L'Heureux-Dubé,+The+Dissenting+Opinion+Voice+of+the+Future?

//**I. Introduction**// Americans, Canadians and the English speak of the "great dissents". Their judges are greatly attached to the "precious right" of dissent (Bora Laskin C.J.), and no legislator has made any attempt to deprive them of this right. By contrast, the idea of allowing dissent in France's constitutional court would seem preposterous.

Thesis: - Dissenting opinions are rich sources of all that is potential and possible in law. - Dissenting opinions play roles as (1) prophesy, (2) dialogue, and (3) to safeguard the integrity of the judicial decision making process and, ultimately, the law.**
 * - L'HD will explain the enduring attachment to dissents, claiming that dissenting opinions make an important contribution to the development of the law.

//**II. The tradition of the dissenting opinion in Canadian legal culture**// - In the 14th century, judges delivered individual opinions (//seriatim//). The majority decision rules, and so the dissenting opinion would not detract from the authority of the judgment or institution. These individual opinions were transplanted to Canada. - The SCC was criticized in its early years for having incoherent and repetitive judgments. A House of Commons debate on whether the court procedures should be amended concluded to leave //seriatim// and dissenting opinions untouched. - The SCC reformed itself and, to eliminate repetition, urged judges to write a single majority opinion to which other judges agreed. When unanimity was impossible, concurrences and dissents were still allowed. - Cartwright C.J. introduced judges' case conferences after every hearing which reduced the number of multiple opinions. - Laskin C.J. borrowed the American idea of unanimous and anonymous decisions "of the Court" for important decisions. - The Charter's enactment made the role of courts more prominent in Canadian society. Dissenting opinions became proportionally less frequent. However, they become more common in cases involving fundamental human rights. - Judges acknowledge they should exercise self-discipline to avoid multiple opinions that detract from the quality and legitimacy of the court's decisions. - Judges are still fiercely independent of spirit due to (1) institutional tradition and (2) the common law adversarial culture in which justification of one's reasoning is given pride of place. - Quebec appellate courts have dissenting opinions since the 1850's, and this apparently does not detract from the authority of the decisions or the coherence of the civil law. - The acceptance of dissenting opinions may not depend on culture and legal tradition, but rather one these 3 hypotheses: (1) dissents do not jeopardize the coherence of the law, when the law allows several possible solutions to a single question (2) institutional legitimacy of the courts is compatible with individual independence and impartiality of the judges (3) a majority opinion (and not necessarily unanimity) lends authority to judicial decisions. Dissents allow the rule of law to be more transparent, by showing the competing ideas. Dissents allow judges freedom of speech.

- New opinions in law are often suspect and opposed for the sole reason that they are not already shared by a majority in the profession. - Yet society is continually changing. - 1970's dissents dealt with. - L'HD gives examples of American and Canadian judge dissents on such subjects as women's economic status and the rights of the accused in criminal law, which in later years became the majority opinion in similar cases. - The "great dissents" show the potential contribution of dissents to law's evolution. - **But, would the law today be substantially different had the dissenting judges been prevented from communicating their dissents?** The answer is speculative: yes, in the sense that it led to liberalization of constitutional interpretation. But the dissents do not get sole credit for, say, leading to the victory of the civil rights movement in the USA. The dissents did have an impact: as hope to advocates and to the public. It encouraged lawyers to reiterate the legal views of the dissent. - Gives jurists opportunity to analyse the merits of the majority and minority reasons. Dissents can be useful in novel law issues. - Dissents "are often intended more for the legal minds of tomorrow than for those of today" (CB 126) - Dissents convey the message that law can evolve internally, and not just through legislative reform. Courts are not an obstacle to change, but rather a viable forum for legal recourse against injustice.
 * //III. Dissent and prophecy//**

//**IV. Dissenting Opinions and Dialogue**// Dissents provide a dialogue between:
 * **courts**
 * **academics** - they argue the relative merits of opinions, including dissents, and sometimes make the dissent positive law.
 * **legislative assemblies -** Parliament sometimes the majority's recommendation for legislation, and sometimes the dissent. L'HD cites a case where parliament chooses to make legislation closer to the dissent than to the majority. This legislation gets challenged, and the majority upholds it.
 * **future generations of lawyers -** Law students are asked to evaluate the merit of the majority versus the dissent, to sharpen their analytical skills. The four women who have sat on the SCC have written or supported dissents more often than average.
 * **international legal dialogue** - courts seeking solutions to problems with little jurisprudence may find an answer in a majority or dissenting opinion in another country.

//**V. The Dissenting Opinion: Safeguarding the Integrity of the law and judicial institutions**// - Dissents do the following:
 * (1) strengthen judicial independence** - judges answer only to their individual consciences. Prohibiting dissents risks jeopardizing judicial independence, impartiality and open-mindedness. Dissents give judges personal integrity: they no longer have to sign onto opinion with which they disagree.
 * (2) foster collegiality among judges** - judges with dissenting opinions do not have to repeatedly confront their colleagues to get their ideas integrated into the majority opinion. The majority is not forced to arrive at a compromise.
 * (3) enhance the coherence of courts' decisions** - the quality of reasons rather than unanimity //per se// provides the best safeguard to the judiciary's institutional legitimacy because the opinions are coherent and clear. One should not equate unanimous opinions with clarity and dissents with incoherence. Clarity is often sacrificed when divergent views need to be accommodated. With the existence of dissents, judges can focus on logical and persuasive justifications of either the majority or minority opinion.
 * (4) improve the quality of the majority decision -** the judge writing for the majority must write a persuasive opinion or else the other judges will not sign onto it. Dissenting judges will have to demonstrate the weak links the majority reasoning

Indiscriminate use of dissents does have the potential to jeopardize the integrity of the law. Total individuality must be limited. The dangers posed by dissents are: too frequent use of dissents for trivial reasons; the use of immoderate or overly critical language with respect to the majority decision. A dissent should not ruin relations between judges and shatter the public's confidence in the majority's judgment.

In the past 10 years, over 70% of SCC judgments are unanimous. Judges only dissent when there are important points of disagreement.

//**VI. Conclusion**// - Dissents will not always contribute to law in a significant way: often they become obsolete since lower courts cite only the majority. - "By permitting dissenting opinions, we ensure that the seeds of innovation are not crushed under the weight of majority opinion, even before they are able to take root in the spirit of the law." (CB 130)