Explaining Dissent on the Supreme Court of Canada

摘要

From an international perspective, even within the common law world,nthere is no generally established norm regarding the propriety of dissentnon national high courts. On some courts ~such as the Privy Council innthe United Kingdom!, there is a well established practice that all deci-nsions are presented publicly as unanimous decisions of the whole court.nOn other courts ~such as the High Court of Australia!, the practice hasnbeen for each justice to write individually in all cases, making it difficultnto determine if there is a single common rule of law emerging from thencase; in such a situation, the concept of dissent becomes murky at best.nThe Supreme Court of Canada is situated somewhere between thesenextremes. “It generally follows what one might call the ‘American model,’nwhere unanimity is desirable but not required and where judges can, atntheir discretion, either sign on to the reasons of a colleague or write theirnown” ~McCormick, 2003: 90!. But while the practice on the Canadianncourt might be said to be more like the American than the Australian ornPrivy Council model, the proportion of publicly divided cases on thenSupreme Court of Canada has long hovered around 25 per cent, less thannhalf the rate of dissent observed on the Supreme Court of the UnitednStates during the past sixty years ~Songer, 2008!.