The Supreme Court of Canada released seven Charter decisions in 2012 that were not unanimous. When compared to the non-Charter cases released the same year, the Charter dissents represented a higher rate of disagreement between the justices. This should not come as a surprise. The Charter is an open-textured instrument that admits of flexibility and growth. Dissents and differing approaches are expected as Charter jurisprudence continues to develop. This paper argues that the seven Charter dissents/concurrences released in 2012 provide a rich illustration of the various functions of dissenting opinions. As articulated by Justice L’Heureux-Dubé, these are: to prophesize, to stir dialogue, and to safeguard the integrity of the law and judicial institutions. Each of these functions takes on a special dimension in the realm of Charter jurisprudence. In their prophetic function, dissents are intimately connected to the doctrine of the living tree — recognizing, as it does, that there will be a future audience of constitutional opinions that will not necessarily share the constraints of our more dated institutions. The dialogic function of dissents, likewise, takes on additional significance in this context. Charter dissents are a fundamental part of the forward-looking conversation between courts and society, giving the m the potential to shape, over the long term, the societal values they engage. Finally, dissents in Charter cases essentially promote the integrity of our judicial institutions. The “fierce independence” of the justices on constitutional matters necessitates real opportunities to dissent.
Rankin, W. David and Jamal, Mahmoud.
"Dissents and Concurrences: Seven Debates in Charter Jurisprudence."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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