Judicial Dissensus is not a Disservice to Justice: The Importance of Dissent in the ‘Court of Last R
An ongoing debate in the common law world has centred upon whether dissent is appropriate within national high courts (Songer et al, 2011). Amidst repeated expressions with the legal realm that consensus is preferred to dissensus, presently there is no generally established norm regarding the propriety of dissent. On some courts, like the Privy Council in the United Kingdom, what exists is a well established practice that all judicial decisions are unanimous of the whole court and are presented publicly as such. On other courts, the concept of dissent becomes murky at best; the practice of the High Court of Australia has been for each justice to write individually on all cases, making it more difficult to determine whether there is a single common rule of law emerging from the case under examination (Songer et al., 2011). Situated somewhere between these two extremes is the Supreme Court of Canada (SCC), which has been described as following what one might refer to as the ‘American model,’ where judicial consensus on the case is “desirable but not required” and “where judges can, at their own discretion, either sign on to the reasons of a colleague or write their own” (McCormick, 2003, p. 90).
Proponents of judicial unanimity have noted that this consensus enhances the Court’s legitimacy, reinforcing the notion that an objective, legal solution can be obtained based upon the law and the principles of legal reasoning, while the public expression of dissent “may shake the public confidence in the judiciary” by bringing into question the certainty and stability of the law (c.f. Wahlbeck et al., 1999, p. 491). Consensual decision making may also help to promote the perception of law as apolitical in nature, and uniformly and impartially applied (Hettinger et al., 2006). Unanimous decisions have the potential to benefit the legal system as a whole, as the absence of dissent could help citizens and their lawyers better predict the future outcomes of legal disputes, leading more potential litigants to settle their disputes before the trial occurs (Posner, 1996).
Yet the dissenting judicial decision is more than a mere opinion. While the dissentient holds themselves apart from their peers, the dissenting opinion contributes to the process of judicial independence as it allows justices to express their disagreement “through a legitimate channel” (Hettinger et al., 2006, p. 18). Dissent holds the majority opinion accountable for their rationale and consequences of their decision, suggesting how the how the future of law and justice could be viewed alternatively. As famously expressed by Chief Justice William Howard Taft, “a dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed” (Hughes, 1928, p. 66; Schwartz, 2008, p. 8).
For example, in the recent case of R. v. D.L.W. (2016), the SCC was charged with determining whether the legal definition of ‘bestiality’ should be broadened to include acts of sexually touching animals without penetration (Gacek & Jochelson, 2017, forthcoming). In a decision of eight-to-one, the SCC majority maintained the bestiality provision of the Criminal Code, to which one could argue that such a reading is a conservative, doctrinal analysis of the provision which diminishes animals in Canadian law (Gacek & Jochelson, 2017, forthcoming). In contrast, the lone dissenting opinion of Justice Abella was willing to draw on modern contexts, noting the absurdity of a statutory construction that would see only some penetrative assaults on animals criminalized while others remaining legally benign. Her dissent sees the growing concern for understanding human-animal relationships, and acknowledges in her decision the “evolving social landscape” for animal welfare in Western, liberal democracies (R. v. D.L.W., 2016, para. 127).
On its surface, the dissent appears redundant; even some justices frequently bemoan it as a futile endeavour in the court process, suggesting that judicial dissent is an institutional inefficiency that “neither aids the resolution of the instant dispute, nor provides direct normative governance for future conduct” (c.f. McIntyre, 2016, p. 457). However, appearances can be deceiving. It is through judicial dissent that we stimulate better decision making for all justices on the case at hand, ensuring that all justices be held accountable by their decisions. In effect, the judicial dissent brings to the forefront alternative narratives of the law that can aid in the law’s future development. Dissent is hardly a disservice to justice, as it leaves the law richer, and the court stronger, for its having been given.
Gacek, J. & Jochelson, R. (2017). Placing ‘Bestial’ Acts in Canada: Legal Meanings of ‘Bestiality’ and Judicial Engagements with Sociality.
Annual Review of Interdisciplinary Justice Research, 6, pp. 236-261.
Gacek, J. & Jochelson, R. (Forthcoming). ‘Animal Justice’ and Sexual (Ab)use: Consideration of Legal Recognition of Sentience for Animals in Canada. Accepted in Manitoba Law Journal.
Hettinger, V.A., Lindquist, S.A., & Martinek, W.L. (2006). Judging on a Collegial Court: Influences on Federal Appellate Decision Making. Charlottesville: University of Virginia Press.
Hughes, C. E. (1928). The Supreme Court of the United States; Its Foundations, Methods, and Achievements: An Interpretation. New York: Columbia University Press.
McCormick, P. (2003). With respect… Levels of Disagreement on the Lamer Court, 1990-2000. McGill Law Journal 48, pp. 89-116.
McIntyre, J. (2016). In Defence of Judicial Dissent. Adelaide Law Review 37, pp. 431-459.
Posner, R.A. (1996). The Federal Courts: Challenges and Reform. Cambridge: Harvard University Press.
Schwartz, M.J. (2008). Our Fractured Supreme Court. Policy Review 147, pp. 3-16.
Songer, D.R., Szmer, J., & Johnson S.W. (2011). Explaining Dissent on the Supreme Court of Canada. Canadian Journal of Political Science 44(2), pp. 389-409.
Wahlbeck, P.J., Spriggs II, J.F., & Maltzman, F. (1999). The Politics of Dissents and Concurrences on the U.S. Supreme Court. American Politics Quarterly 27(4), pp. 488-514.
R. v. D.L.W., 2016 SCC 22.