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 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.


Absence of Evidence…

Last week, the Alberta Court of Appeal delivered an interesting decision rejecting a constitutional challenge to the province’s prohibition on private health insurance brought by way of an application. In Allen v Alberta, 2015 ABCA 277, the Court held unanimously that the applicant hadn’t provided a sufficient evidentiary basis for his challenge, and that it should have been brought by way of an action and adjudicated after a full trial. This might have been the correct result, but the route the Justice Slatter, the author of the leading opinion, took to get there is in many ways disturbing. It illustrates, I think, some worrying tendencies in Canadian constitutional law generally, and also the difficulties which challenges to the government’s healthcare monopoly specifically will face.

* * *

In a way, the case is a very simple, and also a very Canadian, one. The applicant had suffered a back injury playing hockey, and even as his pain was getting worse and worse, he was put on a two-year long waiting list for an operation. The pain was too much, and he finally decided to undergo surgery in the United States, at his own (very considerable) expense. And thereafter, he went to court, seeking a declaration that the provision of the Alberta Healthcare Insurance Act that barred private health insurance from covering healthcare services provided by the public insurance plan was contrary to s. 7 of the Canadian Charter of Rights and Freedoms.

The argument was that the government monopoly on health insurance resulted in people having to wait a long time for healthcare, and to suffer as a result, thus breaching the “security of the person” guarantee of s. 7. To support his claim, the applicant submitted “a number of medical reports and proof of expenses he had incurred,” [7] and relied on the Supreme Court’s decision in Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, which declared a similar restriction on private health insurance contrary to Québec’s Charter of Human Rights and Freedoms.

For the Court, this was not good enough. After a heartfelt paean to the Canadian healthcare system, Justice Slatter went on to discuss “the importance of using appropriate procedures, and having a proper evidentiary record, when reviewing statutes for constitutionality.” [19] Constitutional cases, in his view, are not just ordinary cases:

Cases in which the appointed judiciary override the will of the democratically elected legislatures fall into a special category. Our constitution and the parliamentary system of government recognize the “supremacy of Parliament”. The presence, however, of an entrenched constitution now provides an important exception to that principle; statutes that are clearly inconsistent with the constitution are of no force or effect. [20]

For this reason, it is important that “the proper procedural safeguards [be] observed.” [21] While the citizen must have an opportunity to challenge the constitutionality of a statute, “fair[ness] to the legislature” means that the government must be able to defend it, and “fair[ness] to the court” requires that it have “a reasonable record on which to exercise this important component of its jurisdiction.” [21] The record here is not sufficient. There is a “presumption … that constitutional cases will be decided on a full evidentiary record, including, where appropriate, the evidence of expert witnesses.” [23] Evidence is especially important in constitutional cases because a declaration of unconstitutionality must, pursuant to s. 52 of the Constitution Act, 1982 determine the “extent of the inconsistency” between the impugned statute and the constitution, and “[t]he only way to know what is that “extent”, is to have a full evidentiary record with complete factual conclusions about it.” [26]

* * *

Justice Martin, in a rather terse concurrence, agrees with this reasoning, and would go no further. While Justice Slatter continues, to discuss Chaoulli and the applicant’s claim that it effectively settles the case, I will pause here and comment on this part of his reasons. As I said above, the conclusion that more evidence was required in this case may well have been correct. To be sure, it seems unlikely that the causal relationships between the prohibition on private health insurance and the existence of lengthy waiting lists established in Chaoulli are somehow not present in this case. A legislature that proceeded on the assumption that there was such a relationship would be acting rationally. But it is at least arguable that a court needs more than an assumption, no matter how plausible. It needs evidence. Allison Orr Larsen’s warnings about the dangers of “factual precedents” are apposite in the Canadian context. It may well be that a fuller record, including expert reports would have been necessary here, though I’m not sure I understand Justice Slatter’s insistence on the need for a trial to dispose of this case, as opposed to an application proceeding on a more developed record.

That said, if Justice Slatter is right, his conclusion ought to be disquieting. It confirms the worry that Sonia Lawrence expressed in the wake of the Supreme Court’s decision in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, and that I have been dwelling on ever since, that mounting a constitutional challenge to a statute may be becoming prohibitively complex and expensive. Marni Soupcoff, of the Canadian Constitution Foundation, which is mounting a challenge of its own to government healthcare monopoly, makes this case in a compelling op-ed in the National Post. Constitutional litigation is at danger of becoming the preserve of (relatively) well-funded public interest litigation outfits (such as the CCF). The Charter was supposed to be “the people’s package” of constitutional reform, but the people risk being prevented from bringing Charter cases by the requirement that such cases be supported by expert reports and proceed by way of trial rather than a less expensive procedure. Justice Slatter’s claim that there exists a “presumption” to this effect is particularly worrisome ― all the more so since he provides no indication as to how this presumption might be rebutted.

I want to comment on a couple of other points in the part of his reasons I have been discussing. The first one has to do with the nature of judicial review of legislation and the courts’ role in constitutional cases, on which Justice Slatter expounds in the excerpt of par. 20 quoted above. That passage contains a number of serious mistakes. For one thing, the constitution does not “recognize the ‘supremacy of Parliament'” ― those words appear nowhere in the Constitution Acts, and while Parliamentary sovereignty is arguably one of the constitution’s underlying principles, it is subject to the limits imposed by constitutional text and other such principles. For another, it is wrong to speak of an entrenched constitution that limits Parliamentary sovereignty as something new, something that only “now” exists. Canada has always had an entrenched constitution, and Canadian courts have always invalidated Canadian laws inconsistent with it, although the legal rationale for this practice did indeed change in 1982, from the supremacy of Imperial law to the supremacy of the (Canadian) constitution. Last but not least, Justice Slatter misrepresents the courts’ role on judicial review when he says that “statutes that are clearly inconsistent with the constitution are of no force or effect” ― there no such “clear inconsistency” requirement either in s. 52 of the Constitution Act, 1982 or in the Supreme Court’s jurisprudence. Constitutional cases, like all civil cases, are decided on an ordinary “balance of probabilities” standard.

The other point that I found disturbing is Justice Slatter’s unabashed celebration of the Canadian healthcare system, of which he says that it

is perceived by many as the crowning achievement of Canadian social policy. The majority of Canadians support the public funding of health care and oppose attempts to shrink or compromise the system. At the same time, many Canadians criticize the system; they would like it to be even better than it is. [14]

Justice Slatter also praises the Canadian healthcare system as “an example of co-operative federalism in action,” though the Canada Health Act, which threatens provinces with the loss of their federal healthcare transfers if they do not comply with its conditions, seems like a rather dubious example of “co-operation.” In any event, Justice Slatter is apparently oblivious to the irony of making unsupported empirical claims in an opinion that dismisses a constitutional challenge for want of evidence. But in the absence of support for these claims, it is somewhat difficult to avoid the suspicion that Justice Slatter is attributing his own views to the indistinct “majority” of which he speaks. After reading these lines, I would rather that he (and indeed his colleagues) not sit in judgment on a constitutional challenge that would, in effect, be an “attempt to … compromise the system,” to change it radically and not merely to make it “even better than it is.”

These two points together lead me to an additional observation. Justice Slatter’s approach is clearly very deferential to legislative choices. That would make him a “conservative” on the definitions that have been floating around of late, for example in some of Sean Fine’s “Tory judges” articles. But, as I’ve said before, “there is nothing inherently conservative about such an approach. It can serve to validate left- or right-leaning policies, depending on the politics of the policy-makers.” This case shows that this is indeed so. If anything, it shows that judges may be able to adopt a strategically deferential posture in order to achieve “progressive” results just as easily as to achieve “conservative” ones.

* * *

I will comment on just one passage from the remainder of Justice Slatter’s reasons. Justice Slatter observes that constitutions, including the Charter, are written in broad terms and

say nothing about the difficult social issues that come before the courts … Controlling this vague language falls to the courts, and an absence of institutional self-restraint by the judiciary makes the problem worse, not better. The Supreme Court has recast the phrase “principles of fundamental justice” with even less precise terms like overbreadth, disproportionality and arbitrariness, none of which have been comprehensively defined. It is, unfortunately, sometimes difficult to discern the difference between these concepts and a simple disagreement by the judiciary with the public policy decisions of democratically elected officials.

The text of s. 7 signals that the drafters of the Charter never intended it to be applied to the review of social and economic policies. … As Prof. [Peter] Hogg has pointed out, the intention of the framers of the Charter to restrict judicial review to procedural matters has been “totally disregarded by the Supreme Court of Canada” with dramatic consequences. [31-32]

I’m not sure I’ve ever seen a Canadian court reverse-benchslap the Supreme Court in this way. Justice Slatter’s attack is pretty vicious, and in my view largely uncalled for.

It is true that s. 7 was not intended to be applied in the way it does, but it is, to say the least, not obvious that “original intent” is an appropriate criterion for interpreting it. Even if, contrary to the Supreme Court of Canada, one is inclined to be originalist, an “original public meaning” interpretation might support the Supreme Court’s conclusion, in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 that “fundamental justice” is not a matter of procedure only. Anyway, it seems to me that it is a bit late to re-litigate that particular issue.

Beyond that, I don’t think it’s at all fair to reproach the Supreme Court for invoking principles such as overbreadth, disproportionality and arbitrariness in applying s. 7. They are, surely, not more open-ended than the expression “principles of fundamental justice.” The Court has tried, in cases such as Bedford and Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, to give them a relatively specific meaning, and in my view has been at least somewhat successful in this endeavour. Justice Slatter’s dismissal of this jurisprudence as “a simple disagreement by the judiciary with the public policy decisions of democratically elected officials” looks not unlike the expression of a simple disagreement by one judge with the constitutional policy decisions of his hierarchical superiors.

* * *

In a sense, this decision is just sound and fury, signifying nothing ― except, of course, that the applicant spent a significant amount of time and money on a litigation that proved fruitless. As Justice Watson rightly observes in his concurrence, “[d]ismissal of a declaration on the grounds that it was not made out in the pleadings and evidence is not the same thing as saying that an action properly pleaded, fairly proceeded with, and backed by sufficient evidence would be impossible.” [60] Perhaps the CCF will succeed in its own efforts to bring such an action. Yet the Court’s mistakes and dubious assertions about its role (about which I might have more to say separately) are cause for worrying, and the possibility that it is right about the high evidentiary threshold that a constitutional challenge must get over before even being considered on the merits is, if anything, even more distressing.