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Stare Decisis - Charter

. R. v. Hafizi

In R. v. Hafizi (Ont CA, 2023) the Court of Appeal restates key SCC charter stare decisis doctrine:
(i) Stare decisis

[105] As has been shown, Mahal said nothing new. It is entirely consistent with prior authority, including prior Supreme Court authority. Thus, effectively, we are not only being asked to overturn multiple decisions of this court, including Mahal, but we are also being asked to depart from Supreme Court authority. In these circumstances, I need only address vertical stare decisis.

[106] It is not open to this court to depart from Supreme Court authority except in exceptional circumstances. The Supreme Court explained those exceptions in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 42:
In my view, a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue. Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.
[107] Those exceptions do not apply in this case. No new Charter provisions are raised in this case. There have not been significant changes in the law: Hunter is still good law and Finlay, which applies Hunter, has stood the test of time, having been given the stamp of approval by the Supreme Court of Canada. While the appellants, CLA and CCLA argue that this court should respond to an increase in the use of electronic communications and the new technologies available to intercept such communications, I do not see those changes as supporting the change in the law that they seek.


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Last modified: 04-10-23
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