OTTAWA—This is what brawls look like on the top court bench.
Judges don’t throw off their robes and come to blows. What they do — judicial jousting — is more subtle.
Split rulings. Lengthy dissenting opinions. Constitutional decisions that see judges split not only into two groups, but sometimes going three or four different ways.
Wary court watchers are now wondering if the Supreme Court of Canada is as divided or as polarized as the rest of us.
Since becoming prime minister in 2015, Justin Trudeau has named three new judges to the country’s top court, and elevated Justice Richard Wagner to the post of Chief Justice.
In that time, the nine-member Supreme Court of Canada has turned into an unruly crew.
Outwardly, they are friendly, collegial and professional.
But a look at their rulings — as legal scholars and lawyers are increasingly pointing out — shows a judicial team “of equals” that is struggling to find its voice as Canada’s top court.
When the latest rookie, Justice Nicholas Kasirer, was publicly sworn in on Nov. 4, Wagner quipped that the top court was unanimous on this point: the newest Quebec judge had already proven to be a “rare commodity” — “an academic with his feet firmly planted on the ground.”
He said Kasirer is “a fantastic addition to this bench” who will undoubtedly “enrich” their work.
The high court has seen a lot of turnover in the past 15 years, including during Stephen Harper’s time as prime minister. Its past leader, Beverley McLachlin, retired two years ago, as the country’s longest-serving chief justice.
Now the most senior judge is Rosalie Abella, 73, appointed in 2004. All her other colleagues including Wagner, 62, were appointed to the top court well after that, starting in 2011 with Michael Moldaver and Andromache Karakatsanis, judges from Ontario.
What is clear is the Wagner court, after two years, is proving to be very different than the McLachlin court.
Where McLachlin was extremely cautious about how the court — and its judges — should put their foot forward in public, Wagner has gone all in on public relations. He took the court on the road to Winnipeg for its first-ever sitting outside Ottawa, uses Twitter to highlight the court’s work, publishes plain-language summaries of the court’s rulings online, and has vowed a more open and transparent institutional approach.
Where McLachlin strove for consensus, clarity if not unanimity, and actively sought to minimize the number of times the court issued dissenting opinions, Wagner embraced dissent from the get-go.
And as the dissenting judgments began to pile up, he defended the practice.
Wagner told reporters in June he’d be 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.”
It is, of course, too soon to assess the impact of Kasirer’s arrival.
But by now, the others have started to find their groove, and it’s not what you might have expected.
All that messy intellectual debate is spilling out into the open.
Harper appointees Suzanne Côté of Quebec and Russell Brown of Alberta often line up with Trudeau appointee Malcolm Rowe of Newfoundland and Labrador on big constitutional cases, very often in the minority, opposing a majority viewpoint, writing robust dissenting opinions that break down why their peers are dead wrong.
They’re sometimes joined by Moldaver or others but often let rip on their own.
Côté, Brown and Rowe express a small-c conservative perspective on matters like the role of the court, judicial deference, and balancing individual rights and social goals, frequently showing more judicial restraint when it comes to tough cases, says Carissima Mathen, professor of law at University of Ottawa.
“I think it will be really interesting to see how they deal with the carbon tax,” says Mathen. That hot-button issue comes up in the winter 2020 session.
At times, on the Wagner court, the disagreements among colleagues are delivered respectfully. At times, the respectful formalities are set aside, and the tone is downright sharp.
Lawyers and legal scholars, who first took a wait-and-see approach, have taken note.
The numbers tell a clear story of a court where certain judges flex their intellectual muscle, collegiality be damned, while others take a decidedly lower key approach.
University of Toronto’s Jamie Cameron says under Wagner’s leadership, the court saw a distinct rise of division in its decision-making in 2018.
In a paper titled “A Chief and Court in Transition: The Wagner Court and the Constitution,” Cameron looked at the Wagner court’s work in 2018, saying Côté, Brown and Rowe have emerged as forceful voices.
“Whether in a threesome, as a pair, or alone, Justices Côté, Brown and Rowe wrote 13 of the court’s 19 minority opinions,” she said. Measured by output, she says, “these judges formed a powerhouse of significant strategic, jurisprudential, and institutional strength and intensity.”
And measured by their tone, she says, “the Côté-Brown-Rowe jurisprudence exposed significant differences of opinion within the court, and at times expressed flashes of attitude in doing so.”
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Even so, it has led to disappointing results, Cameron writes. A long-awaited decision on the B.C. law society’s denial of accreditation to Trinity Western University’s proposed law school led to a 5-1-1-2 split on the court.
“In four sets of reasons, members of the court staked and defended strong positions but failed to engage with the concept of freedom in any meaningful way,” she said.
“The court’s longest constitutional decision in 2018 yielded scarce insight on freedom of religion, expression, or association.”
Vanessa MacDonnell, a law professor at the University of Ottawa, took an in-depth look at the dissenting record of Côté, the first woman to be elevated to the top court directly from law practice, and found her rate of dissents is “very high, even by historical standards.”
MacDonnell found Côté surpassed other well-known dissenters like Justice Claire L’Heureux-Dubé “the most frequent dissenter between 1982 and 2007,” and former Justice Bertha Wilson.
“Justice Côté dissented in 32.2 per cent of cases and concurred (agreed with an outcome but for different reasons than other judges) in 4.1 per cent.” The average rate of dissents between 1982 and 2007 was 16.8 per cent, she found.
Côté dissents not just on actual appeals but also — and more unusually — on applications to the court where litigants ask permission to be heard, said MacDonnell.
MacDonnell says even if you accept the general value of dissents, you could ask whether Côté’s “persistent practice of dissenting could undermine important goals or aspects of the court’s functioning. This includes eroding consensus where it might otherwise have been achieved with some additional work, or weakening the collegiality of the court through resistance to the conventions of the institution.”
It’s a concern Prof. Jamie Cameron flags as well, pointing to a 2018 pay equity ruling, written by Abella for the 6-3 majority that struck down a Quebec law as discriminatory.
The Côté-Brown-Rowe dissenting “analysis was rigorous but also dismissive of and condescending toward the majority opinion, variously describing Abella J.’s analysis as ‘tainted,’ ‘wrong,’ ‘mistaken’ and ‘absurd.’ ”
Cameron accepts that judicial independence is a valued principle that tolerates judges’ ability to express their own views and “to write reasons that are uncompromisingly her own.”
But Cameron warns that raising the rhetorical temperature in a written opinion “does not necessarily or even usually improve the persuasiveness of its point of view,” and when disagreements “are personalized” it cannot help but affect “collegial relations.”
In other words, she’s urging judges to keep it classy.
Lawyer Eugene Meehan says 2019 appears to have continued the trend of divided rulings, with Brown and Côté being the leading dissenters.
But Meehan, a former executive legal officer of the Supreme Court who works at an Ottawa firm called Supreme Advocacy LLP, is not bothered by it.
“When the law itself is on trial, one cannot reasonably expect unanimity,” he said. Meehan says judges write dissents, not because they are lone wolves, but “because they demonstrably have a genuine desire to improve the law.”
“The lone wolf image is not reality; what is reality is that part of the wolf pack votes with their paws to go in a different direction.” And sometimes, that’s where the law eventually goes, he said.
“If there’s any place in our juridical world to write a strong dissent, it’s the Supreme Court. Strong personalities, on strong principles, can strongly disagree. They are not nine versions of ‘I, Robot’; they each bring their own different experiences and different personalities, and that’s certainly a good thing.”
For Meehan, what is more important is the way Wagner is allowing judges freer rein to write. He said, for example, former chief justice Antonio Lamer, also of Quebec, would not have permitted non-Quebec common law judges writing on Quebec law, and vice versa. Lamer worried it would be “too risky. They might get it wrong, and how would parts of Canada respond?” Meehan said. That’s all changed, he said, adding Quebec judges are “are fully and completely national judges. National judges on a national court.”
Two of the most senior judges are likely next to retire, barring unforeseen circumstances like Claude Gascon’s battle with depression. Abella will be 74 in July, and Moldaver turns 72 on Dec. 23, not far from the mandatory retirement age of 75.
Their replacements will give Trudeau an opportunity to further shape the country’s judicial and legal landscape.