Beer, Bedford, And Beyond — The Supreme Court Of Canada And The Limits Of Precedent In R. V. Comeau

R. v. Comeau,1 made headlines because of its sudsy subject matter: Does s. 121 of the Constitution Act, 1867 guarantee the free flow of liquor across interprovincial boundaries? The Supreme Court of Canada held that it does not, a conclusion that my colleagues Jacob Stone and Alexandre Saulnier-Marceau analyze in their blog post, here.

But Comeau was not just a case about federalism. It was also — and, arguably, more importantly — about the limits of precedent, and the circumstances in which trial courts may seek to change the law.

The Court held that binding vertical precedent must stay binding unless it has been overtaken by profound social or legal change, which in turn must be proved by evidence adduced at trial. Such evidence was not before the court in Comeau. Instead, the trial judge relied on testimony from a historian, who opined that the Supreme Court of Canada's interpretation of s. 121 — set out nearly a century ago, in Gold Seal Ltd. v. Attorney-General for the Province of Alberta2 — was inconsistent with the intentions of the Constitution's drafters. The need to correct this error, the trial judge held, justified departing from precedent, not because society or the law had evolved, but because the precedent was wrongly decided in the first place.

For the Supreme Court of Canada, this simply was not kosher:

For a binding precedent from a higher court to be cast aside on the basis of new evidence, the new evidence must "fundamentally shif[t]" how jurists understand the legal question at issue. It is not enough to find that an alternate perspective on existing evidence might change how jurists would answer the same legal question. 3

Put differently, if a litigant seeks to change settled law, it is not enough to adduce evidence that "proves" the law was erroneously settled in the first place. A court can only escape the shackles of "vertical" precedent on the basis of "evolving legislative and social facts" that add up to profound "social change". 4 In Comeau, it concluded, "[t]his high threshold was not met". 5

Lawyers rarely ask courts to depart from precedent. But sometimes — as for Gerard Comeau's counsel in the New Brunswick Provincial Court — that is what the case demands. For advocates who find themselves in that situation, Comeau will be required reading. It completes (for now) a trilogy begun in 2013 in Canada (Attorney General) v. Bedford, and continued two years later in Carter v. Canada (Attorney General).6 Together, these three judgments provide the Supreme Court of Canada's guidance to Canada's courts on the doctrine of vertical precedent. 7

Bedford and Carter distinguished

Bedford involved a challenge to Canada's prostitution laws. Carter contested the prohibition of physician-assisted suicide. Both succeeded, at first instance and ultimately in the Supreme Court of Canada, despite binding precedent to the contrary.

In Carter, a...