Courts must balance ‘between certainty and transparency,’ says Binnie at online event
Wednesday, October 27, 2021 @ 9:28 AM | By Amanda Jerome
In a keynote address on dissent in Canada’s appeal courts, former Supreme Court jurist Ian Binnie said he sees “dissent, essentially, as a management problem for the court.”
“Every court,” he said, “has to try to get a balance between certainty and transparency.”
“When the court wants certainty, the optimum is to deliver a decision ‘by the court’ as was done, for example, in the Quebec secession case. From there you move into increasingly splintered territory,” Binnie added, noting that in the U.K. “it is quite often difficult to find out what the Supreme Court has decided with the multiplicity of opinions” and “in the Supreme Court of Canada this has happened frequently enough to be worrisome.”
The keynote was part of an online event, presented by Torys and Lerners on Oct. 19, titled “Agree to Disagree?: Dissent in Canada’s Appeal Courts.”
Binnie explained that the Supreme Court of Canada “makes a great effort” to “at least get five judges on the same judgment” so that it speaks for the majority and “whatever concurrences or dissents happen after that is of lesser importance.”
“If the court is splintered more than that then there is a serious problem,” he added.
“I think what I should start out by saying, is that what you see as the legal profession, what is visible is really just the tip of the iceberg. When the court deliberates after the hearing of an appeal, the situation is often quite fluid. There will be cases where it’s clear one way or another, or where the sides are immovable, but in many cases, there is a lot of shifting ground. And the first objective of the predative dissenter, that is the judge who feels on the out in the initial counting of noses, which as you know is highly preliminary, is to write a judgment that will persuade those who are persuadable to shift to your side and your dissent becomes the majority,” he explained.
Binnie noted that this can “quite often” be seen in the jurisprudence of the Supreme Court of Canada.
“The recent Deloitte [& Touche] v. Livent Inc. case,” he said, looks to him “like what wound up as the dissent started out as the majority and it flipped.”
He stressed, of course, that he’s “not privy to any court confidences.”
“This is quite apparent from the Dickson format of the Supreme Court judgments where you have: ‘here’s what the courts below said;’ ‘here’s what the statutory references are;’ ‘here’s the law here and in the next place;’ ‘now here’s the law in Canada.’ So, there’s a very regularized format and if that appears in the dissent it’s a pretty good indication that the dissent started out as a majority opinion,” he explained.
Binnie said that the “first objective of the dissenter is to flip the majority and not be in the dissent.”
“If that is not possible, what the dissenter would like to do is to get some accommodation. Maybe the person who winds up writing for the majority will strike out certain arguments or issues. Maybe there will be different kinds of accommodation so that you can abandon the dissent and move directly to joining in the majority. At the very least, the dissenter will hope to improve the majority opinion by clarifying points of difference and forcing more precision on the majority author,” he noted.
Binnie said he believes “dissents are justified, moving now into the public sphere, when transparency is really more important than certainty.”
“There are many issues where there’s a fierce debate going on within the court. An example is over pure economic loss,” he said, noting that in such cases there’s often “an argument between categories of economic loss or a principle of economic loss.”
“At some point the court has to come to a landing. Transparency is all very well, but certainty is critical,” he stressed.
Binnie said the second ground he believes “dissent is justified is where there’s a serious question of principle on an important issue.”
“Judges who dissent often feel that they are appealing to the future, that courts will eventually be filled with bright judges who will see that their dissent is correct. A famous U.S. example is the dissent of Justice [John Marshall] Harlan in Plessy v. Ferguson,” he said, noting that a Supreme Court of Canada example would be the strong dissent in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, which became the majority in Carter v. Canada (AG), 2015 SCC 5.
“So, the arguments which fail to gain favour in one era, gain favour in another. Of course, this is sometimes just due to a change in the composition of the bench. But sometimes it is attributable to enlightenment,” he added.
Binnie noted that first time he went to the Supreme Court of Canada, “I went as a student with Bert MacKinnon.” It was for an Indigenous hunting rights case. He explained that the Indigenous person was “convicted of hunting for food out of season, even though the Migratory Bird Convention provided an exemption for [First Nations] hunting for food out of season.”
“But Canada had failed to implement the treaty. Justice [John Robert] Cartwright,” he noted, “wrote a very strong dissent saying that the honour of the Crown had been breached by the government’s failure to implement the Convention and the Supreme Court ought not to tolerate it.”
Binnie noted that some 55 years later “the honour of the Crown has become a linchpin of Supreme Court jurisprudence on Indigenous rights” as “[Justice] Cartwright had indicated, perhaps beyond his wildest dreams.”
Another justification for dissents, Binnie believes, is “an appeal to Parliament.”
“Quite often in the Supreme Court dissents, the judge would say: ‘well, all right … the law should be changed and Parliament should do something about this,’ ” he noted.
“So, you can see from the management of the legal system’s perspective dissents are a dilution, they are a fragmentation of the jurisprudence. They don’t meet the criteria of the profession, which is: give us something short, simple, unanimous, tell us what the answer is. That is what is important,” he said, noting that the re-emergence of issues before the Supreme Court, “fuelled by earlier dissents, is a cause of some concern,” even though he’s “entirely in favour” of the revisiting of some of these cases.
“There are a number of these justifications for dissenting judgments. There’s much less justification for concurring judgments, which is not the subject of today’s panels,” he said, concluding by noting that the problem of “balancing certainty, transparency and some of the other values I’ve mentioned is a very serious problem of which the courts are very conscious.”
Binnie served for almost 14 years as a justice of the Supreme Court of Canada and is now counsel with Lenczner Slaght LLP.
If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Amanda Jerome at Amanda.Jerome@lexisnexis.ca or call 416-524-2152.
“Every court,” he said, “has to try to get a balance between certainty and transparency.”
“When the court wants certainty, the optimum is to deliver a decision ‘by the court’ as was done, for example, in the Quebec secession case. From there you move into increasingly splintered territory,” Binnie added, noting that in the U.K. “it is quite often difficult to find out what the Supreme Court has decided with the multiplicity of opinions” and “in the Supreme Court of Canada this has happened frequently enough to be worrisome.”
Ian Binnie, Lenczner Slaght LLP
Binnie explained that the Supreme Court of Canada “makes a great effort” to “at least get five judges on the same judgment” so that it speaks for the majority and “whatever concurrences or dissents happen after that is of lesser importance.”
“If the court is splintered more than that then there is a serious problem,” he added.
“I think what I should start out by saying, is that what you see as the legal profession, what is visible is really just the tip of the iceberg. When the court deliberates after the hearing of an appeal, the situation is often quite fluid. There will be cases where it’s clear one way or another, or where the sides are immovable, but in many cases, there is a lot of shifting ground. And the first objective of the predative dissenter, that is the judge who feels on the out in the initial counting of noses, which as you know is highly preliminary, is to write a judgment that will persuade those who are persuadable to shift to your side and your dissent becomes the majority,” he explained.
Binnie noted that this can “quite often” be seen in the jurisprudence of the Supreme Court of Canada.
“The recent Deloitte [& Touche] v. Livent Inc. case,” he said, looks to him “like what wound up as the dissent started out as the majority and it flipped.”
He stressed, of course, that he’s “not privy to any court confidences.”
“This is quite apparent from the Dickson format of the Supreme Court judgments where you have: ‘here’s what the courts below said;’ ‘here’s what the statutory references are;’ ‘here’s the law here and in the next place;’ ‘now here’s the law in Canada.’ So, there’s a very regularized format and if that appears in the dissent it’s a pretty good indication that the dissent started out as a majority opinion,” he explained.
Binnie said that the “first objective of the dissenter is to flip the majority and not be in the dissent.”
“If that is not possible, what the dissenter would like to do is to get some accommodation. Maybe the person who winds up writing for the majority will strike out certain arguments or issues. Maybe there will be different kinds of accommodation so that you can abandon the dissent and move directly to joining in the majority. At the very least, the dissenter will hope to improve the majority opinion by clarifying points of difference and forcing more precision on the majority author,” he noted.
Binnie said he believes “dissents are justified, moving now into the public sphere, when transparency is really more important than certainty.”
“There are many issues where there’s a fierce debate going on within the court. An example is over pure economic loss,” he said, noting that in such cases there’s often “an argument between categories of economic loss or a principle of economic loss.”
“At some point the court has to come to a landing. Transparency is all very well, but certainty is critical,” he stressed.
Binnie said the second ground he believes “dissent is justified is where there’s a serious question of principle on an important issue.”
“Judges who dissent often feel that they are appealing to the future, that courts will eventually be filled with bright judges who will see that their dissent is correct. A famous U.S. example is the dissent of Justice [John Marshall] Harlan in Plessy v. Ferguson,” he said, noting that a Supreme Court of Canada example would be the strong dissent in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, which became the majority in Carter v. Canada (AG), 2015 SCC 5.
“So, the arguments which fail to gain favour in one era, gain favour in another. Of course, this is sometimes just due to a change in the composition of the bench. But sometimes it is attributable to enlightenment,” he added.
Binnie noted that first time he went to the Supreme Court of Canada, “I went as a student with Bert MacKinnon.” It was for an Indigenous hunting rights case. He explained that the Indigenous person was “convicted of hunting for food out of season, even though the Migratory Bird Convention provided an exemption for [First Nations] hunting for food out of season.”
“But Canada had failed to implement the treaty. Justice [John Robert] Cartwright,” he noted, “wrote a very strong dissent saying that the honour of the Crown had been breached by the government’s failure to implement the Convention and the Supreme Court ought not to tolerate it.”
Binnie noted that some 55 years later “the honour of the Crown has become a linchpin of Supreme Court jurisprudence on Indigenous rights” as “[Justice] Cartwright had indicated, perhaps beyond his wildest dreams.”
Another justification for dissents, Binnie believes, is “an appeal to Parliament.”
“Quite often in the Supreme Court dissents, the judge would say: ‘well, all right … the law should be changed and Parliament should do something about this,’ ” he noted.
“So, you can see from the management of the legal system’s perspective dissents are a dilution, they are a fragmentation of the jurisprudence. They don’t meet the criteria of the profession, which is: give us something short, simple, unanimous, tell us what the answer is. That is what is important,” he said, noting that the re-emergence of issues before the Supreme Court, “fuelled by earlier dissents, is a cause of some concern,” even though he’s “entirely in favour” of the revisiting of some of these cases.
“There are a number of these justifications for dissenting judgments. There’s much less justification for concurring judgments, which is not the subject of today’s panels,” he said, concluding by noting that the problem of “balancing certainty, transparency and some of the other values I’ve mentioned is a very serious problem of which the courts are very conscious.”
Binnie served for almost 14 years as a justice of the Supreme Court of Canada and is now counsel with Lenczner Slaght LLP.
If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Amanda Jerome at Amanda.Jerome@lexisnexis.ca or call 416-524-2152.
