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Stare Decisis - Horizontal (2). R. v. Khodayar
In R. v. Khodayar (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal brought against a conviction for "attempting to obstruct justice", here where the appellant was a subpoened witness and "refused to answer any substantive questions relating to the offence".
Here the court considered issues of vertical and horizontal stare decisis:Issue 1 - No error in following Schertzer, rather than Seecharran
[23] The appellant makes two submissions on this ground of appeal.
[24] First, he submits that the principle of horizontal stare decisis required the application judge to follow the decision in Seecharan. Accordingly, he contends, the application judge was bound to find that the Transcripts of the appellant’s refusals to answer questions at the preliminary inquiry were “incriminating evidence” for the purposes of s. 13 of the Charter and, because it did not constitute false testimony, it was protected by s. 13 and inadmissible at his trial for obstruct justice.
[25] Second, he submits the application judge erred because she declined to follow Seecharran only because she did not agree with its legal conclusion regarding the protections afforded by s. 13. Relying on R. v. Sullivan, 2022 SCC 19, [2022] 1 S.C.R. 460, the appellant says that is impermissible. He points to paras. 73-79 of Sullivan, in which the Supreme Court states that the principle of horizontal stare decisis prevents trial courts from departing from binding decisions of a court of coordinate jurisdiction unless: (1) the rationale of an earlier decision has been undermined by subsequent appellate decisions; (2) the earlier decision was rendered through carelessness or inadvertence; or (3) the earlier decision was not fully considered.
Analysis
[26] I reject the appellant’s first submission for this simple reason: the doctrine of vertical stare decisis governed the application judge, not the doctrine of horizontal stare decisis. Consequently, the application judge was correct to follow Schertzer, rather than Seecharran.
[27] The doctrine of stare decisis provides certainty, stability, and predictability to the functioning of the legal system and ensures those who come before the courts are subject to similar rules: Sullivan, at para. 66; Stamford Kiwanis Non-Profit Homes Inc. v. Municipal Property Assessment Corporation, 2025 ONCA 450, at para. 35; David Polowin Real Estate Ltd. v. The Dominion of Canada General Insurance Co. (2005), 2005 CanLII 21093 (ON CA), 76 O.R. (3d) 161 (Ont. C.A.), 255 D.L.R. (4th) 633, at para. 119.
[28] The doctrine functions both vertically and horizontally. Vertical stare decisis dictates that higher court determinations are binding on lower courts: Sullivan, at para. 59. Without vertical stare decisis, “the law would be ever in flux”: R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342, at para. 26. Horizontal stare decisis, on the other hand, provides that decisions of coordinate jurisdiction should be followed as a matter of judicial comity: Sullivan, at para. 65.
[29] A clear hierarchy exists within the doctrine of stare decisis: vertical stare decisis binds lower courts in a manner that horizontal stare decisis does not. Subject to the exceptions articulated in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 42-45, lower courts must follow the decisions of higher courts. As this court stated in Black v. Owen, 2017 ONCA 397, 137 O.R. (3d) 334, at para. 47:[A] judge of a lower court may not decline to follow a binding precedent of a higher court on the ground that he or she disagrees with it or because, in his or her view, it appears to have been overtaken by subsequent decisions of a lower court in the same jurisdiction. [30] In this case, the application judge had to determine whether the Transcripts were protected by s. 13 of the Charter. Schertzer answers that question: s. 13 does not protect testimony where the testimony is itself the actus reus of an offence.
[31] As the principle of vertical stare decisis applied in the present case, the application judge was required to follow Schertzer – which is exactly what she did. Applying the reasoning in Schertzer, the application judge found: (1) s. 13 did not protect the Transcripts because the appellant’s testimony (or lack thereof) was the actus reus of the obstruct justice offence; and (2) the quid pro quo principle was not engaged because the appellant did not provide testimony (i.e. the “quid”) and so was not entitled to the “quo”. Horizontal stare decisis did not apply because a higher court had already decided the legal question in issue. Indeed, it would have been reversible legal error for the application judge to have applied the principle of horizontal stare decisis and followed Seecharran.
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