November 5, 2020 | By Julius Melnitzer
There’s something afoot in the Supreme Court of Canada. And it adds heavy fuel to the debate about the extent to which the court is becoming politicized.
In their recent judgment in Fraser v. Canada (Attorney General) 2020 SCC 28, both the majority and the minority accuse each other of departing from and disrespecting the rule of law. The divide echoes policy divisions most commonly associated with the Supreme Court of the United States (SCOTUS), generally regarded as a highly politicized and factionalized forum.
So much so that Justice Sonia Sotomayor famously expressed her frustration with her colleagues’ decision not to review a sentencing appeal with the bald statement that she would “cease noting my dissent in future petitions presenting the question.”
Still, is it coming to that in the Supreme Court of Canada? Is the change in tone we’re witnessing evidence of a growing factionalism in our high court? Or is it merely an era where our judges are more comfortable expressing stronger views than they did in the past?
Fraser tested the limits of the guarantee of equality in s. 15 of the Charter of Rights and Freedoms. The 6-3 majority ruled unconstitutional a provision in an RCMP pension plan that denied buyback rights to job-sharing members, most of whom were women.
The dissent delivered by Justices Russell Brown and Malcolm Rowe tore apart the reasoning of Justice Rosalie Silberman Abella, who wrote the majority opinion. The surprise is that they did so in no uncertain — and in surprisingly personal — terms.
Indeed, their words stopped just short of accusing the majority and Justice Abella in particular of politicizing the notion of equality.
“She fails to define ‘substantive equality’ in terms that allow its meaning to be understood so that the requirements of s.15 can be practically knowable and reasonably predictable in advance,” wrote Justices Brown and Rowe. “Thus loosely defined, substantive equality is almost infinitely malleable, allowing judges to invoke it as rhetorical cover for their own policy preferences in deciding a given case. Such vast and little‑bounded discretion does not accord with, but rather departs from, the rule of law.”
In a separate dissent, Justice Suzanne Côté went so far as to call the majority’s opinion “unprincipled.” She also made it quite clear where she stood on the policy spectrum.
“The result the majority reaches may certainly be desirable insofar as it guarantees the opportunity for increased pension benefits to RCMP members who job-share,” Côté wrote. “But when the court reaches this result in such a doctrinally precarious fashion, and when and if the impugned provisions are illogical, irrational, or under‑inclusive, then it is the legislature’s role to rectify — the remedy does not lie in the Constitution …”
Justice Abella saw fit to respond in kind. She was scathing.
“Nothing, as far as I can see, has happened since Alliance [Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la sante et des services sociaux 2018 SCC 17, an earlier precedent from the top court on which the majority relied] was decided in 2018 to justify discarding its premises,” she wrote. “And no one involved in this case argued that we should, except, inferentially, my colleagues, who tug at the strands of a prior decision they disagree with in search of the occasional phrase or paragraph by which they can unravel the precedent. Their arguments are based on conjecture not reality, calling to mind one writer’s wry observation that ‘setting straw men on fire is not what we mean by illumination.’ ”
And Justice Abella didn’t stop there, ultimately accusing the dissenters of disrespecting the rule of law.
“Whatever my colleagues’ definition of ‘rule of law’ is, it must surely include the assumption that decisions of the Supreme Court will be respected not only by the public, but by members of the court,” she wrote. “And it must surely also include an assurance to those seeking constitutional protections that the ongoing repetition in dissenting reasons of rejected arguments will not require them ‘with each new case, [to] stand ready to defend the exact gains that have been won multiple times in the past.’ ”
Eugene Meehan, a lawyer at Supreme Advocacy LLP in Ottawa who is a former executive legal officer to the Supreme Court and specializes in Supreme Court matters, says the cacophony is all to the good.
“Why should one expect universal blandness from the Supreme Court?” he asked. “Strong judges with strong opinions can strongly disagree and that is a good thing for the law’s development — robust opinions are better than solicitude.”
Fraser, Meehan says, evidences a trend to more open discussion and dialogue amongst judges with strongly held views.
“This is in contrast to majority decisions that sometimes ignore the existence of any dissenting reasons when clearly there are dissenting reasons,” he said.
Comparison with SCOTUS, Meehan maintains, is not appropriate.
“We remain on a far distant horizon from the erstwhile vituperativeness of the U.S. Supreme Court,” he said. “We have a profoundly different constitutional and political context, where a certain judicial muscularity may be needed, and may indeed be respected.”
But not everyone agrees.
Lisa Bildy, a lawyer with the Calgary-based Justice Centre for Constitutional Freedoms, says our high court is starting to look like its southern neighbour.
“Although we have a much different history and political system, we are no longer able to differentiate ourselves meaningfully,” she said in an e-mail response to written questions from The Lawyer’s Daily. “Their disputes are our disputes. Their polarization is ours now too.”
According to Bildy, society has acquired a “heightened sense” that “the personal is political.”
“So, it’s not surprising that the tone of Supreme Court decisions is becoming more combative,” she states. “Like all political discourse, genteel disagreement is now a relic from simpler times.”
Rather than “insulating itself from the fray,” Bildy maintains, the Supreme Court has jumped in with what she calls “unconstrained judicial activism.”
“The language of the dissent in Fraser appears to recognize that this politicization has gone too far and must be reined in,” she states. “It is frankly no wonder that the dissenting justices are not mincing words.”
In support of her views, Bildy points to the Judicial Freedom Index, a report produced by her organization that analyzed s. 2 Charter decisions from the SCC over the 35-year history of the Charter to 2018.
“The authors of the report wanted to understand the degree to which the attitudes and leanings of individual jurists were reflected in their decisions,” she explains.
The report found that:
- The majority of the court’s ruling on Charter freedoms were unanimous and therefore did not demonstrate any differences in the attitudes of judges;
- Split decisions, however, revealed the propensity of particular judges to rule consistently in favour of either the government or the applicant;
- On issues relating to freedom of expression and religion, former justices Marie Deschamps, Louise Charron and Marshall Rothstein sided with the government 100 per cent of the time;
- Former justice Charles Gonthier voted to uphold restrictions on freedoms 90 per cent of the time, former Chief Justice Brian Dickson 80 per cent of the time, and former justice Claire L’Heureux-Dubé 78 per cent of the time;
- When governments and unions clashed, the results were more or less equally divided, but Justice Abella and former justice Bertha Wilson always favoured the union, whereas former justices Gérard La Forest and Marshall Rothstein always sided with the government.
What the study shows, Bildy states, is that judges’ beliefs, values and political ideologies do in fact influence their decision making, and likely always have.
“To the extent that some courts are increasingly steering their decision-making toward preferred outcomes, rather than following a defined process, overt politicization naturally follows,” she added.
In turn, and despite the risks evidenced by the “circus” surrounding U.S. confirmation hearings, this politicization demands greater transparency in the appointment process.
“Given that our judges have become so influential and unconstrained in steering the direction of this country, I do not think we can or should continue to pretend that they are apolitical, and greater public scrutiny prior to appointment should be implemented,” Bildy stated.
Julius Melnitzer is a Toronto-based legal affairs journalist, writing coach and media trainer to law firms and legal departments. Readers can reach him at firstname.lastname@example.org or on his website at https://legalwriter.net