Triage and Dissensus at the Supreme Court of Canada: A Review of the Court’s 2020 Constitutional Decisions

The onset of the COVID-19 pandemic forced the Supreme Court of Canada to make significant adaptations in 2020. The Court heard fewer appeals, decided fewer cases and adjusted to the necessity of online hearings. Despite the challenges posed by the pandemic, the Court issued a handful of landmark rulings in 2020. These rulings engaged critically with the Court’s past jurisprudence, considered a wide range of scholarship, and broke new ground by boldly clarifying and developing the law. The Court’s 2020 constitutional decisions were also characterized by a dramatic approach to triage and a remarkable degree of dissensus. The Court prioritized its limited jurisprudential resources by deciding a third of the appeals it heard in 2020 in summary oral reasons delivered from the bench. Another troubling feature of the Court’s 2020 opinions is the high level of dissensus they exhibit: the justices were deeply divided on almost all of the major constitutional cases they decided. Dissents are productive and enriching in important ways. But some of the justices’ dissenting energy in 2020 might have been better directed to the writing of reasons – any reasons - in some of the cases that the Court summarily dismissed from the bench.