'Stare Decisis' And Constitutional Supremacy: Will Our Charter Past Become An Obstacle To Our Charter Future?

Article by Sheila M. Tucker, Joseph J. Arvay, Q.C., and Alison M. Latimer*

1. INTRODUCTION

   Thirty years ago, the enactment of the Constitution Act, 1982, Part I of which was the Canadian Charter of Rights and Freedoms,1 was a transformative moment in Canada's development as a constitutional democracy. It guaranteed a set of civil rights and freedoms (which had hitherto not been constitutionally entrenched and which many viewed as ill-protected under the Canadian Bill of Rights2) and, by the addition of section 52 to the Constitution Act, gave expression to the principle of constitutional supremacy in providing that "any law that is inconsistent with the Constitution is, to the extent of the inconsistency, of no force and effect".3

   In the early days of Charter jurisprudence, the Supreme Court of Canada made clear that the Charter represented a departure from the timorous approach to rights protection that prevailed under the Canadian Bill of Rights. So, for example, in R. v. Big M Drug Mart Ltd., in the context of freedom of religion, the Supreme Court of Canada held that unlike the Canadian Bill of Rights, the Charter "does not simply 'recognize and declare' existing rights as they were circumscribed by legislation current at the time of the Charter's entrenchment. The language of the Charter is imperative."4 However, 30 years on, many legal observers have questioned the courts' success in giving full force to the imperatives of the Charter. Joel Bakan describes the conundrum as follows:

   The Charter's potentially radical and liberatory principles of equality, freedom, and democracy are administered by a fundamentally conservative institution — the legal system — and operate in social conditions that routinely undermine their realization.5

   That said, there really cannot be any doubt that the Supreme Court of Canada (and indeed, the many lower courts throughout the country) has made any number of decisions under the Charter that have had very significant emancipatory impacts in Canada. The Court has matured into an authoritative institution of constitutional review; but once old enough to have a past, a body is defined, in part, by its relationship to that past.

   We have been asked to provide a paper dealing with the broad topic of transformative Charter moments. Transformative means "a thorough or dramatic change".6 This paper considers stare decisis — an inherently conservative doctrine that champions the goals of consistency, certainty and predictability in the law. Admittedly, stare decisis appears to operate in direct contradiction to the spirit of our assigned topic. Indeed, an examination of the role of stare decisis in Charter litigation reveals some transformative Charter moments lost. The core concern of this paper is to point out that very fact, and to consider some means for minimizing that effect.

   Although we examine both the "horizontal" and the "vertical" conventions of stare decisis, we focus on the latter and thus the extent to which lower courts may depart from prior decisions of the Supreme Court of Canada addressing similar legal issues in the wake of a sea change in legislative and social facts.7 Our purpose is to offer an approach to this doctrine that allows for the goals of stare decisis to be met while giving effect to the constitutionally entrenched principle of constitutional supremacy which, of necessity, must leave room for the Charter's liberatory principles to be interpreted and applied in the face of changing social and other conditions. We will argue that this approach enhances sound judicial administration and the legitimacy and acceptability of the common law — other principles at the core of stare decisis.8 It also ensures that there will continue to be transformative Charter moments as evolving contexts require.

   The force of stare decisis in these circumstances was an issue of central importance in the recent Ontario Court of Appeal decision in Bedford. 9 We hope to persuade the reader that the Court of Appeal wrongly concluded that stare decisis applies to prevent lower courts from making a new decision under the Charter when faced with a fundamental change in the social and legislative facts underpinning the prior Supreme Court of Canada decision. As a result of this error, the Ontario Court of Appeal lost an important opportunity to participate in a transformative moment in Charter history. This issue is of great practical and immediate importance. It has already become an issue in determining whether the trial judge presently seized of a case challenging the absolute prohibition against physician-assisted dying (Carter v. Canada (Attorney General)10 can differ from the decision of the Supreme Court of Canada in Rodriguez v. British Columbia (Attorney General).11 From a broader perspective, it is also an issue of enormous pragmatic significance for litigants deciding whether to undertake a Charter case at all in the face of an ostensibly binding Supreme Court of Canada decision.

2. THE ROLE OF STARE DECISIS

   The Honorable Edward D. Re, Chief Judge, United States Customs Court, explained stare decisis as follows:

   The doctrine, from stare decisis et non quieta movere, "stand by the decision and do not disturb what is settled," is rooted in the common law policy that a principle of law deduced from a judicial decision will be considered and applied in the determination of a future similar case. In essence, this policy refers to the likelihood that a similar or like case arising in the future will be decided in the same way.12

   The doctrine has a horizontal axis and a vertical axis, both of which will be described briefly below. In "Precedent Unbound?", Debra Parkes explains:

   As things have developed in Canada, the concept of "binding precedent" is limited to the vertical convention. Courts lower in the applicable hierarchy are bound to follow decisions of a higher court. The concept of stare decisis is used more broadly to apply to decisions of higher courts (the vertical convention) and to previous decisions of the same court, albeit often differently constituted (the horizontal convention). In the latter case decisions are not strictly binding, but should be followed unless there are compelling reasons to overrule them.13

   Next we discuss how Canadian courts have treated these conventions.

   1. Horizontal Convention of Stare Decisis

      The horizontal convention of stare decisis refers to the extent to which a court will overrule one of its own earlier judgments.14 This issue has arisen a number of times at the Supreme Court of Canada, most recently in Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia15 and Ontario (Attorney General) v. Fraser.16

      Health Services was itself a significant transformative "moment" in Supreme Court of Canada history, in that the Court reversed a trilogy of decisions holding that section 2(d) of the Charter (freedom of association) did not extend to collective bargaining.17 In Health Services, the Court overruled the 20-year-old labour trilogy, concluding that the reasons given therein for not extending the protection simply could not withstand "principled scrutiny"18 and that a failure to protect collective bargaining was inconsistent with both Canada's "historic recognition of the importance of collective bargaining to freedom of association" and international law.19 In light of these considerations, the Court held that, on a correct interpretation, section 2(d) of the Charter did protect the right to bargain collectively.

      Four short years later, in Fraser,20 Rothstein J. (dissenting on this point though concurring in the result), would have overturned Health Services and reverted to the law established in the labour trilogy — that is, that section 2(d) of the Charter does not protect collective bargaining. Justice Rothstein affirmed the right of the Supreme Court of Canada to reverse itself and noted that "the courts have set down, and academics have suggested, a plethora of criteria for courts to consider in deciding between upholding precedent and correcting error".21 Justice Rothstein considered this "non-exhaustive" list of criteria and concluded that:

      Fundamentally, the question in every case involves a balancing: Do the reasons in favour of following a precedent — such as certainty, consistency, predictability and institutional legitimacy — outweigh the need to overturn a precedent that is sufficiently wrong that it should not be upheld and perpetuated?22

      A consideration of this fundamental question led Rothstein J. to conclude that the Court should overrule Health Services. His reasons were that Health Services addressed an issue of constitutional law and was thus "not susceptible to being corrected in a lasting way by the legislative branch";23 Health Services "strayed significantly from earlier sound precedents with respect to the purpose of Charter protection for freedom of association;"24 the constitutionalization of collective bargaining was, in his view, "unworkable";25 there had been "intense academic criticism" of Health Services;26 and, finally, Health Services was wrongly decided.27 The plurality responded to Rothstein J.'s judgment at length.28

      The contrast in the approaches is best reflected in these two passages. The first is from the judgment of Rothstein J.:

      First, the error in Health Services concerns a question of constitutional law. Thus, not only does it go to one of the foundational principles of our legal system, but it is not susceptible to being corrected in a lasting way by the legislative branch. While s. 33 of the Charter may allow Parliament or the legislatures to suspend, temporarily, the force of this Court's ruling, history over the last two decades demonstrates that resort to s. 33 by legislatures has been exceedingly rare. Health Services will, if left to stand, set out abiding principles of constitutional law. Only the Court may correct this error in fundamental...