A new empirical study challenges the popular narrative that Canada’s Supreme Court has become more divided under its current chief justice, Richard Wagner.
Wagner replaced Justice Beverley McLachlin as head of Canada’s highest court in December 2017. Unlike McLachlin, who was known to encourage consensus and unanimity, Wagner has publicly stated that he likes civil dissent and welcomes it in his Court.
The study’s authors, partners at prominent Canadian law firms, analyzed Supreme Court decisions from 1984 through 2022. They found that while the Wagner Court does exhibit higher levels of disagreement than earlier Courts, “some of this increased disagreement is of a nature that may be less concerning at an institutional level than the headline numbers suggest.”
When asked why the level of disagreement on the Court matters, study co-author Jeremy Opolsky told Canadian Affairs: “I think that we are inevitably affected by the zeitgeist that is the Supreme Court of the United States.”
“When Canadians hear things that are political, partisan and polarized — that there are closely split decisions [in the US] — that is the overriding message in our media landscape. I worry that people form similar opinions about close decisions in the Supreme Court of Canada.”
“I’ve said repeatedly that we have a strong non-partisan, apolitical court,” added Opolsky, who practices in the litigation group at Torys LLP. “Sometimes our discussions veer into an assumption that [the Court is] split on party-appointment lines.”
Conventional wisdom
The study highlights a January 2022 feature in the Globe and Mail, which argues that Canada’s Supreme Court has started to split by “party of appointment — just like its U.S. counterpart.”
“[D]ivisions have hardened — and the debates have become more rancorous,” the Globe’s legal reporter Sean Fine writes. “Seven rulings over the past two years have split the nine-member bench largely by party of appointment. The Harper-appointed judges have won five of them.”
The study also points to articles in legal magazine Law360 and the law journal Supreme Court Law Review that discuss rising dissent on the Wagner Court.
It was important to see whether “the data matches up with the conventional wisdom in the bar,” said Paul-Erik Veel, the study’s other author who practices at litigation firm Lenczner Slaght LLP. “It’s worthy of discussion because it’s something that people have been talking about.”
‘Full story’
Opolsky and Veel’s analysis looked only at the 80 per cent of Supreme Court decisions “taken on reserve,” meaning cases where the Court releases a written decision well after the oral hearing. Decisions released from the bench are “jurisprudentially less significant” than decisions released later, the study states.
They found that the percentage of decisions with dissents has indeed “risen sharply in recent years.” Decisions in the pre-Wagner period of 1984 to 2017 had dissents 32 per cent of the time, versus 62 per cent of decisions under the Wagner Court.
“Yet those metrics do not tell the full story.”
The authors also characterized each dissent as one of three types: polarized, outlier or fragmented.
Polarized dissents — where the court is narrowly divided in a 5-4 or 4-3 split — can be concerning, Opolsky said, because the decision is “less certain, less clear and encourages re-litigation.”
The authors identified a modest increase in polarized dissents, from 10 per cent of decisions pre-Wagner to 14 per cent under his leadership. They also noted that certain areas of law — such as private law cases between two individuals — “may have disproportionately increased rates of polarized dissents.”
The authors did, by contrast, identify a more sizable increase in outlier dissents, where a single judge dissents. The number of outlier dissents increased from eight per cent of decisions pre-Wagner to 18 per cent in the Wagner Court.
“Justice [Suzanne] Côté is a significant contributor [to outlier dissents],” Veel said.
The third type of dissent that the authors analyzed was fragment dissents, where the Court fractures 4-3-2 or 3-3-3 or 3-2-2.
“This form of disagreement is particularly problematic because there is no single decision that clearly establishes the applicable legal principles on a go-forward basis. Such decisions can be problematic for future litigants, the bar and lower courts to apply,” the authors note.
On this metric, the Court is not in a particularly contentious state, relative to historical averages.
‘Dissent is very important’
In addition to highlighting that the Wagner Court is not as divided as the headline numbers suggest, the study also challenges the notion that dissents are problematic.
“I think dissent is very important,” Opolsky said. “It plays a really vital role in our [judicial] structure.”
One benefit is that dissents can guide and inspire legal counsel to later challenge precedents.
For example, in Saskatchewan Federation, a 2015 Supreme Court case that established a constitutionally-protected right to strike, the decision drew and built on former chief justice Brian Dickson’s dissent in an earlier case, Opolsky notes.
The Court’s 2013 decision in Bedford, which struck down prostitution laws, and its 2015 decision in Carter, which struck down laws criminalizing medically-assisted dying, “draw less expressly [on dissents], but the spirit of the respective dissents from the predecessors remain very relevant,” Opolsky said in an email.
Dissents can also foster dialogue between the majority and dissenting voices on the Court. This dialogue may help sharpen the majority’s reasoning, or, in some cases, swing a dissenting opinion into a majority decision.
The study cites an estimate by Professor Peter McCormick, who has written extensively on disagreement at the Court, that dissent judgments “switched” to majority judgments in roughly 10 cases a year during the years that Brian Dickson, Antonio Lamer and McLachlin were chief justice. For context, the Court decided roughly 100 cases per year during the early Charter years, Opolsky notes.
Politics in robes
Where dissents can be problematic, Opolsky said, is if there is “persistent harsh and critical disagreement, particularly in the form of dissents where the Court is closely split on the outcome.”
“[This] can suggest indeterminacy in the law and contribute to the public perception that legal reasoning is nothing but politics in robes,” the authors note.
One of the factors contributing to a perception in the US that their Supreme Court is political is the stability of judicial coalitions.
During the 2010s, “the average American was exposed to 5-4 decision after 5-4 decision on contentious issues with more or less stable coalitions on those votes,” Veel said. “If it’s randomly distributed, then [the implication is that] reasonable people disagree. If it’s stable coalitions, that makes it look like policy preferences are playing a role.”
“I don’t think we’re there,” said Veel about Canada’s Supreme Court.
“The bottom line of our paper is [that] not every dissent is the same,” said Opolsky. “And not every disagreement is the same.”
This is intriguing, and reassuring. One thing that makes dissent more constructive, in my view, is the nature of the language used. Some dissents from south of the border read like campaign speeches or culture war rallying cries. That’s just not what judges are there to do.