Disagreement Is Not Enough: Supreme Court Clarifies Horizontal Stare Decisis

Published date01 June 2022
Subject MatterLitigation, Mediation & Arbitration, Trials & Appeals & Compensation
Law FirmMcCarthy Tétrault LLP
AuthorCanadian Appeals Monitor and Emil Stanca

The Supreme Court has recently pronounced a judgement in R v Sullivan, 2022 SCC 19, discussing the contours of horizontal stare decisis - the extent to which a decision of a court is binding on other courts of coordinate jurisdiction within a province. A court may only depart from previous rulings of a coordinate court in narrow circumstances - it is not enough to simply disagree with previous rulings, or to hold that they are "plainly wrong".


The respondents, Mr. Sullivan and Mr. Chan, committed violent crimes while under the influence of intoxicating substances. Both argued at their trials that their extreme state of intoxication rendered their actions involuntary, thereby precluding a guilty verdict. Their respective trial judges did not allow this defence by virtue of s. 33.1 of the Criminal Code, RSC 1985, c C-46, and both Mr. Sullivan and Mr. Chan were convicted.1

The appeal of the two convictions were heard together and reached the Supreme Court. In R v Brown, 2022 SCC 18, a decision released concurrently, the Supreme Court had already concluded that s. 33.1 of the Code violated the Charter and was of no force or effect under s. 52(1) of the Constitution Act, 1982 - a ruling which entitled Mr. Sullivan to an acquittal and Mr. Chan to a new trial.2

In the present appeal, the Supreme Court dealt with the character and force of a s. 52(1) declaration of unconstitutionality. Mr. Sullivan raised the argument before the Supreme Court that the trial judge was bound by a previous declaration of a Superior Court judge in the province which held that s. 33.1 was to be of no force or effect. The Supreme Court noted that this provided an "opportunity to clarify whether a declaration made under s. 52(1) binds the courts of coordinate jurisdiction in future cases due to the principle of constitutional supremacy, or whether the ordinary rules of horizontal stare decisis apply".3

The Decision

The Supreme Court reviewed the rules of horizontal stare decisis. While not binding in the same way as vertical stare decisis, decisions of the same court should be followed as a matter of judicial comity. 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, however, a trial court may only depart from it one of three narrow circumstances:4

  1. The rationale of an earlier decision has been undermined by subsequent appellate decisions;
  2. The earlier decision was reached per incuriam...

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