Category: Constitutional Law

Internal dissent is dividing the Supreme Court? Not so fast.

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According to the National Post
, a review of Supreme Court decisions by the public policy think-tank Macdonald-Laurier notably reveals that the court has overturned its Charter decisions in a growing number of cases and moreover, notes that that the Court has never been this divided given that 5 of the 10 cases reviewed by the think-tank had dissenting opinions.

Should we interpret these findings as a sign that there is a rift on the bench or alternatively, be concerned that lower courts question whether they are bound to the principle of stare decisis?

In my view, these findings are not indicative of either a divided or vacillating court. Overturning judicial decisions as well as penning dissents are fundamental features of our legal tradition.

Overturning Charter Decisions

As McLachlin CJ and Lebel J note in Fraser, overturning a judicial precedent is not an issue to be taken lightly.[1] Great care must be taken to overrule a decision and to that end, the Court will consider whether it is preferable to adhere to an incorrect precedent, or to correct an error.[2] Carter v Canada, which overturned Rodriguez v British Columbia follows this logic.

Carter – like most of the decisions that were overturned in the report – was heard approximately 2 decades after its Rodriguez counterpart. Public opinion and the legislative landscape on the matter of physician-assisted death for the terminally ill have changed in the last 2 decades; a majority of Canadians now support it.[3]

Moreover, the “Charter is engrafted onto the living tree that is the Canadian constitution… Thus to borrow the words of Lord Sankey… It must be viewed as a living tree capable of growth and expansion within its natural limits.”[4] What this means is that our constitution is an instrument that can grow and adapt to reflect modern realities. Values that were once held under the Charter may change over time as societal consensuses develop over new ones.

Dissenting Opinions

The practice of penning dissenting opinions has deep roots in Canada and in many other legal systems. As Heureux-Dubé J notes, dissenting opinions serve several important functions, such as contributing to the development of the law.[5]

Values, customs and perspectives within society may change over time to represent new values, customs and perspectives. It follows from this that the dissenting opinion of today may be the majority opinion of tomorrow.[6]

Dissenting opinions perhaps more importantly than anything else may illustrate that the law is open to several possible interpretations and outcomes, particularly as it pertains to complex legal issues.[7] Thereby an uptick in dissents should not necessarily be seen as evidence of a divided court, but rather should be seen as a court considering a range of possible options.

 

[1] Ontario (Attorney General) v Fraser, 2011 SCC 20, [2001] 1 SCR 3.

[2] Ibid.

[3] Toronto Star,. ” 77% of Canadians support assisted suicide, poll shows”, (2015), online: < http://www.thestar.com/news/gta/2015/08/28/77-of-canadians-support-assisted-suicide-poll-shows.html&gt;

[4] Reference re Provincial Electoral Boundaries (Saskatchewan), [1991] 2 SCR

[5] Honourable Claire L’Heureux-Dubé, The Dissenting Opinion: Voice of the Future? (2000) 38:3 Osgoode Hall L. J. 3.

[6] Ibid.

[7] Ibid.

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