THE CONVENTIONS OF PRECEDENT IN CANADIAN PROVINCIAL COURTS OF APPEAL
Alvin Esau, 1994
1. Vertical: Bound by the Supreme Court of Canada and pre-49 PC
Is there any doubt that lower courts are bound vertically by higher courts within their own judicial hierarchy? In the English Court of Appeal, Denning attempted to get around the vertical effect by arguing that a House of Lords decision was per incuriam, or he would argue by a kind of contextual distinguishing (cessante rationes) that the higher decision was no longer appropriate. In both cases, Denning was "blasted" by the House of Lords. Perhaps you can call your own past decisions, per incuriam or cessante rationes (horizontal), but you cannot label a higher court decision (vertical) with those terms, so as to not follow it. No matter how old or inappropriate or unjust, you must "obey superior orders," unless you can reasonably distinguish the decision or perhaps re-interpret it in relation to other precedents (principled construction and deconstruction) so as to get around it. Does this make sense? Does certainty and predictability still demand a totally strict vertical rule however much more flexibility at horizontal levels has been introduced?
The orthodox view is clear. The Manitoba Court of Appeal, for example, is bound by all Supreme Court of Canada decisions and by pre-1949 Privy Council cases on appeal from Canada, until such time as they are overruled by the Supreme Court of Canada. Every provincial court of appeal is bound vertically by the Supreme Court. Of course, we have already pointed out that it is the ratio of the higher court that is binding, and lower courts can avoid superior precedent to the extent that they can distinguish such cases from the problem case at hand.
It should be emphasized that only such cases bind a provincial court of appeal. For example, the Alberta Court of Appeal does not bind the Manitoba Court of Appeal. The Federal Court of Appeal does not bind the Manitoba Court of Appeal. Such decisions may be given weight and followed of course, but they are not strictly binding.
At one time, there was authority for the view that, particularly in matters of Federal law, a provincial court of appeal, should follow an earlier decision on point from another province’s court of appeal. (See R. v. Glenfield [1934] 3 W.W.R. 465 (Alta. C.A.); R. v. Lee Guey (1907) l5 O.L.R. 235 (C.A.); Locyka v. Ruthanian [1922] 2 W.W.R. 782 (Man. C.A.). However, it is now abundantly clear that no decision of one provincial jurisdiction binds another jurisdiction, and this includes every level of court. That is, a Manitoba Q.B. judge faced with an Alberta Court of Appeal decision is not bound by the C.A. case, even though a C.A. judgment is "higher" than the Q.B. level. The Alberta C.A. is not part of your judicial hierarchy in Manitoba, and therefore not binding on you.
In Wolf v. The Queen (1974), 27 C.R.N.S. 150, the Supreme Court of Canada noted that in the Alberta Court of Appeal, McDermid J.A. in dissent said that he ought to follow a Saskatchewan Court of Appeal case on perjury, even if he thought it was wrongly decided. Laskin, however, for the court at 151 stated:
"A provincial appellate court is not obliged, as a matter either of law or of practice, to follow a decision of the appellate court of another province unless it is persuaded that it should do so on its merits or for other independent reasons .... The only required uniformity among provincial appellate courts is that which results in the decisions of this court."
So, it is only the SCC and pre-49 decisions until overruled by the SCC that bind the provincial courts of appeal. In R. v. Boardwalk Merchandise Mart Ltd. (1972) 10 C.C.C. (2d) 50, McDermid J.A. of the Alberta Court of Appeal emphasized that the court was bound by the Supreme Court of Canada and pre-1949 Privy Council cases, and even if the law contained in the case in question was now considered bad or unjust, it was nevertheless impossible to change it at the intermediate court level. The disaffected litigant would have to appeal to the Supreme Court to get the law changed.
In Woods Manufacturing Co. v. The King, [1951] 2 D.L.R. 465 at p. 475 the Chief Justice of Canada, giving the judgment of the Court said:
It is fundamental to the due administration of justice that the authority of decisions be scrupulously respected by all Courts upon which they are binding. Without this uniform and consistent adherence, the administration of justice becomes disordered, the law becomes uncertain, and the confidence of the public in it undermined. Nothing is more important than that the law as pronounced, including the interpretation by this Court of the decisions of the Judicial Committee, should be accepted and applied as our tradition requires; and even at the risk of that fallibility to which all Judges are liable, we must maintain the complete integrity of relationship between the Courts. If the rules in question are to be accorded any further examination or review, it must come either from this Court or from the Judicial Committee.
As mentioned before, there is still confusion over which of the pre-49 decisions of the Privy Council constitute binding precedent for Canadian courts. In Bank of Montreal v. Butler (1990) 66 DLR 4th 664, the B.C. Court of Appeal held itself to be bound by a 1926 Privy Council case on appeal from the West Indian Court of Appeal. However, Mr. Justice Wood in dissent said:
With great respect to Lord Phillimore, I say that the result in the Boos case was unconscionable. I can well understand that it continues to bind the courts in the West Indies, unless its effect have been overcome by legislation. But I do not believe that the principles of stare decisis require this court to accept as binding upon it a decision of the Judicial Committee, which was rendered over 60 years ago in a case from another jurisdiction, which was reached without the benefit of any argument from the party who had the most to lose and lost it, and which no court now seems able to apply without first apologizing. ...This court (BCCA) is effectively the court of last resort for about 95% of the litigants who appear before it. If we are to do justice for those who appear before us in the 1990's, we cannot allow ourselves to be bound by the mistakes of the past, nor can we allow our desire for judicial comity to stand in the way of what is right.
Another confusion in relation to the vertical effect of precedent that sometimes arises deals with leave to appeal applications to the Supreme Court of Canada. Sometimes counsel might cite a case from a provincial court of appeal and say that "leave to appeal refused by the Supreme Court of Canada." The implication is that the case is more binding because the highest court did not review it. This is not so!
In R. v. Meston (1975), 34 C.R.N.S. 323 the Ontario Court of Appeal considered whether refusal of leave to appeal indicates approval by the Appeal Court of the judgment sought to be appealed from. Martin J.A. for the court adopted the words of Lord Diplock in Gilbert-Ash (Northern) v. Mordern Engineering [1973] 3 W.L.R. 421, at 422:
Refusal of leave to appeal does not imply approval by this House of a judgment sought to be appealed against. The judgment carries the same authority as any other unappealed judgment of the Court of Appeal - neither more nor less.
Similarly, in R. v. Santeramo (1976) 36 C.R.N.S. l, Brooke J.A. said at page 6 that the fact of refusal to accept appeal does not mean that the Supreme Court of Canada determined the issue. Denial of leave to appeal by a court has no precedential quality. There is abundant authority for this- See R. v. Bachman (1987) 78 AR. 282 Alta. C.A. Also, Laskin said in The Queen v. Cote [1978] 1 S.C.R. 8 at 16: “Leave was refused as to that point. This refusal does not amount to a confirmation of the views of the Court of Appeal thereon.”
Another problem sometimes encountered with the vertical effect, however, is how to deal with plurality decisions in the Supreme Court of Canada. While it is rare, the Supreme Court has on occasion sat in even numbered panels (when Laskin was ill for an extended period, the court did so) and you may have an even split decision. This means that the decision may not be binding because it decides nothing and thus the lower Court of Appeal judgment still stands. For a split decision, see Hill [1977] l S.C.R. 827; and Bank of Canada [1978] l S.C.R. 1148. When the court splits, the appeal is dismissed since a majority did not agree to overturn the decision below. However, this does not mean that the court has therefore created a precedent in favour of the respondent who has “won” the appeal by virtue of the split.
More frequently, even without a split decision, it is difficult to determine whether there is a ratio that can be constructed out of the narrow material facts and disposition agreed upon by a majority. Even if you have a majority in terms of a result, you may still have even splits on some of the issues involved, and therefore no majority agreement for a particular rule that the result is based on.
For example, in R. v. Betesh (1975), 35 C.R.N.S. 238 Graburn J. of the Ontario County Court noted that in the case of R. v. Osborn [1971] S.C.R. 184, the Supreme Court of Canada did not decide the issue of whether a court has power to prevent an abuse of its process by staying proceedings. They did not decide the issue because three judges said the case did not involve any issue of abuse of process, while another three judges said that the so-called inherent powers to prevent abuse of process did not exist in Canada and the final judge expressed no opinion on the question of abuse of process at all. Thus, Graburn considered himself still bound to adopt the Ontario Court of Appeal judgment in R. v. Osborn [1969] l O.R. 152 which says the court did have that power.
In R. v. Dennis (1974) 28 C.R.N.S. 268, a B.C. provincial court judge took the route of cumulating higher decisions and counting the votes on particular issues in a way that supposedly freed him from following either the Supreme Court or (what I would call) a binding decision of his own Court of Appeal. The decision dealt with aboriginal rights and the effect of the earlier Calder case as decided by the Supreme Court and the B.C. Court of Appeal.
This counting of votes on any issue, raises another point, namely the status of dissenting judgments. Most Supreme Court decisions do not deal with just one issue. There may, for example, be five issues and a 5-4 overall final decision of the court. But suppose on one of the issues, that only 2 of the 5-majority said X, while the other 3 said Y. However, suppose that two or more of the dissenters agree with X on this issue. I would argue that there is a majority rule for X on that issue. The 3 from the majority do not create a binding ratio of Y on that issue, but rather the majority position of X is found by looking at all the decisions of the court whether they are in the end dissenting as to the result or not.
Finally, as to the vertical effect, we might cynically conclude that if a lower court wants to, it can always find a way around a higher precedent, but this is not always so, at least if "good faith" operates in the system. A judge may sincerely disagree with the effect of a higher precedent but feel that his or her hands are tied. This may be extremely frustrating and expensive for litigants. In many cases, of course, the court may legitimately and reasonably distinguish the case and certainly it is also a well-known principle that it is only the ratio of the higher court that is binding on lower courts, not obiter statements.
2. Bound by Supreme Court “Judicial Dicta” as Well?
It is true that it is difficult to come to an agreement as to just what a ratio in a case is. The proposition of law on which the decision is based may be stated narrowly or more widely. In Dore v. A.G. of Canada (1974) 27 C.R.N.S. 237, Fauteux, then Chief Justice of Canada, repeated the oft quoted words of Halsbury L.C. in Quinn v. Leatham [190l] A.C. 495 that a judgment is authority only for what it actually decides, not for propositions which seem to follow logically from it. That is, the ratio is limited by what actual issues on the facts have to be decided by the court. The Court does not have the legislative authority to proclaim law on a diverse number of issues that are not actually before the court for decision on the facts. If the court makes obiter statements of this sort, lower courts may well follow these statements, but they are not strictly bound to do so. At the same time, as courts move away from formalistic application of precedent, they increasingly focus on the underlying purposes and policies that justify earlier decisions, rather than on some narrow ratio.
Still, it was always thought in a strict sense that only a ratio was actually binding on a lower court, until the Supreme Court of Canada suggested otherwise in Sellars v. R. [1980] l S.C.R. 527. In that case, Chouinard J. for the court apparently concluded that while it was not absolutely necessary in an earlier Supreme Court case to rule on a particular point, it did so, and lower courts should have felt bound by that ruling! In the earlier case of Paradis v. The Queen [1978] l S.C.R. 264, a majority of the court ruled on the issue of whether the jury must be warned of the risk of basing a guilty verdict on the uncorroborated testimony of "an accomplice." In doing so, the majority also stated that the evidence of an "accessory after the fact," would fall under the jury warning rule as well, though it was not necessary to so rule in the case. In Sellars, the court said that lower courts should have been bound by the obiter ruling.
Sellars influenced the way lower courts read Supreme Court judgments and even the way trial courts read provincial Court of Appeal judgments. Is this a good development? In Woloszczuk v. Onyszczak (1976) 74 D.L.R. (3d) 554, Krever J. of the Ontario High Court followed an Ontario Court of Appeal obiter statement and felt bound to do so quoting Jessup J. in R. v. Govedarov [1974] 3 O.R. (2d) 23 from the Ontario Court of Appeal to the effect that "a deliberate and considered pronouncement intended to be acted on in the trial of a subject cannot be regarded as obiter and is binding." This development took place before Sellars. But now Sellars gives the highest authority to it, as indicated in Re McKibbon (198l) 6l C.C.C. (2d) 126, where an Ontario High Court Judge followed an obiter point from the Ontario Court of Appeal, citing Sellars as to its non obiter status, though Sellars dealt with Supreme Court dicta, not Provincial Court of Appeal dicta. Sellars played a prominent role in R.v. Baxter (1980) l6 C.R. (3d) 397 (Quebec S.C.), as well.
Aside from the old "chicken and egg" problem about whether the court has any legal authority to dictate "precedent practice" in lower courts, given that such statements are in themselves obiter, the more important issue is whether the vertical convention of precedent should be made even stronger and more inflexible by Sellars.
If we accept the view that a wider definition of ratio could logically be argued for, and that Sellars should be confined to bringing only such dicta as can be reinterpreted as ratio into binding status, then we may still be on defensible ground in my view. We could look at a "principle" theory of ratio, rather than a "rule" theory of ratio. For example, in Re Depagie [1976] 6 W.W.R. l, McDermid J.A. of the Alberta Court of Appeal said, "However ... a principle asserted to be the law by a final Court of Appeal becomes the authority for the principle so asserted." This does not mean that any principles whatever on any issues whatever are ratio, just because the court chooses to elaborate them in a case. The principles eligible for ratio status must be given by the court, or constructed by subsequent courts, in relationship to what the issue for decision in the case actually is. But having said that, the ratio of a case may be the wider principle giving rise to the decision, rather than the narrow rule constructed out of the material facts and the disposition of the court. Still, if we contemplate such a "principle" ratio as being binding on lower courts, we cannot go beyond saying that a lower court is bound to take the principle into account, but still has the freedom to determine how the principle applies to the new case. A principle by definition is even more flexible in application, than the application of a rule. Principle decision-making is perhaps something different than analogical decision-making, but it could be argued that both require reasoned elaboration and application, even if we say that a court is bound to take a "rule" or "principle" into account.
But some would argue that the effect of Sellars is wider. Peltoma in (1982) 60 C.B. Rev. 823 argues that lower courts should not be bound by Supreme Court obiter dicta but should be bound by Supreme Court judicial dicta. What is the difference? He quotes Megarry J. as follows from Brunner v. Greenslade [1971] l Ch. 993 at l002-1003:
A mere passing remark, or a statement or assumption on some matter that has not been argued, is one thing; a considered judgment on a point fully argued is another, especially where, had the facts been otherwise, it would have formed part of the ratio. Such judicial dicta, standing in authority somewhere between a ratio decidendi and an obiter dictum, seem to me to have a weight nearer to the former than the latter...
Thus, even if a point is unconnected to the actual issue that needs to be decided, if it is fully argued and the court makes a considered judgment on the point, then it is not obiter dicta, but rather judicial dicta, and such dicta might be said to bind lower courts. In practice, it may well be that such dicta would be highly persuasive, particularly if it was recent, since it would be likely that the practical effect of not following it would be reversal on appeal. However, I think it is wrong to elevate judicial dicta to binding status, particularly with the passing of time. It increases the potential for more delay and expense before a reconsideration can take place and increases the "lazy" tendency of lower courts to latch onto any higher court propositions that most easily fit the case.
Without mentioning Sellars, Dube J. in the Federal Court, Trial Division in Pollock v. The Queen (198l) 81 D.T.C. 5293 followed an earlier decision of the Federal Court of Appeal rather than a dictum of a later Supreme Court of Canada case to the contrary, emphasizing that dicta of the Supreme Court was not binding on him. I agree.
The Provincial Court of Appeal is in effect the highest court of appeal for most litigants. Now that the Supreme Court of Canada can control its own docket for the most part, very few cases make it to the Supreme Court, and of those that do, a preponderance of the cases are in the field of public law rather than private law. As a consequence of this, the Provincial Court of Appeal should have more flexibility to control the development of the common law unfettered by Supreme Court dicta that might be thought to be ill advised or half baked.
On the other hand, it is precisely because the Supreme Court has only a limited number of cases that it can take and give proper attention to, that the argument could be made that even judicial dicta from the court should be binding. If the Supreme Court takes a case and makes pronouncements on issues that are related to the case but not strictly necessary for the decision, giving binding authority to these pronouncements allows the Court to coherently develop the law and work efficiently, rather than being confined to restrictive incremental change which invites more appeals to bring into line related doctrines that now seem out of line with where the court is going.
The Sellars doctrine continues to be upheld. Chief Justice McEachern in Scarff v. Wilson (1988) 33 BCLR 2d 290 cited Sellars and said, "From the foregoing I conclude that the obligation of a lower court, including courts of appeal, to follow judgments of the Supreme Court of Canada is not limited to the strict ratio decidendi of the highest court but extends also to any considered decision of that court on a question of law or principle. We should not be astute in seeking to limit the authority of such a decision."
The controversy over the Sellars doctrine was dramatically played out in R. v. Chartrand (1992) 81 Man. R. (2d) 81. Dealing with the Supreme Court's interpretation of the Charter in relation to accused persons being cautioned before waiving their right to counsel and confessing, Philp J.A. (Twaddle J.A. concurring) argued on the bases of the Sellars concept that the court was bound by the rules laid down by the Supreme Court. However, in dissent, Lyon J.A. had this to say:
Finally, my colleague Philp J.A., in his reasons for the majority, also cites Sellars v. The Queen, [1980] 1 S.C.A. 527 as authority for the proposition that obiter dicta of the Supreme Court of Canada is now binding on all provincial appellate courts. I demur from this controversial proposition for a variety of reasons, not the least of which involves its being inimical to the settled law of this country since 1867. However, I will attempt to confine my comments to the case at bar. At no time at trial or on appeal was this proposition alluded to or argued by counsel. It appears for the first time in the majority reasons and is cited as authority for the binding nature of McLachlin J.A.'s general statements previously cited from p. 893 of Evans, supra. But we need go no further than the previously noted reasons of Stevenson J.A. in Evans, at p. 900 where he makes it clear beyond question that "we did not, therefore, have the benefit of full argument on the reiteration question." …Nor do I have any hesitation in saying that while considered dicta of the Supreme Court of Canada should be respected as "thoughtful expressions of the law," they cannot be treated as automatically and absolutely binding and immune from being distinguished. Accordingly, I am satisfied that the determination of this case need not turn on the dicta found in Sellars, supra…
3. Should We Have Anticipatory "Overruling" of the SCC by Prov. Courts of Appeal?
It is ironic that while we have the development of making the vertical rule stricter and more inflexible by perhaps bringing dicta under it, we are also experiencing discontent with the strict vertical rule. That the vertical convention causes hardship in some cases can be illustrated by the case of Marvco Color Research v. Harris (1980) 107 D.L.R. (3d) 632, where Grange J. of the Ontario High Court (remember that a High Court Judge is equivalent to our Q.B. judge) was faced with a 1956 Supreme Court of Canada decision (Cartwright J. dissenting) on the non est factum issue. Obviously, as I have said, a lower court is bound by a higher court decision, however bad or unjust. But in this case, the 1956 decision was wholly based on a 1911 English Court of Appeal decision which had been overruled by the House of Lords in 1971. But the House of Lords is not binding on us, so the 1956 Supreme Court case still bound Grange J., though he thought it "bad" law as a matter of policy. The case went to the Ontario Court of Appeal (1980) 107 D.L.R. (3d) 632. The court agreed with Grange that the 1956 Supreme Court of Canada case was bad law and out of line with the law in other jurisdictions on the subject, but they, too, were bound by the Supreme Court. Thus, the appellant had to go all the way to Ottawa where the Supreme Court overruled the 1956 case. See (1982) 45 N.R. 302 (S.C.C.).
Now what could you say about this situation? It happened to work out that the appellant went all the way to the Supreme Court at considerable expense and delay and now we have the law reformed. But perhaps the appellant could have just given up and the "bad" law would stay on the books for many more years. What is the solution? Well, consider the concept of Anticipatory Overruling. The Ontario Court of Appeal might have predicted that the Supreme Court would overrule, and therefore it could treat the 1956 case as not binding. Not following the case would place the burden on the person relying on the old case to appeal but would in effect do justice here and now for the disaffected party.
Is "overruling" a good word to use, though? Can a lower intermediate Court of Appeal overrule a higher court precedent? Would a trial court in a new case follow the old Supreme Court case or the more recent applicable Court of Appeal case? Should anticipatory overruling be confined to provincial Courts of Appeal in regard to the Supreme Court, or should trial judges be able to anticipate Courts of Appeal overruling? Should we view this not as overruling, but rather as rendering a higher decision non-binding by virtue of a prediction that the higher court itself would not follow its own decision?
Anticipatory overruling is apparently used in the United States, particularly in constitutional matters, but it has not yet been discussed in Canadian decisions. However, recently Professor Dale Gibson commenting on R. v. Buchinsky charged that the Manitoba Court of Appeal in that case refused to follow 3 precedents from the Supreme Court directly on point. Gibson disagrees with the Manitoba Court of Appeal's characterization in the case, but he also goes on to argue for the appropriateness of anticipatory overruling in certain cases.
Dr. Schmitthoff went even further when he wrote an article, "Should Precedents be Binding?" (1982) Journal of Business Law 290 and concluded:
In my personal view - and I admit that this is a heretical view - it would be in the interest of the development of the common law if in the hierarchical order of the courts the decisions of the higher tiers were accorded only persuasive, and not binding, authority. The effect of such a rule would be that normally and in most cases the courts of the lower tiers will follow precedent, out of respect for the courts of the higher tiers. But if in an exceptional case if the Court of Appeal or even a High Court judge comes to the conclusion that a principle established by a court of a higher tier is wrong, or unworkable, or no longer in keeping with the general view of society, the judge in the lower court should be entitled to say so and to decide according to his conscience and conviction. Such a rule would be historically justified.
What do you think?
Remember that anticipatory overruling is different from implied overruling. A lower court faced with an old precedent of the SCC may conclude that the precedent cannot be reconciled with later decisions of the SCC, which do not explicitly overrule it or even refer to it for that matter. The lower court is not engaged in anticipatory overruling but is rather engaged in a determination that the SCC has already overruled the earlier case and has done so by implication. But anticipatory overruling is a radical concept. How do we really predict that the Supreme Court would overrule its past precedent if the present case went up to them?
4. Horizontal at Court of Appeal: On Not Being Strictly Bound
Let's turn to the horizontal effect of precedent in the provincial courts of appeal. Is the Manitoba Court of Appeal, for example, bound by its own past precedent? Just as the Supreme Court of Canada moved away from the strict horizontal binding position only after the House of Lords did so, Canadian provincial courts of appeal looked to the English Court of Appeal as the model for conventions of precedent at the intermediate court of appeal level. Interestingly, the English Court of Appeal at the time of this lecture has a much stricter horizontal rule as compared to the House of Lords. The English C.A. cannot simply overrule itself if it appears right to do so. Rather, as expressed in Young v. Bristal Airplane [1944] 2 All E.R. 293:
The Court of Appeal must apply its own previous covering decisions except in three cases. (1) The court can decide which of two conflicting decisions of its own it will follow. (2) The court must refuse to follow a decision of its own which cannot, in its opinion, stand with a decision of the House of Lords. (3) The Court need not follow a decision of its own if that decision was given per incuriam.
Lord Denning engaged in a long and unsuccessful struggle to have this strict rule of precedent from Young overthrown, and when that was unsuccessful he attempted to carve out new exceptions. The House of Lords consistently rebuffed Denning’s attempt. See Davis v. Johnson [1978] 1 All E.R. 1132.
Despite the Canadian habit of looking to England, all Canadian courts of appeal, with the exception of Ontario in civil matters, have considered themselves free to depart from a previous decision of their own when it is felt right to do so. However, there is actually a recent trend away from this freedom. There appears to be a more restrictive approach to horizontal overruling that has developed recently.
We look first at the position of a more flexible horizontal freedom to overrule past precedent. In General Brake & Clutch Services Ltd. v. W.A. Scott (1976) 57 D.L.R. (3d) 741, Freedman C.J.M. stated:
Let me at once express my belief that we do not lack the power to depart from an earlier decision of this Court. It is a power that will of course be exercised only in rare circumstances. But if the circumstances are deemed appropriate and we are convinced that the earlier decision was incorrect we should be guided by the principle that it is no part of the function of any Court to make error perpetual. There are instances in this very Court where we so departed from an earlier decision: vide, for example, R. v. Thompson, [1931] 2 D.L.R. 282, 55 C.C.C. 33, 39 Man. R. 277, overruling Cote v. Friesen, [1921] 3 W.W.R. 436, 31 Man. R. 334; R. v. Radford (1973), 13 C.C.C. (2d) 575, [1974] l W.W.R. 191 sub nom. Ursick v. Radford, declaring that Campbell v. Sumida (1964), 49 D.L.R. (2d) 263, [l965] 3 C.C.C. 29, 50 W.W.R. 16, should no longer be regarded as authoritative; and Daudrich v. Daudrich (1971), 22 D.L.R. (3d) 611, [1972] 2 W.W.R. 157, 5 R.F.L. 237, declining to follow Whyte v. Whyte (1969), 7 D.L.R. (3d) 7, 69 W.W.R. 536.
Why was the Canadian situation, apart from Ontario which followed the Young rules from England, different from the English Court of Appeal situation? Professor Curtis in "Stare Decisis at Common Law in Canada" (1978) 12 U.B.C. L. Rev. l, stated:
"... Partly this difference may be accounted for by geography. Because of the size of Canada, the courts of appeal in the provinces have effectively been the courts of last resort for most litigants. The burden of time and costs, both on the litigants and their professional advisors, to carry an appeal to distant Ottawa is heavy. Hence, in situations where a modification of previous doctrine appears called for, it may be thought best to set matters right without putting the parties to further expense and trouble. That these considerations have weight with the Canadian appeal courts is borne out by some extra-curia observations of Freedom, CJM. He states: "If the court is bound against its will, how will the law be changed and brought into line with what the court thinks it should be? One line of thinking says, 'leave it to the Supreme Court of Canada.' the difficulty, however, is that on account of expense the case may not get there, with the consequent injustice to the present defeated litigant." [(1975) 8 U.B.C. Law Rev. at p. 212]. The Chief Justice goes on to assign a further reason for courts of appeal in Canada to apply a liberal doctrine of precedent, saying this: "Another line of thinking says: 'leave it to the Legislature.' But action from that source is an uncertain thing, legislative time is notoriously limited, and reform therefore may not come." (ibid).
Whatever the reasons, the records shows that the courts of appeal in most of the provinces of Canada have not been bound to a strict application of stare decisis and have considered themselves free to overrule their previous rulings when reason is shown for their doing so. Some of the detail is as follows: R. v. Hartfeil (1920), 55 D.L.R. 524 (Alta.); Ex parte Yuen Yick Jun [1940] 2 W.W.R. 467; Bell v. Klein (No.l) [1954] 4 D.L.R. 273; R. v. Thompson [1931] l W.W.R. 267; General Brake and Clutch Service v. W.A. Scott & Sons. Ltd. (1975), 59 D.L.R. (3d) 741 (Man.); Black v. Brown (1894), 32 N.B.R. 631; Subsurface Surveys Ltd. v. John Burrows Ltd. (1967), 62 D.L.R. (2d) 700 (N.B.); Power v. Winter (1952), 30 M.P.R. 13l (Nfld.); Royal Exchange Assurance v. Montreal Trust Company (P.E.I.); Wolfe v. CNR [1934] 3 W.W.R. 497; Davidson v. Davidson [1953] l D.L.R. 297 (Sask.)
... There is now an added consideration bearing on the work of the intermediate appellate courts in Canada. Recent reform legislation has reduced greatly the number of cases likely to go beyond the provincial courts. Appeal now may be taken to the Supreme Court only on leave; and the present indications are that leave to appeal will be sparingly granted. To a greater extent than ever, the courts of appeal in the provinces will be courts of final appeal. This is all the more reason why they should operate under a regime of flexible stare decisis, being free, when the situation warrants, to up-date the law and save the litigants the costly journey to higher authority.
Ontario was always the most conservative in terms of the horizontal effect. In criminal matters the situation was more flexible. In R. v. Thornton (1970) 14 C.R.N.S. 198, Jessup J.A. of the Ontario Court of Appeal overruled a 1938 case of the Ontario Court of Appeal on a criminal matter. He said, "When the interest of the liberty of the subject requires it, the rule of stare decisis may be departed from by an appellate court." In R. v. McInnis (1973), 23 C.R.N.S. 152 Martin J. of the Ontario Court of Appeal said at 163:
"It is well settled that this Court is not bound to follow its own decisions where the prior decision was given without consideration of an applicable authority or statutory provision. Moreover, in criminal cases where the liberty of the subject is involved, the court is not bound by its previous decisions to the same extent as in civil matters."
He was following R. v. Gould [1968] 2 Q.B. 65 (Ont.C.A.). Similarly, in R. v. Santeramo (1976) 36 C.R.N.S. l, Brooke J.A. of the Ontario Court of Appeal said at 14, "I do not feel bound by a judgment of this court where the liberty of the subject is in issue if I am convinced that the judgment was wrong."
However, in civil matters, the Ontario Court of Appeal still follows Young v. Bristal Airplane as far as I can tell. To this date the Ontario Court of Appeal has still not given itself the freedom that other Courts of Appeal have accepted for a long time. For example, in Regina v. Govedarov (1974) 25 C.R.N.S. l Jessup J.A. of the Ontario Court of Appeal said, "Stare decisis is to be strictly adhered to unless a benefit to the liberty of the subject is involved." Also, in A.G. for Ontario v. Palmer (1979) 28 O.R. (2d) 35 the court felt bound by a previous decision of its own even though at least one member of the Court thought the earlier case was bad law.
5. Horizontal: Toward a More Restrictive Approach?
The central problem with arriving at an adequate convention on horizontal precedent in the provincial courts of appeal, arises due to the large number of appeals to these tribunals and therefore the large number of judges on these courts, and the fact that as a consequence, the normal procedure is that the court sits in panels of three. Some provincial courts of appeal have upwards of 20 judges or so on them, and at any given time there are several panels of three hearing cases. Every member of the court has equal authority and yet the court never sits as a whole court together to decide a case. As time goes by the number of judges on the provincial courts of appeal will probably increase.
This is different than the situation at the Supreme Court of Canada where the court will normally sit with a full bench of nine, although it can in some situations, due to workload crunch or sickness or conflict of interest, sit in panels of seven or even (very rare) five judges. Whatever the number, when a case is decided, it is the majority of the court, as it were, that is speaking, not a panel of the court.
Yet this is not the way it is at the provincial courts of appeal. Should it be the convention then, that one panel of three judges of the court can have the power to overrule a different panel of three judges of the court? Is there a danger that too many issues might be taken to appeal in the hope that by playing musical chairs and getting a different panel, the previous case law would be overruled? For that matter, can three judges of a court overrule a different three judges of the same court, or are they just disagreeing with each other? If that is the case, then what should a trial court do when faced with different decisions from the court above? Follow the most recent one as overruling the previous one; or pick which one of the two conflicting judgments it prefers?
It is for this reason that some jurisdictions have implemented, either by way of changes in the formal rules of court or by way of pronouncements from the bench, that to overrule a previous case the litigant must first apply to have a bench of at least five judges rather than the usual panel of three.
It is important to note that this new procedure that is emerging in some provinces does not change the fact that the court can overrule its own past precedent, but rather requires a bigger panel for it to do so.
In Alberta, the rules of the court of appeal, Practice Direction 1991, require counsel to first apply to the court for a five-judge panel if they plan to argue that a case should be overruled. Whether the panel will be struck depends on a preliminary finding of whether the call for an overrule has some reasonable prospect of success. Examples of such a leave application being rejected include R. v. Whissell (1994) 157 A.R. 261 Alta. CA and R. v. Dean (1992) 127 AR 376.
In British Columbia there are a number of cases that stand for the proposition that unless a three-panel court is faced with a previous decision of the court that is per incuriam or clearly wrong, it cannot overrule the case but rather a five-panel bench must be constituted for that purpose. The issue was first brought to debate in Bell v. Cessna Aircraft [1983] 6 WWR 178 BCCA where counsel sought to have a previous case overruled and frankly admitted that a tradition had developed requiring a five-person bench to do so. Thus, counsel was requesting the three-judge panel to adjourn the case and to make an order for a five-judge panel to sit on the case. The majority essentially agreed that to overrule a case required at least a five-person bench except in extraordinary circumstances. However, the application was denied because the court was satisfied that the precedent in question should not be overruled.
Following the Bell case, in Betts v. Sanderson (1988) 53 DLR 4th 675 Lambert said, "I return to the situation in British Columbia. This division of the court is bound by the previous decision of a three-judge division of the court in Mack v. Enns unless that decision was made per incuriam or unless it is clearly wrong."
In Saskatchewan there also appears to be some debate about whether a larger panel of five is needed to overrule some decisions of the court. In R. v. Hawrish (1986) 52 Sask. R 248 Sask CA, Wakeling in dissent said:
I hold the view that because so few cases will now reach the Supreme Court of Canada, we are on longer able to look to that court to correct judicial error, and as a consequence there are likely to be more instances than there used to be where a review of previous judgments of a Court of Appeal is required. It therefore seems to me that it is important that a process of review be established, and the approach taken by the British Columbia Court of Appeal and the similar approach taken by the Alberta Court of Appeal should also be adopted by this court.
Tallis for the majority responded to Wakeling by rejecting the view that a larger panel of the court had any more authority than a three-panel division of the court. Tallis quoted Young v. Bristol Airplane 1944 English CA which established that proposition. He also noted that one of the traditional grounds for an intermediate court of appeal to overrule itself under the Young rules was when two of its own past decisions appeared to be in conflict. Here in Hawrish this might be said to be the case.
Thus far in dealing with new developments in terms of the horizontal convention, we have noted this movement to a five-person bench. A second movement, however, deals with how the overrule power is exercised. What may be happening is some movement toward the English position expressed in the Young case, which has also been traditionally the approach used in Ontario. For example, consider the case of John Deere (1987) 45 D.L.R. (4th) 641 in the Manitoba Court of Appeal. It is interesting to note that it was decided by a five-person bench. More importantly, however, much of the argument appears to be centered around the Young criteria for overruling, rather than just taking the traditional approach that the court has the power to overrule its own past precedent for good reasons, unrestricted to the narrow Young exceptions.
********
Mastering the lawless science of our law,
That codeless myriad of precedent,
That wilderness of single instances,
Through which a few, by wit or fortune led,
May beat a pathway out to wealth and fame.
- Alfred, Lord Tennyson, "Aylmer's Field."
Alvin Esau, 1994
1. Vertical: Bound by the Supreme Court of Canada and pre-49 PC
Is there any doubt that lower courts are bound vertically by higher courts within their own judicial hierarchy? In the English Court of Appeal, Denning attempted to get around the vertical effect by arguing that a House of Lords decision was per incuriam, or he would argue by a kind of contextual distinguishing (cessante rationes) that the higher decision was no longer appropriate. In both cases, Denning was "blasted" by the House of Lords. Perhaps you can call your own past decisions, per incuriam or cessante rationes (horizontal), but you cannot label a higher court decision (vertical) with those terms, so as to not follow it. No matter how old or inappropriate or unjust, you must "obey superior orders," unless you can reasonably distinguish the decision or perhaps re-interpret it in relation to other precedents (principled construction and deconstruction) so as to get around it. Does this make sense? Does certainty and predictability still demand a totally strict vertical rule however much more flexibility at horizontal levels has been introduced?
The orthodox view is clear. The Manitoba Court of Appeal, for example, is bound by all Supreme Court of Canada decisions and by pre-1949 Privy Council cases on appeal from Canada, until such time as they are overruled by the Supreme Court of Canada. Every provincial court of appeal is bound vertically by the Supreme Court. Of course, we have already pointed out that it is the ratio of the higher court that is binding, and lower courts can avoid superior precedent to the extent that they can distinguish such cases from the problem case at hand.
It should be emphasized that only such cases bind a provincial court of appeal. For example, the Alberta Court of Appeal does not bind the Manitoba Court of Appeal. The Federal Court of Appeal does not bind the Manitoba Court of Appeal. Such decisions may be given weight and followed of course, but they are not strictly binding.
At one time, there was authority for the view that, particularly in matters of Federal law, a provincial court of appeal, should follow an earlier decision on point from another province’s court of appeal. (See R. v. Glenfield [1934] 3 W.W.R. 465 (Alta. C.A.); R. v. Lee Guey (1907) l5 O.L.R. 235 (C.A.); Locyka v. Ruthanian [1922] 2 W.W.R. 782 (Man. C.A.). However, it is now abundantly clear that no decision of one provincial jurisdiction binds another jurisdiction, and this includes every level of court. That is, a Manitoba Q.B. judge faced with an Alberta Court of Appeal decision is not bound by the C.A. case, even though a C.A. judgment is "higher" than the Q.B. level. The Alberta C.A. is not part of your judicial hierarchy in Manitoba, and therefore not binding on you.
In Wolf v. The Queen (1974), 27 C.R.N.S. 150, the Supreme Court of Canada noted that in the Alberta Court of Appeal, McDermid J.A. in dissent said that he ought to follow a Saskatchewan Court of Appeal case on perjury, even if he thought it was wrongly decided. Laskin, however, for the court at 151 stated:
"A provincial appellate court is not obliged, as a matter either of law or of practice, to follow a decision of the appellate court of another province unless it is persuaded that it should do so on its merits or for other independent reasons .... The only required uniformity among provincial appellate courts is that which results in the decisions of this court."
So, it is only the SCC and pre-49 decisions until overruled by the SCC that bind the provincial courts of appeal. In R. v. Boardwalk Merchandise Mart Ltd. (1972) 10 C.C.C. (2d) 50, McDermid J.A. of the Alberta Court of Appeal emphasized that the court was bound by the Supreme Court of Canada and pre-1949 Privy Council cases, and even if the law contained in the case in question was now considered bad or unjust, it was nevertheless impossible to change it at the intermediate court level. The disaffected litigant would have to appeal to the Supreme Court to get the law changed.
In Woods Manufacturing Co. v. The King, [1951] 2 D.L.R. 465 at p. 475 the Chief Justice of Canada, giving the judgment of the Court said:
It is fundamental to the due administration of justice that the authority of decisions be scrupulously respected by all Courts upon which they are binding. Without this uniform and consistent adherence, the administration of justice becomes disordered, the law becomes uncertain, and the confidence of the public in it undermined. Nothing is more important than that the law as pronounced, including the interpretation by this Court of the decisions of the Judicial Committee, should be accepted and applied as our tradition requires; and even at the risk of that fallibility to which all Judges are liable, we must maintain the complete integrity of relationship between the Courts. If the rules in question are to be accorded any further examination or review, it must come either from this Court or from the Judicial Committee.
As mentioned before, there is still confusion over which of the pre-49 decisions of the Privy Council constitute binding precedent for Canadian courts. In Bank of Montreal v. Butler (1990) 66 DLR 4th 664, the B.C. Court of Appeal held itself to be bound by a 1926 Privy Council case on appeal from the West Indian Court of Appeal. However, Mr. Justice Wood in dissent said:
With great respect to Lord Phillimore, I say that the result in the Boos case was unconscionable. I can well understand that it continues to bind the courts in the West Indies, unless its effect have been overcome by legislation. But I do not believe that the principles of stare decisis require this court to accept as binding upon it a decision of the Judicial Committee, which was rendered over 60 years ago in a case from another jurisdiction, which was reached without the benefit of any argument from the party who had the most to lose and lost it, and which no court now seems able to apply without first apologizing. ...This court (BCCA) is effectively the court of last resort for about 95% of the litigants who appear before it. If we are to do justice for those who appear before us in the 1990's, we cannot allow ourselves to be bound by the mistakes of the past, nor can we allow our desire for judicial comity to stand in the way of what is right.
Another confusion in relation to the vertical effect of precedent that sometimes arises deals with leave to appeal applications to the Supreme Court of Canada. Sometimes counsel might cite a case from a provincial court of appeal and say that "leave to appeal refused by the Supreme Court of Canada." The implication is that the case is more binding because the highest court did not review it. This is not so!
In R. v. Meston (1975), 34 C.R.N.S. 323 the Ontario Court of Appeal considered whether refusal of leave to appeal indicates approval by the Appeal Court of the judgment sought to be appealed from. Martin J.A. for the court adopted the words of Lord Diplock in Gilbert-Ash (Northern) v. Mordern Engineering [1973] 3 W.L.R. 421, at 422:
Refusal of leave to appeal does not imply approval by this House of a judgment sought to be appealed against. The judgment carries the same authority as any other unappealed judgment of the Court of Appeal - neither more nor less.
Similarly, in R. v. Santeramo (1976) 36 C.R.N.S. l, Brooke J.A. said at page 6 that the fact of refusal to accept appeal does not mean that the Supreme Court of Canada determined the issue. Denial of leave to appeal by a court has no precedential quality. There is abundant authority for this- See R. v. Bachman (1987) 78 AR. 282 Alta. C.A. Also, Laskin said in The Queen v. Cote [1978] 1 S.C.R. 8 at 16: “Leave was refused as to that point. This refusal does not amount to a confirmation of the views of the Court of Appeal thereon.”
Another problem sometimes encountered with the vertical effect, however, is how to deal with plurality decisions in the Supreme Court of Canada. While it is rare, the Supreme Court has on occasion sat in even numbered panels (when Laskin was ill for an extended period, the court did so) and you may have an even split decision. This means that the decision may not be binding because it decides nothing and thus the lower Court of Appeal judgment still stands. For a split decision, see Hill [1977] l S.C.R. 827; and Bank of Canada [1978] l S.C.R. 1148. When the court splits, the appeal is dismissed since a majority did not agree to overturn the decision below. However, this does not mean that the court has therefore created a precedent in favour of the respondent who has “won” the appeal by virtue of the split.
More frequently, even without a split decision, it is difficult to determine whether there is a ratio that can be constructed out of the narrow material facts and disposition agreed upon by a majority. Even if you have a majority in terms of a result, you may still have even splits on some of the issues involved, and therefore no majority agreement for a particular rule that the result is based on.
For example, in R. v. Betesh (1975), 35 C.R.N.S. 238 Graburn J. of the Ontario County Court noted that in the case of R. v. Osborn [1971] S.C.R. 184, the Supreme Court of Canada did not decide the issue of whether a court has power to prevent an abuse of its process by staying proceedings. They did not decide the issue because three judges said the case did not involve any issue of abuse of process, while another three judges said that the so-called inherent powers to prevent abuse of process did not exist in Canada and the final judge expressed no opinion on the question of abuse of process at all. Thus, Graburn considered himself still bound to adopt the Ontario Court of Appeal judgment in R. v. Osborn [1969] l O.R. 152 which says the court did have that power.
In R. v. Dennis (1974) 28 C.R.N.S. 268, a B.C. provincial court judge took the route of cumulating higher decisions and counting the votes on particular issues in a way that supposedly freed him from following either the Supreme Court or (what I would call) a binding decision of his own Court of Appeal. The decision dealt with aboriginal rights and the effect of the earlier Calder case as decided by the Supreme Court and the B.C. Court of Appeal.
This counting of votes on any issue, raises another point, namely the status of dissenting judgments. Most Supreme Court decisions do not deal with just one issue. There may, for example, be five issues and a 5-4 overall final decision of the court. But suppose on one of the issues, that only 2 of the 5-majority said X, while the other 3 said Y. However, suppose that two or more of the dissenters agree with X on this issue. I would argue that there is a majority rule for X on that issue. The 3 from the majority do not create a binding ratio of Y on that issue, but rather the majority position of X is found by looking at all the decisions of the court whether they are in the end dissenting as to the result or not.
Finally, as to the vertical effect, we might cynically conclude that if a lower court wants to, it can always find a way around a higher precedent, but this is not always so, at least if "good faith" operates in the system. A judge may sincerely disagree with the effect of a higher precedent but feel that his or her hands are tied. This may be extremely frustrating and expensive for litigants. In many cases, of course, the court may legitimately and reasonably distinguish the case and certainly it is also a well-known principle that it is only the ratio of the higher court that is binding on lower courts, not obiter statements.
2. Bound by Supreme Court “Judicial Dicta” as Well?
It is true that it is difficult to come to an agreement as to just what a ratio in a case is. The proposition of law on which the decision is based may be stated narrowly or more widely. In Dore v. A.G. of Canada (1974) 27 C.R.N.S. 237, Fauteux, then Chief Justice of Canada, repeated the oft quoted words of Halsbury L.C. in Quinn v. Leatham [190l] A.C. 495 that a judgment is authority only for what it actually decides, not for propositions which seem to follow logically from it. That is, the ratio is limited by what actual issues on the facts have to be decided by the court. The Court does not have the legislative authority to proclaim law on a diverse number of issues that are not actually before the court for decision on the facts. If the court makes obiter statements of this sort, lower courts may well follow these statements, but they are not strictly bound to do so. At the same time, as courts move away from formalistic application of precedent, they increasingly focus on the underlying purposes and policies that justify earlier decisions, rather than on some narrow ratio.
Still, it was always thought in a strict sense that only a ratio was actually binding on a lower court, until the Supreme Court of Canada suggested otherwise in Sellars v. R. [1980] l S.C.R. 527. In that case, Chouinard J. for the court apparently concluded that while it was not absolutely necessary in an earlier Supreme Court case to rule on a particular point, it did so, and lower courts should have felt bound by that ruling! In the earlier case of Paradis v. The Queen [1978] l S.C.R. 264, a majority of the court ruled on the issue of whether the jury must be warned of the risk of basing a guilty verdict on the uncorroborated testimony of "an accomplice." In doing so, the majority also stated that the evidence of an "accessory after the fact," would fall under the jury warning rule as well, though it was not necessary to so rule in the case. In Sellars, the court said that lower courts should have been bound by the obiter ruling.
Sellars influenced the way lower courts read Supreme Court judgments and even the way trial courts read provincial Court of Appeal judgments. Is this a good development? In Woloszczuk v. Onyszczak (1976) 74 D.L.R. (3d) 554, Krever J. of the Ontario High Court followed an Ontario Court of Appeal obiter statement and felt bound to do so quoting Jessup J. in R. v. Govedarov [1974] 3 O.R. (2d) 23 from the Ontario Court of Appeal to the effect that "a deliberate and considered pronouncement intended to be acted on in the trial of a subject cannot be regarded as obiter and is binding." This development took place before Sellars. But now Sellars gives the highest authority to it, as indicated in Re McKibbon (198l) 6l C.C.C. (2d) 126, where an Ontario High Court Judge followed an obiter point from the Ontario Court of Appeal, citing Sellars as to its non obiter status, though Sellars dealt with Supreme Court dicta, not Provincial Court of Appeal dicta. Sellars played a prominent role in R.v. Baxter (1980) l6 C.R. (3d) 397 (Quebec S.C.), as well.
Aside from the old "chicken and egg" problem about whether the court has any legal authority to dictate "precedent practice" in lower courts, given that such statements are in themselves obiter, the more important issue is whether the vertical convention of precedent should be made even stronger and more inflexible by Sellars.
If we accept the view that a wider definition of ratio could logically be argued for, and that Sellars should be confined to bringing only such dicta as can be reinterpreted as ratio into binding status, then we may still be on defensible ground in my view. We could look at a "principle" theory of ratio, rather than a "rule" theory of ratio. For example, in Re Depagie [1976] 6 W.W.R. l, McDermid J.A. of the Alberta Court of Appeal said, "However ... a principle asserted to be the law by a final Court of Appeal becomes the authority for the principle so asserted." This does not mean that any principles whatever on any issues whatever are ratio, just because the court chooses to elaborate them in a case. The principles eligible for ratio status must be given by the court, or constructed by subsequent courts, in relationship to what the issue for decision in the case actually is. But having said that, the ratio of a case may be the wider principle giving rise to the decision, rather than the narrow rule constructed out of the material facts and the disposition of the court. Still, if we contemplate such a "principle" ratio as being binding on lower courts, we cannot go beyond saying that a lower court is bound to take the principle into account, but still has the freedom to determine how the principle applies to the new case. A principle by definition is even more flexible in application, than the application of a rule. Principle decision-making is perhaps something different than analogical decision-making, but it could be argued that both require reasoned elaboration and application, even if we say that a court is bound to take a "rule" or "principle" into account.
But some would argue that the effect of Sellars is wider. Peltoma in (1982) 60 C.B. Rev. 823 argues that lower courts should not be bound by Supreme Court obiter dicta but should be bound by Supreme Court judicial dicta. What is the difference? He quotes Megarry J. as follows from Brunner v. Greenslade [1971] l Ch. 993 at l002-1003:
A mere passing remark, or a statement or assumption on some matter that has not been argued, is one thing; a considered judgment on a point fully argued is another, especially where, had the facts been otherwise, it would have formed part of the ratio. Such judicial dicta, standing in authority somewhere between a ratio decidendi and an obiter dictum, seem to me to have a weight nearer to the former than the latter...
Thus, even if a point is unconnected to the actual issue that needs to be decided, if it is fully argued and the court makes a considered judgment on the point, then it is not obiter dicta, but rather judicial dicta, and such dicta might be said to bind lower courts. In practice, it may well be that such dicta would be highly persuasive, particularly if it was recent, since it would be likely that the practical effect of not following it would be reversal on appeal. However, I think it is wrong to elevate judicial dicta to binding status, particularly with the passing of time. It increases the potential for more delay and expense before a reconsideration can take place and increases the "lazy" tendency of lower courts to latch onto any higher court propositions that most easily fit the case.
Without mentioning Sellars, Dube J. in the Federal Court, Trial Division in Pollock v. The Queen (198l) 81 D.T.C. 5293 followed an earlier decision of the Federal Court of Appeal rather than a dictum of a later Supreme Court of Canada case to the contrary, emphasizing that dicta of the Supreme Court was not binding on him. I agree.
The Provincial Court of Appeal is in effect the highest court of appeal for most litigants. Now that the Supreme Court of Canada can control its own docket for the most part, very few cases make it to the Supreme Court, and of those that do, a preponderance of the cases are in the field of public law rather than private law. As a consequence of this, the Provincial Court of Appeal should have more flexibility to control the development of the common law unfettered by Supreme Court dicta that might be thought to be ill advised or half baked.
On the other hand, it is precisely because the Supreme Court has only a limited number of cases that it can take and give proper attention to, that the argument could be made that even judicial dicta from the court should be binding. If the Supreme Court takes a case and makes pronouncements on issues that are related to the case but not strictly necessary for the decision, giving binding authority to these pronouncements allows the Court to coherently develop the law and work efficiently, rather than being confined to restrictive incremental change which invites more appeals to bring into line related doctrines that now seem out of line with where the court is going.
The Sellars doctrine continues to be upheld. Chief Justice McEachern in Scarff v. Wilson (1988) 33 BCLR 2d 290 cited Sellars and said, "From the foregoing I conclude that the obligation of a lower court, including courts of appeal, to follow judgments of the Supreme Court of Canada is not limited to the strict ratio decidendi of the highest court but extends also to any considered decision of that court on a question of law or principle. We should not be astute in seeking to limit the authority of such a decision."
The controversy over the Sellars doctrine was dramatically played out in R. v. Chartrand (1992) 81 Man. R. (2d) 81. Dealing with the Supreme Court's interpretation of the Charter in relation to accused persons being cautioned before waiving their right to counsel and confessing, Philp J.A. (Twaddle J.A. concurring) argued on the bases of the Sellars concept that the court was bound by the rules laid down by the Supreme Court. However, in dissent, Lyon J.A. had this to say:
Finally, my colleague Philp J.A., in his reasons for the majority, also cites Sellars v. The Queen, [1980] 1 S.C.A. 527 as authority for the proposition that obiter dicta of the Supreme Court of Canada is now binding on all provincial appellate courts. I demur from this controversial proposition for a variety of reasons, not the least of which involves its being inimical to the settled law of this country since 1867. However, I will attempt to confine my comments to the case at bar. At no time at trial or on appeal was this proposition alluded to or argued by counsel. It appears for the first time in the majority reasons and is cited as authority for the binding nature of McLachlin J.A.'s general statements previously cited from p. 893 of Evans, supra. But we need go no further than the previously noted reasons of Stevenson J.A. in Evans, at p. 900 where he makes it clear beyond question that "we did not, therefore, have the benefit of full argument on the reiteration question." …Nor do I have any hesitation in saying that while considered dicta of the Supreme Court of Canada should be respected as "thoughtful expressions of the law," they cannot be treated as automatically and absolutely binding and immune from being distinguished. Accordingly, I am satisfied that the determination of this case need not turn on the dicta found in Sellars, supra…
3. Should We Have Anticipatory "Overruling" of the SCC by Prov. Courts of Appeal?
It is ironic that while we have the development of making the vertical rule stricter and more inflexible by perhaps bringing dicta under it, we are also experiencing discontent with the strict vertical rule. That the vertical convention causes hardship in some cases can be illustrated by the case of Marvco Color Research v. Harris (1980) 107 D.L.R. (3d) 632, where Grange J. of the Ontario High Court (remember that a High Court Judge is equivalent to our Q.B. judge) was faced with a 1956 Supreme Court of Canada decision (Cartwright J. dissenting) on the non est factum issue. Obviously, as I have said, a lower court is bound by a higher court decision, however bad or unjust. But in this case, the 1956 decision was wholly based on a 1911 English Court of Appeal decision which had been overruled by the House of Lords in 1971. But the House of Lords is not binding on us, so the 1956 Supreme Court case still bound Grange J., though he thought it "bad" law as a matter of policy. The case went to the Ontario Court of Appeal (1980) 107 D.L.R. (3d) 632. The court agreed with Grange that the 1956 Supreme Court of Canada case was bad law and out of line with the law in other jurisdictions on the subject, but they, too, were bound by the Supreme Court. Thus, the appellant had to go all the way to Ottawa where the Supreme Court overruled the 1956 case. See (1982) 45 N.R. 302 (S.C.C.).
Now what could you say about this situation? It happened to work out that the appellant went all the way to the Supreme Court at considerable expense and delay and now we have the law reformed. But perhaps the appellant could have just given up and the "bad" law would stay on the books for many more years. What is the solution? Well, consider the concept of Anticipatory Overruling. The Ontario Court of Appeal might have predicted that the Supreme Court would overrule, and therefore it could treat the 1956 case as not binding. Not following the case would place the burden on the person relying on the old case to appeal but would in effect do justice here and now for the disaffected party.
Is "overruling" a good word to use, though? Can a lower intermediate Court of Appeal overrule a higher court precedent? Would a trial court in a new case follow the old Supreme Court case or the more recent applicable Court of Appeal case? Should anticipatory overruling be confined to provincial Courts of Appeal in regard to the Supreme Court, or should trial judges be able to anticipate Courts of Appeal overruling? Should we view this not as overruling, but rather as rendering a higher decision non-binding by virtue of a prediction that the higher court itself would not follow its own decision?
Anticipatory overruling is apparently used in the United States, particularly in constitutional matters, but it has not yet been discussed in Canadian decisions. However, recently Professor Dale Gibson commenting on R. v. Buchinsky charged that the Manitoba Court of Appeal in that case refused to follow 3 precedents from the Supreme Court directly on point. Gibson disagrees with the Manitoba Court of Appeal's characterization in the case, but he also goes on to argue for the appropriateness of anticipatory overruling in certain cases.
Dr. Schmitthoff went even further when he wrote an article, "Should Precedents be Binding?" (1982) Journal of Business Law 290 and concluded:
In my personal view - and I admit that this is a heretical view - it would be in the interest of the development of the common law if in the hierarchical order of the courts the decisions of the higher tiers were accorded only persuasive, and not binding, authority. The effect of such a rule would be that normally and in most cases the courts of the lower tiers will follow precedent, out of respect for the courts of the higher tiers. But if in an exceptional case if the Court of Appeal or even a High Court judge comes to the conclusion that a principle established by a court of a higher tier is wrong, or unworkable, or no longer in keeping with the general view of society, the judge in the lower court should be entitled to say so and to decide according to his conscience and conviction. Such a rule would be historically justified.
What do you think?
Remember that anticipatory overruling is different from implied overruling. A lower court faced with an old precedent of the SCC may conclude that the precedent cannot be reconciled with later decisions of the SCC, which do not explicitly overrule it or even refer to it for that matter. The lower court is not engaged in anticipatory overruling but is rather engaged in a determination that the SCC has already overruled the earlier case and has done so by implication. But anticipatory overruling is a radical concept. How do we really predict that the Supreme Court would overrule its past precedent if the present case went up to them?
4. Horizontal at Court of Appeal: On Not Being Strictly Bound
Let's turn to the horizontal effect of precedent in the provincial courts of appeal. Is the Manitoba Court of Appeal, for example, bound by its own past precedent? Just as the Supreme Court of Canada moved away from the strict horizontal binding position only after the House of Lords did so, Canadian provincial courts of appeal looked to the English Court of Appeal as the model for conventions of precedent at the intermediate court of appeal level. Interestingly, the English Court of Appeal at the time of this lecture has a much stricter horizontal rule as compared to the House of Lords. The English C.A. cannot simply overrule itself if it appears right to do so. Rather, as expressed in Young v. Bristal Airplane [1944] 2 All E.R. 293:
The Court of Appeal must apply its own previous covering decisions except in three cases. (1) The court can decide which of two conflicting decisions of its own it will follow. (2) The court must refuse to follow a decision of its own which cannot, in its opinion, stand with a decision of the House of Lords. (3) The Court need not follow a decision of its own if that decision was given per incuriam.
Lord Denning engaged in a long and unsuccessful struggle to have this strict rule of precedent from Young overthrown, and when that was unsuccessful he attempted to carve out new exceptions. The House of Lords consistently rebuffed Denning’s attempt. See Davis v. Johnson [1978] 1 All E.R. 1132.
Despite the Canadian habit of looking to England, all Canadian courts of appeal, with the exception of Ontario in civil matters, have considered themselves free to depart from a previous decision of their own when it is felt right to do so. However, there is actually a recent trend away from this freedom. There appears to be a more restrictive approach to horizontal overruling that has developed recently.
We look first at the position of a more flexible horizontal freedom to overrule past precedent. In General Brake & Clutch Services Ltd. v. W.A. Scott (1976) 57 D.L.R. (3d) 741, Freedman C.J.M. stated:
Let me at once express my belief that we do not lack the power to depart from an earlier decision of this Court. It is a power that will of course be exercised only in rare circumstances. But if the circumstances are deemed appropriate and we are convinced that the earlier decision was incorrect we should be guided by the principle that it is no part of the function of any Court to make error perpetual. There are instances in this very Court where we so departed from an earlier decision: vide, for example, R. v. Thompson, [1931] 2 D.L.R. 282, 55 C.C.C. 33, 39 Man. R. 277, overruling Cote v. Friesen, [1921] 3 W.W.R. 436, 31 Man. R. 334; R. v. Radford (1973), 13 C.C.C. (2d) 575, [1974] l W.W.R. 191 sub nom. Ursick v. Radford, declaring that Campbell v. Sumida (1964), 49 D.L.R. (2d) 263, [l965] 3 C.C.C. 29, 50 W.W.R. 16, should no longer be regarded as authoritative; and Daudrich v. Daudrich (1971), 22 D.L.R. (3d) 611, [1972] 2 W.W.R. 157, 5 R.F.L. 237, declining to follow Whyte v. Whyte (1969), 7 D.L.R. (3d) 7, 69 W.W.R. 536.
Why was the Canadian situation, apart from Ontario which followed the Young rules from England, different from the English Court of Appeal situation? Professor Curtis in "Stare Decisis at Common Law in Canada" (1978) 12 U.B.C. L. Rev. l, stated:
"... Partly this difference may be accounted for by geography. Because of the size of Canada, the courts of appeal in the provinces have effectively been the courts of last resort for most litigants. The burden of time and costs, both on the litigants and their professional advisors, to carry an appeal to distant Ottawa is heavy. Hence, in situations where a modification of previous doctrine appears called for, it may be thought best to set matters right without putting the parties to further expense and trouble. That these considerations have weight with the Canadian appeal courts is borne out by some extra-curia observations of Freedom, CJM. He states: "If the court is bound against its will, how will the law be changed and brought into line with what the court thinks it should be? One line of thinking says, 'leave it to the Supreme Court of Canada.' the difficulty, however, is that on account of expense the case may not get there, with the consequent injustice to the present defeated litigant." [(1975) 8 U.B.C. Law Rev. at p. 212]. The Chief Justice goes on to assign a further reason for courts of appeal in Canada to apply a liberal doctrine of precedent, saying this: "Another line of thinking says: 'leave it to the Legislature.' But action from that source is an uncertain thing, legislative time is notoriously limited, and reform therefore may not come." (ibid).
Whatever the reasons, the records shows that the courts of appeal in most of the provinces of Canada have not been bound to a strict application of stare decisis and have considered themselves free to overrule their previous rulings when reason is shown for their doing so. Some of the detail is as follows: R. v. Hartfeil (1920), 55 D.L.R. 524 (Alta.); Ex parte Yuen Yick Jun [1940] 2 W.W.R. 467; Bell v. Klein (No.l) [1954] 4 D.L.R. 273; R. v. Thompson [1931] l W.W.R. 267; General Brake and Clutch Service v. W.A. Scott & Sons. Ltd. (1975), 59 D.L.R. (3d) 741 (Man.); Black v. Brown (1894), 32 N.B.R. 631; Subsurface Surveys Ltd. v. John Burrows Ltd. (1967), 62 D.L.R. (2d) 700 (N.B.); Power v. Winter (1952), 30 M.P.R. 13l (Nfld.); Royal Exchange Assurance v. Montreal Trust Company (P.E.I.); Wolfe v. CNR [1934] 3 W.W.R. 497; Davidson v. Davidson [1953] l D.L.R. 297 (Sask.)
... There is now an added consideration bearing on the work of the intermediate appellate courts in Canada. Recent reform legislation has reduced greatly the number of cases likely to go beyond the provincial courts. Appeal now may be taken to the Supreme Court only on leave; and the present indications are that leave to appeal will be sparingly granted. To a greater extent than ever, the courts of appeal in the provinces will be courts of final appeal. This is all the more reason why they should operate under a regime of flexible stare decisis, being free, when the situation warrants, to up-date the law and save the litigants the costly journey to higher authority.
Ontario was always the most conservative in terms of the horizontal effect. In criminal matters the situation was more flexible. In R. v. Thornton (1970) 14 C.R.N.S. 198, Jessup J.A. of the Ontario Court of Appeal overruled a 1938 case of the Ontario Court of Appeal on a criminal matter. He said, "When the interest of the liberty of the subject requires it, the rule of stare decisis may be departed from by an appellate court." In R. v. McInnis (1973), 23 C.R.N.S. 152 Martin J. of the Ontario Court of Appeal said at 163:
"It is well settled that this Court is not bound to follow its own decisions where the prior decision was given without consideration of an applicable authority or statutory provision. Moreover, in criminal cases where the liberty of the subject is involved, the court is not bound by its previous decisions to the same extent as in civil matters."
He was following R. v. Gould [1968] 2 Q.B. 65 (Ont.C.A.). Similarly, in R. v. Santeramo (1976) 36 C.R.N.S. l, Brooke J.A. of the Ontario Court of Appeal said at 14, "I do not feel bound by a judgment of this court where the liberty of the subject is in issue if I am convinced that the judgment was wrong."
However, in civil matters, the Ontario Court of Appeal still follows Young v. Bristal Airplane as far as I can tell. To this date the Ontario Court of Appeal has still not given itself the freedom that other Courts of Appeal have accepted for a long time. For example, in Regina v. Govedarov (1974) 25 C.R.N.S. l Jessup J.A. of the Ontario Court of Appeal said, "Stare decisis is to be strictly adhered to unless a benefit to the liberty of the subject is involved." Also, in A.G. for Ontario v. Palmer (1979) 28 O.R. (2d) 35 the court felt bound by a previous decision of its own even though at least one member of the Court thought the earlier case was bad law.
5. Horizontal: Toward a More Restrictive Approach?
The central problem with arriving at an adequate convention on horizontal precedent in the provincial courts of appeal, arises due to the large number of appeals to these tribunals and therefore the large number of judges on these courts, and the fact that as a consequence, the normal procedure is that the court sits in panels of three. Some provincial courts of appeal have upwards of 20 judges or so on them, and at any given time there are several panels of three hearing cases. Every member of the court has equal authority and yet the court never sits as a whole court together to decide a case. As time goes by the number of judges on the provincial courts of appeal will probably increase.
This is different than the situation at the Supreme Court of Canada where the court will normally sit with a full bench of nine, although it can in some situations, due to workload crunch or sickness or conflict of interest, sit in panels of seven or even (very rare) five judges. Whatever the number, when a case is decided, it is the majority of the court, as it were, that is speaking, not a panel of the court.
Yet this is not the way it is at the provincial courts of appeal. Should it be the convention then, that one panel of three judges of the court can have the power to overrule a different panel of three judges of the court? Is there a danger that too many issues might be taken to appeal in the hope that by playing musical chairs and getting a different panel, the previous case law would be overruled? For that matter, can three judges of a court overrule a different three judges of the same court, or are they just disagreeing with each other? If that is the case, then what should a trial court do when faced with different decisions from the court above? Follow the most recent one as overruling the previous one; or pick which one of the two conflicting judgments it prefers?
It is for this reason that some jurisdictions have implemented, either by way of changes in the formal rules of court or by way of pronouncements from the bench, that to overrule a previous case the litigant must first apply to have a bench of at least five judges rather than the usual panel of three.
It is important to note that this new procedure that is emerging in some provinces does not change the fact that the court can overrule its own past precedent, but rather requires a bigger panel for it to do so.
In Alberta, the rules of the court of appeal, Practice Direction 1991, require counsel to first apply to the court for a five-judge panel if they plan to argue that a case should be overruled. Whether the panel will be struck depends on a preliminary finding of whether the call for an overrule has some reasonable prospect of success. Examples of such a leave application being rejected include R. v. Whissell (1994) 157 A.R. 261 Alta. CA and R. v. Dean (1992) 127 AR 376.
In British Columbia there are a number of cases that stand for the proposition that unless a three-panel court is faced with a previous decision of the court that is per incuriam or clearly wrong, it cannot overrule the case but rather a five-panel bench must be constituted for that purpose. The issue was first brought to debate in Bell v. Cessna Aircraft [1983] 6 WWR 178 BCCA where counsel sought to have a previous case overruled and frankly admitted that a tradition had developed requiring a five-person bench to do so. Thus, counsel was requesting the three-judge panel to adjourn the case and to make an order for a five-judge panel to sit on the case. The majority essentially agreed that to overrule a case required at least a five-person bench except in extraordinary circumstances. However, the application was denied because the court was satisfied that the precedent in question should not be overruled.
Following the Bell case, in Betts v. Sanderson (1988) 53 DLR 4th 675 Lambert said, "I return to the situation in British Columbia. This division of the court is bound by the previous decision of a three-judge division of the court in Mack v. Enns unless that decision was made per incuriam or unless it is clearly wrong."
In Saskatchewan there also appears to be some debate about whether a larger panel of five is needed to overrule some decisions of the court. In R. v. Hawrish (1986) 52 Sask. R 248 Sask CA, Wakeling in dissent said:
I hold the view that because so few cases will now reach the Supreme Court of Canada, we are on longer able to look to that court to correct judicial error, and as a consequence there are likely to be more instances than there used to be where a review of previous judgments of a Court of Appeal is required. It therefore seems to me that it is important that a process of review be established, and the approach taken by the British Columbia Court of Appeal and the similar approach taken by the Alberta Court of Appeal should also be adopted by this court.
Tallis for the majority responded to Wakeling by rejecting the view that a larger panel of the court had any more authority than a three-panel division of the court. Tallis quoted Young v. Bristol Airplane 1944 English CA which established that proposition. He also noted that one of the traditional grounds for an intermediate court of appeal to overrule itself under the Young rules was when two of its own past decisions appeared to be in conflict. Here in Hawrish this might be said to be the case.
Thus far in dealing with new developments in terms of the horizontal convention, we have noted this movement to a five-person bench. A second movement, however, deals with how the overrule power is exercised. What may be happening is some movement toward the English position expressed in the Young case, which has also been traditionally the approach used in Ontario. For example, consider the case of John Deere (1987) 45 D.L.R. (4th) 641 in the Manitoba Court of Appeal. It is interesting to note that it was decided by a five-person bench. More importantly, however, much of the argument appears to be centered around the Young criteria for overruling, rather than just taking the traditional approach that the court has the power to overrule its own past precedent for good reasons, unrestricted to the narrow Young exceptions.
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Mastering the lawless science of our law,
That codeless myriad of precedent,
That wilderness of single instances,
Through which a few, by wit or fortune led,
May beat a pathway out to wealth and fame.
- Alfred, Lord Tennyson, "Aylmer's Field."
