On Deviations From Declarations: The SCC Gets Decisive On Stare Decisis

Published date16 June 2022
Subject MatterGovernment, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Trials & Appeals & Compensation
Law FirmMiller Titerle + Company
AuthorAllison Sproule and Chésa Abma-Slade

When a trial judge rules that a law is unconstitutional, who is bound by that decision? In R v Sullivan, 2022 SCC 19, the SCC has made it crystal clear: these declarations are ordinary rulings of law, subject to ordinary rules of stare decisis.

As a bonus, the Court clarified the Spruce Mills test. The "plainly wrong" standard is, well, plainly wrong. We're stuck with the specific grounds enumerated in the original test.


Sullivan is a criminal case. Its underlying facts are both grisly and sad; a detailed recounting isn't necessary. In brief, the case deals with two accused who, in unrelated incidents, committed violent assaults while under the influence of drugs. Their trials were held in front of the Ontario Superior Court of Justice. Both accused resorted to the "automatism" defence, arguing that they were so intoxicated their actions were involuntary, and thus they could not be convicted.

Section 33.1 of the Criminal Code blocks an accused from using the automatism defence where the offence involves assault. However, previous cases from the Ontario Superior Court of Justice have found s. 33.1 to be unconstitutional, and thus of no force or effect per s. 52 of the Charter. The two accused were convicted despite that precedent.

The main issue before the SCC was whether the Ontario Superior Court of Justice was bound by its own prior decisions on this point, and if so, to what extent they were bound. Should the court have treated s. 33.1 as if it had been effectively stricken from the books, or was it entitled to depart from its prior decisions? If it was entitled to depart from them, on what basis?


For non-legal readers, a simplified explanation of stare decisis will be helpful:

  • "vertical" stare decisis means that a court must follow the decisions of its own superior appellate courts (ex. the BC Supreme Court must follow decisions of the BC Court of Appeal); and
  • "horizontal" stare decisis means that a court must usually follow its own decisions, but may depart from them in certain circumstances.1

Stare decisis does not require a court to follow:

  • decisions of another jurisdiction's appellate courts (so as a rule, the BC Supreme Court does not have to follow the Ontario Court of Appeal); nor
  • decisions of another jurisdiction's courts "on the same level" (the BC Supreme Court does not have to follow the Ontario Superior Court of Justice).

These rules are surprisingly fundamental. They support two of Canada's constitutional pillars...

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