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The Lawyer's Daily exclusive

Halfway through 2019, SCC more divided than ever as nine judges fracture in 82 per cent of cases

Tuesday, July 09, 2019 @ 9:26 AM | By Cristin Schmitz


The Supreme Court of Canada is dividing more on the outcomes and reasons of appeals than ever in recent memory, with a record low 18 per cent unanimity rate so far in 2019, an analysis by The Lawyer’s Daily discloses.

As of the Supreme Court’s latest decision on July 5, this year the top court has divided on the results of the cases, and/or on the judges’ reasons (via concurring opinions) in 18 of 22 judgments.

That marks the nine judges’ lowest unanimity in decades —  just 18 per cent — which rises to a 32 per cent unanimity rate if you count only the 15 cases in which the judges disagreed on the results.

Either way, the record high rate of dissension in 2019 so far continues a three-and-a-half year trend of growing disagreement (beginning in 2016) which saw the judges divide more often in 2018 on the results of cases than they were united — in 52 per cent of the appeals. The court’s 48 per cent unanimity rate on results in 2018 was far below the average unanimity rate of 71 per cent from 2000 to 2017.

Richard Wagner

Chief Justice of Canada Richard Wagner

Asked by The Lawyer’s Daily whether he worries that the growing number of dissents and concurrences in his court might reduce the clarity and predictability of the common law, Chief Justice of Canada Richard Wagner replied, “I'm not concerned about that.”

“I think that every judge is sensitive to his or her mission, and that is to provide guidelines to lower courts, and to advise and inform the citizens of … their rights and obligations,” he explained during an Ottawa press conference June 20.

Chief Justice Wagner cautioned against seeing the apparent trend as long term. “Let’s be very careful when we look at numbers, because it can vary, and for many reasons, from one period to another,” he advised. “It depends on the nature of the cases, depends on the ... panel hearing the case, and so on and so forth.”

Chief Justice Wagner emphasized that dissenting opinions are “part of the DNA” of the Supreme Court and the country’s common law heritage.

“It’s been like that for years and years and years ... and I’m not afraid of that,” he observed.

“It’s very good, positive for our jurisprudence,” he suggested. “I’ll be very concerned if, in every case we hear, any topics we hear, that the nine judges coming from nine backgrounds, coming from different provinces, languages, training would be unanimous on every decision. I would feel like some countries in Asia or East Europe or South America where they don’t see a difference between politics and the judiciary.”

The chief justice also pointed out that while some courts, in some civil law jurisdictions for example, only render unanimous opinions, that doesn’t mean that the judges all agree.

“They dissent, but they don’t say it,” he explained. “We say it. That’s part of the common law heritage.”

Speaking personally, the chief justice added “I think there are good points in letting people know that their points of view were considered by dissenting judges. It’s good for the debate. It’s good for transparency [and] for openness.”

It should be noted that the growth in the court’s dissents and concurrences started trending in 2016, before Chief Justice Wagner took over the court’s reins in 2018.

SCC

Supreme Court of Canada Justices (back row, left to right): Malcolm Rowe; Suzanne Côté; Russell Brown; and Sheilah Martin. Front Row (left to right): Andromache Karakatsanis; Rosalie Silberman Abella; Richard Wagner; Michael Moldaver; and Clément Gascon.


The new phenomenon coincided with the turnover of a majority of the court’s members — with Justices Clément Gascon and Suzanne Côté arriving in 2014; Justice Russell Brown arriving in 2015; Justice Malcolm Rowe arriving in 2016; and Justice Sheilah Martin arriving at the end of 2017.

Unanimity was a chief goal of Chief Justice Wagner’s predecessor, Beverley McLachlin. During her 18 years as chief justice, the court had a 71 per cent unanimity rate on the results of appeals (based on the court’s own statistics).

Asked what he is doing to address the growing “division” on his court, Chief Justice Wagner disagreed with the question’s premise.

“I don't call that division,” he observed. “I think that the spirit of the court is very, very good. We have a very collegial environment now.”

He advised that collegiality on the court has been promoted, for example, by the judges agreeing in 2018 to meet for a half hour in advance of each hearing to discuss the case. “I put a lot of emphasis on collegiality,” the chief justice noted. “And my colleagues are very supportive of that.”

Jamie Cameron

Jamie Cameron, Osgoode Hall Law School

Constitutional law professor Jamie Cameron, of Osgoode Hall Law School in Toronto, said the Supreme Court’s 2019 jurisprudence thus far “confirms the emerging pattern of the Wagner court’s inaugural jurisprudence in 2018. There, and at least on constitutional issues, the court broke apart in ways, and with a frequency, not seen since the 1990s.”

Cameron commended Chief Justice Wagner for signalling his openness to dissent since diverse opinions on difficult legal questions (whether expressed via dissenting or concurring opinions) generally add value by enriching the jurisprudence and promoting the law’s evolution.

She cautioned, however, that difference among judges “can be counterproductive when it leads to dysfunction —  confusion, uncertainty and unpredictability about the court’s work —  and builds tension between members of the court, whether openly in written reasons, or behind the scenes.”

“Whether the Wagner court’s early fault lines place it this quickly on the brink of dysfunction is unclear,” she told The Lawyer’s Daily. “And whether the court can or will re-centre —  or will continue in the direction of centrifugal decision making —  also remains unknown.”

Cameron noted that the fracturing of the court, under Chief Justice Antonio Lamer in the 1990s, seemed to motivate McLachlin, when she became chief justice in 2000, to identify consensus and collegiality as two of her overarching goals.

“It is unclear how she managed the degree of unanimity and consensus she achieved, and whether difference of opinion was too readily subsumed in majority sentiment,” Cameron remarked. “These are some of the as-yet unanswered questions of the McLachlin legacy.”

Eugene Meehan

Eugene Meehan, Supreme Advocacy

Eugene Meehan of Ottawa’s Supreme Advocacy, a leading Supreme Court agent and Lamer’s former executive legal officer, told The Lawyer’s Daily “we’re seeing a shift in the Supreme Court’s judicial culture. With each new appointment, we see small changes. With the appointment of a new chief justice, we see more significant changes.”

For Meehan, there is not necessarily a right or wrong way for the Supreme Court to make its decisions. “The Supreme Court should be flexible and adopt an approach which best reflects the collection of personalities on the bench,” he suggested. “What works for one group, may not necessarily be the best way forward for another.”

Meehan added that, in his view, not consistently having unanimous judgments better reflects the practical realities of the law.

“The law is consistently evolving and there are many grey areas,” he said. “The reason a case makes it to the Supreme Court is usually because it’s a tough case and there are no easy answers. A number of judges have already ruled on what’s at issue and for seemingly strong reasons may have come to different conclusions. If three or four trial and courts of appeal judges can’t agree, why is it any surprise that nine more judges also have varying opinions?”

He said the fear that a plethora of concurrences and dissents could sow confusion among the legal profession and public is overstated. “For lawyers and judges, interpreting and applying decisions is our bread and butter,” he explained. “For the public, the Supreme Court is actively mitigating some of the difficulty of multiple sets of reasons by providing its plain language summaries” launched last year.

Civil litigator Adam Goldenberg of Toronto’s McCarthy Tétrault, who clerked for McLachlin, told The Lawyer’s Daily he is not concerned about there being more opinions per case than there used to be. “The court seems, from where I sit, to have maintained its commitment to providing clear guidance and to reaching decisions on a basis that allows the rest of us who work in the legal system to do our jobs, while at the same time perhaps having a bit more individualism on a case-by-case basis than happened under Chief Justice McLachlin,” he said.

Adam Goldenberg

Adam Goldenberg, McCarthy Tétrault

The statistics do not, by themselves, explain what is happening behind the scenes to produce more dissents, “but as history shows, these things kind of ebb and flow with time,” he remarked.

“What I do think is that despite there being fewer unanimous decisions we have not yet seen the court move away from a norm of deciding cases in a way where it is discernible what the law is and, as long as that remains true and there is no indication that it won’t remain true, I don’t think that it is fair to say that the court is not as faithful to the institutional responsibility of providing clear guidance as it ever was,” Goldenberg said.

“If there is more separate reason-writing around that responsibility that may say something about how individual members of the court feel about their individual responsibility, alongside the collective responsibility,” he suggested. “But we haven’t yet gotten to the point where — [if] you read the cases from the 1980s and ’90s … sometimes you have to make a table to figure out what the majority holding is because the court has just splintered in so many different directions.”

In 2019, the four appeals on which the court was able to speak with one voice established (as per the Supreme Court’s “Case in Brief”) that: anyone charged with a provincial offence in B.C. has the right to a trial in either English or French; judges are allowed to send a letter demanding information to a bank branch in Alberta; judges have to make sure that people put in jail while they wait for trial really need to be there; and judges can give bail conditions to people not charged with crimes while they wait for a peace bond hearing.

Of the 18 cases on which the judges disagreed (via dissents, and/or concurring opinions), the topics included: child luring; arbitrary detention and the exclusion of evidence under the Charter; whether to greenlight a class action against a religious group for alleged historic sexual abuse of children; and the constitutionality of a rule preventing non-resident Canadians from voting in federal elections.

Photo of Chief Justice of Canada Richard Wagner by Cristin Schmitz
Photo of Supreme Court of Canada Justices Copyright Supreme Court of Canada