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)

Abusus Non Tollit Usum

Should judges refrain from accusing their colleagues of acting illegitimately?

In a recent conversation, my friend and sometime guest here Maxime St-Hilaire argued that judges should refrain from accusing their colleagues of having overstepped the bounds of the judicial role, or otherwise acted illegitimately ― which they are mostly, although not exclusively, apt to do in dissenting opinions. Prof. St-Hilaire is especially opposed specifically to the use of the labels of “activism” and “restraint” to advance such criticism. Having long argued that these are unhelpful, muddy concepts, I agree with him to this extent. And I agree that accusations of illegitimate behaviour should not be levelled lightly, and that those who make them risk being exposed as hypocrites. However, I disagree with the point of principle: in my view, it is not inappropriate for a judge to claim that a colleague’s opinion not only misinterprets the law, but amounts to the sort of decision-making that is not open to judges acting within the confines of their constitutional role.

Prof. St-Hilaire has two reasons for his position. First, he believes that philosophizing is not part of the judicial job description. Second, he thinks that accusations of illegitimacy undermine the courts’ authority generally and judicial review of legislation specifically, and ultimately the Rule of Law itself. In my view, this is not so. Committing philosophy, as it were, is an inextricable part of the judges’ job. The scope of judicial authority is contestable and contested, and these contests are very much a part of the business of law, and not only a theoretical debate external to it. As for the Rule of Law, in my view, it does not depend on the courts presenting a united front despite existing disagreements among their members.

It is tempting to say that the controversies about the nature of law, its relationship to morality, and the proper role of the judge in respect of both law and morality, which excite the minds of legal academics, ought to be of no concern to sitting judges. Indeed, some legal academics advocate this view as a means of escaping the (admittedly often stale and always abstruse) debates about legal positivism and anti-positivism. But a judge’s theory of law matters in some cases. It matters that in the Patriation Reference, [1981] 1 SCR 753,  a majority of the Supreme Court adhered to a legal theory that I have described in a forthcoming piece as “pusilanimous positivism ― which simultaneously insists that any rules of law that are not enacted, whose existence cannot seriously be denied, must have been made by judges, and that judges have no mandate to engage in such law-making”. Had they adhered to a different legal theory, they could have recognized the legal status of constitutional convention, or given effect to constitutional principles as Justices Martland and Ritchie would have. Conversely, if the Court remained wedded to the legal theory the majority embraced in the Patriation Reference, then its opinions in Re Manitoba Language Rights, [1985] 1 SCR 721Reference re Secession of Quebec, [1998] 2 SCR 217, and perhaps most significantly Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3 and its progeny, which were also based on the idea that principles, and not just posited rules, were part of the law of the constitution, would have been quite different.

To be sure, one can be concerned that judges are not very good legal philosophers. Some legal theories ― notably Ronald Dworkin’s ― assume that they are, but this is probably a mistake. There is simply no particularly good reason to think that judges are good philosophers. But then, they are also not very good economists, political scientists, geneticists, and much else besides. A snarky person might add that they are all too often not very good lawyers, either. But judges still have to engage with these various disciplines on occasion ― especially, although certainly not only, in constitutional cases ― and they must then do it as best they can. Whether or not judges are candid about this does not change the underlying reality that these other disciplines bear on, and sometimes are decisive to, the courts’ resolution of the disputes that come before them ― and there is, surely, a great deal to be said for judicial candour.

But assuming that judicial candour is good, can there be too much of a good thing? Prof. St-Hilaire thinks so. For him (and for many others who agree with him) the contemporary understanding of the Rule of Law principle encompasses judicial review of legislation. Arguments to the effect that a court has acted illegitimately in exercising its power of judicial review legislation undermine the authority of judicial review generally, and criticism that calls the legitimacy of judicial review into question undermines the Rule of Law itself. Accordingly, judges of all people should refrain from it. (Prof. St-Hilaire is not opposed to this sort of arguments being made by academics or journalists, presumably because they do not have the same responsibilities to the Rule of Law.)

In my view, by contrast, judicial review is not an inherent part of the Rule of Law, but only one possible means to secure the Rule of Law requirement (naïve though it may be) that public authority be exercised in accordance with the law. Indeed judicial review must itself be exercised in accordance with the law ― notably, constitutional text, but also other relevant legal rules, whether or not they have entrenched constitutional status. When a court acts without legal justification, it acts every bit as illegitimately (as well as illegally) as the executive or the legislature in like circumstances. It follows that the power of judicial review can itself become destructive of the Rule of Law if used for purposes other than ensuring that the executive and the legislature stay within the bounds of their authority. If, for example, a court uses its power of judicial review to attempt to bring about the just society, then it is not upholding the Rule of Law at all. It is indulging its members’ preferences, in the same way as government that knowingly secures the enactment of unconstitutional legislation, but in a manner that is all the more pernicious because it claims the authority and respect due to law.

It seems to me that, if they see this happening in a decision made by their colleagues, judges can ― and even should ― speak out. For very good reason, judges are not accountable for their exercise of their powers, except in the limited but still very important sense of having to give reasons for (most of) their decisions. Among other benefits, reason-giving exposes judges to scrutiny and criticism, starting with scrutiny and criticism by their colleagues who, in the common law tradition, have generally (the occasional resistance of some Chief Justices notwithstanding) been allowed to publish dissenting or concurring opinions.The possibility of criticism, starting with criticism in a separate opinion, is the only check on the power of a judicial majority in a case, beyond the restraint that individual conscience may or may not impose. So this check should be applied vigorously in order to ensure that the judicial power, and especially the power of judicial review, is exercised so as to further, not to undermine, the Rule of Law. As the Rule of Law’s first line of defence, dissenting judges must undertake, not shirk, this responsibility.

Of course, as I wrote here not long ago, those who criticize judges, including other judges, should do so “without resorting to taunts, insults, and sloganeering”. Accusations of “activism”, unless elaborated and supported by argument, amount to sloganeering at best. But as I wrote in that post,

[i]f we are to have, in John Adams’s celebrated phrase, a government of laws not of men, judges, like legislators and ministers of the Crown, must obey the law ― and be called out when they fail to do so. It is for this reason that I am wary of, and do my best to contradict, those who would shut down criticism of the judiciary on the pretense that it risks undermining the Rule of Law.

Sure, “juristocracy” or “gouvernement des juges” can be used as taunts and empty slogans ― and are so used by people who do not for a second care for the Rule of Law. But as the Romans put it, abusus non tollit usum. That something can be abused does not mean that it should not be used properly.