Should the SCC speak with one voice? Survey says no.

Several commentators have reflected on Justice Bastarache’s recently announced retirement from the SCC on June 30, 2008. The discourse in the coming months will likely focus on the forthcoming judicial appointment. There are undoubtedly numerous considerations in selecting a new SCC Justice, including their region, academic qualifications, experience in lower courts – and some would say – politics of the day.

Dissenting opinions on the SCC, or lack thereof, have been a hot topic in the Canadian legal community. A consideration in selecting Justice Bastarache’s replacement is whether more or less unanimity is needed on our top court. A recent online survey, created by Mr. Matthew Skala, presents interesting insights from the legal community on uniformity. The survey taker answers a series of questions based on SCC judgments with majority and dissenting opinions to determine “Which SCC judge are you?” This survey has been around for some time and covered by and by Professor Russ Brown of the University of Alberta Faculty of Law.

Are strong dissenting opinions, which form the basis of this survey, needed on our top court? Based on nearly 4,000 responses, the results are in.
(Percentage selected by survey respondents)

R. v. Sharpe, 2001 SCC 2
Majority: no ban on child porn without harm (60.4%)
Dissent: ban even without harm (39.6%)

Trinity Western University v. College of Teachers, 2001 SCC 31
Majority: BCCT overstepped bounds (45.8%)
Dissent: BCCT can deny application for discrimination (54.2%)

Théberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34
Majority: Transfer does not violate copyright (44.4%)
Dissent: Transfer violated copyright (55.6%)

R. v. Shearing, 2002 SCC 58
Majority: New trial, allow diary as evidence (50.0%)
Dissent: No new trial, diary protected (50.0%)

Harvard College v. Canada (Commissioner of Patents), 2002 SCC 76
Majority: No patent on mouse (74.2%)
Dissent: Mouse should be patentable (25.8%)

Chamberlain v. Surrey School District No. 36, 2002 SCC 86
Majority: Send back to board (50.9%)
Dissent: Override board, books allowed (27.1%)
Dissent: Let board’s decision stand (22.0%)

Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62
Majority: Judge can retain jurisdiction (71.1%)
Dissent: Judge’s order not clear enough, overturned (28.9%)

R. v. Malmo‑Levine; R. v. Caine, 2003 SCC 74
Majority: Marijuana prohibition stands (38.9%)
Dissent: Self-inflicted harm shouldn’t be a crime (22.5%)
Dissent: Prohibition worse than problems of pot (17.2%)
Dissent: Marijuana basically harmless (21.5%)

Giguère v. Chambre des notaires du Québec, 2004 SCC 1
Majority: Indemnity fund should pay for misconduct (72.1%)
Dissent: Tribunal acted within its power to deny (27.9%)

Canadian Foundation for Children, Youth and the Law v. Canada, 2004 SCC 4
Majority: Corporal punishment permitted within limits (32.1%)
Dissent: Allowed for parents but not for teachers (25.6%)
Dissent: Law is unconstitutionally vague (16.7%)
Dissent: corporal punishment not allowable (25.6%)

Based on each respondent’s answers to questions above, the survey calculated which SCC Justice you are:

Justice L’Heureux-Dubé (30.7%)
Justice Iacobucci (18.4%)
Justice Bastarache (10.4%)
Justice Binnie (6.4%)
Justice LeBel (6.4%)
Justice Arbour (6.2%)
Justice Deschamps (5.7%)
Justice Gonthier (5.5%)
Justice Major (5.2%)
Justice McLachlin (5.1%)

Although these results might lead to some profound conclusions, a few major caveats are in order. Mr. Matthew Skala noted:

I’m not sure how far I would trust these. In particular, when there are two judges who often have very similar opinions, I suspect that the test may tend to be biased towards one or the other because it will disproportionately hinge on whichever few questions differentiate between those two judges.

Further, several judges have retired from the SCC since this survey was created. There are no controls on those taking the survey and it may be taken multiple times. Its assumed that the Canadian legal community would be the primary audience for such a survey.

In context, the survey results do provide an interesting comparison. It appears SCC judgments with strong dissenting opinions are generally paralleled by a diversity of opinions in the legal community. It is not suggested that SCC holdings should precisely match public opinion, but if public opinion is heavily divided it is understandable why the SCC might be too. According to the results above, perhaps a judge like Justice L’Heureux-Dubé should fill the vacancy on our top court.

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