The Supreme Court is more than divided than ever. But that, says Macdonald-Laurier Institute Senior Fellow Benjamin Perrin, isn’t a bad thing.
This column is based on Perrin’s recent MLI paper, Dissent From Within At The Supreme Court of Canada.
By Benjamin Perrin, Jan. 19, 2016
On Friday, the Supreme Court of Canada technically gave the federal government four more months to rewrite its physician-assisted suicide law. However, over the objection of four judges, a five judge majority exempted Quebec, which has its own new euthanasia law, and individual applicants — meaning physician-assisted suicide will now be legal starting Feb. 6. It follows a trend that has emerged of a court that has been divided amongst itself over the past year. But that might not be a bad thing.
In a review I conducted of the court’s most important decisions over the past year for the Macdonald-Laurier Institute, one of the most striking findings was the difference in the number of split decisions and strong dissenting opinions compared to the relative unanimity and harmony of the year before. The year 2015 saw the emergence of a cadre of vocal judges who have raised the alarm that the court is intruding on Parliament’s policymaking domain.
The court also appears to be making a habit of overturning its own precedents on controversial issues, including on physician-assisted suicide (toppling a 1993 precedent), RCMP collective bargaining (abandoning a 1999 precedent) and the existence of a constitutional right to strike (upending a 1987 precedent). It was too much for recently retired Justice Marshall Rothstein who wrote a scathing dissent in Mounted Police Association of Ontario v. Canada (Attorney General), stating: “Fairness and certainty require that where settled law exists, courts must apply it to determine the result in a particular case. They may not identify a desired result and then search for a novel legal interpretation to bring that result about.”
Notably, former prime minister Stephen Harper appointed all of the most vocal dissenting judges, and most have shown a predisposition towards judicial restraint to varying degrees.
In R. v. Nur (mandatory minimum sentences), Justice Michael Moldaver (with Justices Rothstein and Richard Wagner concurring) wrote in their dissent that Parliament’s objective in adopting mandatory penalties for firearms offences is valid and pressing, and that “it is not for this Court to frustrate the policy goals of our elected representatives based on questionable assumptions or loose conjecture.”
In Saskatchewan Federation of Labour v. Saskatchewan (the right to strike), Justices Rothstein and Wagner again dissented, arguing that “the majority is wrong to intrude into the policy development role of elected legislators by constitutionalizing the right to strike.” They even went so far as to caution the Court against “usurping the responsibilities of the legislative and executive branches.”
Finally, in Quebec (Attorney General) v. Canada (Attorney General), it was majority Justices Thomas Cromwell and Andromache Karakatsanis who characterized the destruction of long-gun registry data as a “contentious policy choice” that was for Parliament to make, stating that “the courts are not to question the wisdom of legislation but only to rule on its legality.”
In a 2009 speech to the Canadian Bar Association, Chief Justice Beverley McLachlin expressed pride in her court’s historical record of a high number of unanimous decisions. At the time, she stated that Canada’s top court had unanimous decisions in three-quarters of cases, compared with less than half of the cases heard by the U.S. Supreme Court. In 2015, however, our top court dipped to American levels of dissent in its major cases.
Harvard Law Professor Cass Sunstein’s book, Why Societies Need Dissent, makes a compelling case that institutions, including courts, that show few signs of dissent are likely headed for trouble. His research shows that more uniform philosophical outlooks on judicial panels can lead to extremes if unchecked.
Dissent serves a valuable social function: it moderates, brings internal accountability and leads to better decisions because of the value of diversity and the contest of ideas. It will bear watching if the court continues this healthy new trend of dissent and debate within its ranks in 2016. Given the Carter extension decision, it looks like it will.
Benjamin Perrin is a law professor at UBC and a senior fellow at the Macdonald-Laurier Institute (MLI). His full report, Dissent from Within at the Supreme Court of Canada: 2015 Year in Review, is available online from MLI.