In the following video, former Supreme Court of Canada Justice Claire Heureux-Dubé spoke at the 2013 Pro Bono Students Canada Volunteer Appreciation Event at the University of Toronto Law. The interview features Justice Heureux-Dubé’s, unfortunately cursory, reflections on some of the precedent and current case law at the Supreme Court. Madame Justice’s discussion however on the role of dissension in the legal tradition inherited in Canada and the issue of access to justice in Canada were particularly insightful.
The role and space for dissension in law, posits Justice Heureux-Dubé, relies not only on the personality of the judge — the person must have a personality of a dissenter — but also on the make-up of the court and the extent to which there is an attempt to accommodate positions. Justice Heureux-Dubé’ noted that Supreme Court Justices Laskin, Spence, and Dickson were inherently dissenters, comfortable to write dissents themselves and did so much of the time. It is also important to notice that unlike provincial superior courts, the higher courts will embody and represent a more diverse collectivity more prone to disagreement and diversity of perspectives — the latters being significantly more conducive to dissensions because of the diverse regions and fields from it is inherently composed.
It is also important to note that dissenting opinions are a “tradition” in the inherited legal system of Canada; while it is, for instance, prohibited in countries like France for the reason that it is argued (perhaps unfairly) to be contradictory to the stability of the law. It is fundamentally “wrong”, argues Justice Heureux-Dubé, to think that the law must be stabilized; rather the law should be amenable to the inherent transformative and moving nature of a dynamic and diverse society — in the sense of the metaphor of the living tree; the law should grow. Justices must write opinions that are “symbiotically” part of the affected community. Dissensions in this case can be “the voice of the future”. Courts may look like a “catalyst” for change and activism, contends Justice Heureux-Dubé, dissensions however can also be an area where justices can identify changes in society that are already beginning and undergoing as well as being lost. Because the Supreme Court of Canada has done much work to “measure” what the “Charter can do” and “has accomplished a lot”, the major question of dissensions depend perhaps much more on the personality and the type of court that is composed.
The issue of access to justice is also one of permitting the next generation of taking up issues in a way that is legitimate for them. While it may be an issue that is affected by the fees that the legal profession charges, Justice Heureux-Dubé argues that we cannot forget that the legal profession is not a business but a service; it is akin to healthcare — people need to have others look out for them. The issue of accessibility to justice is a form of injustice. Justice Heureux-Dubé articulated an impassionate perspective to consider access vital for mental and psychological needs of not only some of the disenfranchised in society but for the common good of that society itself. Madame Justice spoke convincingly on the need for more organizations to help in access — referring to the pro bono work as the “soul of justice” and the “nobility of the profession”.