Dissents in Charter Cases at the Supreme Court: An Anomaly of 2018 or An Emerging Trend?

Hayley Pitcher

Melbourne Law School

Last year, 2018, marked the beginning of a new era at the Supreme Court of Canada; Chief Justice Wagner completed his first full year in the role. Prior to his appointment, Chief Justice McLachlin led the Court for 17 years. She earned a reputation as a consensus builder on the Court, but that is not to suggest Charter cases decided by the Court were consistently unanimous. While it is too early to ascertain the leadership style of Chief Justice Wagner, in the recent Charter jurisprudence, Justice Côté and Justice Brown have emerged as strong dissenters, often writing their dissents together and, occasionally, with an additional justice. Justice Côté and Justice Brown’s dissents have been critical and, at times, arguably, scathing of the majority’s reasoning and conclusions. These dissents are not confined to the circumstances of the case but suggest a wider concern about the majority’s expansive approach to Charter rights beyond the limits of the text of the Constitution and the appropriate role of the Court in Charter cases. 

Charter Values and Administrative Decisions

The Supreme Court decided two cases involving the decisions of the law societies in British Columbia and Ontario to refuse to accredit law degrees from a proposed law school at Trinity Western University (TWU). A condition of admission to TWU is the requirement that students sign and adhere to a Covenant – a religious-based Code of Conduct that prohibits sexual intimacy outside of a heterosexual marriage. Under the Supreme Court’s current framework for administrative decisions, to be Charter compliant, the decision must be reasonable in that the decision reflects a proportionate balance between the Charter values engaged by the decision and the statutory objectives the decision is being made under. In this case, the majority argued that both Law Societies reasonably balanced the freedom of religion of TWU against the statutory objective of protecting the public interest by ensuring equal access to and diversity in the legal field, as well as preventing the risk of harm to LGBTQ+ people.  

In their joint dissenting judgement, Justice Côté and Justice Brown agreed with the majority that this was not the case to reconsider the Charter values framework. They did not, however, hold back in setting out their ‘fundamental concerns’ with the framework. They expressed concerns that, in contrast to Charter rights, which are the ‘product of constitutional settlement’, Charter values are ‘unsourced’ and the ‘product of the idiosyncrasies of the judicial mind’ (para 308). They further reasoned that the vague and undefined nature of Charter values allows the values to act as ‘mere rhetorical devices by which courts can give priority to particular moral judgments, under the guise of undefined “values”, over other values and over Charter rights themselves’ (para 309).

The dissent also takes issue with the majority’s characterization of the statutory objective being balanced as the broad protection of the public interest. Rather, the dissent characterizes the statutory object at issue as ensuring applicants are fit for practicing law. The dissent emphasized the importance of ensuring the statutory objective being balanced in the administrative decision is grounded in an actual grant of authority to the decision maker under the Act.  Otherwise, the dissent warns, the statutory objective at play in the administrative decision can be ‘invented holus-bolus after an infringement is claimed’ (para 322). The dissent found that, in any event, the refusal to accredit TWU undermines the public interest by not accommodating TWU’s religious practices.

Right to Equality and Pay Equity Legislation

In 2018, the Supreme Court also decided two Charter challenges to Quebec’s pay equity legislation. Focusing on the first case, the issue before the Court was whether the provisions of the Act, which required private sector employers to conduct an audit every five years and rectify any wage disparities on a going-forward basis, was discriminatory contrary to section 15 (right to equality) of the Charter. Previously, Quebec’s pay equity legislation placed a continuous obligation on employers to maintain pay equity and adjust wages accordingly. The majority of the Court held that the new audit provisions, assessed on their own without comparison to the previous legislative provisions, were discriminatory as they perpetuate pre-existing disadvantages by making the employer’s pay equity obligation ‘episodic’ and ‘partial’ (para 33).

Justice Rowe joined Justice Côté and Brown in the dissent and, in contrast, they found that the audit provisions ameliorate the conditions of female employees and cannot be said to perpetuate their disadvantage. They point out that there is no constitutional obligation to enact pay equity legislation. The dissent is critical of the majority for, in effect, constitutionalizing pay equity and weighing into policy decisions that are properly the role of the elected legislature.  

Right to Vote and Justified Infringements

Justice Côté and Justice Brown’s joint dissents have continued into 2019. In the first case released by the Court for the year, Frank v Canada, the Court considered whether the provision prohibiting Canadian citizens who have lived outside of Canada for more than five years (subjects to some exceptions such as those in the armed forces) from voting in federal elections violated section 3 (the right to vote) of the Charter. Chief Justice Wagner, writing for the majority of the Court, found that the prohibition infringed the right to vote and could not be justified by section 1 of the Charter, which allows reasonable limits on Charter rights that can be justified in a free and democratic society, as the prohibition did not minimally impair the right. The majority emphasized that the denial to vote of the Appellants inflicts harm as voting is fundamental to democracy.

In addition to disagreeing with the outcome, Justice Côté and Justice Brown take issue with the majority’s use of ‘infringement’ that requires justification under section 1 of the Charter rather than describing it as a ‘limit’ on the Charter right. As the majority points out, this debate seems to be mostly about semantics. Indeed, in their joint dissent in Trinity Western, Justice Côté and Justice Brown used the term ‘infringement’ as requiring justification (see eg para 272 and 304). However, the word choices of the majority seem to represent for the dissent their view that the majority has obscured the role of section 1 in its analysis by taking ‘an impermissibly absolutist approach to Charter  rights and, in effect, to read s. 1 out of the Charter entirely’ (para 171).

Outside of the dissent’s concern about framework employed by the majority, the dissent also takes issue with the majority’s acceptance of the Appellants’ ‘hyperbolic’ submission that Canadians living abroad are often ‘ambassadors of Canadian values’ when ‘Canadian values (whatever those are)’ are a ‘poor substitute for legal reasoning’ (para 170). Justice Côté and Justice Brown also expressed that they were ‘mystifie[d]’ that the majority describes Canada as having ‘progressive enfranchisement’ while declining to consider the laws in other Westminster parliamentary democracies, such as New Zealand, when New Zealand, in fact, granted women and indigenous people the right to vote before Canada (para 166).

Last year was a year of change for the Court and not of consensus for Charter cases. Although it’s important to note there have been Charter cases where Justice Brown and Justice Côté do no not dissent together, the cases discussed above suggest their joint dissents are not one-off dissents and that there will be more coming from the pair. From these cases, it is clear that Justice Côté and Justice Brown have fundamental and overarching concerns about the Court going beyond reviewing decisions for its constitutionality and instead deciding cases based on their own preferred policy choices. This is a valid concern raised by these dissents. On the other hand, the dissents do not just focus on the major areas of disagreement but seem to go through every point, big or small, they take issue with.

It remains to be seen whether this divide in Charter cases between the majority and Justice Côté  and Justice Brown will deepen or if they can come to a meeting in the middle, where Canada’s Constitution continues to expand and grow as a living tree while remaining rooted in the ground of the Constitutional text. At the very least, Justice Côté's and Justice Brown’s dissents give much for the Court to consider, which will hopefully strengthen the reasoning of the majority in future Charter cases.

Hayley Pitcher is a Master of Laws student at Melbourne Law School at the University of Melbourne and is also (currently on leave as) counsel at the Constitutional Law Branch of the Ministry of the Attorney General, Ontario.

The views expressed in this post reflect only the author’s views, and do not reflect the views of the Ministry of the Attorney General or the Government of Ontario.

Suggested Citation: Hayley Pitcher, ‘Dissents in Charter Cases at the Canadian Supreme Court: An Anomaly of 2018 or An Emerging Trend?’ IACL-AIDC Blog (8 July 2019) https://https://blog-iacl-aidc.org/2019globrev/2019/7/5/httpsblog-iacl-aidcorg2019globrev201971dissents-in-charter-cases-at-the-supreme-court-of-canada-an-anomaly-of-2018-or-an-emerging-trend