Fraser v Canada, Feminism and the Limits of Judicial Dissent

Recent scholarship emphasizes the value of dissenting opinions in Charter of Rights and Freedoms decisions by the Canadian Supreme Court. There is no scholarly identified downside to dissenting options. However, former Justice Claire L’Heureux-Dubé adverted to dissenting opinions having “the potential to destabilize judicial institutions”. Current Justice Rosalie Abella articulated the assumption that Justices should respect Court decisions in Fraser v Canada 2020 SCC 28, a Charter sex equality case wherein two dissenting opinions issued. I examine one of these dissents to identify features that might breach the limits of judicial dissent. I argue a breach would take more than simply destabilizing judicial institutions or disrespecting Court decisions. It would require, in short, swapping out judicial review of Charter rights. If Justices were to swap out judicial review, would it be of all Charter rights, equality rights, sex equality rights, or only women’s sex equality rights?