Day 12: Mark Mancini

Here are my three favourite dissents at the Supreme Court of Canada. All of my dissents are united by a focus on the Rule of Law and constitutionalism, traditionally understood. In other words, they prioritize constitutional text over abstract values; and they focus particularly on the hierarchy of laws under which the Constitution>statutes>the common law. These might be considered “boring” themes on which to base my dissents, but to my mind, these structural arrangements are fundamental to law in Canada. These dissents focus on the majority’s subversion or misapplication of these fundamental structural constraints.

The TWU decision was one of the most anticipated Supreme Court decisions in 2018. My favourite aspect of this dissent, penned by Brown and Côté JJ, was the rigorous attack on Doré/Loyola as an organizing framework to analyze the constitutional claims in TWU. The dissent admirably showed why these cases are inconsistent with the Rule of Law and constitutionalism.

The Doré/Loyola approach to assessing the constitutionality of decisions engaging Charter rights asks decision-makers to balance Charter values engaged on particular facts with statutory objectives arising in a statutory framework. Courts are supposed to defer to the decision-maker’s balancing of values and objectives. But the slippery nature of Doré/Loyola has been subject to widespread criticism (see my particular criticisms here). Brown and Côté JJ also pointed out the widespread problems with the Doré/Loyola framework: see para 302. But the majority largely ignored these problems, and the suggestion by interveners that Doré/Loyola were unworkable. In a laughably weak paragraph, the majority simply stated that Doré and Loyola are binding precedents [59], without any attempt to justify the approach from first principles.

Brown and Côté JJ’s dissenting opinion admirably dealt with the problems with the Doré/Loyola framework head on. First, the dissent stated that there is no pressing justification for a separate analytical track when speaking of administrative decisions, particularly because the traditional Oakes test is “already context-specific” [302]. Second, the dissent noted that Doré and Loyola permit statutory objectives to trump Charter rights—but such a situation is completely unjustified from the perspective of the Rule of Law and constitutionalism, under which the Constitution trumps potentially unconstitutional statutory objectives, subject only to reasonable limits under s.1—not statutory objectives writ large [305]. Finally, the majority’s navel-gazing with regards to Charter values received the dissent’s ire: these values—as opposed to Charter rights—do not receive constitutional protection [307], and should not because they are not law. Since they are “unsourced,” they can be “entirely the product of the idiosyncrasies of the judicial mind that pronounces them to be so” [308].

Brown and Côté JJ’s dissenting reasons sound in the Rule of Law and constitutionalism. Under Doré, as Brown and Côté JJ note, the traditional hierarchy of laws is perverted. The use of statutory objectives to moor the analysis means that rights can be infringed insofar as a decision limiting those rights is consistent with an enabling statute. This reverses how we typically understand constitutionalism. Under a system based on the Constitution, once a decision is found to limit a constitutional right, that decision is void insofar as it infringes the Constitution—statutes cannot save a decision that infringe the Constitution [305]. True, infringements of Charter rights can be justified under the Oakes test. But it is not only every statutory objective and means that are worthy of the Oakes imprimatur. Yet under Doré, “Charter rights are guaranteed only so far as they are consistent with the objectives of the enabling statute” [305].

More seriously, the use of Charter values allows for potential judicial expansion of rights beyond the text of the Constitution—that which is enacted by the people through democratic processes. As Brown and Côté JJ persuasively note, “values” lack doctrinal rigour, permitting judges to define rights as they see fit. This perverts the relationship that courts should have to constitutional text. The relationship is that of an interpreter, not a creator. Constitutionalism is as much about control on elected representatives as it is on courts, who are supposed to faithfully elucidate the existing Constitution, not create a new one.

At issue in the SFL case was a prohibition on striking interfered with s.2(d) of the Charter, protecting the freedom of association. The majority (Abella J) concluded that s.2(d) incorporated a right to strike, despite the fact that the Court had previously held that the right to strike is not constitutionally entrenched in Canada. While there had been changes in the s.2(d) jurisprudence in the intervening years, those changes, in my view, fell far short of endorsing a free-standing right to strike.

Yet the majority did so, powered by the reasoning that “It seems to me to be the time to [the right to strike] constitutional benediction.” This reasoning—a weak, unsupported assertion of judicial power—was the target of Rothstein and Wagner JJ’s partial dissent.

The dissent in SFL focused on two problems with the majority’s acceptance of a right to strike. First, it noted that constitutionalizing a right to strike upsets the prerogatives of the legislature and the executive, the branches constitutionality assigned to “balance competing tensions in making policy decisions” [115]. As the dissent posits, “Governments, not courts, are charged with adapting legislation to changing circumstances in order to achieve a balance between the interests of employers, employees, and the public” [120]. But secondly, to the dissent, the majority’s approach was inconsistent with existing precedent of the Court, undermining certainty in the law [137, 139].

Rothstein and Wagner JJ’s dissent is so powerful because it resists the judicial usurpation (“benediction”) evident in the majority reasons. It asserts that the text of the Constitution, not judicial predilections or results-oriented reasoning, should be the starting point of constitutional analysis. It refers to the importance of precedent as the bedrock of the legal system; precedent which the majority overrules for no convincing reason. It asserts that the court cannot usurp the power of the legislature in an area traditionally assigned to political channels. These are reminders that courts should keep in mind in the era of Charter adjudication.

Dissents are sometimes valuable because they have the potential to tell the future. Sometimes it takes a long time for a dissent to find majority support. But in Edmonton East, at least part of Brown and Côté JJ’s dissent received majority support in the Supreme Court’s recent administrative law re-do, Vavilov.

The controversy in Edmonton East centred around the selection of the standard of review. The majority (Karakatsanis J) ultimately concluded that a presumption of reasonableness review should govern, based on existing precedent. That presumption was justified by (1) the legislative choice to delegate in the first place [22] and (2) expertise, which “inheres in a tribunal itself as an institution…” [33] and (3) access to justice [22]. But Karakatsanis J, in her reasons, actually ended up strengthening the presumption of reasonableness, by rejecting the idea that a contextual analysis should not often rebut the presumption of reasonableness [35], and the idea that statutory rights of appeal cannot rebut the presumption of reasonableness [28].

Brown and Côté JJ took significant issue with all of this. In their view, the existence of a statutory right of appeal on certain questions of law and jurisdiction led to the conclusion in this case that correctness was the applicable standard [78]. To Brown and Cote JJ, statutory rights of appeal could be a signal that the legislature intended more intrusive review [73]. And the dissent was also reticent about the majority’s broad claims of expertise [83].

Brown and Côté JJ’s dissent is justified in principle. The selection of the standard of review is a matter of determining what the legislature meant when it delegated power to a decision-maker. This is because administrative actors are vested with powers only so far as statute provides, and it is for the legislature to prescribe the degree of deference courts must afford decision-makers [85]. This means that courts must carefully parse the delegation of authority to decision-makers, and the statutory context, to determine the degree of deference owed: statutory rights of appeal play a role in this task, as they signal that legislatures intended courts to interfere with a lower administrative decision as it would in any normal appeal. And expertise is not a good justification for a broad-based presumption of expertise, because legislatures may sometimes delegate to a non-expert decision-maker, and a decision-maker might not be expert on all the questions that come before it [85].

All of this, as noted above, was recognized by the Court’s recent opinion in Vavilov. Statutory rights of appeal now serve as valid legislative signals that correctness applies, on questions of law. Expertise is no longer a valid consideration in determining the standard of review. Brown and Côté JJ foretold the future, then, in their Edmonton East dissent.

Day 11: Asher Honickman

Standing on basic principles

Partner, Matthews Abogado LLP

As with many of the other contributors to this excellent symposium, the three dissenting judgments I have chosen share a common theme. Each articulates a basic principle of Canada’s constitutional order ― one which was true before the decision was handed down and continues to be true today, but which was ignored or marginalized in the majority decision.

These are not necessarily my “favourite” dissents. I have had the benefit of reading most of the other contributions and have consciously avoided dissents that have already been discussed. I have also cast the net wide and selected one dissent from each of the 19th, 20th and 21st centuries, with (coincidentally) 68 years between each one. Without further ado, here they are.

Justice Strong in Severn v The Queen (1878) 2 SCR 70: Judicial Restraint

As with many division of powers cases of the era, Severn was about alcohol. John Severn was charged with manufacturing and selling large quantities of beer without a license in what was then the Town of Yorkville, contrary to Ontario law. Severn argued that the law was unconstitutional as it came within Parliament’s exclusive authority to regulate trade and commerce under s.91(2) of the then BNA Act. A majority of the Supreme Court agreed.

The various majority judgments (Supreme Court decisions were written seriatim until the second half of the 20th century) adopted a decontextualized plain reading of the Act. Despite the fact that the impugned law concerned manufacture and sale wholly within the province, the majorities held that it nevertheless came within “trade and commerce”. The judges drew comparisons between the United States Constitution and the more centralized BNA Act. But there was very little discussion of the text and architecture of sections 91 & 92 and particularly the interplay between the provincial power to regulate “property and civil rights” on the one hand and the federal trade and commerce power on the other (the Privy Council would take up this task several years later in Citizens Insurance v Parsons, (1881) 7 App Cas 96, significantly narrowing the scope of the trade and commerce power in the process).

Justice Strong began his dissent by stating that the Court should afford the legislature the presumption that it was acting constitutionally and should seek to discover a constitutional construction of the statute. This “presumption of constitutionality”, first articulated by Strong J., would become a defining feature of constitutional interpretation by the end of the century (A.H.F. Lefroy would cite it as one of the 68 leading propositions of constitutional law) and continues to be applied to this day. Strong J. continued with a second even more central principle: “that it does not belong to Courts of Justice to interpolate constitutional restrictions; their duty being to apply the law, not to make it”.

Justice Strong agreed with the majority’s flawed interpretation of the trade and commerce power. However, he correctly noted that the language of the BNA Act limited this power to what had not been exclusively granted to the provinces – in this case, the power over licensing. The term “other licenses” in s.92(9) had to be read broadly – if it was confined to those types of licenses that had been in existence prior to Confederation as the majority preferred, then the power to impose licenses would be disparate across the provinces, which is not what the BNA Act envisages.

Severn was the first decision of the Supreme Court of Canada to interpret the division of powers, predating all of the doctrinally significant decisions of the Privy Council. And it shows. The majority judgments appear adrift in a sea of doctrinal uncertainty. Strong J.’s dissent is far from perfect, but it provided an early and important articulation of the judicial function in the realm of constitutional interpretation – apply the law and approach the task with a degree of humility and restraint.

Justice Rand in Reference to the Validity of Orders in Council in relation to Persons of Japanese Race, [1946] SCR 248: Executive Power is Constrained by Law

The Japanese Persons Reference was a low point in Canadian history. In December of 1945, the Governor in Council ordered all individuals of the “Japanese race” who had previously expressed a desire in writing to be “repatriated” to Japan to be sent there. The Order applied to Japanese nationals, naturalized Canadian citizens and natural born British subjects. A second related Order revoked the British status and Canadian citizenship of naturalized Canadians of Japanese background. These Orders were made pursuant to the War Measures Act, which remained in place notwithstanding the war had ended several months earlier. The majority held that the Orders were intra vires, a finding that was affirmed by the Privy Council. Nearly 4,000 individuals of Japanese ethnicity were sent to Japan. It is not clear how many went involuntarily, but presumably at least some (and perhaps most or all) wished to continue living in Canada once hostilities ceased and Japan came under military occupation.

Justice Rand agreed that the Governor in Council could deport Japanese nationals and naturalized Canadians of Japanese background, but he disagreed that the Order could be applied to natural born British subjects who wished to remain in Canada. The reason was twofold. Firstly, in the case of Japanese nationals and naturalized Canadians, Supreme Allied Commander General MacArthur had made a corresponding order for their “repatriation”. However, no such order existed in relation to natural born British subjects. The effect of the Order would be to banish a British subject to a country without that country’s invitation or consent in circumstances where that person would remain a British subject. This was surely beyond the scope of the War Measures Act. Secondly, since natural born British subjects remained Canadian citizens and thus had the right to return to Canada at any time after being deported, it seemed improbable that the Governor in Council had deemed the one-time removal of such a to be necessary or advisable for the peace, order and welfare of Canada, a precondition for deportation under the War Measures Act.    

Rand J. also took issue with the revocation of British subject status of naturalized citizens of Japanese origin. Any revocation had to be made in accordance with the Naturalization Act, which stated that citizenship could only be revoked where the person demonstrated “disaffection or disloyalty” to the King. The Governor in Council had made no such finding regarding these individuals, but the justices in the majority argued it was implicit as each person had made a request in writing for repatriation. It is far from clear the circumstances that prevailed when these requests were made; in any event, they came on heels of the internment of Japanese people during the war. Justice Rand noted that the Order was, in effect, a “penal provision of a drastic nature” and that he was not prepared to simply conclude by implication that the Governor in Council was satisfied in each case that the naturalized subject was disaffected or disloyal.

The Japanese Persons Reference is seldom thought of as an administrative law decision. But at its core, it is about how judges ought to review executive action. The case is a sobering reminder that if administrators are not constrained by law and are left alone to exercise their discretion, then they will invariably trample upon individual freedom.

Justice Rand could not turn to the Charter of Rights and Freedoms to invalidate the Orders; but he appealed to the foundational rule of law principle that any exercise of state power must find its source in a legal rule. His dissent illustrates that liberty does not begin or end with enumerated rights, and that a government constrained by law is a necessary condition for any free society.

Justice Rothstein in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31: The Primacy of Constitutional Text

As I argued in my post for last year’s symposium, B.C. Trial Lawyers Association is one of the worst Supreme Court decisions in modern history. In grounding a novel constitutional right of access to justice in section 96 of the Constitution Act, 1867, the Court ignored the text, context, and purpose of the provision, along with settled doctrine.

Justice Rothstein’s lone dissent is powerful throughout, but particularly in its criticism of the majority’s reliance upon the rule of law as a basis to invalidate legislation. There is no doubt that the rule of law is a foundational principle of the Canadian state. But it means particular things in particular contexts (for example, as noted above, that state action must be grounded in a legal rule). The majority employed the term in a far more nebulous manner, and relied upon it to elevate another amorphous concept – access to justice – to constitutional status. By contrast, Justice Rothstein emphasized the “primacy of the written constitutional text”, and that the rule of law requires courts to give effect to legislation that conforms to that text. As such, “the rule of law does not demand that this Court invalidate the [law] — if anything, it demands that we uphold it”.

This is the salient point of the dissent. Judges exercise public power that is both granted and limited by the text of the Constitution. Justice Rothstein acknowledged that the courts may, on occasion, turn to unwritten principles to fill in “gaps” in the constitutional text; but he cautioned that “gaps do not exist simply because the courts believe that the text should say something that it does not”.  Where a court changes the meaning of a constitutional provision, it has, in effect, amended the Constitution by judicial fiat and, in doing so, has endangered the rule of law and the very basis upon which the judiciary is empowered to review legislation.  


Note: Mr. Honickman stepped in, almost without notice, to replace one of the contributors, who had to withdraw for reasons beyond her (let alone our) control. Co-blogger Mark Mancini and I are most grateful to him for helping us out! – LS

Day 10: Bruce Ryder

Riding the waves of ascendant normative currents

Osgoode Hall Law School, York University

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

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

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

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

Justice Beetz and the POGG Power

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

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

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

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

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

Justice La Forest and Unwritten Constitutional Principles

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

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

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

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

Justice McLachlin, Racism, and Municipal Government

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

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

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

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

Day Nine: Leonid Sirota

The Roads Not Taken

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

Day Eight: Anna Su

University of Toronto

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And finally, Justice L’Heureux-Dubé writes:

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


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

Day Seven: Howard Kislowicz

The Disagreement is the Law

Howie Kislowicz

On the surface, dissenting judgments paint alternative visions of the law in a particular case. More deeply, they demonstrate that disagreement is a fundamental feature of the way law is made in our legal tradition. I did not choose the three dissenting views highlighted here because I think they “got the law right” (though I agree with some elements of them). I chose them because, each in their own way, they question an orthodoxy  and address the contingencies of Canadian constitutional law. 

McLachlin J in Adler 

In Adler, two groups of parents who sent their children to private religious schools sought a constitutional remedy on the basis of their religious freedom and equality rights. They were aggrieved because, though the Ontario government funded Catholic schools pursuant to its constitutional obligations under the s. 93 of the Constitution Act 1867, it did not fund any other religious schools. Adler is most often discussed in relation to the question of what courts do when one part of the Constitution appears to conflict with another. The answer, that one part of the constitution cannot invalidate another, had previously been given.(FN 1: Or, as I prefer, the legal equivalent of the theological question: could an omnipotent god create a brisket so big that even they couldn’t eat it?)

My focus here, however, is on Justice McLachlin’s (as she then was) Charter analysis. The majority held that s. 93 created a comprehensive code with respect to education, and this included the provision of both public and Catholic or Protestant schools. As such, the majority reasoned, no aspect of this system could be subject to Charter review.

Justice McLachlin, however, held that the constitutional obligations imposed by s 93 were for “Ontario to fund schools for the Roman Catholic minority in Ontario.” In other words, only the support of Catholic schools, not of public schools, was shielded from Charter scrutiny. This opened the door to Charter analysis.

Justice McLachlin held that the absence of funding for non-Catholic religious schools was not a religious freedom problem: no one was prohibited from sending their children to such schools. 

She went on, however, to consider the position of non-Catholic religious schools in contrast with that of secular public schools. I would wager that for many such an analogy might seem of no assistance. The religious parents in Adler could, after all, send their children to the funded public schools. From one perspective, such access represents equality, it does not violate it. The reason Justice McLachlin’s judgment stands out is because it engages directly with the perspective of the religious parents. “To these children,” Justice McLachlin held, “public education is as inaccessible as a job on the construction site was to [a turban-wearing Sikh person].” While Justice McLachlin ultimately held that the infringement of equality rights was justified, she showed a remarkable capacity to understand a perspective that might easily have been dismissed. She was also careful to specifically reject the argument that any disadvantage experienced by the religious families was due to their choice of religion: “If a charge of religious discrimination could be rebutted by the allegation that the person discriminated against chose the religion and hence must accept the adverse consequences of its dictates, there would be no such thing as [religious] discrimination.”

Abella J in NS 

A second dissent that has stayed with me is Justice Abella’s in R v NS. The case addressed whether the complainant in a sexual assault prosecution could testify while wearing a niqab, a veil worn by some Muslim women that covers the whole face except the eyes. The two accused argued that this would compromise their fair trial rights by depriving court and counsel of access to her demeanour. 

The majority created a test designed to balance the fair trial rights of the accused and the religious freedom rights of the complainant. While the test speaks in terms of reconciling competing interests, I think Faisal Bhabha was right when he wrote that the impact of the test is likely that niqabi sexual assault complainants will have to choose between testifying without their niqab or not testifying (see also para 96 of the dissent). Sexual assault prosecutions typically require testimony from the complainant to lead to a conviction, and the test is structured to make such important testimony subject to a no-niqab rule (see also Natasha Bakht’s work). 

One of the challenges in the case is that it hinges on the assumption that a witness’s demeanour is a valuable indicator of their credibility. The social science on this question tends in the opposite direction, suggesting that ordinary people do no better than chance at detecting deception (see here and here). Though some of this social science was put to the court, this was not done through an expert witness who was able to stand for cross-examination. Accordingly, the majority of the court would not change the common law’s widespread assumption that watching a witness testify provides reliable information about their credibility. 

Justice Abella’s dissent is compelling because this did not end the analysis for her. Instead of going down the path of the social science, Justice Abella used the common law’s tradition of analogical reasoning to question the position that a witness must testify with their face showing. Perhaps most persuasive is the analogy she draws to those with “physical or medical limitations that affect a judge’s or lawyer’s ability to assess demeanour. A stroke may interfere with facial expressions; an illness may affect body movements; and a speech impairment may affect the manner of speaking… yet none has ever been held to disqualify the witness from giving his or her evidence.” This passage is remarkable because it challenges a deep assumption of our legal processes and, like Justice McLachlin’s dissent in Adler, it refuses to treat religion differently than disability on the grounds that religion is “chosen.”

La Forest J in Provincial Judges’ Reference

The last dissent I highlight relates to the unwritten aspects of our Constitution. The Provincial Judges Reference addressed whether the principle of judicial independence constrained legislatures’ powers to limit the salaries of provincial judges. The disagreement between the majority and the dissent reveals a fundamental divergence in the conception of what Canada’s Constitution is and how courts should understand it. 

For the majority, the text of the Constitution only incompletely lays out the principle of judicial independence: “[t]he only way to explain the interpretation of ss. 96 and 100… is by reference to a deeper set of unwritten understandings which are not found on the face of the document itself”. The majority referred to the preamble to the Constitution Act, 1867, which expresses the desire to form a country “with a Constitution similar in Principle to that of the United Kingdom.” This, the Court held, points us to seek the Constitution’s “organizing principles” in “the legal and institutional structure” of the United Kingdom. 

This way of reading the constitution, by reference to underlying or organizing principles that are not explicit in the text, has become familiar. But Justice La Forest presented a way of engaging with the Constitution more firmly anchored in its text. He accepted that the Constitution “embraces unwritten rules,” but emphasized that “these rules really find their origin in specific provisions of the Constitution viewed in light of our constitutional heritage”. To the extent that judicial independence was entrenched in the Constitution, this was “accomplished… by ss. 99100 of the Constitution Act, 1867, not the preamble”.

Here is the crux of the disagreement. For La Forest J, the written provisions of the Constitution are not incomplete expressions of the underlying principles that animate the Constitution. The express provisions “are the Constitution. To assert otherwise is to subvert the democratic foundation of judicial review”. Why? Because “[j]udicial review… is politically legitimate only insofar as it involves the interpretation of an authoritative constitutional instrument” (emphasis added). 

Justice La Forest’s dissent represents a contrary view on the primacy of the text over unwritten principles. It understands the documents to be the Constitution, whereas the majority seems to understand them to be an imperfect expression of the Constitution’s principles. These are very different ways of understanding the nature of our political community and its fundamental commitments. I don’t think I share Justice La Forest’s view, but it provides a reminder that our Constitutional documents do not come with clear instructions on how they are to be read and what unwritten principles they might include. In this way, La Forest J’s dissent accomplishes, I think, the goals of writing a dissenting view: it challenges its readers to scrutinize their interpretive commitments, which often go unstated.

My students sometimes lament that dissenting views are on the syllabus. But the law is more than a set of normative propositions. The records of legal disagreements give us glimpses at alternate possibilities; they model how a society characterized by deep divisions can rely in part on law to build a life in common.

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.