Have you ever wondered about the significance of a dissenting opinion in the Supreme Court of Canada? To use one of their favoured terms, dissenting decisions may be signifiers of “incremental change.” Overtime, however, these dissenting opinions may become the majority decision. Certainly, some of Chief Justice McLachlin’s dissents are an example of this – most recently in the air of reality line of cases – see my previous blog on the issue here. Of course, sometimes a dissenting opinion does not signify change but simply signifies dissent – a vocalization of a differing viewpoint or to use probably a trite yet apt Robert Frost analogy “the road not taken.” The recent Supreme Court of Canada Babos case on prosecutorial misconduct is an example of when dissent for dissent's sake matters.
Justice Abella’s dissent on the issue makes for powerful reading, invoking the sanctity of the justice system and the high standard we expect from our quasi-judicial prosecutors, who stand on behalf of the state as upholders of society’s fundamental values. Even in the adversarial system, the duties of the Crown prosecutor transcend the arena of dispute, as they must defend the law in the pursuit of justice. Justice does not have a stake in the ultimate outcome of guilt or innocence but does impact how the ultimate outcome is achieved.
This role is, as suggested by Madame Justice Abella, timeless and does not crystallize at particular points of a prosecution but must permeate every action or inaction of the Crown. As she so eloquently said, “Time is not a legal remedy for a fundamental breach of the Crown’s role, and cannot retroactively cure intolerable state conduct.” Difficult balancing must be done to fulfill this duty but it is of utmost importance in the viability and credibility of the criminal justice system.
So I encourage you to read the dissent and envision an alternate view where “an exceptional assault on the public’s sense of justice” is deemed worthy of dissent.