Justice Côté and the importance of dissent | Vanessa MacDonnell
Monday, March 18, 2019 @ 8:59 AM | By Vanessa MacDonnell
Some of the justifications for dissent she discussed in her lecture are now well known. Dissents, it is said, enhance transparency. They demonstrate that the court approached the case with rigour and considered all arguments. They can provide directions for advocacy in later cases. They enhance the quality of the majority opinion by setting out a competing approach to the case with which the majority must grapple. They may convey the need for law reform by demonstrating that a legislative provision can be plausibly interpreted in more than one way.
Justice Côté’s more revealing arguments were grounded in the principle of judicial independence. Drawing on an article by Justice Bernice Donald of the United States Court of Appeals for the Sixth Circuit, Côté explained that the “internal” dimension of judicial independence requires judges on multi-member courts to decide cases according to their own view of what the law requires. This sometimes means dissenting from the reasoning or result of the majority. As the title of Justice Côté’s talk suggests, however, there may be a perceived tension between the exercise of this independence and the overall goal of collegiality on the court. Do persistent dissenters risk undermining collegiality?
Both Justices Donald and Côté would say no: independence and collegiality need not be viewed as being in opposition. Collegiality requires that judges be free to express their own views on a case. It requires that they listen to one other and consider the conclusions reached by other members of the court. It does not, however, require that judges sign on to opinions with which they disagree or be forced into a concession — what Justice Donald refers to as “the felt pressure to conform”.
In her talk, Justice Côté invoked other constitutional values in justifying the practice of dissent. She explained that the “right” to dissent is connected to freedom of expression. “It’s not because you become a judge that you lose your freedom of expression.” Trying to rein in a judge’s dissenting, she suggested, would constitute a significant impairment of freedom of expression. She also adopted Justice Donald’s view that the possibility of dissent preserves the “judge’s individual dignity and conscience.”
In response to a question from the audience, Justice Côté explained that all of her dissents on leave applications have been dissents from decisions to deny leave to appeal. She revealed that her goal in dissenting from such decisions was to convey to lawyers that she considered the issues raised in the applications to be live ones.
Her lecture raises strong arguments in favour of dissent. She anchors the practice in the high constitutional principles of judicial independence, freedom of conscience and expression and individual dignity. Ultimately, however, these principles are of limited assistance in evaluating the dissenting practices of individual judges. No one disputes that justices of the Supreme Court have the prerogative to dissent. It is if, when and how they exercise that prerogative that matters, particularly when other considerations, such as collegiality, clarity, the need for certainty and the efficient use of judicial resources favour trying to reach a consensus if possible.
In a recent CPAC documentary about the Supreme Court, former Chief Justice Beverley McLachlin spoke of the process of arriving at a consensus. She explained that “Consensus, for me, is not twisting somebody’s arm and saying, ‘you’re wrong, you’ve got to come my way,’ that’s not it at all. It’s more about exploring ways to minimize differences and isolate differences and avoid writing multiple decisions on points you could agree on with a little more talk, discussion, compromise.” This view of consensus nurtures and creates space for both judicial independence and the other important values that inform judicial decision making. It suggests that the trade-offs are not always as stark as Justice Côté’s lecture implied.
So what does her speech tell us about Justice Côté’s her judicial philosophy and her approach to dissent? In my view, it tells us at least three things. First, in emphasising the judicial independence dimension of dissent, Justice Côté confirms the perception that she is a highly independent justice with a strong inclination to speak in her own voice. Framing dissents in terms of freedom of conscience and expression, and dignity further underscores this aspect of her judicial personality. It helps explain why she has defied convention and begun to dissent on applications for leave to appeal. It may also explain, to some degree, the frequency with which she dissents.
In a recent article in the Supreme Court Law Review, I reviewed Justice Côté’s dissents in her first three years on the bench (dissents being understood as dissents from the majority judgment, i.e. both concurrences and dissents). I noted that many of her dissents turn on fine or technical points of interpretation of law and fact.
This approach to dissent is at odds with the Supreme Court’s general approach to appellate review and the necessary latitude in the trial judge’s duty to give reasons. Justice Côté’s sense that her judicial independence depends on expressing her view as to the right outcome of the case may help explain (though not necessarily justify) why her review of cases can be so granular.
Finally, in response to a question from the audience, Justice Côté expressed frustration at her fellow judges not engaging sufficiently with points she raised in dissent, pointing to an explicit admonition to that effect in her dissent in West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal) 2018 SCC 22 as an example. In my view, this raises the possibility that the frequency with which Justice Côté dissents may, in fact, be having an impact on intra-court dynamics. In short, it may be that her view of judicial independence does, in fact, sit uneasily with some of the court’s other commitments, including collegiality.
Vanessa MacDonnell is a law professor at the University of Ottawa Faculty of Law, where she teaches a course on the Supreme Court of Canada.
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