I’ve been sitting on this one to see what Santa might have in store for M.M (M.M. v. United States of America, 2015 SCC 62.) As I expected, and I assume others did, too, the Liberal gov’t has decided to review the prior Conservative regime’s decision to surrender M.M. for extradition to the United States: see here. You’d think that somebody in the editorial department of the newspaper involved would know the difference between statements in dissenting reasons and the majority reasons but, in the spirit of the season, I’ll let that pass.
Can I get a mental show of hands from those who think the majority in M.M. are relieved (for now) that the decision is back in the hands of the politicians?
With politics out of the way, let’s get to my point.
A disagreement over the correct understanding of United States of America v. Ferras; United States of America v. Latty,  2 SCR 77, 2006 SCC 33 explains one part of the disagreement between the majority judges and the dissenting judges in M.M. v. United States of America, 2015 SCC 62.
An unusual aspect of the disagreement between the majority and dissenting judges is the lineup of the majority and dissenting judges in M.M. The majority lineup: McLachlin CJ, Cromwell, Moldaver and Wagner JJ: reasons by Cromwell J. The dissent: Abella J, with Karakstanis and Côté JJ concurred, wrote the dissent.
Ferras is a unanimous, 8 judge, decision of Court. (Major J was on the panel that heard the appeal but, because of his retirment, took no part in the judgment.) The only judges remaining on the SCC from the Ferras panel are McLachlin CJ and Abella J. The Ferras reasons are attributed to McLachlin CJ.
One part of the the explanation, then, for the result in M.M. may be seen as a disagreement between McLachlin CJ and Abella J as to what the SCC meant – and by extension what the two of them meant – in Ferras. I don’t intend to get into that issue beyond this limited comment. It seems to me that the dissent is more consistent with the apparent meaning of Ferras and there’s a good argument that the majority reasons do not respond, adequately, to the key portions of Ferras that the dissenting reasons rely on. You won’t find those paragraphs mentioned in the majority reasons. If the dissenting position is correct about what Ferras was intended to mean and how it should still be understood, M.M. either overrules or limits (take your choice) Ferras. I’ll leave it at that.
My purpose, here, is a look at the futures of what I’ll call the “McLachlin” and “Abella” views of Ferras.
I suspect that the current lineup on the “McLachlin” team formally has 5 members: the M.M. majority plus Gascon J, too, given that he was on the 2012 Que CA panel which rendered the decision in favour of committal. On the other hand, perhaps he has reconsidered in light of what he read in M.M.
So, including Gascon J, the notional lineups are: 5-3 or 4-4.
We don’t yet know Brown J’s views.
Let’s assume that there’s no fact pattern compelling enough for the SCC to grant leave in a case which will require it to revisit the disagreeement about the meaning of Ferras before the Chief Justice retires in 2018, and assume that all of the other current SCC judges will still be on the bench.
At that point, the lineup count will be back to, formally, 3-3 with 3 unknowns: Gascon and Brown JJ and the new SCC judge, whoever she is. Even if Gascon J is on the “McLachlin” team, the swing votes will still be those of Brown J and the new SCC judge.
As Lawrence Peter “Yogi” Berra likely did say, even if he didn’t actually say all the things he’s supposed to have said, “It ain’t over ’til it’s over.”