Justice Côté goes own way in almost 40% of cases but her SCC admin law dissents push the court

Law360 Canada (October 24, 2018, 9:27 AM EDT) -- When the Supreme Court zigs, this judge zags.

As she closes in on her fourth anniversary at the top court Dec. 1, Justice Suzanne Côté, a former star civil litigator from Montreal, is staking her claim to the “great dissenter” mantle worn most recently by several of her predecessors from Quebec, Marie Deschamps, Morris Fish and Claire L’Heureux-Dubé.

It isn’t that Justice Côté hasn’t written some majority or unanimous rulings for the court — such as Tran v. Canada (Public Safety and Emergency Preparedness), an important decision on both immigration and sentencing law: 2017 SCC 50.

But according to an analysis by The Lawyer’s Daily of Justice Côté’s voting patterns and written oeuvre over nearly four years, Justice Côté is dissenting on the results — and charting her own path by writing concurring reasons — in nearly 40 per cent of the cases that she has heard — similar to the remarkable runs of Justices L’Heureux-Dubé and Deschamps at the high court.

Indeed after her appointment straight from the bar by Prime Minister Stephen Harper in 2014, Justice Côté began just as she has since gone on — dissenting in her first case, in favour of an accused whose Charter arguments were blown away from the bench by her new colleagues 7-2.

Since then the 60-year-old dynamo, who has so far participated in 182 appeal decisions, has dissented on the results in one out of every three cases (32 per cent) that she sits on (i.e. in 58 cases), according to the count by The Lawyer’s Daily.

That major divergence from the majority rises to nearly 40 per cent of the cases she votes on when one includes Justice Côté’s 11 concurrences — which are, in essence, dissents from the majority’s reasoning.

“Some justices are more comfortable in [the dissenting] role than others, and Justice Côté has been quick to identify, and establish herself, as a confident, thoughtful and willing dissenter,” said Osgoode Hall Law School constitutional law professor Jamie Cameron.

“Dissenting and concurring opinions contribute enormously to the wealth and vitality of the jurisprudence,” Cameron added. “Her joint dissents, with Justice [Russell] Brown, in the Trinity Western University cases were especially notable for their counterpoint to the majority view, and their insight on a divisive and highly contested issue”: 2018 SCC 32; 2018 SCC 33.

“Judges aren’t required to dissent,” noted Eugene Meehan of Ottawa’s Supreme Advocacy, a former executive legal officer to the late Supreme Court Chief Justice Antonio Lamer. “It creates more work for them and they do so because they demonstrably have a genuine desire to improve the law. Justice Côté certainly has developed a distinctive voice on the court.”

Certainly Justice Côté’s extraordinary level of dissent has translated into a large written output. She has written, or co-written, 58 judgments (including 35 dissents/concurrences) in less than four years. That’s about 15 per year compared to more mainstream colleagues, who, in 2016 for example, averaged around 10 written rulings. (The court’s most majoritarian judge that year, Justice Andromache Karakatsanis, never dissented, while Justice Côté dissented 16 times. It’s important to note, however, that while writing powerful dissents is demanding, crafting the law of the land can be more difficult and time-consuming, given the need to marshal the approval of a majority of judges).

Meehan called Justice Côté a “team player” and her voting record does show that she is not primarily a lone dissenter. Rather, The Lawyer’s Daily analysis indicates that she is a nucleus of dissent nearly two-thirds of the time she dissents. She is joined most often by Justices Brown and/or Malcolm Rowe, and sometimes also by Justices Michael Moldaver and Rosalie Abella (and retired chief justice Beverley McLachlin).

Of Justice Côté’s 58 dissents, only 22 are solitary. She was also joined by others (or joined them) in seven of 11 of her concurrences.

Administrative law experts say her role and influence as a dissenter has arguably been felt most strongly in that confused and evolving area of law.

“What I can say is she has most clearly articulated a competing vision of administrative law that has really brought into focus how unstable the existing framework is,” observed Robert Danay, a former senior counsel with the business and regulatory law section of the federal Department of Justice Canada.

Danay, who is now with Vancouver’s Shapray Cramer Fitterman Lamer LLP, has examined Justice Côté’s contribution as part of his fascinating predictive look at where administrative law is headed, based on the Supreme Court’s 2016 to 2018 voting patterns — a study soon to be published by the University of Toronto Law Journal: “A House Divided: The Supreme Court’s Recent Jurisprudence on Standard of Review.”

“She’s statistically on the margins, that’s for sure in terms of her voting pattern, and she has been on the extreme end of advocating against deference in administrative law,” Danay disclosed. Yet “my sense is that there are many pundits and lawyers who would applaud her approach because they find it perplexing that a judge would ever defer to an administrative law decision maker’s view as to what the law is. A lot of people think the natural role of the court is to articulate what the law is for everybody else, including administrative law decision makers. And Justice Côté best embodies that vision. So that’s not a marginal view. There are many who hold that view.”

Danay speculated that Côté’s vigorous and frequent dissents in administrative law cases (as well as her writing for the majority in that area) contributed to the top court deciding to revisit the leading case of Dunsmuir v. New Brunswick, 2008 SCC 9, and its standard of review framework, in the administrative “lawlapalooza” trilogy to be argued at the Supreme Court Dec. 4-6.

“I think it’s likely that she was [a contributing factor] because when you have a judge who is leading a wing of the court to frequently dissent from the status quo approach, this really could push the court to say ‘OK, we need to reassess the prevailing standard,’ ” he suggested.

Danay described Justice Côté as “the most vocal and creative in coming up with justifications for the courts to have the last word on administrative law matters, as opposed to administrative tribunals. … And so she’s really articulated a very robust conception of the rule of law as the animating principle that involves the court very aggressively policing the activities of the administrative state. And showing very little deference to their interpretation of the law as a general matter. … She has assisted in the revival of the old jurisdiction concept as being the basis upon which courts can show very little deference to administrative decision makers.”

Danay said when he examined the voting patterns of the nine judges in the 20 administrative law cases decided by the top court from Wilson v. Atomic Energy of Canada Ltd 2016 SCC 29 until the court’s companion decisions in TWU last June, Justice Côté’s voting pattern was “off the chart.”

“Both statistically, and substantively, Justice Côté really stood out in the jurisprudence,” he said.

Danay analyzed two main voting practices in administrative law cases: (1) the rate at which a judge selected the non-deferential correctness standard; and (2) the rate at which a judge voted to overturn the decision of the administrative decision maker below.

“She selected the correctness standard 60 per cent of the time and, on the other end of the spectrum, Madam Justice Abella picked the correctness standard zero per cent of the time,” Danay revealed.

Justice Côté was also, by far, the most prone to overturning administrative decision makers, Danay added. “She voted to overturn 80 per cent of the time, whereas the … Justices Rowe, Moldaver and Brown, [who] were the next most likely to vote to overturn, … were 33 per cent, 37 per cent and 44 per cent” respectively. 

Danay said he finds it ironic that the only member of the Supreme Court never to have been a judge before she joined that bench appears to be its most pro-court, pro-judge advocate, at least in administrative law matters.

For Cambridge University law professor Paul Daly “the themes that emerge from her always-fascinating, and often powerful, dissents and concurrences in administrative law are (1) courts should play a leading role in authoritatively resolving contested legal questions and (2) courts should make categorical distinctions — between jurisdiction and merits, legislative and administrative decision making and law and discretion/policy.”

In developing these themes, Daly noted, “she has had some support from other members of the court, especially Justices Brown and Rowe — though these two are also independent thinkers who are formulating their own views on public law issues.”

Daly said it remains to be seen whether the themes Justice Côté expounds will be widely adopted by the court and in the legal community. “She certainly has time on her side,” he remarked.

University of Calgary criminal law professor Lisa Silver said Justice Côté, who was formerly a commercial litigator, has so far written only a handful of criminal law opinions. She is, however, a frequent dissenter in criminal cases disposed of from the bench, Silver noted. “She is unafraid to be the sole voice of dissent on the bench.”

Silver said Justice Côté’s history as litigator heavily influences her perspective as a judge. “Clearly she is a judge who has strong opinions, arising from her practice experiences.”

Silver pointed, for example, to Justice Côté’s majority ruling in R. v. Jones 2017 SCC 60, which affirmed the validity of a production order used by police to request inculpatory stored text messages from an ISP.

“Justice Côté gave a very sharp decision on permitting counsel to argue in the alternative, as fulfilment of the presumption of innocence and the right to make full answer and defence,” Silver remarked. “The decision reflects her deep understanding of litigation strategy, and the need to build alternatives to a case in order to effectively represent a client.”

According to Silver, judicial deference to legislators, and the important role of judges, are two threads running through Justice Côté’s decisions. “Notably she rendered her own concurring reasons in Groia v. Law Society of Upper Canada 2018 SCC 27, [a landmark case on lawyer incivility], and came out strongly in favour of judicial independence and judges’ ability to maintain the courtroom process — a decision indicative of a strong litigation background and someone who appeared regularly in the courts,” she observed. “In R. v. Sciascia 2017 SCC 57, a case concerning provincial judges’ jurisdiction to jointly try Criminal Code and provincial offences, which involved statutory interpretation and legislative intent, Justice Côté [in lone dissent] was clearly concerned with deference to lawmakers and legislative ‘choice.’ In her view, the court had a duty to respect that choice.”

Some of Justice Côté’s dissents could be “the voice of the future” — as Justice L’Heureux-Dubé described dissenting opinions in a famous article she wrote 18 years ago.

“Justice Côté’s dissents will be treated well by history,” Meehan predicted. “Is she foreshadowing where the law will eventually go? Inevitably that’s impossible to say. But she will be giving lawyers and judges across Canada food for thought as they grapple with similar issues — something for them to chew over. If it gives juridical stomach aches to some, is that a bad thing?” he queried.

Photo of Justice Suzanne Côté by Philippe Landreville