literature, both empirical and normative, to such an extent that even a preliminary list would take several pages. When the focus of discussion shifts from the consideration of a specific example to a more general level, the usual complaint is that dissent rates are too high – judges (or perhaps just some judges) are too ready to pursue their own vision of the law rather than contributing to and reinforcing a more solid institutional position.  Separate concurrences, on the other hand, are very much the forgotten poor cousin of judicial disagreement; to the best of my knowledge, there have only ever been two articles in Canadian law journals exploring the practice of separate concurrence and evaluating its contribution to the law.[1]

With respect to dissent, Jeremy Gans, in a recent piece in Inside Story and referring specifically to the High Court of Australia, has taken the highly intriguing position of flipping the “too many dissents”argument.   Quite the contrary, he complains that it is possible – and, for the current High Court, an actual achievement – to have dissent rates that are low to the point of dysfunction, so much so that it reflects badly on the Court’s performance. His “Great Assenters” title is deliberately and pointedly ironic; at a certain point, he does not think that “assent” is great at all.

This looks like a fascinating conversation that I would love to join – perhaps by suggesting a “proper” (or at least“normal”) level of judicial dissent that as a yardstick against which “too high” and “too low” can be more precisely measured, such that the reasons (commendable or otherwise) for departures from that norm can be identified.  But my enthusiasm was derailed by the second paragraph, which casually told me “All four decisions made in the High Court of Australia last month were approved by every judge who sat (even if they sometimes disagreed on the reasons).”  Our own Supreme Court has exactly the same attitude toward “disagreement on the reasons”, keeping its statistics on how many of its judgments were “unanimous as to outcome” but not seeing any necessity of taking the further step of telling us how many of those were also “univocal” (which is to say: unanimous as to reasons as well).

The clear implication of both Gans’s comment and the Supreme Court statistical reporting is that only disagreement as to the outcome really matters; differences as to the reasons are not really worth noticing – not even if they involve fundamental differences expressed at considerable length, not even if they are joined by several other judges, not even if the consequence is that there is no statement of “outcome plus reasons”statement that is supported by a majority.  To be sure, disagreeing about the outcome is much more dramatic, with greater potential for news headlines and editorial commentary aiming scathing criticism at either the majority or the minority.  It conjures visions – sometimes rebuttable but often compelling – of innocent people sent to prison or guilty people freed, of honest people victimized without remedy, of perfectly valid laws rendered null and void or bad laws upheld.  Separate concurrences are less dramatic and often harder to explain, a judicial equivalent of “insiders’ baseball.”

With all due respect to both Prof. Gans andthe Supreme Court of Canada, I think their focus on “unanimous as to outcome”is a profound mistake.  Putting the pointas starkly as possible: the outcome really matters only to the immediate parties, but the reasons matter to everybody. This is because it is the reasons, not the outcome, that constitute the precedent that constrains the immediate court and instructs the lower courts.   Since there are only two possible outcomes (allow or dismiss), how can they carry any precedential message at all?  The real point about dissent is not that the judges disagreed on the outcome but that they disagreed about the content and meaning and application of the relevant law; generally speaking, to disagree with the outcome is ipso facto to disagree with the reasoning that led to the outcome, so it is easy to conflate the two.[2] But “disagreeing on the content, meaning and application of the law” is precisely what separate concurrences are aboutas well, in ways that may be less dramatic but are often as profound and as potentially impactful as many dissents.  As Scalia once said, a judgment that gets the reasons wrong gets everything wrong that it is the function of an appeal court decision to provide;[3]it follows that minority reasons identifying that species of error are just as functional, and just as important, as minority reasons that challenge the outcome as well.

To step back for a moment: there are essentially three different kinds of separate concurrence. The first is what we might call the “just one more thing” concurrence,which expresses agreement with the majority but wants to add one additional related thought about the law that the writer could not persuade their colleagues in the majority to sign on to. The second is what we might call the “one less thing” concurrence, which expresses general agreement with the majority but specifically excludes one or more elements of the majority reasons; depending how significant those elements are, and how many other judges sign on to it, this can sometimes have real implications.  But the third kind, and as it turns out (at least in Canadian practice) the most common of the three, is the “by another route” concurrence, which opens with some variant of the apparently innocuous statement “I reach the same conclusion, but for different reasons.”  This is not innocuous at all;it is as serious as judicial disagreement gets, so much so that McLachlin J. (as she then was) once described herself as “respectfully dissenting” from the majority even though she was at the time agreeing that the immediate appeal should be dismissed (in R v Potvin [1993] 2 SCR 880).  Although she seems to have repented from this terminology, I remain convinced that she was on to something.

The distinctions I am making are highlighted by two important developments on the Supreme Court of Canada.  The first is a consistent practice dating back several decades that distinguishes between unanimous (or majority, or plurality) judgments and minority(dissenting or separately concurring) reasons;this replaced the earlier practice whereby any set of reasons delivered by a judge was referred to as a “judgment”.  The term “dissenting judgment” has become an oxymoron when applied to the current Court, although it was used by the Court itself before the late 1960s and still is appropriate for jurisdictions (such as the Ontario Court of Appeal) where the parallel labeling practice has not been adopted.  The second is a decision-delivery process that highlights the judgment (or at least the initial attempt at a judgment) by systematically framing other sets of reasons as responses (“I have read the reasons”).[4]  The joint impact of these two developments is to flag the significance of non-dissent disagreement in a very transparent way,although it is only making more visible implications that apply even in the absence of such explicit signals.

When and why and how does this matter?  To simplify the context, let us take the most dramatic position and assume a nine-judge panel that has divided 5-4 on the outcome and then 4-1 on the reasons.  We have an outcome, but what do we do about the reasons for judgment?   Is there a plurality judgment, and if so which set of reasons earns the label?  Or is there no “judgment” at all?

That depends on the nature of the disagreement between the various fragments of the majority.  If the solo judge is writing reasons of the“one more thing” variety, then we have a separate concurrence that has explicitly lined itself up with and behind the four-judge reasons in such a way as to make those reasons the judgment.  If those reasons are of the “one less thing” variety, then it may well have displaced the other reasons to become the judgment itself (because the “rule” as to which fragment of a divided majority is the judgment is not “largest fragment” but“narrowest legal grounds” – for an example, see Chaoulli v Quebec (Attorney General), 2005 SCC 35, [2005] 1 SCR 791).  But if the disagreement is of the “by another route” variety, then there may well be no “judgment” at all, which is to say that there is no majority position on the law that explains the outcome in way that clearly establishes precedent.  For the Supreme Court of Canada, this only happens about once a year, but the point is that it does happen – the most recent examples are Haaretz.com v Goldhar, 2018 SCC 28 and Centrale des Syndicats du Québec v Quebec (Attorney General), 2018 SCC 18. Or consider the even more recent case of Mikisew Cree First Nation v Canada, 2018 SCC 40, which was unanimous as to outcome but with four different sets of reasons, all of comparable length but none attracting more than three signatures on a nine-judge panel; the decision is either unanimous, or 7-2, or 5-4, depending which of the major issues attracts your attention.  Gans’s “great assenters” label hardly seems appropriate.

But my concerns apply more broadly than these dramatic and unusual developments.  More generally we might say that behind every dissent, especially one that draws multiple signatures, lurks a disagreement deep enough that it might one day grow into a dramatic explicit abandonment of the majority’s jurisprudential position – like the reversal of the 1987 Labor Trilogy (Reference re Public Service Employee Relations Act (Alberta), [1987] 1 SCR 313PSAC v Canada [1987] 1 SCR 424RWDSU v Saskatchewan [1987] 1 SCR 460) twenty years later in B.C. Health Services (Health Services and Support-Facilities Subsector Bargaining Association v British Columbia, 2007 SCC 27, [2007] 2 SCR 391) on the status of collective bargaining under the Charter’s guarantee of freedom of association, or Carter’s 2015 repudiation (Carter v Canada (Attorney General) 2015 SCC 5, [2015] 1 SCR 331) of the 1993 Rodriguez decision (Rodriguez v British Columbia (Attorney General) [1993] 3 SCR 519) on the constitutional status of the ban on assisted suicide.  By a similar logic, behind every separate concurrence (but especially those of the “different route” variety, and especially those joined by several other judges) lies the potential for a less visibly dramatic but comparably significant evolution, perhaps to the extent of having the separate concurrence gradually displace the one-time majority incitation frequency (which again is something which has happened more than once).

Differences over reasons matter because reasons are what judicial decisions are all about; the evolution of the reasons explaining outcomes is what brings about much of the incremental change in the law.  This makes it a serious mistake to assume that some judicial disagreement is necessarily less important simply because it does not involve disagreeing on the outcome as well as on the reasons that justify that outcome.   When is it that judicial disagreement doesn’t matter?  Only when we are so shortsighted as to ignore it.


[1] I admit that I wrote both of them: see Peter McCormick, “The Choral Court: Separate Concurrences on the McLachlin Court 2000-2004Ottawa Law Review, Vol. 37 (2005-6); and Peter McCormick, “Standing Apart: Separate Concurrence and the Supreme Court of Canada 1984-2006McGill Law Journal Vol. 53 (2008).

[2] That said, I think it is not impossible for judges to disagree on the outcome without disagreeing on the central legal issues and their precedential implications; my leading candidates would be R v Therens, [1985] 1 SCR 613 and Andrews v Law Society of British Columbia [1989] 1 SCR 143, the point being that for both of them the major precedential finding on the constitutional issue is made and explained in the dissenting reasons.

[3] Antonin Scalia, “The Dissenting Opinion” 1994 Journal of Supreme Court History p.33

[4] Peter McCormick, “Structures of Judgment: How the Modern SupremeCourt of Canada Organizes Its Reasons” Dalhousie Law Journal, Vol. 32 (2009)

The Elephant in the Room : l’inexplicable constitutionnalité de l’intégralité des traités modernes

À l’occasion de ma série de billets sur l’arrêt Tsilhqot’in, j’avais affirmé que, si elle devait être tenue pour cruciale, la question de la portée précise de la compétence fédérale exclusive sur les autochtones et des conditions auxquelles les provinces peuvent constitutionnellement intervenir en ce domaine qu’est le droit des autochtones n’avait pourtant toujours pas trouvé de réponse satisfaisante. Cette réponse serait nécessaire à l’explication des conditions de validité des traités dits “modernes” qui portent règlement d’une revendication de droits ancestraux territoriaux ainsi que des dispositions législatives, fédérales comme provinciales, relatives à leur mise en œuvre.

Je ne prétends évidemment pas répondre définitivement à cette question dans les paragraphes qui suivent. J’aimerais plutôt me servir de la tribune qui m’est ici généreusement offerte pour mettre à l’épreuve les résultats préliminaires d’une analyse qu’il reste à approfondir. Je dois admettre d’entrée que je suis un peu choqué par les conclusions que, provisoirement du moins, je me suis résigné à tirer. L’intérêt virtuel des développements qui suivent est de s’attaquer de front à un problème juridique sans doute complexe. Mais ce problème est peut-être au contraire un “éléphant dans la pièce”, c’est-à-dire un de ceux dont il est convenu qu’il vaut mieux ne pas le soulever.

À deux reprises, l’Accord définitif Nisga’a (1998), un traité moderne constitutif d’un gouvernement autochtone, a vu sa constitutionnalité être contestée en justice, et ce, notamment sur la base de la répartition fédérative des compétences, au motif que celle-ci ne permettrait pas une telle institution d’un « troisième ordre de gouvernement ». Dans l’affaire Campbell, la cour supérieure de la Colombie-Britannique a rejeté cette thèse au motif que la répartition fédérative des compétences qui est prévue à notre loi suprême ne serait pas « exhaustive », de sorte que s’y déroberait la compétence correspondant au droit à l’autonomie gouvernementale que comprendrait le titre aborigène « in its full form ». Dans l’affaire Sga’nism Sim’augit, la cour d’appel de la Colombie-Britannique fut unanimement d’avis qu’il ne lui était pas nécessaire de se prononcer sur le bien-fondé de cette thèse judiciaire (par.45). À mon sens, cette thèse est nulle. D’abord, c’est à la Cour suprême du Canada qu’il revient, le cas échéant, de renverser le principe de l’arrêt qu’elle a rendu dans l’affaire Pamajewon. Ensuite, jamais la jurisprudence de la plus haute cour au pays n’a encore dérobé les droits ancestraux et issus de traités à la répartition fédérative des compétences, cette jurisprudence faisant plutôt – non sans poser problème, j’en conviens – ressortir les droits garantis par l’art. 35 de la LC 1982 à compétence fédérale exclusive prévue au par. 91(24) de la LC 1982. Sur ce plan, tout ce qu’est venu faire l’arrêt Tsilhqot’in est de retrancher les droits constitutionnels des peuples autochtones du « cœur » de cette compétence fédérale, au sens où l’entend la théorie jurisprudentielle de la protection des compétences exclusives. Enfin, la thèse selon laquelle la répartition fédérative des compétences n’est pas « exhaustive » tient de la contradiction dans les termes. De dire que les droits ancestraux et issus de traités ne sont pas l’objet d’une compétence législative est une chose. De dire que, en tout ou partie, ils coïncident avec une compétence qui échappe au partage fédératif en est une autre. Dans toute fédération, c’est l’ensemble de la compétence législative qui est partagée entre les sphères fédérale et fédérées de pouvoir. C’est pourquoi toute loi constitutionnelle fédérative prévoit normalement l’attribution d’une compétence résiduelle. Certes, la fédération canadienne a représenté une exception, mais cela seulement durant sa période coloniale, qui s’arrête en 1926. De 1867 à 1926, l’empire s’était réservé la compétence sur les relations intercoloniales, coloniales-impériales et internationales, la répartition originelle de 1867 en les sphères de pouvoir fédérale et fédérée de la nouvelle colonie s’étant limitée aux compétences jusqu’alors déjà reconnues aux colonies d’Amérique du Nord britannique. Avec l’accession du Canada au statut d’État souverain au sens du droit international public, les compétences réservées du législateur impérial se sont transférées au législateur fédéral canadien. C’est ce que suggère entre autres l’arrêt Croft v. Dunphy, [1933] A.C. 156.

L’argument avec lequel il a été principalement disposé de l’affaire Sga’nism Sim’augit par la cour d’appel de la Colombie-Britannique était que, relativement à l’institution d’un gouvernement autochtone, le traité de 1999 avec les Nisga’a et ses lois de mise œuvre correspondaient à une forme de délégation de pouvoir législatif inconstitutionnelle parce que définitive. La réponse de la cour d’appel à cette objection est faible. Elle consiste à dire que la délégation en question n’est pas définitive, parce que les législateurs fédéral et provinciaux peuvent, en matière de droits issus de traités, recourir au test de l’arrêt Sparrow, test pourtant relatif à seule restriction des droits constitutionnels que l’art. 35 de la LC 1982 garantit aux peuples autochtones. En réalité, la seule délégation qui est clairement interdite à un législateur est la délégation « horizontale », c’est-à-dire celle qui serait faite en faveur du législateur de l’autre des deux sphères (fédérale et fédérée) de pouvoir, et ce, même si, en raison du principe établi selon lequel le parlement actuel ne peut pas lier un parlement à venir, une telle délégation ne saurait être définitive. La ou (plus exactement) les délégations en cause dans cette affaire n’étaient pas horizontales. Par contre, la tension entre, d’une part, la protection constitutionnelle des compétences d’un « gouvernement autochtone » par le biais de celle des droits issus de traités et, d’autre part, le principe selon lequel le législateur ordinaire actuel (fédéral ou provincial) ne peut lier ses successeurs était bien réelle. Cette question aurait mérité un meilleur traitement.

Si la jurisprudence avait situé les droits constitutionnels des peuples autochtones sur le même plan que les droits et libertés garantis par la Charte canadienne – c’est-à-dire dans la constitution des droits par opposition à celle des pouvoirs – alors ces droits auraient échappé au partage fédératif des compétences, et il aurait été possible de voir dans les dispositions de l’art. 35 de la LC 1982 relatives aux droits issus de traités l’aménagement d’une forme de pouvoir constituant, qui serait ainsi venue s’ajouter à la partie V de ce même loi constitutionnelle. Suivant un tel scénario, la mise en œuvre, par le Parlement fédéral et la législature provinciale, d’un traité conclu avec des autochtones aurait pu être tenue pour relever de l’exercice de ce pouvoir constituant plutôt de l’acte de législateurs ordinaires séparés. De cette façon les principes relatifs à la délégation législative et aux rapports entre législateurs actuels et futurs auraient-ils été facilement écartés. Or il n’en est rien, la jurisprudence prévoyant plutôt que, du moins à titre principal, les droits issus de traités des peuples autochtones relèvent de la compétence sur les autochtones que le par. 91(24) de la LC 1867 attribue en propre au législateur fédéral. En d’autres termes, en plus de voir sa dimension porteuse de droits en faveur de la partie autochtone être protégée constitutionnellement par l’article 35 de la LC 1982, le contenu d’un traité relève toujours ou, en d’autres termes, doit toujours relever principalement de la compétence fédérale sur les autochtones. Il ne pourrait qu’accessoirement relever de compétences autres, que celles-ci soient fédérales exclusives, provinciales exclusives ou concurrentes. Dans tous les cas, il relève entièrement de la répartition fédérative des compétences. Formellement, la loi de mise en œuvre d’un traité tient donc de la loi ordinaire. Dès lors qu’il est question de la mise en œuvre de droits-compétences issus de traités, force est donc de conclure à une forme de délégation législative. Comme nous l’avons vu, celle-ci n’est pas « horizontalement » inconstitutionnelle. En ce qui concerne son caractère définitif maintenant, la seule manière de soutenir la thèse de sa constitutionnalité est d’affirmer qu’ici l’interdiction normalement faite au législateur actuel de lier ses successeurs est spécialement levée par l’article 35 de la LC 1982.

À l’exception des Traités de Williams de 1923 à la négociation desquels prit part le gouvernement ontarien, tous les traités conclus avec des autochtones après la fédération de 1867 ne l’ont été que par les autorités fédérales. Quant à eux, les traités modernes sont aussi conclus avec le gouvernement provincial, le cas échéant. Il serait faux d’affirmer que l’état actuel de notre droit (ou même celui de notre doctrine) indique clairement si une telle participation du gouvernement provincial est juridiquement nécessaire. Une telle approche laisse entendre que certains aspects des traités modernes (et bien sûr de leur mise en œuvre) peuvent relever de la compétence des provinces. Si un « traité autochtone » se définit en fonction d’un contenu obligationnel relatif aux droits fondamentaux d’une communauté autochtone en tant que telle, alors, en vertu des principes généraux relatifs à la compétence fédérale exclusive sur les autochtones, on pourrait vouloir conclure que seul le gouvernement fédéral peut y être partie. En revanche, la forme la plus élémentaire de compréhension du fédéralisme comme forme d’organisation d’un État s’entend du principe selon lequel, dans toute fédération, chacune des attributions de compétence doit avoir des limites matérielles ; aucune attribution ne saurait être matériellement illimitée. Partant, la compétence fédérale exclusive sur les autochtones, y compris celle relative aux traités conclus avec des collectifs autochtones, ne peut pas être sans bornes.

Dans l’arrêt Howard (p. 308), la Cour suprême a suggéré, en négatif, que les provinces seraient compétentes pour conclure seules des traités autochtones portant autre chose qu’une cession de territoire. Rappelons au passage que certaines « conventions complémentaires » de la CBJNQ, dont la Convention complémentaire no 24, n’ont pas été signées par les autorités fédérales. Voilà qui pourtant paraît difficilement compatible avec les arrêts Simon (p. 411) et Morris (par. 43 et 91), suivant lesquels les droits autochtones issus de traités relèvent de la compétence fédérale sur les « Indiens » et les terres qui leur sont « réservées ». Une manière de concilier les deux thèses serait de soutenir que, si la participation du gouvernement fédéral est nécessaire à la validité de tout traité conclu avec des autochtones (de sorte que le gouvernement d’une province ne saurait conclure seul un tel traité avec), en revanche il peut arriver, en fonction de la portée de son contenu, qu’un traité donné avec des autochtones ne puisse être conclu par le seul gouvernement fédéral, qui doit plutôt s’assurer de la participation du gouvernement provincial concerné. Dans l’arrêt Grassy Narrows, la juge en chef McLachlin a affirmé que, nonobstant les dispositions d’un traité, « [l]e paragraphe 91(24) [de la LC 1867] ne confère pas au Canada le droit de prendre des terres provinciales à des fins exclusivement provinciales » (par. 37). Cela suggère à mon sens que de grands pans du contenu matériel des traités modernes conclus et à venir ressortissent en réalité à la compétence exclusive des provinces, même si celles-ci ne pourraient sans doute pas seules conclure un traité avec un groupe autochtone. Si cette toute dernière hypothèse devait se révéler fausse (et donc que les provinces pouvaient signer seules certains traités), en revanche il faudrait se rappeler qu’il n’a jamais été mis en doute que seul le gouvernement fédéral peut recevoir une cession de droits ancestraux.

L’interprétation qui me semble être la plus rigoureuse est que, la compétence fédérale exclusive sur les autochtones ne pouvant pas être illimitée et celle de conclure des traités avec les autochtones en faisant partie, rien ne garantit que chacune des dispositions des traités modernes présente au minimum un double aspect, de sorte qu’il est vraisemblable que certaines de ces dispositions ne fassent, en réalité, pas validement partie d’un tel traité, ne soient porteuses d’aucun droit issu de traité au sens de l’article 35 de la LC 1982 et n’aient force de loi qu’à la faveur de la loi ordinaire qui les met en œuvre.

D’autre part, même à concéder, aux seules fins de la discussion, que certaines dispositions des traités modernes, outre la compétence fédérale exclusive sur les autochtones, peuvent, en présentant un double aspect, ressortir aussi, en en tant que telles, à la compétence exclusive des provinces – de sorte que les provinces auraient une (pourtant improbable) compétence partielle de conclure des traités avec les autochtones –, il n’en demeure pas moins que, dans les faits, nombre de dispositions de certaines lois provinciales de mise en œuvre de tels traités se rapportent plutôt à des stipulations dont le « rattachement » dominant est plutôt avec cette compétence fédérale exclusive sur les autochtones. Ces lois à contenir des dispositions d’une constitutionnalité plus que douteuse sont notamment lois provinciales suivantes de mise en œuvre de la CBJNQ et de la CNEQ : Loi sur les autochtones Cris, Inuits et Naskapis, LRQ, c. A-33.1 ; Loi sur le régime des terres dans les territoires de la Baie-James et du Nouveau-Québec, LRQ, c. R-13.1 ; Loi sur les villages cris et le village naskapi, LRQ, c. V-5.1 ; Loi sur les villages nordiques et l’Administration régionale Kativik, LRQ, c. V-6.1.