Top court riven by dissent, study says
• Internal dissent over major cases is increasingly dividing the Supreme Court of Canada, with some justices resorting to sharp criticisms of majority decisions they believe intrude on Parliament’s authority to set public policy, according to a review of the court’s 2015 judgments.
The analysis by the Macdonald- Laurier Institute, an Ottawa public policy thinktank, also finds the court continuing to overrule its own recent Charter decisions, again with the express disapproval of some of its members. The most recent example was last February’s judgment decriminalizing doctor-assisted suicide.
Some legal observers fear the reversal trend could lead lower courts to second-guess just how binding Supreme Court decisions are, especially on highly charged social and moral issues.
The new review by Benjamin Perrin, former legal adviser to then-prime minister Stephen Harper and a onetime Supreme Court clerk, is titled Dissent From Within and chronicles a court deeply divided.
Five of 10 major judgments last year were issued with dissenting opinions, acute in some instances, compared to an 80- per- cent consensus on the 10 significant decisions of 2014. That’s a major decline in consensus-based rulings, not only from 2014, but from the court’s historical 75-per-cent record for agreement.
“There has emerged a vocal cadre of judges within the court that’s raising the alarm the court is intruding on Parliament’s policymaking domain and saying, ‘ Hold on, Parliament is supposed to make these decisions and we’re not supposed to usurp that role.’ That is a very significant development,” Perrin said in an interview Thursday.
The year ahead for the court, meanwhile, should start to reveal the Liberals’ legal strategy over laws they don’t support that were enacted by the former Conservative government. But challenging such laws at the Supreme Court could be seen as the executive using litigation to get around Parliament’s power to determine the laws of the land, and aggravate the already touchy issue with some justices.
Prime Minister Justin Trudeau also is faced with naming a new chief justice in 2018 to replace retiring Chief Justice Beverley McLachlin, who has championed the court’s unanimity.
Justice Rosalie Abella, the first Jewish woman on the court, is considered a strong candidate, except that she will hit mandatory retirement in 2021. That leaves Trudeau to select from seven other justices, all appointed by Harper. ( Though highly unlikely, he could elevate a judge from an appellate court and name that person chief justice as well.)
In one of its most highprofile cases, the court’s decision on physician- assisted suicide in Carter vs. Canada reversed its 1993 decision in Rodriguez vs. British Columbia, in much the same way its 2013 decision liberalizing prostitution laws reversed a 1990 decision on the issue.