The Ties Which Do Not Always Bind

• Published date: 16 June 2020
• Author: Canadian Appeals Monitor and Myriam Hacault
• Law Firm: McCarthy Tétrault LLP
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation

On June 3^rd, 2020 the Ontario Court of Appeal ("ONCA") released its decision in R. v. Sullivan.¹ While the ruling has received considerable attention both in the news media and from legal commentators due to its analysis of the constitutionality of section 33.1 of the Criminal Code² and the defence of extreme intoxication amounting to automatism; the ONCA also provided needed clarity³ on the interaction between the precepts of stare decisis and section 52(1) of the Constitution Act, 1982.⁴

One of the appellants, Mr. Chan, had argued that since the Ontario Superior Court ("ONSC") had previously found section 33.1 to be unconstitutional in a 1999 judgment, R. v. Dunn,⁵ "it no longer had force or effect in Ontario, and that the trial judge was bound to disregard it."⁶ Justice Paciocco, writing for the majority, noted the constitutional validity of section 33.1 had not received appellate consideration and the jurisprudence of the ONSC was divided.⁷ Accordingly, the position advanced by Mr. Chan - as the appellant acknowledged - was "inconsistent with the ordinary principles of stare decisis, which hold that lower courts are required to follow only binding precedent of higher courts but are not strictly bound to follow earlier decisions in the same court."⁸

Beyond the customary appeal to "comity", there are strong systemic considerations which underpin justices' general practice of applying precedents of the same court (sometimes referred to as "coordinate authority" or "horizontal" stare decisis) in order to ensure stability and predictability in judicial decision-making, and, correspondingly, to avert the confusion and uncertainty attendant upon a constant unsettling of the law.⁹ Nevertheless, what might be described as a presumption in favour of the application of coordinate authority can be, and is, dispensed with where the particular facts of the case require a different conclusion or where the reasoning of the precedent in question is potentially unsound.¹⁰

To justify a departure from these well entrenched common law precepts, Mr. Chan appealed to constitutional supremacy contending that when, in one matter, a superior court justice declares a legislative provision to be unconstitutional under section 52(1) - which section states that "any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect" - such declaration has a "binding effect" upon all superior court justices for all...