Agreeing to Disagree: The Place of Dissent in a Free Society
As authoritarianism rises globally, mechanisms that promote dissent are essential
I grew up in a home that, with all love and respect to my very-much alive and alert parents, was not a safe space for self-expression. Expressing an opinion that contradicted the treasured views, values, and beliefs of a parental unit was not tolerated. Exposing rebellious thoughts led to eye-watering lectures on the danger of independent thinking. Errant ideas needed to be expunged, not encouraged—perhaps because they showed an increasing tendency (in me) to regrow in ever more alarming forms and at equally disturbing speeds.
But then, I had a talent for talking faster than I could predict the outcomes of my speech. This experience is valuable, to me, because in retrospect, it throws the value of dissent into high relief. And that dissent is what I firmly believe is one of the most (if not the most) important components of a healthy democracy.
Dissent is the informed and reasoned clash of ideas, not ideologies, although it is a clash that often refines, transforms, or even reduces ideology to rubble. It is not just a chaotic din of outrage or defiance. While outrage and defiance can fuel the pursuit of challenging the status quo, without more, it is just noise.
That is why recent events are cause for concern. There is a growing and global trend towards authoritarianism and autocracy. Populist demagogues with booming platforms rely upon their star power and attention-getting rhetoric (if it can be properly called rhetoric) to promulgate their doctrines. In so doing, they resort to deeply-held biases and heuristics to manipulate a disaffected (and therefore willing) voting public.
Then, once autocratic power is acquired, it must be preserved, and the efforts made to preserve that power show where democracy is most vulnerable. Inevitably, there is an attack on the foundational pillars that sustain a civilized and democratic society, one of which is the freedom to dissent.
In order to maintain and pursue our freedom to dissent, there must be sanctuaries where individuals and collectives exercise that freedom—two of which are the judicial system and the press—without fear of reprisals. While both are under obvious and dire threat south of Canada, we in British Columbia also face a worrying change in the status quo that nibbles at the sanctuaries of dissent.
But first, a consideration of how a successful dissent can change the status quo: K.M.N. v. S.Z.M., 2024 BCCA 70.
K.M.N. was a high-conflict family dispute in which the mother—having initially relocated from the Lower Mainland to Vancouver Island—was effectively ordered to return the child to the Lower Mainland and, after a number of parenting orders were made, ordered to share parenting responsibilities and parenting time with the father. The mother made numerous allegations of family violence, resulting in a variety of criminal charges that were part of an ongoing proceeding, and argued those should have an impact on a determination of the best interests of the child.
The judge at trial minimized the family violence concerns, and that became the focus of the Court of Appeal. It found that the trial judge failed to conduct a meaningful analysis of the allegations of family violence before assessing the best interests of the child and therefore fell victim to a number of myths and stereotypes about intimate partner violence. That irreparably tainted his assessment, and there was a need for a new trial absent the faulty reasoning.
Starting at paragraph 109, the Court of Appeal addressed those myths and stereotypes and, for even those of our profession who are newer to the bar, it articulated a refreshing and long-overdue change in how we view family violence. Now, the belief that women use allegations of intimate family violence to weaponize the justice system against the accused is relegated to a corner and the subject of intense scrutiny.
It should be noted that this does not mean that the motivation to weaponize the litigation process has been discredited outright. Rather, it is now regarded as a stereotype or myth that will need more than just an accusation to justify.
This transformation in how the courts view intimate partner violence is the product of years of challenging deeply-ingrained but fallacious thinking—years of dissent. Dissent is essential, in law, to prevent calcifying legal regimes from perpetuating injustice on the vulnerable and disenfranchised.
As it is with the rule of law and justice, so it is with democracy in general. Mechanisms that promote dissent—courts, tribunals, inquiries, inquests, and the like—should be funded, given their mandates, and left to do their work without interference or fear of reprisal. Centres of power—corporations, the monied elites, and governments, among others—should not be empowered to put their thumbs on the scales of justice by unjustly constraining access to or participation in the pillars of democracy, especially the ability to dissent. Fully staffed courtrooms, independent judges, and advocates who are free of manipulation from government meddling are but a by-product of the freedom to do one thing…
