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Stare Decisis - General (2). R. v. McGregor
In R. v. McGregor (SCC, 2023) the Supreme Court of Canada considered, but declined to revisit the doctrine of the extraterritorial application of the Charter [s.32, Hape] on the basis of scholarly writings:[22] To be sure, this Court has taken notice of scholarly writings in reconsidering the soundness of its own precedents (see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 39 and 209; Nishi v. Rascal Trucking Ltd., 2013 SCC 33, [2013] 2 S.C.R. 438, at para. 28; Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489, at para. 29; Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, at paras. 86‑88, 146‑48 and 235‑46; R. v. Robinson, 1996 CanLII 233 (SCC), [1996] 1 S.C.R. 683, at para. 39; Tolofson v. Jensen, 1994 CanLII 44 (SCC), [1994] 3 S.C.R. 1022, at p. 1042; R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740, at pp. 765‑71; London Drugs Ltd. v. Kuehne & Nagel International Ltd., 1992 CanLII 41 (SCC), [1992] 3 S.C.R. 299, at pp. 421‑23; R. v. Bernard, 1988 CanLII 22 (SCC), [1988] 2 S.C.R. 833, at pp. 865‑68). This is not to say, of course, that the judiciary is bound to adopt the prevailing approach proffered in the scholarship or that academic criticism is a sufficient reason not to apply the principles of stare decisis (see Fraser, at para. 86; R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at paras. 28‑29; Friesen v. Canada, 1995 CanLII 62 (SCC), [1995] 3 S.C.R. 103, at paras. 56 and 58; B. (K.G.), at pp. 774‑77). It is helpful to recall what I wrote with my colleagues Brown and Rowe JJ. in R. v. Kirkpatrick, 2022 SCC 33, at para. 248: criticism per se is not a reason to overrule one of our own judgments, but it may help a party make the case for overruling it on appropriate grounds.[3]
[23] I do not believe that this is an appropriate case in which to reconsider the extraterritorial application of the Charter. The parties do not contend that the Hape framework should be revisited; they simply debate its application to the facts at hand. As a rule, which the Court should depart from only in rare and exceptional circumstances, we should not overrule a precedent without having been asked to do so by a party. In this instance, only some interveners ask us to overturn Hape; in doing so, they go beyond their proper role. Doing what they are asking would mean deciding an issue that is not properly before us. Furthermore, as mentioned above, the extraterritorial application of the Charter has no bearing on the disposition of the present appeal. Indeed, the actions of the CFNIS conformed to the Charter, as the s. 8 analysis below makes clear. Simply put, I would dismiss the appeal even if I were to accept Cpl. McGregor’s argument that the Charter applies extraterritorially in the present context.
[24] It is thus preferable to leave for another day any reconsideration of the Hape framework. A restrained approach is amply supported by our jurisprudence. As Sopinka J. emphasized in Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), 1995 CanLII 86 (SCC), [1995] 2 S.C.R. 97, “This Court has said on numerous occasions that it should not decide issues of law that are not necessary to a resolution of an appeal. This is particularly true with respect to constitutional issues” (para. 6; see also R. v. Yusuf, 2021 SCC 2, at paras. 3‑5; Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401, at para. 86; Law Society of Upper Canada v. Skapinker, 1984 CanLII 3 (SCC), [1984] 1 S.C.R. 357, at pp. 381‑82; The Queen in Right of Manitoba v. Air Canada, 1980 CanLII 16 (SCC), [1980] 2 S.C.R. 303, at p. 320; Attorney General (Que.) v. Cumming, 1978 CanLII 192 (SCC), [1978] 2 S.C.R. 605, at pp. 610‑11; Winner v. S.M.T. (Eastern) Ltd., 1951 CanLII 2 (SCC), [1951] S.C.R. 887, at p. 901, per Rinfret C.J., rev’d in part 1954 CanLII 289 (UK JCPC), [1954] A.C. 541 (P.C.); John Deere Plow Co. v. Wharton, 1914 CanLII 603 (UK JCPC), [1915] A.C. 330 (P.C.), at p. 339; Citizens Insurance Co. of Canada v. Parsons (1881), 1880 CanLII 6 (SCC), 7 App. Cas. 96 (P.C.), at p. 109; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3, at paras. 301‑2, per La Forest J., dissenting). There are no “exceptional circumstances” (Cumming, at p. 611) that warrant departing from this general rule in the present appeal. Therefore, I decline the interveners’ invitation to reconsider the proper approach to the extraterritorial application of the Charter. I would add that, as my colleagues Brown and Rowe JJ. noted in R. v. Sharma, 2022 SCC 39, at para. 75, it is inappropriate for interveners to supplement the evidentiary record at the appellate level. In the s. 8 analysis which follows, I show that even if the Charter were to apply to the actions of the CFNIS, the appeal should still be dismissed. . Feeney v. Canada
In Feeney v. Canada (Fed CA, 2022) the Federal Court of Appeal, in the course upholding a dismissal of an action against the federal Crown for lack of jurisdiction, sets out the nature of the Federal Court system and it's judges. In these quotes it addresses the basis of stare decisis:[16] The appellant urges the Court to consider this question anew. However, in the interests of the certainty, consistency and predictability of the law, the Court normally follows its prior decisions (Miller v. Canada (Attorney General), 2002 FCA 370 at para. 9 (Miller)). It is only in "“exceptional circumstances”" that it will overrule the decision of another panel. This will generally occur when "“the previous decision is manifestly wrong, in the sense that the Court overlooked a relevant statutory provision, or a case that ought to have been followed…”" (Miller at para. 10). . 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.
. R. v. Charity
In R. v. Charity (Ont CA, 2022) the Court of Appeal considered an issue of stare decisis:[37] In Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 42, 44, the court explained that the threshold for revisiting a matter decided by a binding authority is not a low one:[42] 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.
…
[44] [A] lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach. In my view, as discussed above, this threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence. This balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role. [Emphasis added.] [38] The Supreme Court reaffirmed this two years later in Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 44:The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system. It provides certainty while permitting the orderly development of the law in incremental steps. However, stare decisis is not a straitjacket that condemns the law to stasis. Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate”. [Citations omitted.]
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