Rarotonga, 2010

Simon's Megalomaniacal Legal Resources


ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

home / about / Democracy, Law and Duty / testimonials / Donate law books! / Conditions of Use
(*) = Guide

Charter - s.52(1) Declarations of Invalidity

. R. v. Ndhlovu

In R. v. Ndhlovu (SCC, 2022) the Supreme Court of Canada applied s.7 of the Charter to strike down some criminal sex offender provisions for being overbroad. The following quotes bear on the declaratory remedy applied:
V. Result and Remedy

[136] We would allow the appeal and declare ss. 490.012 and 490.013(2.1) of no force or effect under s. 52(1) of the Constitution Act, 1982. On mandatory registration, we find a one-year suspension of the declaration is appropriate given concerns about public safety and since there are many ways Parliament could address the legislative gap for individualized assessment (G, at para. 165). An immediate declaration, however, is appropriate for lifetime registration.

[137] The framework governing Charter remedies was recently revisited in G. Once the court has determined the extent of the law’s inconsistency with the Charter (para. 160), the next step is to determine whether a tailored remedy would be appropriate (such as reading down, reading in, or severance), rather than a declaration of invalidity applying to the whole of the challenged law (para. 163).

A. Section 490.012

[138] The Crown submits that “[a] tailored remedy is not appropriate in this case” (R.F., at para. 175). Since the issue is the mandatory registration of all sex offenders, its unconstitutionality does not lend itself to such a remedy. As the Crown notes, reading down s. 490.012 so that it would simply not apply to offenders who are not at an increased risk of reoffending or who suffer grossly disproportionate impacts would, in practice, reinstate judicial discretion and contradict Parliament’s clear intention to remove all judicial discretion to exempt offenders at the time of sentencing from the registry (R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, at para. 100; Schachter v. Canada, 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679, at p. 718). We agree with the Crown that the appropriate remedy is a declaration of invalidity.

[139] Declarations should be suspended when the government demonstrates that “an immediately effective declaration of invalidity would endanger an interest of such great importance that, on balance, the benefits of delaying the effect of that declaration outweigh the cost of preserving an unconstitutional law that violates Charter rights” (G, at para. 117; see also paras. 133, 139 and 156). Declaring s. 490.012 to be of no force or effect immediately would effectively preclude courts from imposing SOIRA orders on any offenders, including those at high risk of recidivism. Granting an immediate declaration could therefore endanger the public interest in preventing and investigating sexual offences committed by high-risk offenders, undermining public safety. Balanced against this consideration is the significance of the rights violation that the suspension would temporarily prolong. Granting a suspension also runs counter to the public’s interest in legislation that complies with the Constitution. On balance, however, the circumstances justify a suspension of the declaration of invalidity for 12 months.

[140] A declaration of invalidity is presumed to operate retroactively (R. v. Albashir, 2021 SCC 48, at paras. 34 and 38). However, in this case, a retroactive application of the declaration at the conclusion of the suspension could frustrate the compelling public interests that require a period of transition, creating uncertainty and removing the protection that justifies the suspension in the first place (paras. 46, 52 and 72). Specifically, a retroactive declaration would undermine the purpose of the suspension (i.e., ensuring high-risk offenders are registered on SOIRA for public safety). Moreover, a prospective declaration of invalidity would not unduly prejudice offenders who have been registered since 2011 but whose rights under s. 7 are still violated. Those offenders will be able to ask for a personal remedy pursuant to s. 24(1) of the Charter in order to be removed from the registry if they can demonstrate that SOIRA’s impacts on their liberty bears no relation or is grossly disproportionate to the objective of s. 490.012.

[141] Finally, we would grant Mr. Ndhlovu a remedy under s. 24(1) and exempt him from the suspension of the declaration. It is generally desirable that a claimant who brings a successful constitutional challenge benefit from their efforts in litigating the issue (G, at paras. 148 and 182). Further, the Crown only adduced expert evidence on recidivism risk at the s. 1 hearing, after the sentencing judge had made a determination that Mr. Ndhlovu was at little risk to reoffend. While the Crown’s expert, Dr. Hanson, opined someone with some of the same characteristics as Mr. Ndhlovu would have an enhanced risk of reoffending, one that was about average for sex offenders, he indicated risk assessment is an individualized exercise involving many variables. That is precisely what the sentencing judge did in this case in finding that Mr. Ndhlovu was unlikely to reoffend. Moen J. found that he “will be safe to release into the community. I have absolutely no concerns that [he] will re-offend. Nor does the Crown suggest that [he] will.” Nor does the Crown argue on appeal that the sentencing judge made a palpable and overriding error in making this finding of fact. Based on this finding, there is no connection between subjecting Mr. Ndhlovu to a SOIRA order and the objective of capturing information about offenders that may assist police prevent and investigate sex offences.

B. Section 490.013(2.1)

[142] With respect to lifetime registration, the Crown conceded a suspension would not be appropriate. We agree: an immediate declaration is appropriate given those offenders will remain registered and there is no “gap” for Parliament to fill. As a result, the existing provisions that dictate a length of registration will operate, pending any new constitutional provision that would target offenders who commit more than one offence. For instance, those convicted of offences with a maximum term of imprisonment of 2 to 5 years will receive a 10-year registration order, while those convicted of an offence with a maximum term of imprisonment of 10 to 14 years would receive a 20-year registration order (s. 490.013(2)). Here, there is no compelling reason to rebut the presumption of retroactive application of the declaration of invalidity. Section 490.013(2.1) is therefore declared invalid. Because the declaration affects all those impacted by the enactment of the provision since 2011, offenders who are subject to a lifetime order pursuant to this provision after having been convicted of more than one sexual offence without an intervening conviction can seek a s. 24(1) remedy to change the length of their registration.

VI. Conclusion

[143] We would allow the appeal. The judgment of the Court of Appeal of Alberta is set aside. Sections 490.012 and 490.013(2.1) of the Criminal Code infringe s. 7 of the Charter, and the Crown has not demonstrated the infringement is justified under s. 1. The provisions are therefore declared of no force or effect under s. 52(1) of the Constitution Act, 1982. The declaration in respect of s. 490.012 is suspended for one year and applies prospectively. Mr. Ndhlovu is exempted from the suspension of the declaration. An immediate declaration is granted for s. 490.013(2.1) and applies retroactively.
. R. v. Albashir

In R. v. Albashir (SCC, 2021) the Supreme Court of Canada considered the nature of a delayed constitutional declaration of invalidity, contrasting to the temporal interpretation of statutes in it's analysis:
A. Temporal Nature of Remedies

[26] When a court makes a declaration of invalidity under s. 52(1), the temporal effect of that constitutional remedy is rooted in the nature of the remedy itself. Constitutional remedies must be purposively interpreted in their “proper linguistic, philosophic and historical contexts”: R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at p. 344. They must also be interpreted in a “generous and expansive” manner that is sensitive to evolving circumstances: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 24; see also R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342, at para. 52.

[27] When legislation violates a Charter right, three foundational constitutional principles guide the interpretation of constitutional remedies: constitutionalism, the rule of law, and the separation of powers (Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3 (P.E.I. Judges Reference (1997)), at paras. 90-95; Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, at para. 54; G, at paras. 153-59).

[28] Constitutionalism requires that all laws comply with the Constitution as the supreme law of Canada. Section 52(1) of the Constitution Act, 1982, reads:
The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
[29] This supremacy clause has existed in other forms since Canada’s original constitution, the Constitution Act, 1867: Operation Dismantle Inc. v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441, at p. 482. The Canadian judiciary’s role in reviewing the constitutionality of legislation thus has a considerable history: P. W. Hogg and W. K. Wright, Constitutional Law of Canada (5th ed. Supp.), at § 5:20. In Manitoba Language Reference, the Court explained that “[s]ection 52 of the Constitution Act, 1982 does not alter the principles which have provided the foundation for judicial review over the years”: Reference re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721, at p. 746.

[30] When a court finds legislation to be inconsistent with the Constitution, it must consider not only the principle of constitutional supremacy in s. 52(1), but other — at times competing — constitutional imperatives to determine an appropriate remedy: K. Roach, “Principled Remedial Discretion Under the Charter” (2004), 25 S.C.L.R. (2d) 101, at pp. 105 and 111-13. In this way, courts are also guided in their remedial discretion by the principles of the rule of law and the separation of powers. They can take into account, for example, the entitlement of the public to the benefit of legislation, as well as the different institutional roles that courts and legislatures are called to play: G, at para 94. As LeBel and Rothstein JJ. stated for the majority in Hislop, “[t]he text of the Constitution establishes the broad confines of the supreme law, but it is up to the courts to interpret and apply the Constitution in any given context”: para. 114.

[31] Thus, despite the absolute language of s. 52(1), when a court exercises its remedial jurisdiction to grant a declaration of unconstitutionality, it has discretion to give the principle of constitutional supremacy immediate effect or to suspend the declaration for a given period of time: G, at paras. 120-21. In rare circumstances, a compelling public interest will warrant a suspension, although this suspension must not last longer than is necessary for the government to address the constitutional infirmity: G, at paras. 132 and 135.

[32] In the face of unconstitutional legislation, s. 52(1) is not the only remedial provision in the Constitution Act, 1982. Section 24(1) may also provide a remedy:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
[33] Unlike a formal declaration under s. 52(1) that renders the legislation invalid, s. 24(1) is an entirely personal remedy that can only be invoked by a claimant alleging a violation of their own constitutional rights: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 61.

[34] Thus, the principles of constitutionalism, the rule of law, and the separation of powers shape the remedial relief for legislation that is inconsistent with the Constitution. These foundational principles also establish strong — but rebuttable — presumptions that legislation is prospective and judicial declarations are retroactive.

[35] There is a strong presumption against retroactive application of legislation because the rule of law requires that people be able to order their affairs in light of an established legal order: R. Sullivan, Statutory Interpretation (3rd ed. 2016), at p. 354. As Professor Sullivan aptly puts it, when legislation is retroactive, “the content of the law becomes known only when it is too late to do anything about it”: p. 354. Even so, the rule of law does not prohibit retroactive legislation. When they can do so within the confines of the Charter (for example, when it does not offend the protections of s. 11(g) or (i)), legislatures can decide how and when their laws will apply. It may thus be open to them to correct a constitutional infirmity retroactively.

[36] Choudhry and Roach posit that legislatures have internalized the principles underlying the presumption against retroactivity and are reluctant to enact retroactive legislation as a result: S. Choudhry and K. Roach, “Putting the Past Behind Us? Prospective Judicial and Legislative Constitutional Remedies” (2003), 21 S.C.L.R. (2d) 205, at pp. 241-42. Especially when working with remedial legislation that is a direct response to a court’s declaration of constitutional invalidity, I agree with those authors that it would be helpful for the legislatures to turn their mind to the temporal application of their laws and explicitly explain what provision will govern during the transitional period in order to provide certainty and clarity.

[37] No one in this case has argued that the remedial legislation was intended to be retroactive. Thus, in the absence of retroactive legislative intent either explicitly or by necessary implication, the strong presumption that legislation is prospective is not challenged.

[38] Whereas the rule of law dictates a presumption that legislation is prospective, the inverse is true for judicial remedies. Generally, legal determinations of this Court are effective immediately, and all courts are bound to apply this Court’s decisions about the constitutional infirmities of legislation in outstanding matters before them. In this sense, this Court’s decisions are retroactive, applying even to cases arising before the decision. As one author notes, “it is the basic role of courts to decide disputes after they have arisen. That function requires that judicial decisions operate (at least ordinarily) with retroactive effect”: R. J. Traynor, “Quo Vadis, Prospective Overruling: A Question of Judicial Responsibility” (1977), 28 Hastings L.J. 533, at p. 536, quoting P. Mishkin, “The High Court, The Great Writ, and the Due Process of Time and Law” (1965), 79 Harv. L. Rev. 56, at p. 60.

[39] When a court makes a s. 52(1) declaration of invalidity, the same presumption of retroactivity arises. The appellants say that this arises from the Blackstonian theory that judges do not create but merely discover the law so that a constitutionally invalid law is “invalid from the moment it is enacted”: Hogg and Wright, at §58:1, quoting Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 28; see also W. Blackstone, Commentaries on the Laws of England (1765), Book 1, at pp. 69-70; Hislop, at para. 79.

[40] A strict Blackstonian theory, however, cannot easily be reconciled with modern constitutional law. Many fundamental principles that are essential to our constitutional system curtail the retroactive reach of judicial remedies. Res judicata, for example, prevents the reopening of settled matters due to later judicial pronouncements, even maintaining convictions for offences later declared unconstitutional if the accused has exhausted their appeals such that they are no longer “in the judicial system”: R. v. Wigman, 1985 CanLII 1 (SCC), [1987] 1 S.C.R. 246, at p. 257; see also R. v. Thomas, 1990 CanLII 141 (SCC), [1990] 1 S.C.R. 713. Similarly, the de facto and qualified immunity doctrines validate and preclude financial liability for government actions taken under laws that are later found to be unconstitutional: K. Roach, Constitutional Remedies in Canada (2nd ed. (loose-leaf)), at ¶ 14.1980; Hislop, at para. 102, citing Guimond v. Quebec (Attorney General), 1996 CanLII 175 (SCC), [1996] 3 S.C.R. 347, and Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405. These doctrines balance the generally retroactive nature of judicial remedies with the need for finality and stability. Finally, it is also difficult to square the Blackstonian view with the judicial discretion to suspend a declaration of invalidity: G, at paras. 87-89. Thus, the theory is subject to numerous exceptions and qualifications. It cannot preclude purely prospective constitutional remedies. Indeed, this has been recognized in many other jurisdictions that have grappled with the Blackstonian theory: In re Spectrum Plus Ltd, [2005] UKHL 41, [2005] 2 A.C. 680, at paras. 17, 35, 41-42, 74 and 161-62; Johnson v. New Jersey, 384 U.S. 719 (1966); Constitution of South Africa, s. 172(b); Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat, [2017] 3 M.L.J. 561 (Federal Court of Malaysia); India Cement Ltd. v. State of Tamil Nadu, A.I.R. 1990 S.C. 85.

[41] That said, the general presumption that declarations of constitutional invalidity have retroactive effect is firmly rooted in principles of constitutional interpretation and s. 52(1).

[42] Section 52(1), the cornerstone of constitutionalism, enshrining the supremacy of the Constitution, must be read in light of all constitutional principles. A s. 52(1) declaration will generally be both immediate and retroactive. Retroactive remedies that immediately apply to everybody who is still “in the system” maximize the protection and vindication of Charter rights, as a general system of delayed prospective remedies would risk leaving those harmed in the past by an unconstitutional law without a remedy: Choudhry and Roach, at pp. 247-48. Furthermore, legislatures would have lesser incentives to ensure that new legislation complies with the Charter if they could rely on the second chances provided by consequence-free prospective declarations: see R. Leckey, “The harms of remedial discretion” (2016), 14 Int’l J. Const. L. 584, at pp. 595-96.

[43] However, that judicial declarations are generally immediate and retroactive does not mean they are necessarily so: Hislop, at para. 86. As I will explain, the rare circumstances and constitutional considerations that warrant a suspended declaration can justify an exception to the retroactive application of declarations where necessary to give effect to the purpose of the suspension.

B. Temporal Nature of Suspended Declarations

[44] When compelling public interests outweigh the continued violation of Charter rights, courts may suspend a declaration of invalidity: G, at paras. 117 and 126. The tool of a suspended declaration allows courts to temper the retroactive effects of a declaration. However, a court’s decision to suspend a declaration does not alter the presumptively retroactive application of the declaration but merely changes when it comes into effect. The presumption of retroactivity persists, although it may be rebutted explicitly or by necessary implication. For example, this Court’s first experience issuing a suspended declaration of invalidity was in Manitoba Language Reference. Nearly all of Manitoba’s legislation was found to be unconstitutional because it was enacted in English only. Because an immediate retroactive remedy would have created a legal vacuum in Manitoba, with catastrophic consequences for the rule of law, the Court suspended its declaration of invalidity to give the legislature time to pass new, constitutionally sound laws: p. 758. Nonetheless, the declaration was retroactive.

[45] In Hislop, this Court explained some circumstances where “judges may rule prospectively”: para. 96. In these circumstances, the presumption of retroactivity is rebutted and a s. 52(1) declaration will operate prospectively. A prospective remedy could be appropriate if there is a “substantial change in the law”: para. 99. Hislop set out some further factors that courts should consider in determining whether to issue a prospective remedy, including good faith government reliance, fairness to the litigants, and whether a retroactive remedy would unduly interfere with the allocation of public resources: para. 100. Hislop was clear that this was not an exhaustive list: para. 100. The question then becomes what other “conditions will justify the crafting of judicial prospective remedies”: para. 86.

[46] In my view, a suspended declaration of invalidity may provide another exception to the presumption of retroactivity where the purpose of the suspension, by necessary implication, requires a purely prospective declaration. Suspended declarations will only issue where the government demonstrates that compelling public interests, grounded in the Constitution, outweigh the continued breach of constitutional rights and require that the legislature have an opportunity to remedy the constitutional infirmity: G, at paras. 133 and 139. Furthermore, declarations of invalidity will be issued only if more tailored remedies, such as reading in, reading down, or severance, are inappropriate: G, at paras. 112 and 114. When these rare and exceptional circumstances arise, a retroactive application of the declaration at the conclusion of the suspension could frustrate the purpose — the compelling public interests — that required a period of transition, creating uncertainty and removing the protection that justified the suspension in the first place. The necessary implication of the suspension may be that the declaration, when it comes into effect, must operate purely prospectively so that it does not defeat the very purpose of the suspension.
There's more in the balance of the case [paras 47-71].

. R. v. Sullivan

In R. v. Sullivan (SCC, 2022) the Supreme Court of Canada heard two criminal appeal cases together (Sullivan and Chan). It considered the geographical and jurisdictional effect of a Charter s.52(1) declaration of invalidity. The Chan case involved prior s.52(1) declarations in the same province, which the Supreme Court chose to analyze under the normal principles of stare decisis - particularly horizontal stare decisis (stare decisis emanating from legal findings of the same court level in the same province are binding). The principle of horizontal state decisis can be excepted if the test in the case of Re Hansard Spruce Mills (BCSC, 1954) were met, which it was in the Chan case.

The court took the oppourtunity to revisit horizontal state decisis as follows:
(4) Proper Approach to Horizontal Stare Decisis

[73] Horizontal stare decisis applies to decisions of the same level of court. The framework that guides the application of horizontal stare decisis for superior courts at first instance is found in Spruce Mills, described by Wilson J. as follows (at p. 592):
... I will only go against a judgment of another Judge of this Court if:
(a) Subsequent decisions have affected the validity of the impugned judgment;

(b) it is demonstrated that some binding authority in case law, or some relevant statute was not considered;

(c) the judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial Judges, where the exigencies of the trial require an immediate decision without opportunity to fully consult authority.
[74] The Spruce Mills criteria have been followed in numerous cases across Canada. However, the analytical framework has, at times, been blurred and the criteria have occasionally been of difficult application. Varying standards have been invoked to define when departure from prior precedent is appropriate. For example, some have held that a prior decision can be ignored if it is “plainly wrong” (R. v. Green, 2021 ONSC 2826, at paras. 9 and 24 (CanLII)), when there is “good reason” for doing so (R. v. Kehler, 2009 MBPC 29, 242 Man. R. (2d) 4, at para. 42), or in “extraordinary circumstances” (R. v. Wolverine and Bernard (1987), 1987 CanLII 4603 (SK QB), 59 Sask. R. 22 (Q.B.), at para. 6). The standards of “plainly wrong”, “good reason”, and “extraordinary circumstances” are qualitative tags susceptible of extending to almost any circumstance and do not provide the same precise guidance that Spruce Mills does (see S. Kerwin, “Stare Decisis in the B.C. Supreme Court: Revisiting Hansard Spruce Mills” (2004), 62 Advocate 541, at p. 543, fn. 33). These terms should no longer be used. In particular, the phrase “plainly wrong” is a subjective term and suggests that a judge may depart from binding precedent if they disagree with it — mere personal disagreement between two judges is not a sufficient basis to depart from binding precedent. The institutional consistency and predictability rationales of stare decisis are undermined by standards that enable difference in a single judge’s opinion to determine whether precedent should be followed. It is also not the case that a court can decide a question of law afresh where there are conflicting decisions.

[75] The principle of judicial comity — that judges treat fellow judges’ decisions with courtesy and consideration — as well as the rule of law principles supporting stare decisis mean that prior decisions should be followed unless the Spruce Mills criteria are met. Correctly stated and applied, the Spruce Mills criteria strike the appropriate balance between the competing demands of certainty, correctness and the even-handed development of the law. Trial courts should only depart from binding decisions issued by a court of coordinate jurisdiction in three narrow circumstances:
1. The rationale of an earlier decision has been undermined by subsequent appellate decisions;

2. The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or

3. The earlier decision was not fully considered, e.g. taken in exigent circumstances.
[76] First, a judge need not follow a prior decision where the authority of the prior decision has been undermined by subsequent decisions. This may arise in a situation where a decision has been overruled by, or is necessarily inconsistent with, a decision by a higher court (see Rowe and Katz, at p. 18, citing Kerwin, at p. 542).

[77] Second, a judge can depart from a decision where it was reached without considering a relevant statute or binding authority. In other words, the decision was made per incuriam, or by inadvertence, a circumstance generally understood to be “rare” (see, e.g., The Owners, Strata Plan BCS 4006 v. Jameson House Ventures Ltd., 2017 BCSC 1988, 4 B.C.L.R. (6th) 370, at para. 132). The standard to find a decision per incuriam is well-known: the court failed to consider some authority such that, had it done so, it would have come to a different decision because the inadvertence is shown to have struck at the essence of the decision. It cannot merely be an instance in which an authority was not mentioned in the reasons; it must be shown that the missing authority affected the judgment (Rowe and Katz, at p. 19).

[78] Third and finally, a judge may depart where the exigencies of the trial required an immediate decision without the opportunity to consult authority fully and thus the decision was not fully considered. An unconsidered judgment is not binding on other judges (Rowe and Katz, at p. 18, citing Spruce Mills, at p. 592).

[79] These criteria define when a superior court at first instance may depart from binding judgment issued by a court of coordinate jurisdiction and apply equally to a prior ruling on the constitutionality of legislation. Where, as here, a judge is faced with conflicting authority on the constitutionality of legislation, the judge must follow the most recent authority unless the criteria above are met. In such a situation, the judge must, in determining whether the prior decision was taken per incuriam, consider whether the analysis failed to consider a binding authority or statute relevant to the legal question.

[80] To be plain: these criteria do not detract from the narrow circumstances outlined in Bedford, at paras. 42‑45, describing when a lower court may depart from binding vertical precedent.

[81] I will now turn to whether it was appropriate for the trial judge in Mr. Chan’s case to depart from Dunn and decide the constitutionality of s. 33.1 afresh.

[82] Application of the doctrine of horizontal stare decisis in Mr. Chan’s case illustrates how the Spruce Mills criteria should work in practice. At the time of Boswell J.’s constitutional ruling, there were four known decisions from the Ontario Superior Court, three of which held that s. 33.1 was unconstitutional. The most recent of these was Fleming. Fleming relied wholly on Dunn and, as a result, it is most appropriate to apply the Spruce Mills criteria to Dunn.

[83] Boswell J. cited the correct principles from Spruce Mills but, respectfully, erred in applying them. First, he concluded that he “[did] not feel constrained to follow one school of thought more than the other” because trial courts across the country had expressed different views on the constitutionality of s. 33.1 (para. 58). The conventions of horizontal stare decisis apply within the province and so the trial judge was required to consider the Spruce Mills criteria with specific reference to previous rulings within Ontario. The presence of conflicting decisions is not a reason to sidestep the Spruce Mills analysis. Second, in the Application to Re-open the Constitutional Challenge, he concluded that McCaw — which held that it was bound by Dunn — was “plainly wrong” (paras. 14 and 34). The “plainly wrong” standard no longer adequately summarizes the whole of the applicable Spruce Mills criteria.

[84] Instead, Boswell J. should have looked to the substance of Dunn to determine whether it had been overruled by a higher court, had been decided per incuriam, or had been taken in exigent circumstances. That would have revealed that Dunn did not engage whatsoever with the earlier Ontario decision in R. v. Decaire, [1998] O.J. No. 6339 (QL) (C.J. (Gen. Div.)), that upheld the constitutionality of s. 33.1. Since Dunn did not apply the Spruce Mills criteria to determine whether it was permissible to depart from Decaire, Dunn was a decision per incuriam and did not need to be followed. The trial judge should have then reviewed the substance of Decaire to determine whether that decision should be followed based on the Spruce Mills criteria. That would have revealed that Decaire considered the appropriate statutes and authorities in reaching the conclusion that s. 33.1 infringed ss. 7 and 11(d) of the Charter but was upheld under s. 1. There is also no indication that Decaire was rendered in exigent circumstances. The trial judge therefore should have followed Decaire in the constitutional ruling. Of course, on appeal, the Court of Appeal was not bound to follow Decaire or any other first instance superior court decision.

[85] Finally, it bears recalling that McCaw was decided shortly after the constitutional ruling in Mr. Chan’s case. The court in McCaw did not have the benefit of Boswell J.’s reasons in Mr. Chan’s case for upholding s. 33.1, as the pre-trial constitutional decision had not yet been published while awaiting possible jury deliberations (Application to Re‑Open Constitutional Challenge, at para. 9). In circumstances such as this, where a court had no practical way of knowing that the earlier decision existed, the judgment will not bind a subsequent court, unless it has been brought to the court’s attention or the court is otherwise aware of it (see Kerwin, at p. 551).

[86] To summarize, a court is required by the principles of judicial comity and horizontal stare decisis to follow a binding prior decision of the same court in the province. A decision may not be binding if it is distinguishable on its facts or the court has no practical way of knowing it existed. If it is binding, a trial court may only depart if one or more of the Spruce Mills exceptions apply.
Paras 35-72 set out the court's Charter/constitutional analysis.


The author has waived all copyright and related or neighboring rights to this Isthatlegal.ca webpage.