THE CONVENTIONS OF PRECEDENT IN THE SUPREME COURT OF CANADA
-Alvin Esau (1993)
1. Conventions of Precedent till 1949: The Vertical Convention
Up to 1933 in criminal cases, and 1949 in civil cases, the Supreme Court of Canada was not the final court of appeal for Canada. Rather the Judicial Committee of the Privy Council in London served that function. Corry and Hodgetts, Democratic Government and Politics (1959) described the Judicial Committee of the Privy Council as follows at 413:
Until 1949, Canadian litigants could appeal, in certain special circumstances to a still higher court: the Judicial Committee of the Privy Council sitting in London. It is a body specially constituted to hear appeals from the courts of the British Dominions and colonies. Since it must hear appeals from some Dominions and from the colonial Empire, it has to have a wide membership assuring it of experts in the widely differing kinds of laws involved. But for most of its work, the active members of the Judicial Committee are the Lord Chancellor and the Law Lords of the House of Lords who are ex officio members. It was they who generally gave the final interpretation of the British North America Act.
The main work of the Judicial Committee in relation to Canada was appeals on constitutional questions, which issues were generally carried there as a matter of course from the Supreme Court of Canada or directly from the provincial courts. There was no right of appeal from the Supreme Court of Canada but leave to appeal was granted by the Judicial Committee if the issue at stake was thought to be of first-rate importance. This could almost always be established if a constitutional question was involved, but only rarely where it was not. Yet the fact remains that formerly particular Canadian litigants might have to face as many as four appeals, the latter two in places far distant from their place of residence or business.
The injustice of putting litigants to the expense of carrying an appeal to London and the widespread dissatisfaction in Canada with the Privy Council's interpretation of the British North America Act brought the abolition of all Canadian appeals to that body in 1949. The Supreme Court of Canada is now the final and exclusive court of appeal for Canada.
The first question we must ask about the formal conventions of precedent involves the vertical convention. Before 1949, the Supreme Court of Canada and all other lower Canadian courts were bound by the Privy Council. That satisfies the vertical rule of precedent. But which decisions of the Privy Council were binding on the Supreme Court of Canada and lower Canadian courts? Only Privy Council cases on Canadian appeals, or also Privy Council decisions from other jurisdictions in the Commonwealth, especially on general matters of the common law? Should the Privy Council be compared to the Queen? When the Queen is in Canada, she wears the "hat" of Canadian Queen. When in Australia, she puts on a different hat as Australian Queen, etc. Or should we think of the common law as a seamless web of "English" law which is no respecter of boundaries?
There is scant authority, but in Negro v. Pietro's Bread Co. (1933) the Ontario Court of Appeal suggested that the binding effect of the judgment of the Privy Council is limited to the courts of the colony from where the appeal is heard. However, the Supreme Court of Canada apparently never made such a distinction, so it would appear that the Privy Council was treated as binding on Canadian courts as to common law decisions generally. This is more than historically important, because as we shall see, pre-1949 decisions of the Privy Council in civil matters (pre-l933 in criminal matters) are still treated as the highest binding authority on all lower Canadian courts until overruled by the Supreme Court of Canada. I would argue that it would be more logical to treat only past Privy Council cases on appeal from Canada as actually forming part of our law.
Another issue that involves the vertical convention of precedent is that the Judicial Committee of the Privy Council was bound by the House of Lords. Does that mean that before 1949, Canadian courts were bound vertically, not just by the Judicial Committee of the Privy Council, but also by decisions of the House of Lords? It would make sense to say that such decisions were only highly persuasive and not binding until explicitly adopted in a Privy Council decision on appeal from Canada. After all, it could be argued that you must have the power to appeal to a court before it becomes a court vertically binding on you. The House of Lords was never vertically part of our court hierarchy. Only the Privy Council could be appealed to by Canadian litigants. However, given the Canadian colonial heritage, such arguments historically did not appear to hold much weight.
For example, in Trimble v. Hill [1879] A.C. 342, the Privy Council itself suggested that the colonies were bound, not just by the House of Lords, but also the English Court of Appeal in addition to the Privy Council, in matters dealing with English common law. To add the English CA cases to the list of binding decisions on Canadian courts was the height of colonial mentality.
This put the Canadian courts into some confusion as the cases indicate. For example, what would a Manitoba Q.B. judge do if faced with a later judgment of the House of Lords inconsistent with an earlier judgment of the Privy Council? Follow the Lords or the Privy Council? What if a later English Court of Appeal case conflicted with an earlier Supreme Court of Canada case? Should the lower Canadian court ignore the Supreme Court of Canada in favour of following the English Court of Appeal?
The situation was clarified somewhat when in the case of Robins v. National Trust [1927] A.C. 515 the Privy Council said that, in addition to the Privy Council, only House of Lords decisions bound Canadian courts, not also English Court of Appeal decisions. Viscount Denedin in the Privy Council stated:
"When an appellate court in a colony [like the Supreme Court of Canada], which is regulated by English law, differs from an appellate court in England it is not right to assume that the colonial court is wrong. It is otherwise if the authority in England is that of the House of Lords. That is the supreme tribunal to settle English law, and that being settled the colonial court, which is bound by English law, is bound to follow it."
So, while it is of historical interest only, it is interesting to note that Canadian courts considered themselves bound by both the Privy Council and by the House of Lords!
You can find all kinds of decisions before 1949 where Canadian courts at least agreed they were bound by the House of Lords. For example, in T.G. Bright & Co. Ltd. v. Kerr [1939] S.C.R 63, Chief Justice Duff treated as binding a statement of law by an American writer, because it had been adopted and acted on by the House of Lords. Some Canadian cases in lower courts before 1949 went so far as to adopt a more recent House of Lords decision if it conflicted with an older Privy Council decision, because after all, the Privy Council itself had said we should follow the House of Lords. In Will v. Bank of Montreal [193l] 2 W.W.R. 364 for example, Ford J. of the Alberta Supreme Court was faced with the question of a more recent House of Lords case in conflict with an earlier Privy Council case. He followed the House of Lords, but he did suggest that if the Privy Council spoke again after the House of Lords case, he would follow the Privy Council. There were cases going the other way, following an earlier Privy Council case when there was a conflict with a later House of Lords decision. [Jeremy v. Fontaine [1931] 3 W.W.R. 203].
Just as an aside - Although Robins was decided in 1927, as late as 1947 Chief Justice Williams of Manitoba (after whom our law library is named) held himself bound by the English Court of Appeal in connection with a common law rule dealing with the quantum of damages in a libel case (see Safeway v. Harris [1948] l W.W.R. 337). Now there is love of mother country! The Court of Appeal held him to be wrong (see Safeway v. Harris [1948] 2 W.W.R. 211).
To summarize the vertical discussion: -before 1949 the Supreme Court of Canada and lower Canadian courts were bound by the Privy Council undoubtedly, and while illogical, also declared themselves to be bound by the House of Lords through the authority of the Robins case. Even more illogically, for at least some period of time, the Supreme Court of Canada and lower Canadian courts may have declared themselves to be bound by the English Court of Appeal as well.
2. Conventions of Precedent till 1949: The Horizontal Convention
Now we move to the second convention, namely the horizontal one. As to the horizontal effect, the Privy Council was not strictly bound by its own past decisions, but this was only because of the anomaly that it wasn't really a "court," but rather a "committee," advising his or her Majesty about the conduct of the colonies, and thus part of the Royal Prerogative, and not bound by strict stare decisis. In effect, the Privy Council almost always followed its past decisions anyway.
For example, in Canada Temperance Federation [1946] A.C. 193, Viscount Simon in the Privy Council refused to overrule the earlier Privy Council Russell case and went on to talk about all the usual reasons for favouring strict stare decisis. It should be noted, too, that in the Privy Council, no judge was allowed to dissent.
However, before 1949 was the Supreme Court of Canada bound by itself (the horizontal effect)? The answer is yes. In Stewart v. Bank of Montreal (1909) 41 S.C.R. 516, Mr. Justice Duff stated that the Supreme Court of Canada was bound by its own past precedents. He analogized the Supreme Court of Canada to the English Court of Appeal. With the Privy Council as the highest court, the Supreme Court of Canada was an intermediate court of appeal like the English Court of Appeal, and thus like the English Court of Appeal should be bound by its own past precedents. I will deal with the English Court of Appeal in due course.
3. Conventions of Precedent After 1949: The Vertical Convention
Now what is the effect of the abolition of appeals to the Privy Council in 1949? What happened when the Supreme Court finally became supreme?
As to the vertical convention, the first matter to consider is whether Canadian courts including the Supreme Court, continued to give binding effect to Privy Council cases and/or House of Lords cases decided after 1949.
It is clear now that the Supreme Court of Canada and other Canadian courts are not bound by any English courts. Decisions of the House of Lords and of the Privy Council and of the English Court of Appeal continue to be highly persuasive, but they are not binding, even on the lowest court of our country. They are foreign decisions, completely out of our judicial hierarchy. This realization did not come about magically, however, even after 1949.
The Supreme Court of Canada, as well as lower Canadian courts, continued for some years to treat House of Lords cases as so persuasive as to be binding in effect. It was not until Fleming v. Atkinson (1959) 18 D.L.R. (2d) 81 that the Supreme Court of Canada finally did not follow the House of Lords in a case. Even after 1949, lower court judges occasionally still said that they were bound by the House of Lords. In Baker v. Nofield (1957) 24 W.W.R 157 a B.C. County Court judge said:
"The dissenting judgment of Fletcher Moulton, L.J., a very learned judge, is illuminating, but the judgment in Dean v. Brown, affirmed, as it was by the House of Lords, I conceive to be binding upon me."
However, eventually judges caught on. Other cases in which the Supreme Court of Canada did not follow the House of Lords include Ares v. Venner [1970] S.C.R. 609, and The Queen v. Jennings [1966] S.C.R. 532.
4. Conventions of Precedent After 1949: The Horizontal Convention
The question of the horizontal effect after 1949 is more complicated than the vertical one. We start with the proposition that for a considerable period of time after 1949 the Supreme Court of Canada continued to declare itself to be bound by its own past precedent. But what cases are in the pool of past precedent that binds the court horizontally?
The issues might be stated this way:
1. Was the Supreme Court of Canada after 1949, still bound by those Privy Council decisions on appeal from Canada that had already been made before 1949?
(A supplementary question is whether the court was bound only by those cases that had been decided on appeal from Canada, or whether it was also bound by those cases on appeal from other jurisdictions.)
2. Was the Supreme Court of Canada still bound by its own past decisions?
As far as I'm concerned, these two questions hang on each other. If you treat former Privy Council decisions on the Canadian constitution, for example, as being made by the highest court in our hierarchy, and now the Supreme Court of Canada is the highest court in our hierarchy, the question for us is, "Can the highest court overrule itself?" and if it cannot, then this applies to both former Privy Council decisions as well as past Supreme Court of Canada decisions because they are equal in the hierarchy, namely highest. The Supreme Court of Canada then treats pre-1949 judicial committee decisions (at least those on appeal from Canada) as if they were made by the Supreme Court itself.
Thus, after 1949 the Supreme Court of Canada was horizontally bound by pre-49 Privy Council cases on appeal from Canada and also by past Supreme Court of Canada cases, and lower courts continued to be vertically bound by such cases.
Before we note the emergence of the contemporary era of not being horizontally bound, we might first explore the policy question: Should the highest court in a jurisdiction ever overrule one of its own past decisions? Note that we are asking about the "horizontal" effect of precedent at the highest level. Obviously, in the process of making a decision the highest court may reverse the particular decision made in the immediate matter by lower courts, and also "overrule" previous decisions from lower courts that do not conform with what the highest court is saying now. (The Burial Effect of Precedent). Sometimes the court explicitly says that X case from Y lower court is overruled. But at other times there may be an implied overruling, where the "higher" case and "lower" case cannot be reconciled and so the former impliedly overrules the latter. But the question I am asking is whether the highest court should ever overrule itself.
Obviously, flexibility and development of the law would be impaired if the court stuck to every one of its past cases, no matter how old, ill-suited to the times, or even "wrongly decided" in the first place. On the other hand, you could argue that once the issue has been determined, any change should be left to the legislature and the democratic process. However, if this was the position, you would have no reason to appeal to the highest court if the past precedent clearly applied. If the court could never overrule itself, the law-making role of the court would be constrained to "filling in the gaps" rather than moulding and updating the common law to keep abreast of social needs or abstract demands for better justice in the law.
Even if the power to overrule your own past cases is desirable, there is a countervailing policy consideration which puts a brake on the use of such power. There is a need for certainty in the law, so that people can predict what the "rules" governing their affairs are, and this is enhanced by sticking with what has been done in the past, particularly at the highest level. If the "rules" keep changing after the fact, how can you rely on what the court has determined the law to be? If the court overrules the case, and the litigant has relied on the older case, the court is in effect retroactively making new law. But can you rely on the new rule? Perhaps the court will change the rule again. If the current court can overrule the previous court simply on the bases of policy disagreement as to the content of the law, what happens to the concept of “rule of law?” Instead, we have the concept that law is a temporary prediction of what conduct will or will not conform to the current ideological parameters of acceptability by the judicial majority of the court. The rule of law becomes the luck of the draw.
But if overruling precedents is problematic, would certainty and predictability be enhanced by a strict rule of precedent where such overruling was not permitted? It is sometimes asserted that a strict rule of precedent ironically leads to less certainty. If a prior decision is thought to lead to a "bad” result when applied to a new case, the court may make fine and unreasonable distinctions between the present case and the past case so that it doesn't need to apply the past case. Yet both cases are now binding on all the lower courts, creating confusion as to what the law is. It might be better to simply overrule the previous case. If the highest court treats all its previous cases as binding on itself, it is not even open for a lower court to say that there has been an implied overruling at the highest level when faced with inconsistent judgements at that level.
Furthermore, what should the role of the judiciary be? Can we simply expect judges to apply "pre-existing" law in a neutral, rational way, rather than make new law? Especially at the highest level of court, where often the most difficult cases end up, it is a myth to suggest that judges only apply and expand and "reasonably elaborate" the pre-existing precedents. Thus, the question of the horizontal effect of precedent boils down to the central question of the role of the judiciary in society.
During the height of the formalist period in the mid-nineteenth century, the House of Lords considered itself strictly bound by its own past precedents (Beamish v. Beamish (1861) 9 H.L.C. 274). See also, London Street Tramways v. L.C.C. [1898] A.C. 375, where Lord Halsbury, L.C., stated:
... My Lords, for my own part I am prepared to say...that a decision of this House once given upon a point of law is conclusive upon this House afterwards, and that it is impossible to raise that question again as if it was res integra and could be reargued, and so the House be asked to reverse its own decision. That is a principle which has been, I believe, without any real decision to the contrary, established now for some centuries, and I am therefore of the opinion that in this case it is not competent for us to rehear and for counsel to reargue a question which has been recently decided ...
In the formalist period the idea developed that precedents were not just examples of the law but were the law itself. Until then, there was the idea that true law existed above previous cases and thus a particular case may have been wrongly decided (mistake) and a future court had the freedom to disregard it.
In any event, it might be noted that there was a limited “exception” to the idea that the court was absolutely bound by its own past precedents. What would happen if the court was faced with a precedent which had been decided on the bases of mistake as to the existence of law? For example, there was a binding statutory provision on point and the court had been unaware of it? Or the court applied a statutory provision when in fact (unknown to the court) it had been repealed? Surely in a new case the court would not be bound by such a decision made per incuriam (by mistake)? In London Street, Lord Halsbury dealt with this and characterized such a decision as not being binding, but notice (at 380-381) he pointed out that this was not an exception to the binding rule at all, because the subsequent court was not overruling a legal rule from a precedent case or making a new interpretation of the law, but rather the court was simply not repeating a mistake of FACT, (the unawareness of the existence in fact of the law). This sort of per incuriam has nothing to do with the proposition that once a court has decided a point of LAW it should stick with it.
Despite the convention of being bound, the House of Lords continued to develop the law, but the convention did prove to be a fetter in some cases and thus finally in 1966 the practice was changed. It should be noted that Lord Denning sat in the House of Lords for a few years (1957-62) but returned to the Court of Appeal out of frustration with the effect of the binding precedent convention. "Why dissent in a case, if your dissent could never be adopted in future in a new case and become the law?" he asked. But at the same time, what would happen to the values of certainty and predictability in the law and fairness to the litigant who relied on precedent if the court exercised power to overrule freely and frequently?
On July 26, 1966, before judgments were given in the House of Lords, Lord Gardiner L.C. made the following statement on behalf of himself and the Lords of Appeal in ordinary:
"Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.
Their Lordships nevertheless recognize that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.
In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the special need for certainty as to the criminal law.
This announcement is not intended to affect the use of precedent elsewhere than in this House."
I will not bore you with all the developments of the use of this power to overrule, other than to suggest that it did not lead to an orgy of judicial law making. Patterson in his book The Law Lords provides a chart of cases where the Practice Statement was invoked between 1966 and 1980. Patterson also suggests that Lord Reid was the prime mover in coming out with criteria for overruling. Notice that of the seven reasons, five are negative - that is when the court will not overrule, as opposed to only two "positive" ones:
In a series of cases between l966 and l975 Lord Reid articulated at least seven criteria relating to the use of the new freedom. They were:
1. The freedom granted by the 1966 Practice Statement, ought to be exercised sparingly (the 'use sparingly' criterion).
2. A decision ought not to be overruled if to do so would upset the legitimate expectations of people who have entered into contracts or settlements or otherwise regulated their affairs in reliance on the validity of that decision (the 'legitimate expectations' criterion).
3. A decision concerning questions of construction of statutes or other documents ought not to be overruled except in rare and exceptional cases (the 'construction' criterion).
4. (a) A decision ought not to be overruled if it would be impracticable for the Lords to foresee the consequences of departing from it (the 'unforeseeable consequences' criterion).
(b) A decision ought not to be overruled if to do so would involve a change that ought to be part of a comprehensive reform of the law. Such changes are best done by legislation following on a wide survey of the whole field' (the 'need for comprehensive reform' criterion).
5. In the interest of certainty, a decision ought not to be overruled merely because the Law Lords consider that it was wrongly decided. There must be some additional reasons to justify such a step (the 'precedent merely wrong' criterion).
6. A decision ought to be overruled if it causes such great uncertainty in practice that the parties' advisers are unable to give any clear indication as to what the courts will hold the law to be (the 'rectification of uncertainty' criterion).
7. A decision ought to be overruled if in relation to some broad issue or principle it is not considered just or in keeping with contemporary social conditions or modern conceptions of public policy (the 'unjust or outmoded' criterion).
Just as the House of Lords in 1966 changed the horizontal convention, so over a period of time the Supreme Court of Canada also cast off the fetters of the strict horizontal approach. Again however, my argument in regard to how this new approach effects pre-49 decisions of the Privy Council is the same as above. At least with regard to the effects of such decisions in Canada, the Supreme Court can now overrule decisions of its own, as well as overrule pre-49 decisions of the Privy Council, because such cases are treated as if they had been made by the Supreme Court itself as the highest court within the jurisdiction. Now let me say, however, that the Supreme Court of Canada never overruled a Privy Council decision, or a decision of their own for that matter, until fairly recently. The change came very slowly.
Cartwright, speaking for himself and two others in a majority of three on a five-man court, said in Binus [1967] S.C.R. 594:
"I do not doubt the power of this Court to depart from a previous judgement of its own but, where the earlier decision has not been made per incuriam, and especially in cases in which Parliament or the Legislature is free to alter the law on the point decided, I think that such a departure should be made only for compelling reasons."
In Binus there weren't compelling reasons, however. So, we have a majority decision saying that for "compelling reasons" the Supreme Court of Canada can overrule itself.
In 1969, Laskin was a member of the Ontario Court of Appeal, and he was invited to England to give the very prestigious Hamlyn Lectures which were later published in a little book entitled The British Tradition in Canadian Law. Laskin, of course, was critical of the Supreme Court of Canada and the Ontario Court of Appeal for their strict views on precedent and said that the doctrine of "stare decisis" at the highest and intermediate court levels, was inconsistent with the right of members of the court to dissent. He was also critical of the Canadian fidelity to English law. He said that the Supreme Court was uniquely the court which other Canadian courts must look to create a precedent, rather than the court which must itself seek one, by always looking to the House of Lords or the English Court of Appeal decisions and following them blindly. Laskin quoted Professor Reid, former Dean of Law at Dalhousie:
"A perusal of Canadian law reports not only verifies an absence of creative approach but conveys the impression that most of the opinions reported there are those of English judges applying English law in Canada, rather than those of Canadian judges developing Canadian law to meet Canadian needs with guidance of English precedent."
What is clear from the last few decades, and certainly post-Charter, is that Laskin's criticism of the court would no longer apply. If anything, criticism would be directed at the court for being too creative and activist.
Not until Hill v. The Queen (1976) 62D.L.R. (3d) 193 did the court "depart" from an earlier decision of its own given in 1959. However, it is not altogether clear from the majority judgment that the departure was an overruling instead of an undermining, grounded on legislative changes in the Criminal Code since the earlier decision. Finally, a year later in The Queen v. Paquette (1977) 30 C.C.C. (2d) 417, the Court overruled Dunbar (1936), a decision of the old Supreme Court. There was no discussion in the judgment for the court by Martland as to the use of the overruling power. Simply the statement: "I am not in agreement with this view (referring to the earlier case) and I am of the opinion that it should not be followed." Also, in McNamara Construction (1977) 75 D.L.R. (3d) 273 the Supreme Court of Canada overruled a decision which had stood since 1894, the Chief Justice saying, "In my opinion, Farwell can no longer be regarded as an authority..."
In the "Canadian Egg Marketing" case -more properly called the Reference Re Agricultural Products Marketing Act (1978) 84 D.L.R. (3d) 257, the Supreme Court of Canada for the first time ever overruled a pre-1949 Privy Council case, namely the Crystal Dairy's case. Laskin wrote a judgment with three concurring, and Pigeon wrote a judgment with another four concurring, but Laskin and Pigeon came to the same result, and both were in complete agreement on the overruling.
There were a number of important overruling’s in the next decade that I will skip over. We may simply conclude that by the time the Charter era started in the early 1980's, the Supreme Court of Canada had firmly accepted the doctrine that it could overrule past cases "for compelling reasons." This development was reflective of a larger change in the culture of the court, moving from formalism to an understanding of the role of the court as a law-making body.
5. Toward a Jurisprudence of Overrule
Now that the Supreme Court has established that it can overrule its own past precedent, it is important to examine whether the court has developed some guidelines that help us to predict when the court will and when it will not overrule.
We should clarify at the outset of this discussion that the introduction of the Charter in 1982 would lead to some confusion in our examination of the conventions of precedent, whether vertical or horizontal. As the courts implemented the Charter, they not only struck down legislation, but also overruled many past precedent cases that were deemed to be inconsistent with the Charter. This was particularly true in the field of Criminal law. This is not really the kind of overrule we are generally talking about however, when we deal with the conventions of precedent. Even if a court was bound horizontally by its own past cases, various cases would still be "overruled" if constitutional provisions or legislation was subsequently passed that was inconsistent with the past cases. Remember that it has long been a principle of our legal system that legislation (subject to division of powers issues) can overrule the common law. When legislation is interpreted by the courts, the courts may well declare that a number of past cases are inconsistent with the new legislation and thus are overruled. But this would be so even if a court felt strictly bound by its own precedents. It is not the court that is overruling, but rather the legislation that is overruling the past cases.
The kind of overrule that is important in Charter matters is when the Supreme Court lays down a principle of Charter interpretation in one case and then at some future point the Court overrules that doctrine and implements a new interpretative device or position on the Charter. Also, the court will be overruling past cases when it finds a particular legislative provision to be constitutional and then within a period of time a new court finds the legislation unconstitutional.
At this time the leading formulation on the Supreme Court's power to overrule its own past cases was made by Chief Justice Dickson in a dissenting judgement in Bernard v. The Queen (1988) 45 C.C.C. (3d) 1. The case dealt with the problem of intoxication as a defence to criminal liability and Dickson had been the leading advocate for a change in the law for a long time. However, he never was able to convince a majority of the court to accept his views on this point. In Bernard he was in dissent again. Note, however, what he said about overruling:
The real issue in this appeal, it seems to me, is whether the Court should now overrule Leary. Let me say immediately that, even if a case were wrongly decided, certainty in the law remains an important consideration. There must be compelling circumstances to justify departure from a prior decision. On the other hand, it is clear that this Court may overrule its own decisions and indeed, it has exercised that discretion on a number of occasions.
… There are at least four separate factors which find support in the jurisprudence of the Court which in my submission lead to the conclusion that Leary should be overruled.
A. Canadian Charter of Rights and Freedoms
Since Leary was decided, the Canadian Charter of Rights and Freedoms has come into force. This Court has held that legislation which imposes the sanction of imprisonment without proof of a blameworthy state of mind violates the guarantee of fundamental justice contained in s. 7 of the Charter and must be struck down unless it can meet the exacting test of s. 1 (see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, R. v. Vaillancourt, [1987] 2 S.C.R. 636).
… In R.W.D.S.U. v. Dolphin Delivery, [1986] 2 S.C.R. 573, McIntyre J. held, at p. 603, that "the judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution." This principle supports the proposition that Leary ought to be reconsidered in light of the Charter…
B. Leary Attenuated by Subsequent Cases
Since Leary there have been developments in the jurisprudence of the Court which, in my submission, seriously undermine the view taken by the majority in Leary. The Court has held that where the holding of a case has been "attenuated" by subsequent decisions, it may be appropriate to overrule that earlier decision: Reference re the [page856] Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198. …..
C. Leary Creates Uncertainty
…I have already indicated the confusion created by the combination of Leary and Pappajohn. I suggest that the distinction between "general" and "specific" intent which Leary mandates and the notorious difficulty in articulating a clear and workable definition of specific intent falls squarely within the principle enunciated in Ranville and Vetrovec. Because that category is based on policy rather than principle, classification of offences as falling within or without the specific intent category is necessarily an ad hoc, unpredictable exercise. …
D. Leary Unfavourable to Accused
The fourth factor which bears directly upon whether or not the Court should overrule Leary in my view, is that the Leary rule is one which operates against the accused by expanding the scope of criminal liability beyond normal limits. Respect for the principle of certainty and the institutional limits imposed upon the law-making function of the Courts should constrain the Court from over-ruling a prior decision where the effect would be to expand criminal liability. It is not for the Courts to create new offences, or to broaden the net of liability, particularly as changes in the law through judicial decision operate retrospectively. The same argument does not apply, however, where the result of over-ruling a prior decision is to establish a rule favourable to the accused. In my submission, this principle underlies the decision of the Court in Paquette v. The Queen, supra, at p. 197, where the Court overruled its previous decision in Dunbar v. The King, supra, which had held that an accused who was a party to murder, but who had not himself committed the act, could not rely upon the defence of duress. (See also R. v. Santeramo (1976), 32 C.C.C. (2d) 35 (Ont. C.A.), at p. 46 per Brooke J.A. "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 that judgment is wrong.") …..
Dicksons' four-point guidelines for overruling were noted by Wilson J. in Tutton (1989) 69 C.R. (3d) 289 and also used in Chaulk and Morrissette [1990] 3 S.C.R. 1303 where the Court overruled the previous case of Schwartz (1977) dealing with the insanity defence. Lamer C.J said in Chaulk:
I do not dispute the principle that this Court should not easily overrule its prior judgments. ...Dickson C.J. described in Bernard four separate factors that would support a decision by this Court to overrule an earlier judgment. These factors were not held to be a comprehensive list, nor was it claimed that they must all be present in a particular case to justify overruling a prior decision. They are instead guidelines to assist this Court in exercising its discretion. .....
It may well be that these guidelines are confined to Criminal law or procedure cases. In Alberta Dairy Pool [1990] 2 S.C.R. 489 the court overruled its previous decision of Bhinder [1985] 2 S.C.R. 561 dealing with an issue involving employment discrimination and the interpretation of bono fide occupational requirement provisions in the context of indirect, rather than direct discrimination. Yet this overruling was made without any reference to guidelines for overruling past cases.
An example of a recent overrule by the Supreme Court of Canada in the Criminal procedure or evidence area occurred in the case of R. v. K.G.B. (1993) 148 N.R. 241 overruling the leading case of Deacon decided by the Supreme Court in 1947 and followed by the Court in numerous cases thereafter. Chief Justice Lamer exhaustively explored the rationale for the existing evidentiary rule and all the criticisms about why it was a bad rule and should be overruled by the Court. In regard to overruling, he then dealt with two issues. One was whether the court should nevertheless stick with the old rule and leave it to Parliament to reform the law. The second issue was whether the overruling would or would not conform to the Dickson guidelines from the Bernard case. After overruling the previous cases, Lamer proceeded to formulate a new rule on the particular evidential issue.
I’m sure that as time goes by, the Supreme Court will continue to develop guidelines for the use of their power to overrule their own past precedents. Like any guidelines however, one may argue with both the scope of each guideline and the application in any given case. The court may or may not use guidelines in any consistent way. At bottom we are thrown back into the basic ideology that any judge will have as to their role. How activist should a Supreme Court judge be in terms of “reforming” the law, rather than simply “finding” the law and “developing” it in relation to the specific dispute that needs resolution?
-Alvin Esau (1993)
1. Conventions of Precedent till 1949: The Vertical Convention
Up to 1933 in criminal cases, and 1949 in civil cases, the Supreme Court of Canada was not the final court of appeal for Canada. Rather the Judicial Committee of the Privy Council in London served that function. Corry and Hodgetts, Democratic Government and Politics (1959) described the Judicial Committee of the Privy Council as follows at 413:
Until 1949, Canadian litigants could appeal, in certain special circumstances to a still higher court: the Judicial Committee of the Privy Council sitting in London. It is a body specially constituted to hear appeals from the courts of the British Dominions and colonies. Since it must hear appeals from some Dominions and from the colonial Empire, it has to have a wide membership assuring it of experts in the widely differing kinds of laws involved. But for most of its work, the active members of the Judicial Committee are the Lord Chancellor and the Law Lords of the House of Lords who are ex officio members. It was they who generally gave the final interpretation of the British North America Act.
The main work of the Judicial Committee in relation to Canada was appeals on constitutional questions, which issues were generally carried there as a matter of course from the Supreme Court of Canada or directly from the provincial courts. There was no right of appeal from the Supreme Court of Canada but leave to appeal was granted by the Judicial Committee if the issue at stake was thought to be of first-rate importance. This could almost always be established if a constitutional question was involved, but only rarely where it was not. Yet the fact remains that formerly particular Canadian litigants might have to face as many as four appeals, the latter two in places far distant from their place of residence or business.
The injustice of putting litigants to the expense of carrying an appeal to London and the widespread dissatisfaction in Canada with the Privy Council's interpretation of the British North America Act brought the abolition of all Canadian appeals to that body in 1949. The Supreme Court of Canada is now the final and exclusive court of appeal for Canada.
The first question we must ask about the formal conventions of precedent involves the vertical convention. Before 1949, the Supreme Court of Canada and all other lower Canadian courts were bound by the Privy Council. That satisfies the vertical rule of precedent. But which decisions of the Privy Council were binding on the Supreme Court of Canada and lower Canadian courts? Only Privy Council cases on Canadian appeals, or also Privy Council decisions from other jurisdictions in the Commonwealth, especially on general matters of the common law? Should the Privy Council be compared to the Queen? When the Queen is in Canada, she wears the "hat" of Canadian Queen. When in Australia, she puts on a different hat as Australian Queen, etc. Or should we think of the common law as a seamless web of "English" law which is no respecter of boundaries?
There is scant authority, but in Negro v. Pietro's Bread Co. (1933) the Ontario Court of Appeal suggested that the binding effect of the judgment of the Privy Council is limited to the courts of the colony from where the appeal is heard. However, the Supreme Court of Canada apparently never made such a distinction, so it would appear that the Privy Council was treated as binding on Canadian courts as to common law decisions generally. This is more than historically important, because as we shall see, pre-1949 decisions of the Privy Council in civil matters (pre-l933 in criminal matters) are still treated as the highest binding authority on all lower Canadian courts until overruled by the Supreme Court of Canada. I would argue that it would be more logical to treat only past Privy Council cases on appeal from Canada as actually forming part of our law.
Another issue that involves the vertical convention of precedent is that the Judicial Committee of the Privy Council was bound by the House of Lords. Does that mean that before 1949, Canadian courts were bound vertically, not just by the Judicial Committee of the Privy Council, but also by decisions of the House of Lords? It would make sense to say that such decisions were only highly persuasive and not binding until explicitly adopted in a Privy Council decision on appeal from Canada. After all, it could be argued that you must have the power to appeal to a court before it becomes a court vertically binding on you. The House of Lords was never vertically part of our court hierarchy. Only the Privy Council could be appealed to by Canadian litigants. However, given the Canadian colonial heritage, such arguments historically did not appear to hold much weight.
For example, in Trimble v. Hill [1879] A.C. 342, the Privy Council itself suggested that the colonies were bound, not just by the House of Lords, but also the English Court of Appeal in addition to the Privy Council, in matters dealing with English common law. To add the English CA cases to the list of binding decisions on Canadian courts was the height of colonial mentality.
This put the Canadian courts into some confusion as the cases indicate. For example, what would a Manitoba Q.B. judge do if faced with a later judgment of the House of Lords inconsistent with an earlier judgment of the Privy Council? Follow the Lords or the Privy Council? What if a later English Court of Appeal case conflicted with an earlier Supreme Court of Canada case? Should the lower Canadian court ignore the Supreme Court of Canada in favour of following the English Court of Appeal?
The situation was clarified somewhat when in the case of Robins v. National Trust [1927] A.C. 515 the Privy Council said that, in addition to the Privy Council, only House of Lords decisions bound Canadian courts, not also English Court of Appeal decisions. Viscount Denedin in the Privy Council stated:
"When an appellate court in a colony [like the Supreme Court of Canada], which is regulated by English law, differs from an appellate court in England it is not right to assume that the colonial court is wrong. It is otherwise if the authority in England is that of the House of Lords. That is the supreme tribunal to settle English law, and that being settled the colonial court, which is bound by English law, is bound to follow it."
So, while it is of historical interest only, it is interesting to note that Canadian courts considered themselves bound by both the Privy Council and by the House of Lords!
You can find all kinds of decisions before 1949 where Canadian courts at least agreed they were bound by the House of Lords. For example, in T.G. Bright & Co. Ltd. v. Kerr [1939] S.C.R 63, Chief Justice Duff treated as binding a statement of law by an American writer, because it had been adopted and acted on by the House of Lords. Some Canadian cases in lower courts before 1949 went so far as to adopt a more recent House of Lords decision if it conflicted with an older Privy Council decision, because after all, the Privy Council itself had said we should follow the House of Lords. In Will v. Bank of Montreal [193l] 2 W.W.R. 364 for example, Ford J. of the Alberta Supreme Court was faced with the question of a more recent House of Lords case in conflict with an earlier Privy Council case. He followed the House of Lords, but he did suggest that if the Privy Council spoke again after the House of Lords case, he would follow the Privy Council. There were cases going the other way, following an earlier Privy Council case when there was a conflict with a later House of Lords decision. [Jeremy v. Fontaine [1931] 3 W.W.R. 203].
Just as an aside - Although Robins was decided in 1927, as late as 1947 Chief Justice Williams of Manitoba (after whom our law library is named) held himself bound by the English Court of Appeal in connection with a common law rule dealing with the quantum of damages in a libel case (see Safeway v. Harris [1948] l W.W.R. 337). Now there is love of mother country! The Court of Appeal held him to be wrong (see Safeway v. Harris [1948] 2 W.W.R. 211).
To summarize the vertical discussion: -before 1949 the Supreme Court of Canada and lower Canadian courts were bound by the Privy Council undoubtedly, and while illogical, also declared themselves to be bound by the House of Lords through the authority of the Robins case. Even more illogically, for at least some period of time, the Supreme Court of Canada and lower Canadian courts may have declared themselves to be bound by the English Court of Appeal as well.
2. Conventions of Precedent till 1949: The Horizontal Convention
Now we move to the second convention, namely the horizontal one. As to the horizontal effect, the Privy Council was not strictly bound by its own past decisions, but this was only because of the anomaly that it wasn't really a "court," but rather a "committee," advising his or her Majesty about the conduct of the colonies, and thus part of the Royal Prerogative, and not bound by strict stare decisis. In effect, the Privy Council almost always followed its past decisions anyway.
For example, in Canada Temperance Federation [1946] A.C. 193, Viscount Simon in the Privy Council refused to overrule the earlier Privy Council Russell case and went on to talk about all the usual reasons for favouring strict stare decisis. It should be noted, too, that in the Privy Council, no judge was allowed to dissent.
However, before 1949 was the Supreme Court of Canada bound by itself (the horizontal effect)? The answer is yes. In Stewart v. Bank of Montreal (1909) 41 S.C.R. 516, Mr. Justice Duff stated that the Supreme Court of Canada was bound by its own past precedents. He analogized the Supreme Court of Canada to the English Court of Appeal. With the Privy Council as the highest court, the Supreme Court of Canada was an intermediate court of appeal like the English Court of Appeal, and thus like the English Court of Appeal should be bound by its own past precedents. I will deal with the English Court of Appeal in due course.
3. Conventions of Precedent After 1949: The Vertical Convention
Now what is the effect of the abolition of appeals to the Privy Council in 1949? What happened when the Supreme Court finally became supreme?
As to the vertical convention, the first matter to consider is whether Canadian courts including the Supreme Court, continued to give binding effect to Privy Council cases and/or House of Lords cases decided after 1949.
It is clear now that the Supreme Court of Canada and other Canadian courts are not bound by any English courts. Decisions of the House of Lords and of the Privy Council and of the English Court of Appeal continue to be highly persuasive, but they are not binding, even on the lowest court of our country. They are foreign decisions, completely out of our judicial hierarchy. This realization did not come about magically, however, even after 1949.
The Supreme Court of Canada, as well as lower Canadian courts, continued for some years to treat House of Lords cases as so persuasive as to be binding in effect. It was not until Fleming v. Atkinson (1959) 18 D.L.R. (2d) 81 that the Supreme Court of Canada finally did not follow the House of Lords in a case. Even after 1949, lower court judges occasionally still said that they were bound by the House of Lords. In Baker v. Nofield (1957) 24 W.W.R 157 a B.C. County Court judge said:
"The dissenting judgment of Fletcher Moulton, L.J., a very learned judge, is illuminating, but the judgment in Dean v. Brown, affirmed, as it was by the House of Lords, I conceive to be binding upon me."
However, eventually judges caught on. Other cases in which the Supreme Court of Canada did not follow the House of Lords include Ares v. Venner [1970] S.C.R. 609, and The Queen v. Jennings [1966] S.C.R. 532.
4. Conventions of Precedent After 1949: The Horizontal Convention
The question of the horizontal effect after 1949 is more complicated than the vertical one. We start with the proposition that for a considerable period of time after 1949 the Supreme Court of Canada continued to declare itself to be bound by its own past precedent. But what cases are in the pool of past precedent that binds the court horizontally?
The issues might be stated this way:
1. Was the Supreme Court of Canada after 1949, still bound by those Privy Council decisions on appeal from Canada that had already been made before 1949?
(A supplementary question is whether the court was bound only by those cases that had been decided on appeal from Canada, or whether it was also bound by those cases on appeal from other jurisdictions.)
2. Was the Supreme Court of Canada still bound by its own past decisions?
As far as I'm concerned, these two questions hang on each other. If you treat former Privy Council decisions on the Canadian constitution, for example, as being made by the highest court in our hierarchy, and now the Supreme Court of Canada is the highest court in our hierarchy, the question for us is, "Can the highest court overrule itself?" and if it cannot, then this applies to both former Privy Council decisions as well as past Supreme Court of Canada decisions because they are equal in the hierarchy, namely highest. The Supreme Court of Canada then treats pre-1949 judicial committee decisions (at least those on appeal from Canada) as if they were made by the Supreme Court itself.
Thus, after 1949 the Supreme Court of Canada was horizontally bound by pre-49 Privy Council cases on appeal from Canada and also by past Supreme Court of Canada cases, and lower courts continued to be vertically bound by such cases.
- Policy Question:
Before we note the emergence of the contemporary era of not being horizontally bound, we might first explore the policy question: Should the highest court in a jurisdiction ever overrule one of its own past decisions? Note that we are asking about the "horizontal" effect of precedent at the highest level. Obviously, in the process of making a decision the highest court may reverse the particular decision made in the immediate matter by lower courts, and also "overrule" previous decisions from lower courts that do not conform with what the highest court is saying now. (The Burial Effect of Precedent). Sometimes the court explicitly says that X case from Y lower court is overruled. But at other times there may be an implied overruling, where the "higher" case and "lower" case cannot be reconciled and so the former impliedly overrules the latter. But the question I am asking is whether the highest court should ever overrule itself.
Obviously, flexibility and development of the law would be impaired if the court stuck to every one of its past cases, no matter how old, ill-suited to the times, or even "wrongly decided" in the first place. On the other hand, you could argue that once the issue has been determined, any change should be left to the legislature and the democratic process. However, if this was the position, you would have no reason to appeal to the highest court if the past precedent clearly applied. If the court could never overrule itself, the law-making role of the court would be constrained to "filling in the gaps" rather than moulding and updating the common law to keep abreast of social needs or abstract demands for better justice in the law.
Even if the power to overrule your own past cases is desirable, there is a countervailing policy consideration which puts a brake on the use of such power. There is a need for certainty in the law, so that people can predict what the "rules" governing their affairs are, and this is enhanced by sticking with what has been done in the past, particularly at the highest level. If the "rules" keep changing after the fact, how can you rely on what the court has determined the law to be? If the court overrules the case, and the litigant has relied on the older case, the court is in effect retroactively making new law. But can you rely on the new rule? Perhaps the court will change the rule again. If the current court can overrule the previous court simply on the bases of policy disagreement as to the content of the law, what happens to the concept of “rule of law?” Instead, we have the concept that law is a temporary prediction of what conduct will or will not conform to the current ideological parameters of acceptability by the judicial majority of the court. The rule of law becomes the luck of the draw.
But if overruling precedents is problematic, would certainty and predictability be enhanced by a strict rule of precedent where such overruling was not permitted? It is sometimes asserted that a strict rule of precedent ironically leads to less certainty. If a prior decision is thought to lead to a "bad” result when applied to a new case, the court may make fine and unreasonable distinctions between the present case and the past case so that it doesn't need to apply the past case. Yet both cases are now binding on all the lower courts, creating confusion as to what the law is. It might be better to simply overrule the previous case. If the highest court treats all its previous cases as binding on itself, it is not even open for a lower court to say that there has been an implied overruling at the highest level when faced with inconsistent judgements at that level.
Furthermore, what should the role of the judiciary be? Can we simply expect judges to apply "pre-existing" law in a neutral, rational way, rather than make new law? Especially at the highest level of court, where often the most difficult cases end up, it is a myth to suggest that judges only apply and expand and "reasonably elaborate" the pre-existing precedents. Thus, the question of the horizontal effect of precedent boils down to the central question of the role of the judiciary in society.
- House of Lords changes policy in 1966
During the height of the formalist period in the mid-nineteenth century, the House of Lords considered itself strictly bound by its own past precedents (Beamish v. Beamish (1861) 9 H.L.C. 274). See also, London Street Tramways v. L.C.C. [1898] A.C. 375, where Lord Halsbury, L.C., stated:
... My Lords, for my own part I am prepared to say...that a decision of this House once given upon a point of law is conclusive upon this House afterwards, and that it is impossible to raise that question again as if it was res integra and could be reargued, and so the House be asked to reverse its own decision. That is a principle which has been, I believe, without any real decision to the contrary, established now for some centuries, and I am therefore of the opinion that in this case it is not competent for us to rehear and for counsel to reargue a question which has been recently decided ...
In the formalist period the idea developed that precedents were not just examples of the law but were the law itself. Until then, there was the idea that true law existed above previous cases and thus a particular case may have been wrongly decided (mistake) and a future court had the freedom to disregard it.
In any event, it might be noted that there was a limited “exception” to the idea that the court was absolutely bound by its own past precedents. What would happen if the court was faced with a precedent which had been decided on the bases of mistake as to the existence of law? For example, there was a binding statutory provision on point and the court had been unaware of it? Or the court applied a statutory provision when in fact (unknown to the court) it had been repealed? Surely in a new case the court would not be bound by such a decision made per incuriam (by mistake)? In London Street, Lord Halsbury dealt with this and characterized such a decision as not being binding, but notice (at 380-381) he pointed out that this was not an exception to the binding rule at all, because the subsequent court was not overruling a legal rule from a precedent case or making a new interpretation of the law, but rather the court was simply not repeating a mistake of FACT, (the unawareness of the existence in fact of the law). This sort of per incuriam has nothing to do with the proposition that once a court has decided a point of LAW it should stick with it.
Despite the convention of being bound, the House of Lords continued to develop the law, but the convention did prove to be a fetter in some cases and thus finally in 1966 the practice was changed. It should be noted that Lord Denning sat in the House of Lords for a few years (1957-62) but returned to the Court of Appeal out of frustration with the effect of the binding precedent convention. "Why dissent in a case, if your dissent could never be adopted in future in a new case and become the law?" he asked. But at the same time, what would happen to the values of certainty and predictability in the law and fairness to the litigant who relied on precedent if the court exercised power to overrule freely and frequently?
On July 26, 1966, before judgments were given in the House of Lords, Lord Gardiner L.C. made the following statement on behalf of himself and the Lords of Appeal in ordinary:
"Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.
Their Lordships nevertheless recognize that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.
In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the special need for certainty as to the criminal law.
This announcement is not intended to affect the use of precedent elsewhere than in this House."
I will not bore you with all the developments of the use of this power to overrule, other than to suggest that it did not lead to an orgy of judicial law making. Patterson in his book The Law Lords provides a chart of cases where the Practice Statement was invoked between 1966 and 1980. Patterson also suggests that Lord Reid was the prime mover in coming out with criteria for overruling. Notice that of the seven reasons, five are negative - that is when the court will not overrule, as opposed to only two "positive" ones:
In a series of cases between l966 and l975 Lord Reid articulated at least seven criteria relating to the use of the new freedom. They were:
1. The freedom granted by the 1966 Practice Statement, ought to be exercised sparingly (the 'use sparingly' criterion).
2. A decision ought not to be overruled if to do so would upset the legitimate expectations of people who have entered into contracts or settlements or otherwise regulated their affairs in reliance on the validity of that decision (the 'legitimate expectations' criterion).
3. A decision concerning questions of construction of statutes or other documents ought not to be overruled except in rare and exceptional cases (the 'construction' criterion).
4. (a) A decision ought not to be overruled if it would be impracticable for the Lords to foresee the consequences of departing from it (the 'unforeseeable consequences' criterion).
(b) A decision ought not to be overruled if to do so would involve a change that ought to be part of a comprehensive reform of the law. Such changes are best done by legislation following on a wide survey of the whole field' (the 'need for comprehensive reform' criterion).
5. In the interest of certainty, a decision ought not to be overruled merely because the Law Lords consider that it was wrongly decided. There must be some additional reasons to justify such a step (the 'precedent merely wrong' criterion).
6. A decision ought to be overruled if it causes such great uncertainty in practice that the parties' advisers are unable to give any clear indication as to what the courts will hold the law to be (the 'rectification of uncertainty' criterion).
7. A decision ought to be overruled if in relation to some broad issue or principle it is not considered just or in keeping with contemporary social conditions or modern conceptions of public policy (the 'unjust or outmoded' criterion).
- The Supreme Court of Canada also changes horizontal convention.
Just as the House of Lords in 1966 changed the horizontal convention, so over a period of time the Supreme Court of Canada also cast off the fetters of the strict horizontal approach. Again however, my argument in regard to how this new approach effects pre-49 decisions of the Privy Council is the same as above. At least with regard to the effects of such decisions in Canada, the Supreme Court can now overrule decisions of its own, as well as overrule pre-49 decisions of the Privy Council, because such cases are treated as if they had been made by the Supreme Court itself as the highest court within the jurisdiction. Now let me say, however, that the Supreme Court of Canada never overruled a Privy Council decision, or a decision of their own for that matter, until fairly recently. The change came very slowly.
Cartwright, speaking for himself and two others in a majority of three on a five-man court, said in Binus [1967] S.C.R. 594:
"I do not doubt the power of this Court to depart from a previous judgement of its own but, where the earlier decision has not been made per incuriam, and especially in cases in which Parliament or the Legislature is free to alter the law on the point decided, I think that such a departure should be made only for compelling reasons."
In Binus there weren't compelling reasons, however. So, we have a majority decision saying that for "compelling reasons" the Supreme Court of Canada can overrule itself.
In 1969, Laskin was a member of the Ontario Court of Appeal, and he was invited to England to give the very prestigious Hamlyn Lectures which were later published in a little book entitled The British Tradition in Canadian Law. Laskin, of course, was critical of the Supreme Court of Canada and the Ontario Court of Appeal for their strict views on precedent and said that the doctrine of "stare decisis" at the highest and intermediate court levels, was inconsistent with the right of members of the court to dissent. He was also critical of the Canadian fidelity to English law. He said that the Supreme Court was uniquely the court which other Canadian courts must look to create a precedent, rather than the court which must itself seek one, by always looking to the House of Lords or the English Court of Appeal decisions and following them blindly. Laskin quoted Professor Reid, former Dean of Law at Dalhousie:
"A perusal of Canadian law reports not only verifies an absence of creative approach but conveys the impression that most of the opinions reported there are those of English judges applying English law in Canada, rather than those of Canadian judges developing Canadian law to meet Canadian needs with guidance of English precedent."
What is clear from the last few decades, and certainly post-Charter, is that Laskin's criticism of the court would no longer apply. If anything, criticism would be directed at the court for being too creative and activist.
Not until Hill v. The Queen (1976) 62D.L.R. (3d) 193 did the court "depart" from an earlier decision of its own given in 1959. However, it is not altogether clear from the majority judgment that the departure was an overruling instead of an undermining, grounded on legislative changes in the Criminal Code since the earlier decision. Finally, a year later in The Queen v. Paquette (1977) 30 C.C.C. (2d) 417, the Court overruled Dunbar (1936), a decision of the old Supreme Court. There was no discussion in the judgment for the court by Martland as to the use of the overruling power. Simply the statement: "I am not in agreement with this view (referring to the earlier case) and I am of the opinion that it should not be followed." Also, in McNamara Construction (1977) 75 D.L.R. (3d) 273 the Supreme Court of Canada overruled a decision which had stood since 1894, the Chief Justice saying, "In my opinion, Farwell can no longer be regarded as an authority..."
In the "Canadian Egg Marketing" case -more properly called the Reference Re Agricultural Products Marketing Act (1978) 84 D.L.R. (3d) 257, the Supreme Court of Canada for the first time ever overruled a pre-1949 Privy Council case, namely the Crystal Dairy's case. Laskin wrote a judgment with three concurring, and Pigeon wrote a judgment with another four concurring, but Laskin and Pigeon came to the same result, and both were in complete agreement on the overruling.
There were a number of important overruling’s in the next decade that I will skip over. We may simply conclude that by the time the Charter era started in the early 1980's, the Supreme Court of Canada had firmly accepted the doctrine that it could overrule past cases "for compelling reasons." This development was reflective of a larger change in the culture of the court, moving from formalism to an understanding of the role of the court as a law-making body.
5. Toward a Jurisprudence of Overrule
Now that the Supreme Court has established that it can overrule its own past precedent, it is important to examine whether the court has developed some guidelines that help us to predict when the court will and when it will not overrule.
We should clarify at the outset of this discussion that the introduction of the Charter in 1982 would lead to some confusion in our examination of the conventions of precedent, whether vertical or horizontal. As the courts implemented the Charter, they not only struck down legislation, but also overruled many past precedent cases that were deemed to be inconsistent with the Charter. This was particularly true in the field of Criminal law. This is not really the kind of overrule we are generally talking about however, when we deal with the conventions of precedent. Even if a court was bound horizontally by its own past cases, various cases would still be "overruled" if constitutional provisions or legislation was subsequently passed that was inconsistent with the past cases. Remember that it has long been a principle of our legal system that legislation (subject to division of powers issues) can overrule the common law. When legislation is interpreted by the courts, the courts may well declare that a number of past cases are inconsistent with the new legislation and thus are overruled. But this would be so even if a court felt strictly bound by its own precedents. It is not the court that is overruling, but rather the legislation that is overruling the past cases.
The kind of overrule that is important in Charter matters is when the Supreme Court lays down a principle of Charter interpretation in one case and then at some future point the Court overrules that doctrine and implements a new interpretative device or position on the Charter. Also, the court will be overruling past cases when it finds a particular legislative provision to be constitutional and then within a period of time a new court finds the legislation unconstitutional.
At this time the leading formulation on the Supreme Court's power to overrule its own past cases was made by Chief Justice Dickson in a dissenting judgement in Bernard v. The Queen (1988) 45 C.C.C. (3d) 1. The case dealt with the problem of intoxication as a defence to criminal liability and Dickson had been the leading advocate for a change in the law for a long time. However, he never was able to convince a majority of the court to accept his views on this point. In Bernard he was in dissent again. Note, however, what he said about overruling:
The real issue in this appeal, it seems to me, is whether the Court should now overrule Leary. Let me say immediately that, even if a case were wrongly decided, certainty in the law remains an important consideration. There must be compelling circumstances to justify departure from a prior decision. On the other hand, it is clear that this Court may overrule its own decisions and indeed, it has exercised that discretion on a number of occasions.
… There are at least four separate factors which find support in the jurisprudence of the Court which in my submission lead to the conclusion that Leary should be overruled.
A. Canadian Charter of Rights and Freedoms
Since Leary was decided, the Canadian Charter of Rights and Freedoms has come into force. This Court has held that legislation which imposes the sanction of imprisonment without proof of a blameworthy state of mind violates the guarantee of fundamental justice contained in s. 7 of the Charter and must be struck down unless it can meet the exacting test of s. 1 (see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, R. v. Vaillancourt, [1987] 2 S.C.R. 636).
… In R.W.D.S.U. v. Dolphin Delivery, [1986] 2 S.C.R. 573, McIntyre J. held, at p. 603, that "the judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution." This principle supports the proposition that Leary ought to be reconsidered in light of the Charter…
B. Leary Attenuated by Subsequent Cases
Since Leary there have been developments in the jurisprudence of the Court which, in my submission, seriously undermine the view taken by the majority in Leary. The Court has held that where the holding of a case has been "attenuated" by subsequent decisions, it may be appropriate to overrule that earlier decision: Reference re the [page856] Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198. …..
C. Leary Creates Uncertainty
…I have already indicated the confusion created by the combination of Leary and Pappajohn. I suggest that the distinction between "general" and "specific" intent which Leary mandates and the notorious difficulty in articulating a clear and workable definition of specific intent falls squarely within the principle enunciated in Ranville and Vetrovec. Because that category is based on policy rather than principle, classification of offences as falling within or without the specific intent category is necessarily an ad hoc, unpredictable exercise. …
D. Leary Unfavourable to Accused
The fourth factor which bears directly upon whether or not the Court should overrule Leary in my view, is that the Leary rule is one which operates against the accused by expanding the scope of criminal liability beyond normal limits. Respect for the principle of certainty and the institutional limits imposed upon the law-making function of the Courts should constrain the Court from over-ruling a prior decision where the effect would be to expand criminal liability. It is not for the Courts to create new offences, or to broaden the net of liability, particularly as changes in the law through judicial decision operate retrospectively. The same argument does not apply, however, where the result of over-ruling a prior decision is to establish a rule favourable to the accused. In my submission, this principle underlies the decision of the Court in Paquette v. The Queen, supra, at p. 197, where the Court overruled its previous decision in Dunbar v. The King, supra, which had held that an accused who was a party to murder, but who had not himself committed the act, could not rely upon the defence of duress. (See also R. v. Santeramo (1976), 32 C.C.C. (2d) 35 (Ont. C.A.), at p. 46 per Brooke J.A. "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 that judgment is wrong.") …..
Dicksons' four-point guidelines for overruling were noted by Wilson J. in Tutton (1989) 69 C.R. (3d) 289 and also used in Chaulk and Morrissette [1990] 3 S.C.R. 1303 where the Court overruled the previous case of Schwartz (1977) dealing with the insanity defence. Lamer C.J said in Chaulk:
I do not dispute the principle that this Court should not easily overrule its prior judgments. ...Dickson C.J. described in Bernard four separate factors that would support a decision by this Court to overrule an earlier judgment. These factors were not held to be a comprehensive list, nor was it claimed that they must all be present in a particular case to justify overruling a prior decision. They are instead guidelines to assist this Court in exercising its discretion. .....
It may well be that these guidelines are confined to Criminal law or procedure cases. In Alberta Dairy Pool [1990] 2 S.C.R. 489 the court overruled its previous decision of Bhinder [1985] 2 S.C.R. 561 dealing with an issue involving employment discrimination and the interpretation of bono fide occupational requirement provisions in the context of indirect, rather than direct discrimination. Yet this overruling was made without any reference to guidelines for overruling past cases.
An example of a recent overrule by the Supreme Court of Canada in the Criminal procedure or evidence area occurred in the case of R. v. K.G.B. (1993) 148 N.R. 241 overruling the leading case of Deacon decided by the Supreme Court in 1947 and followed by the Court in numerous cases thereafter. Chief Justice Lamer exhaustively explored the rationale for the existing evidentiary rule and all the criticisms about why it was a bad rule and should be overruled by the Court. In regard to overruling, he then dealt with two issues. One was whether the court should nevertheless stick with the old rule and leave it to Parliament to reform the law. The second issue was whether the overruling would or would not conform to the Dickson guidelines from the Bernard case. After overruling the previous cases, Lamer proceeded to formulate a new rule on the particular evidential issue.
I’m sure that as time goes by, the Supreme Court will continue to develop guidelines for the use of their power to overrule their own past precedents. Like any guidelines however, one may argue with both the scope of each guideline and the application in any given case. The court may or may not use guidelines in any consistent way. At bottom we are thrown back into the basic ideology that any judge will have as to their role. How activist should a Supreme Court judge be in terms of “reforming” the law, rather than simply “finding” the law and “developing” it in relation to the specific dispute that needs resolution?
