Standing apart: separate concurrence and the modern Supreme Court of Canada, 1984-2006.

• Author: McCormick, Peter

Separate concurrences, like dissents, are a common feature of many common law court decisions. At first glance though, it is difficult to understand their purpose, as they have no effect on the outcome of a case and leave in doubt legal questions that would otherwise be perceived as- resolved. In addition, valuable amounts of time and effort are in some instances invested in their preparation.

Seeking rationales for separate concurrences, the author provides an empirical analysis of their use by the Supreme Court of Canada under Chief Justices Dickson, Lamer, and McLachlin. From the resulting data, the author generates a typology of separate concurrences and contends that most express significant doctrinal disagreements with the reasoning of the majority rather than minor quibbles. Despite those that are merely intended to "bridge" reasons found in other opinions or confirm a judge's break from a previous dissent, many concurrences argue in favour of more sweeping statements of law while others advocate for narrower legal grounds. A significant proportion of concurrences are even more disapproving of the majority opinion, either asserting the incorrectness of the majority's reasons or disagreeing with the majority's very approach. Most striking are separate concurrences written in the form of complete decisions, which the author suggests are intended to sway other judges of the Court who have initially committed to signing other opinions.

This typology indicates that writing separate concurrences is a common and often rational strategy. The author also suggests that their use frequently reflects broader understandings of the judicial function in evolving contexts. This is exemplified by the declining use of separate concurrences at the Supreme Court of Canada as Charter matters have become more settled.

Les decisions conjointes, tout comme les decisions dissidentes, sont frequentes dans le systeme de common law. A premiere vue, il est difficile de comprendre leur raison d'etre, n'ayant aucun effet sur le resultat d'une affaire et semant le doute sur des questions de droit considerees comme resolues. De plus, leur preparation requiert souvent un investissement de temps considerable.

Cherchant a comprendre leur fonction, l'auteur analyse de facon empirique l'utilisation de decisions conjointes au sein de la Cour supreme du Canada durant les annees de service des Juges en chef Dickson, Lamer et McLachlin. Utilisant les resultats obtenus, l'auteur develope une typologie et suggere que la plupart des decisions conjointes refletent d'importants differends doctrinaux entre les juges et non pas des desaccords mineurs. Un grand nombre de decisions conjointes proposent des declarations plus generales sur le droit alors que d'autres promeuvent des motifs plus restreints. Une grande proportion de ces decisions exprime des desaccords encore plus grands, rejetant les motifs de la majorite ou allant meme jusqu'a questionner l'approche de la majorite. Les plus surprenantes de ces decisions conjointes sont celles ecrites comme des decisions completes; selon l'auteur, celles-ci ont ete redige dans cette forme pour tenter de persuader les juges qui ont initiallement decide de se rallier a une opinion differente.

La typologie indique que la redaction de ces decisions conjointes est une strategie commune et souvent rationelle de la part des juges. L'auteur argumente aussi que leur utilisation reflete des perspectives genemles sur la fonction des tribunaux judiciaires dans des contextes juridiques qui evoluent. Par exemple, le declin du nombre de decisions conjointes ces dernieres annees est possiblement le resultat de l'existence d'une jurisprudence plus etablie ayant trait a la Charte canadienne des droits et libertes.

Introduction I. The Frequency of Separate Concurrence II. Special Concurrences: What Kind of Law? III. The Length of Separate Concurrences IV. Toward a Typology of Separate Concurrences A. Bridging B. "Let me add ..." C. Narrower Grounds D. "Except for ..." E. Different Route F. Ditto G Seriatim Style H. Other Conclusion Introduction

At first glance, writing a separate concurrence is the most curious of available choices for a judge of a panel appellate court. To be part of the majority (even more so, the lead writer for the majority) is clearly to be preferred, as it carries with it the capacity both to declare the winner in the immediate case and to declare the law in a way that will direct decisions in future cases. Since it is widely understood that the named judge (1) is the lead rather than the sole author, to be part of this winning coalition also implies an opportunity to persuade or bargain with other judges about the details of reasons, which by all accounts usually involves a considerable degree of give and take. (2)

To write (or sign) a dissent is clearly less preferable, but on its face still makes perfectly good sense. If one thinks that the majority has got the outcome wrong--has allowed an appeal that it should have dismissed or vice versa--then it is a widely accepted part of the judicial role in common law countries (3) to speak up, to say that the majority is wrong and to explain where and how they went wrong. (4) To dissent all the time would raise questions, but never to dissent at all over an extended period of time would be equally remarkable. (5)

To write a separate concurrence--to agree with the outcome but disagree (or at least not agree completely) with the majority reasons for that outcome--seems the much less obvious choice. It does not change the outcome; indeed, it does not even suggest that the outcome should be changed. A judge who writes a concurring opinion gives up on (and thereby admits the failure of) the attempt to persuade or negotiate with the majority to accept at least part of his diverging ideas. It undermines the impact of the decision itself and the lessons it provides for other courts in the future by reducing the size of the majority and concomitantly leaving in doubt questions that would otherwise be understood to have been resolved. And in the process it absorbs the time and energy--sometimes to quite a considerable extent--of the separately concurring judge or judges.

Nonetheless, judges of the Supreme Court of Canada continue to write separate concurrences. By 25 October 2007, the McLachlin Court, which began in January 2000, had already written eighty-seven separate concurrences--about eleven every year--and these have totalled just over 300,000 words. To be sure, this is only about half as often as the judges wrote dissents (175 over the same time period), and dissents tended to be twice as long as concurrences. But this practice still represents a considerable investment of time and energy, limited resources on any national high court. And since every member of the Court has taken part in one or more concurrences, (6) we must be observing something that is rooted in the practices of the Court and not simply an attribute of a subset of judges--explanations based on personality cannot carry all the weight in accounting for such a pervasive phenomenon.

This paper will examine the practice of separate concurrence in the modern Supreme Court of Canada, which I will take as including the Chief Justiceships of Dickson, Lamer, and McLachlin. (7) My intention is to develop a typology of separate concurrences, in the hope that such a classification and frequency count will suggest something about the purpose and function of separate concurrence in common law appellate courts. An earlier product of this project, looking only at the concurrence behaviour of the McLachlin Court, has already been published. (8) The present endeavour is a refined study that takes the analysis further and applies it to a more extended time period.

It might be thought that concurrences do not need to be investigated very closely because they ultimately do not matter. I admit that I once belonged to this school of thought myself, blithely assuming that dissents were "big disagreements" deserving further exploration, while separate concurrences were "little disagreements" that could be treated more casually. Curiously, the Supreme Court of Canada itself seems to have adopted this same evaluation. The statistics that the Court collects on its own performance keep track of "unanimous/split" decisions, where "unanimous" refers only to unanimity of outcome, (9) suggesting that only dissents are indications of disagreements worth noting.

However, with respect, this practice is simply wrong, as illustrated by the trilogy of cases led by R. v. Van der Peet. (10) In these cases, Chief Justice Lamer for the majority set out a new test for establishing a claim to an aboriginal right, using this test twice to dismiss the claim (11) and once to allow it. (12) Justices L'Heureux-Dube and McLachlin vigorously disagreed with the new test, each writing a lengthy dissent in the first two cases (13) and a comparably lengthy concurrence in the third. (14) Despite the different designations used to describe their separate opinions, the depth of the disagreement expressed, and its future doctrinal implications, are identical in all three of these cases. (15)

At least some of the time--indeed, as I will suggest, most of the time--separate concurrences express differences of opinion that are just as significant (and sometimes more so) as those expressed in dissents. If we wish to study what judges do, we cannot overlook the fact that one of the things they do reasonably often is write separate concurrences. My purpose in generating a typology of this type of disagreement is to support the argument that a concurrence is worthy of examination, as it is more often used to indicate significant doctrinal disagreement with, rather than preference for minor adjustments to, the majority opinion.

The database I have used to obtain the numbers presented in this paper was initially created in the mid-1990s to...