E Canadian Bar Review La Revue Du Barreau Canadien

E CANADIAN BAR REVIEW LA REVUE DU BARREAU CANADIEN

VOL . XLV DECEMBER 1967 DECEMBEE NO . 4

PRECEDENT AND POLICY IN THE SUPREME COURT

MARK R. MAcGUIGAN* Windsor, Ontario

"That the rule of stare decisis ought to continue to be applied with respect to past decisions of the Supreme Court, as well as with respect to past decisions of the Judicial Committee of the Privy Council" . . . is something with which I entirely agree. I think it is a part of the administration of justice in British countries that the decisions are regarded as binding upon themselves and upon all courts of lower jurisdiction, until they are modified or set aside by legislative action.'

I cannot conceive of any court which is the final tribunal of this land being subject to all the precedents of the past, all the bad as well as all the good judgments rendered by the Privy Council. . . . If it is enunciated and put on the statute books as a matter of principle that the Supreme Court will be tied up in the future by the precedents of the Privy Council . . . it is sheer nonsense.2 *Mark R. MacGuigan, Dean, Faculty of Law, University of Windsor, Ont. ' Rt. Hon. L. St. Laurent, House of Commons, Sept. 23rd, 1949. Cana- dian House of Commons Deb., 2nd sess., 1949, vol. 1, p. 197. 'J. F. Pouliot, M.P., House of Commons, Oct. 4th, 1949. Ibid., pp. 496-497. Mr. Pouliot was actually directing his remarks against an amendment proposed by a Conservative member of Parliament, Mr. E. D. Fulton, rather than against the view of the leader of his own Party, Mr. St. Laurent. But as Mr. Donald Fleming, the seconder of the Fulton amendment, was quick to point out (!bid.), Mr. Pouliot was in effect taking issue with Mr. St. Laurent as well. Mr. Pouliot subsequently became a member of the Senate, and Messrs. Fulton and Fleming Cabinet ministers in the Diefenbaker government ; however, I have, in every case, used the descrip- tion of participants appropriate in 1949.

6)28 THE CANADIAN BAR REVIEW [VOL . XLV The foregoing quotations from the 1949 Parliamentary debate on the abolition of appeals from Canadian courts to the Judicial Com- mittee of the Privy Council illustrate not only the range of views with which Canadian legislators approached the enshrining of the Supreme Court of Canada as the final court of appeal for the country, but also the depth of feeling with which partisans of the rigid rule and the flexible rule of stare decisis have contended over the years. Looking nearly a decade later at the ultimate court which the 1949 legislation established, Professor Andrew Joanes declared in a perceptive article that "the framers of the Supreme Court Amend ment Act of 1949 must have contemplated, and indeed intended, a substantial break from the automatic acceptance of English authorities, and to regard pre-1949 decisions of the Privy Council as being of no more than persuasive authority is simply to give effect to that legislative intent"! Such an analytical assertion of legislative intent, though precisely in accord with the method of statutory interpretation which the courts have themselves sanctioned, gives rise in the scientific mind to a desire for historical verification. It is therefore worth investigating what the expectations of Parlia- ment (and perhaps also, to the extent that Parliament is truly representative, of the country) were with respect to the Supreme Court as a final appellate tribunal. Such an investigation naturally leads to the question of the degree to which the court (in the context of the Canadian system of courts) has fulfilled the expectations of its creators, and to the further question of what the future holds. It is to these three questions that this article is addressed.

The very bill which established the Supreme Court of Canada in 1875 contained a provision which its Liberal drafters believed abolished appeals from the Supreme Court to the Privy Council, and which, on that assumption, was vigorously debated and ultimately passed by the Canadian Parliament. The abolition clause, however, incorporated a proviso saving the exercise of the royal prerogative, which the imperial authorities interpreted as vitiating the substantive provision,} and it therefore remained for a later

IJoanes, Stare Decisis in the Supreme Court of Canada (1958), 36 Can. Bar Rev. 175, at p. 197. 'The excellent account of the incident by Frank H. Underhill, Edward Blake, The Supreme Court Act, and the Appeal to The Privy Council, 1875-6 (1938), 19 Can. Hist. Rev. 245 makes it clear that the British government would have disallowed the legislation rather than accept the

1967] Precedent and Policy in the Supreme Court 629 generation of Canadians actually to abolish the supervisory power of the Privy Council. In the years between 1875 and 1949 the abolition of appeals to the Privy Council was never far from the political scene. In 1888 Parliament enacted an amendment to the Criminal Codes providing that judgments of the Supreme Court of Canada should be final in criminal matters, and this stood until it was declared ultra vices by the Privy Council in 1926' In the meantime a league organized in the Province of Quebec in 1904 campaigned for the abolition of all appeals and in 1916 the Senate collected opinions from several legal experts.' However, it was only after the Statute of Westminster in 1931 8 that Parliament was able effectively to abolish appeals to the Privy Council, and in 1933 it abolished appeals in criminal matters for a second time' This exercise of power was sustained by the Judicial Committee in British Coal Corp. v. The King in 1935,1° and in the same year the Privy Coun- cil upheld an Irish statute abolishing all appeals to His Majesty in Council from the Irish Free State," thus indicating the probable result of any -similar attempt by Canada. In 1938, the Ion. C. N. Cahan, an opposition member, introduced a bill to abolish all appeals beyond the Supreme Court, and on its re-introduction in 1939 the debate was adjourned in order to refer the constitutional question to the Supreme Court. The Supreme Court upheld the legislation in 1940' and, after the War, the matter was argued

abolition of appeals, and that the Mackenzie government was happy to accept the Imperial interpretation in order to avoid the political embarrass- ment of disallowance, for although the abolition clause was not in the original government draft, it had been accepted by the government and vehemently opposed by the Conservative Opposition. Sir John A. Mac- donald denounced it as "the first step towards the severance of the Domi- nion from the Mother Country", and predicted its disallowance in England (ibid., p. 248). But the bill would not in any event have prohibited the carrying of appeals from the provincial courts directly to the Privy Coun- cil: an amendment to that effect had been defeated in the House of Com- mons . Dr. Underhill notes (ibid., pp. 262-263) that his account, taken from the Blake papers differs from that given by other authorities . But, as is made clear by the review of the 1875 debate in the address of Sen . A. X. Hugessen, Canadian Senate Deb., 2nd sess ., 1949, p. 108 the parliamentarians of 1875 believed they were abolishing appeals to the Privy Council then . ' 1888, 51 Vict., c. 43. ' Nadan v. The King, [1926] A.C. 482 . 'These facts are related by Maurice Boisvert, M.P., supra, footnote 1, p. 18. 8 1933, 22 Geo. V, c. 4 (Imp .). '23 & 24 Geo. V, c. 53, s. 17.

11"[19351 A.C. 500. Moore v. Attorney-General for the Irish Free state, [1935] A.C. 484 . "Re Privy Council Appeals, [19401 1 D.L.R. 289.

630 LA REVUE DU BARREAU CANADIEN [VOL . XLV before the Privy Council, with a similar result."` Subsequently Mr. F. E. Jaenicke, a C. C. F. member of Parliament, introduced a private bill to abolish appeals in the sessions of both 1947 and 1948, but it was 1949 before the government was ready to proceed, with the introduction of a government bill substantially identical with the 1939 Cahan bill. Bill No. 2, the Supreme Court Act Amendment Act of 1949, was given first reading in the House of Commons on January 28th, 1949," but as a result of the calling of a general election for June 27th, 1949, did not reach second reading and was read again for the first time in the new Parliament on September 19th, 1949 ." Second reading was moved the next day." Its principal purpose was, in the words of its mover, the Hon. Stuart S. Garson, Minister of Justice, "to create in the Supreme Court of Canada exclusive, ultimate, appellate civil and criminal jurisdiction within and for Canada by abolishing appeals to the privy council and by making the judgment of the Supreme Court final and exclusive in all cases".' The Minister of Justice stressed the political importance of the assumption by Canada of full powers of self-government and described the judicial power of the Privy Council over Canadian appeals as one of the two remaining "badges of colonialism"," the other being the lodging of amending power over the constitution in the United Kingdom Parliament. A small number of Opposition members took issue with this categorization. Mr. E. D. Fulton described it as "an appeal to prejudice"," Mr . Howard Green called it "a straight appeal to the isolationist and republican senti- ment in Canada" 2' and Mr. T. L. Church referred to it as "a separatist movement" .' Mr. Green further objected that "we should be doing everything in our power to strengthen the commonwealth, and the abolition of appeals to the Privy Council 22 certainly does not strengthen the commonwealth". Indeed, in Mr. Green's view, "such action is sure to be interpreted in every capital of the world as a weakening of the British Commonwealth, par-

"A .-G. Ont. v. A .-G . Can ., [19471 A.C. 127. In a symposium of three Canadian lawyers at (1947), 25 Can. Bar Rev. 557 following this case only one, Professor F. R. Scott, urged that Parliament should exercise its new power. The developments are summarized in a more dispassionate fashion in Note (1947), 60 Harv. L. Rev. 1138, and Livingston, Abolition of Appeals from Canadian Courts to the Privy Council (1950), 64 Harv. L. Rev. 104. "Canadian House of Commons Deb., 1949, vol . 1, p. 28. "Ibid. " Ibid., p. 69. 17 Ibid. 18 Ibid. " Ibid., p. 302. 1 Ibid ., p, 287 . 41 Ibid., p. 282. ' Ibid., p. 287.

1967] Precedent and Policy in the Supreme Court 63 1

ticularly in the capitals behind the iron curtain, when all democratic countries are rightly worried about the Soviet Union having ." discovered the secret of the atom bomb" Mr. Church also invoked world conditions : "A large body of public opinion in this country . . . believes this is not the time, during the dollar-pound crises to give the mother country a black eye." `' This was not, however, the principal thrust of Opposition argument during the debate on second reading of the bill. Mr. Drew moved an amendment requesting a six months' delay to allow consultation with the provinces," the rationale of which was most succinctly expressed by Mr. Fulton: "This is a constitutional change which should not be proceeded with at the present time, or until the other constitutional procedures have been worked out with the provinces." " Mr. Drew's amendment was lost, on division without a recorded vote. A subordinate theme in the debate on second reading, which became the only real issue at the.. committee stage in the House, was the question of stare decisis. As raised initially by Mr. Drew, the question was "What is to happen to the decisions which have been made during the past eighty-two years by the Privy Council and by the Supreme Court of Canada in interpreting our constitution?" " Two events which took place outside the House added fuel to the fire of debate on this subject. One was the resolution on abolition of appeals to the Privy Council passed by the Canadian Par Association at its 1949 Annual - Meeting, the material part of which requested "If, as and when the appeal to the Privy Council should be abolished . . . the rule of stare decisis ought to continue to be applied with respect to past decisions of the court, as well as with respect to past decisions of the Judicial Committee." ' The other was a press report of June 2nd, 1949, purporting to quote

' Ibid., p. 286. 24 Ibid ., p. 282. ' Ibid., p. 195. Ibid ., p. 304. The phrase "other constitutional procedures" refers to the government's 1949 proposals with respect to a constitutional amending formula. z' Ibid., pp . 314-315. The C.C.F. and Social Credit leaders both supported the government, ibid ., pp . 199-203, though Mr. Solon Low, the Social Credit leader, indicated that he would have preferred to see this bill delayed until after the proposed federal-provincial conference qn constitutional amending procedure. ' Ibid ., p. 192. " The complete text of this resolution is set out in Mr. Drew's address, ibid., pp. 191-192. "Whereas the government of Canada has announced its intention to in- troduce legislation, at the next session of the Parliament of Canada, providing for the abolition of appeals to the Privy Council, and making the Supreme Court of Canada our final court of appeal in all matters: `Be it resolved that the Canadian Bar Association, without expressing

632 THE CANADIAN BAR REVIEW [VOL. XLV Chief Justice Thibaudeau Rinfret of the Supreme Court of Canada during an exchange with counsel to the effect that Canadian courts were not bound by decisions of the Privy Council." The first of these events provoked the Prime Minister into the statement on stare decisis quoted at the outset of this article. He subsequently argued, however, that the Canadian Bar Association resolution was merely an expression of desire and not a proposal for legislative action. The second led him to confer with the Chief Justice and to provide the House with the explanation that the Rinfret statement was made with reference to an English decision in the area of criminal law subsequent to the abolition of appeals to the Privy Council in criminal matters in 1931 ; the Chief Justice made it clear that he was merely repeating what he had expressed in In re Stor-

The principal Opposition statements on the stare decisis issue were made by Mr. Fulton. He argued, on the basis of "reception statutes" in provincial law, which have the purpose of adopting at a single stroke the common law of England as of a certain date, that "there are plenty of precedents for the embodiment of that

any view as to the wisdom or otherwise of the proposed abolition, is of the opinion : 1. That any bill for the abolition of the Privy Council appeal should contain the necessary provisions as to the organization and jurisdiction of the Supreme Court of the system by which its judges will be appointed. That sufficient time be given before the statute is enacted to permit the public to give consideration, both as to the question whether the abolition of the appeal to the Privy Council should take place and to the constitution and powers of the court that may replace it, and also to the effect which the abolition may have upon provincial and minority rights. 2. If, as and when the appeal should be abolished, it is the opinion of this association as at present advised: (a) That the Supreme Court should consist of nine judges. (b) That a quorum of the court should be five judges. (c) That it should sit always with an odd number of judges present. (d) That there should be no change in the present practice of the court, under which each member is free to give reasons for his judgment. That the court should continue to sit at Ottawa only. That the salaries of the judges of the court should be substantially increased so as to make such salaries commensurate with the re- sponsibilities of the office, with an appropriate additional amount to the chief justice. That the rule of stare decisis ought to continue to be applied with respect to past decisions of the court, as well as with respect to past decisions of the judicial committee. " "Ibid., p. 286 (address of Mr, Howard Green). Ibid ., pp. 499-500. (19451 S.C.R. 526, at p. 538. But, as Mr. W. J. Browne, op. cit., footnote 1, p. 531, insisted, if the abolition of criminal appeals destroyed the binding authority of the House of Lords and Privy Council decisions, the abolition of all appeals would have the effect of destroying stare decisis in all cases.

1967] Precedent and Policy in the Supreme Court 633

principle [stare decisis] in legislation," as and at the committee stage moved as an amendment the insertion of the following clause: Subject to any enactment of the parliament of Canada or the legislature of any province in exercise of their respective powers, the Supreme Court of Canada shall be bound by the law as declared in all orders of His Majesty in council hitherto made on the advice of the judicial committee of his privy council and in the reasons assigned therefor by the said judicial committee, in so far as the said law is applicable in Canada. The debate was not over the utility of the principle of stare decisis. Only two members of the House expressed themselves in forthright disagreement with the doctrine of precedent-Mr. Pou liot, as quoted at the outset of this paper, and Mr. J. Coldwell, the leader of the C. C. F. Party. Mr. Coldwell declared that "to accept it [stare decisis] unreservedly would place this country and its judiciary in something of a strait-jacket"," and adopting Lord Sankey's "living tree" metaphor, argued that "any attempt to fasten upon Canada the past judgments of the Privy Council would defeat the very objective the fathers of confederation had in view at the outset-the planting of a living tree capable of growth and development in the future"." The focus of the debate was rather the advisability of spelling out in legislative form a principle on which all but two speakers were agreed .' Mr. Donald Fleming, the seconder of Mr. Fulton's amendment urged : "If we wish to achieve now a guarantee of that continuance of the application of the principle of stare decisis, the only way to do it is by an amendment of this kind. . . . This matter is too important to the whole national fabric of Canada to be left to any doubtful dispute. Why should we leave it to dispute?" ' At the political level the government's ready reply, as expressed by Mr. Oarson, was The question is whether we in this house have enough confidence in the Supreme Court of Canada as a court of last resort that we think it competent and willing to apply the Privy Council decisions as an integral part of the law of Canada . I say that if we have not that degree of confidence in the Supreme Court of Canada then not only should we not make it the court of last resort for Canada, but I think there is a grave question whether we should continue it at all as an institution of the country." as "Ibid., Ibid., p. 306. p. 496. " Ibid., p. 657. ' Ibid., p. 658. Perhaps Mr. William F. Carroll ought also to be added to the number of the objectors, since, while not objecting to the principle of stare decisis as such, he commented (ibid., p. 533) : "The rule of stare decisis is not such a sacred thing that the Privy Council, the House of Lords or our own Supreme Court of Canada can never overrule a decision ." ' Ibid., pp. 500-501. ' Ibid., pp. 501-502.

634 LA REVUE DU BARREAU CANADIEN [VOL . XLV And in the words of the Prime Minister : "The judges of the Supreme Court have pledged their oaths to apply the law. If we are to express doubt that they will do so, we express a lack of confidence in their respect for their oaths." " But the theoretical reason for the government's refusal to accept the amendment was that it would constitute interference with provincial rights. Mr. Garson stated If we have power to direct the Supreme Court of Canada to consider itself bound by a Privy Council decision which says that a certain act of parliament is valid, then equally we must have power to direct the Supreme Court that it shall not follow the Privy Council decision, and shall hold the act in question invalid. Were we to do so. the effect of our enactment would be to amend the British North America Act itself. It would amount to a constitutional amendment taking the form of a direction to the Supreme Court of Canada to follow or not to follow Privy Council decisions. As the Prime Minister put it, "we would certainly be attempting to enact substantive legislation in fields that might well be outside the jurisdiction of this Parliament." " The Fulton-Fleming amendment was negatived on division without a recorded vote,' and the same result obtained on third reading." The Commons debate, despite its generality and sometimes blatantly political tone, was by no means devoid of jurisprudential subtlety. For example, a technical objection raised by two New foundland members" as to whether a Supreme Court contemptuous of precedent could reverse the 1927 decision of the Privy Council delimiting the boundary between Labrador and Quebec, compelled Mr. Garson to explain that the permanence of that result was guaranteed, not by the doctrine of stare decisis, but by that of res judicata, which establishes that an adjudicated matter is forever binding upon the parties to the case" However, the debate proceeded on the faulty-though, in the light of contemporary English jurisprudential knowledge, pardon- able-assumption that, on the one hand, stare decisis necessarily meant an absolute application of the principle, and, on the other hand, even an absolute doctrine of stare decisis could really pre- clude judicial legislation. To do him justice, Mr. Fulton indicated that he regarded the preservation of the principle as a guarantee merely against "a sudden overnight change", and that "as time goes on the courts place different interpretations on the previous decisions. But one of the reasons that they modify the laws only 'Ibid., p. 529. "Ibid., p. 503. "Ibid., p. 530. "Ibid., p. 660. "Ibid., p. 682, "Ibid., pp. 308 and 494. "Ibid., p. 494.

1967] Precedent and Policy in the Supreme Court 635 gradually is that they regard themselves as bound by the principle of stare decisis." "? Mr. Fulton's argument for a statement on precedent, based on the reception statutes, went unanswered from the jurisprudential viewpoint, though Mr. Carson did attack it from the constitutional viewpoint." It is true that others than Mr. Fulton 'have rested arguments against judicial innovation on reception statutes. An American judge, Mr. Justice Schaefer, illustrates the point from a counsel's argument in a 1953 Illinois case: "The power of this Honorable Court to adjudicate between litigants is derived from twb sources, namely: the common law as it existed prior to 1607, and statute law. A cause of action for prenatal injuries was un- known at common law. There is no statute permitting such an action." '° Mr. Justice Schaefer wryly comments that "nowhere have [common law reception statutes] stifled the capacity of the common law for accommodation to new condition'." A fuller answer would stress that reception provisions give the law merely a starting point, not a finishing line, and that the very common law which is thus adopted as a system itself tolerates conceptual development." Government spokesmen were sensitive to the dangers of legislative interference with the independence of the judiciary. Mr. Carson maintained that "In the view of the government this matter of applying the rule of stare decisis is a judicial rather than a legislative function; and when we interfere legislatively with a judicial function we can only make for confusion in a matter which, if left as it stands, is perfectly clear." " While these words were uttered in the context of the federal concern for avoiding federal interference in the jurisdiction of provincial legislatures, Mr. St. Laurent twice" referred to the distinction between legislative and judicial functions and emphasized that there was no governmental "attempt to settle by legislation something which could more properly be determined by judicial process"." Opposition members also feared political interference and wanted to interfere once and for all to remove the danger of a political court in the future. In the view of Mr. Rodney Adamson, "there is the danger in future of having a court representing the "° Ibid., p. 306. 4s Ibid., pp. 495, 532-533. 49 Precedent and Policy (1966), 34 U. Chi. L.. Rev. 3, at p. 6. " Ibid. ' Of course, to one who holds an absolutist theory of stare decisis, such an answer begs the question. "Op. cit., footnote 1, p. 502. "Ibid., pp. 35 and 196. b" Ibid., p. 35.

636 THE CANADIAN BAR REVIEW [VOL. XLV political views of the administration in power rather than adminis- tering the laws as this supreme court of parliament wrote them". In support of this possibility he described what had happened under the similar federal constitution in the United States in the previous decade with the appointment of politically conscious judges, creating "a court that admittedly swings to the left or to the right".' Government supporter Mr. J. F. Pouliot, however, turned the same argument to support the abolition of appeals to the Privy Council on the ground that the privy councillors, as members of the British Upper House, were members of political parties : "Each of the judges who sit in the Privy Council . . . is a politician first and a judge afterwards. . . . In our country the situation is extremely different : no judge has the right to vote. . . . This means that all these judges, even though they have been in politics previously, can no longer be imbued with any partisan spirit." The ideal court to decide jurisdictional matters between the provincial and federal governments was envisaged according to the following analogy by Mr. A. L. Smith :' If we play games we try to have them on neutral ground, and we always try to have referees who do not live in either of the contesting towns. That is natural human instinct. We do not say we do not trust our opponents to provide good referees ; we simply say we will see that they do not have a chance to do anything else. Mr. Smith coupled this argument with the claim that because it had been handling appeals from all the dominions, colonies and dependencies in the Commonwealth, the Privy Council had the advantage over the Supreme Court of Canada of acquired experience." Mr. Drew had already referred to the Privy Council as "the referee . . . between the different governments of Canada"," and had spoken of "the immensely important place occupied by the Privy Council as an independent tribunal interpreting our constitution"." He also spoke disapprovingly of the way in which the Supreme Court of the United States had become the centre of political controversy' Messrs. Fulton!' and Adamson,` as well, referred to the famous Roosevelt attempt to pack the United States Supreme Court. The Prime Minister rejected the insinuations against the court's

"Ibid., p. 310. "Ibid., p. 283. " Ibid., p. 311. 'Ibid., p. 312. ' Ibid., p. 190. " Ibid. "Ibid., p. 194. "Ibid., p. 304. "Ibid., p. 3l0.

1967] Precedent and Policy in the Supreme Court 637 impartiality primarily on the ground of the personal integrity of the judges:" There were times when there was a conflict of interest between a colony or a dominion and the home authorities, as they used to be called. The gentlemen who had to determine where the right lay were the gentlemen appointed by His Majesty the King in his capacity as King of the United Kingdom. I do not think it ever occurred to anyone that because they were appointed by His Majesty, they would not observe the re- quirements of their oaths of office. Now, the situation will be identical here. . . . I . . . believe that the gentlemen who will have the responsibility of discharging the functions of that court will discharge that responsibility to the best of their ability, conscious of their obligation to carry out the oaths they will have taken. His answer, moreover, proceeded on the assumption that : "Courts a' of justice have to be strictly objective." Nevertheless, that there was a clear governmental awareness of the broad power of a final court was indicated by Mr. Garson's opening statement, in which he stressed the following words from an 1875 memorandum of the United Kingdom Privy Council which opposed the granting of ultimate judicial power to the Supreme Court:` The power of construing, determining and enforcing the law in the last resort, is, in truth, a power which overrides all other powers; since there is no act which may not in some form or other become the subject of a decision by the supreme appellate tribunal and that tribunal can alone determine the limits of its own jurisdiction. The debate in the Senate was considerably shorter than that in the House" and differed from it principally in that, while stare decisis was not a major issue, of the six speakers who dealt with the question at all, five" supported a flexible doctrine of precedent. Typical was the comment of Senator Arthur W. Roebuck :` I am not here to presume to criticize the members of the Privy Council for basing decisions with respect to the Canadian constitution upon questions of policy rather than upon rules of law. But I will say this, that if changes in our Canadian constitution are to be made on such grounds, those changes should be made here in Canada, not in the United Kingdom.

as a° ' Ibid., p . 198. Ibid . ' Ibid., p. 70. w First reading was on October 17th, 1949. Second reading was moved on October 18th and given on November 2nd, on division. Third reading, on division, followed the same day, after leave of the Chamber not to refer the bill to committee was granted. On Royal approval, the bill became the Supreme Court Act, 1949, 13 Geo. VI, c. 37. " Sens. Hugessen, Bouffard, Roebuck, Kinley and Hayden, with Sen. Farris alone in favoring rigid stare decisis. as Op . cit., footnote 4, p. 183.

638 LA REVUE DU BARREAU CANADIEN [VOL . XLV However, despite such evidence of an understanding of the ultimately creative role of a final court, there is little factual support for Professor Joanes' thesis that the framers of the Supreme Court Amendment Act of 1949 "intended" the abandonment of stare decisis with respect to Privy Council decisions. Indeed, the evidence is the other way, and the most one could conclude from the House of Commons debate is that the Parliamentarians would tolerate only a slow emergence of a body of native precedents which made no sharp break with the past. To this somewhat muted call to gradualism the Canadian courts have responded in a real, though equally muted, way.

Despite the fact that the Privy Council, the highest court for Canada, escaped by a technicality from the embrace of stare decisis," in Stuart v. Bank of Montreal °1 the Supreme Court of Canada laid down a stringent rule of precedent for itself. Mr. Justice Duff, comparing the Supreme Court of Canada to other courts of appeal, concluded that: "Considerations of public con- venience too obvious to require statement . . . make it our duty to apply this principle [stare decisis] to the decisions of this Court." 7` Mr. Justice Anglin stated the rule with equal firmness : "whether it be regarded as final or intermediate . . . the attitude of this court towards its previous decisions upon questions of law should, in my opinion, be the same. . . . It is of supreme importance that people may know with certainty what the law is, and this end can only be attained by a loyal adherence to the doctrine of stare decisis."" Indeed, even at an earlier date, the Supreme Court of Canada had been so impressed by the importance of the doctrine of precedent that in the case of Ross v. The Queen," a majority of the court held

"Viscount Simon in A.-G . Ont. et al. v. Canada Temperance Federa- tion et al, [19461 A.C. 193, at p. 206, stated unequivocally: "Their Lord- ships do not doubt that in tendering humble advice to His Majesty they are not absolutely bound by previous decisions of the Board, as is the House of Lords by its own judgments ." The reason for this was that the Board is not in form a court (though it is so in effect) but merely a body of advisers : see British Coal Corporation et al v. The King, supra, footnote 10, at p. 510 et seq. 11 (1909), 41 S.C.R. 516. "Ibid., at p. 535. "Ibid., at p. 549. Stuart was followed in Gale v. Bureau (1911), 44 S.C.R. 305; Grant v. Scott (1919), 59 S.C.R. 227 ; Barre v. The King, [19271 S.C .R. 284; Soullière v. Avondale Manor Land Co. Ltd., [19401 S.C.R. 680. 17' (1895), 25 S.C.R. 564.

1967] Precedent and Policy in the Supreme Court 639 itself bound by a majority decision in McGreevy v. The Queen,' even though no single reason could be found in McGreevy which was concurred in by a majority of the court. It was also held subsequently in Iaoust v. Ferland" that the rule of stare decisis applied to appeals from Quebec, as well as to those from common law Canada. Moreover, the Supreme Court took the view that even a judgment given on reference would subsequently be regarded as binding." It was, however, admitted that a decision which affirmed the judgment of a lower court upon an equal division was not binding, even though entitled to great respect.' There was of course never any doubt that all Canadian courts, including the Supreme. Court of Canada, were before 1950 bound to follow decisions of the Privy Council." But on the authority of Trimble v. Hill," Canadian courts were also subject to the English Court of Appeal, for in that 1879 case the Privy Council had laid down the duty of all colonial courts to respect the Court of Appeal in England. In the course of chastising the New South Wales Court of Appeal for failing to do so, Sir Montague E. Smith declared :' Their Lordships think the Court in the Colony might well have taken this decision as an authoritative construction of the Statute . It is the judgment of the Court of Appeal, by which all the Courts in England are bound, until a contrary determination has been arrived at by the House of Lords. Their Lordships think that in'Colonies where a like enactment has been passed by the Legislature, the Colonial Court should also govern themselves by it. The uniformity of interpretation, which was thought to be desirable in all parts of the Empire, was to be brought about by colonial courts following English decisions generally, not only those of Privy Council. Thus in the 1888 case of Stuart v. Grough," the Ontario Court of Appeal refused to follow a decision of its own given only six years earlier because in the interval the English Court of Appeal had come to a contrary conclusion. The force of this Privy Council admonition was such that it

' (1890), 18 S.C.R. 371. The House of Lords was not willing to go so far in Great Western Railways Company v. Owners of S.S. Mostyn, [1928] A.C. 57. °e [19321 2 I .L.R. 642. A .G. Can. v. HHigbie, [1945] S.C.R. 385, at p. 403 . 78 M.I.R. v. Royal Trust, [1931] S.C.R. 485. There was a similar holding in Re Stanstead Election (1891), 20 S.C.R. 12. °° This is so fundamental as to be stated explicitly-only occasionally, as, e.g., in Robins v. National Trust Co. Ltd. et al., [1927] 2 D.L.R. 97. As described below, however, there were sometimes attempts by Canadian to courts8° limit the Privy Council's jurisdiction. (1879), 5 App. Cas. 342. 1 Ibid., at p. 344. sa (1888), 15 C.A.R. 299.

640 THE CANADIAN BAR REVIEW [VOL . XLV was seriously thought that the Supreme Court of Canada itself might be bound by the English Court of Appeal. Thus, in Stuart v. Bank of Montreal, Anglin J., though holding that the Supreme Court of Canada was bound by its previous decisions, left open this one case:" "In the event of an irreconcilable conflict upon a question of law between a decision of this Court and a subsequent decision of the English Court of Appeal-should such a case arise -in view of what was said by the Privy Council in Trimble v. Hill . . . the duty of this Court would require most careful consideration." Subsequently Sir Louis Davies in a dissenting judgment indicated that the Supreme Court of Canada should consider itself bound by a decision of the Court of Appeal in England in the absence of a conflicting decision of its own. Likewise, in Lowery v. Lamont," Adamson J. of the Manitoba Bench, said that : "In my opinion the English Court of Appeal is binding on this Court E" in the circumstances which exist here and must be followed." This had also been the view of Dubuc, C.J., in Wilson v. Graham." The Privy Council had modified its opinion somewhat by 1927 when, although still speaking in rather condescending tones, it held in Robins v. National Trust Co. Ltd. et al" that colonial appellate courts are not bound by the English Court of Appeal :` If a Colony 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. Equally, of course, the point of difference may be settled so far as the Colonial Court is concerned by a judgment of this board. Before the Robins case, Canadian courts used to have to strain -sometimes with great success-for features to distinguish the Canadian from the English context. Thus as long ago as 1917, a trial judge followed a decision of the Supreme Court of Canada in preference to a House of Lords decision." Equally notable is the 1905 case of Slater v. Laboree," in which a Divisional Court of three judges preferred a decision of the Supreme Court of Canada "Supra, footnote 71, at p. 548 . ' Stewart v. Le Page (1916), 53 S.C.R. 337, at p. 341 . `' [19271 1 W.W.R. 95, at p. 99. s° (1905), 1 W.L.R. 278, at p. 281 (Man.) . H' Supra, footnote 79. 'Ibid., at p. 100, per Viscount Dunedin (emphasis added). Manitoba Bridge and Iron Works v. Minnedosa Power Co. et al., [19171 1 W.W.R. 731, per Metcalfe J. "(1905), 10 O.R. 648.

1967] Precedent and Policy in the Supreme Court 641

to one of the House of Lords, with Meredith C.J., admonishing:' "It was not for the learned Judge nor is it for us to question whether a decision of the highest court in Canada is in accordance with the previous case. It is our duty, as it was his, to follow it." But Martin J. Adm., in Crombie v. Can. Government Merchant Marine Ltd. resorted to distinction, stressing that :' "It is difficult to apply to such a vast country as Canada fronting upon two oceans thousands of miles apart . . . some of the reasons upon which ]English decisions are based which apply to an island having relatively only a small and all-enveloping, accessible coastline." However, even after the Robins case, the Ontario Court of Appeal felt it necessary, in McMillan v. Wallace," to limit Trimble v. Hill strictly to the interpretation of statutes in order to avoid its application. On the other hand, Ford J. in Will v. Bank of Montreal," faced with an earlier Privy Council decision and a later House of Lords decision which expressly disapproved of it, felt able to follow the House of Lords case, citing, as his justification, the admonition of the Privy Council itself in Robins v. National Trust Co., Ltd., that the House of Lords is "the supreme tribunal to settle English law". Ford J., did not otherwise challenge the authority of the Privy Council, but in Negro v. Pietro's Bread Co., Middleton J.A., speaking for the Ontario Court of Appeal argued that: "The bind ing effect of the judgment of the Privy Council is limited to the °6 Courts of the Colony from which the appeal is had." The Supreme Court of Canada has never accepted this distinction, and Ford J. in the Will case, had at least a contrary decision of the House of Lords to rely on, whereas Middleton J.A., merely had subsequent contrary decisions of the English Court of Appeal. to invoke; and his justification had to be, somewhat ironically, the status conferred on the English Court of Appeal by Trimble v. Hill. Subsequently the Ontario Court of Appeal refused to follow

"Ibid., at p. 650. 11 [1922] 1 W.W.R. 805, at p. 806. The court here followed dicta of the Alberta Court of Appeal in Travis-Barker v. Reed, [1921] 3 W.W.R. 770, at pp. 773, 776, and 780. °3 (1929), 64 O.L.R. 4. °4 [1931] 3 D.L.R. 526. °° [1933] 1 D.L.R. 490, at p. 496. °° Although Davies J., in Toronto Railway Co. v. Toms (1911) , 44 S.C.R. 268, at p. 274, indicated that the Supreme Court might. only "pos-11 sibly feel itself bound by Victoria Railway Commissioners v. Coultas (1888), 13 App. Cas 222, the same case which the Ontario Court of Appeal refused to follow in Negro v. Pietro's Bread Co., the Supreme Court has never gone so far as the Ontario Court.

642 LA REVUE DU BARREAU CANADIEN [VOL . XLV the English Court of Criminal Appeal in R. v. Kadeshevite' and in Reg. v. Kelso." Moreover, in Safeway Stores Ltd., v. Harris," the Manitoba Court of Appeal, reversing Williams C.J.K.B ., said. that he was in error in holding himself bound by a decision of the English Court of Appeal. MacPherson, C.J.M., declared:" "I would suggest that there has been a great change in the relationship between the various parts of the Empire since that decision [Trimble v. Hill] was given." Professor Friedmann is undoubtedly right in claiming that the death blow to Trimble v. Hill was ad- ministered by the Statute of Westminster," but Canadian courts were slow to realize this, and it is only since the government's move to abolish appeals to the Privy Council that there has been a chorus of judicial independence : in Anderson v. Chasney," the Manitoba Court of Appeal preferred an earlier House of Lords decision to a later one ; in Maltais v. C.P.R.," Egbert J., of the Alberta Supreme Court, held that a decision of the House of Lords is not binding in Canada if it is inapplicable to circumstances as they exist in Canada; in Shulhan v. Peterson Howell & Heather (Canada) Ltd. et al."' Disbery J., of the Saskatchewan Queen's Bench refused to follow the Wagon Mound case,"' holding that it was a persuasive authority only and that In Re Polemis" remained the law in Saskatchewan ; in Polak v. Polak,"' a trial judge in British Columbia held that although a House of Lords decision is worthy of great respect it is not a binding authority. Moreover, in Kerr v. Kerr," in the Manitoba Court of Appeal, Coyne J.A. and Dysart J.A. expressed the view that Canadian courts are not bound by decisions of the English courts, with Montague J.A. concurring . "xi '[19341 O.R. 213. (1953), 105 C.C.C. 305 . "° [194814 D.L.R. 187. Ibid., at p. 202. Gilbert D. Kennedy, at (1949), 27 Can. Bar Rev. 465, at p. 466, noted "There has now been such general disapproval in Canada of the statement in Trimble v. Hill that it is submitted the decision is no longer valid in Canada ." The Safeway case was applied in M. v. M. (1954), 13 W.W.R.(N.S.) 505 (Man.) . '°' Stare Decisis at Common Law and under the Civil Code of Quebec (1953), 31 Can. Bar Rev. 723, at p. 727. 4 aff'd [1950) 4 D.L.R. 223 (S.C. Can.) . [1949) D.L.R. 71, 1 (1950), 2 W.W.R. 145, at p. 160. (1966), 57 D.L .R . (2d) 491 . Overseas Tank-ship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd., [19611 A.C. 388. In Oakes v. Spencer (1963), 43 D.L.R. (2d) 127, the Ontario Court of Appeal managed to avoid ruling on whether the Wagon Mound case was good law in Ontario. "(19211 3 K.B. 560. (1961), 38 W.W.R. 569, per Fraser, C.C.J., aff'd (1962), 38 D.L .R . (2d) 333 (C.A.). " [19521 4 D.L.R. 578, at pp. 584, 592. Adamson J.A., dissented, but in Anderson v. Chasney, supra, footnote 102, he had joined Coyne J.A.,

1967] Precedent and Policy in the Supreme Court 643 Yet as late as 1958 we find a trial judge in Newfoundland unequivocally following the latest British law," even though "on the merits", as an editorial note in the Dominion Law Reports pointed out, the Hbuse of Lords' "decision on the point is far from de- serving of general acceptance" .' Moreover, an Ontario trial judge has anachronistically held that he is bound by decisions of the English Court of Appeal except where there is a contrary decision of the Ontario Court of Appeal." Whatever their attitude towards English authorities, provincial courts, by and large, have been assiduous in refraining from any encroachment on the scope of Supreme Court of Canada decisions. Thus in A.-G. Can. v. Nykorak,' the British Columbia Court of Appeal through Davey J.A., refused to consider the argument that a Supreme Court of Canada precedent was deficient and need not be followed because the constitutional question had been neither argued nor decided in it. The court adopted the statement by Scrutton L.J. in Newsholme Bros. v. Road Transport and Gen'l Ins. Co. :` "When the decision is that from certain facts certain legal consequences follow, the decision is, J think, binding on the Court of Appeal in any case raising substantially similar facts." " It is only the Exchequer Court, a federal court, which has indulged in a disagreement with the Supreme Court, leading Rinfret C.J.C., to the following statement of the final court's pre- rogatives:" 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 is 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 in holding that English decisions were no longer binding. Martin J.A., in Pacific Lumber v. Imperial Timber (1917), 31 D.L.R. 748 (B.C.C.A.) had taken the same position decades earlier. "Power v. Stoyles (1958), 17 D.L.R. (2d) 239. "Ibid., at p. 240. 'Wells J., in Re Cox, [1950] 2 D.L.R. 449, at p. 468 . This view was adversely commented upon by Kennedy, Note (1951), 31 Can. Bar Rev. 92, at p. 93 . Wells J., was reversed by the Ontario Court of Appeal, [1951] O.R. 205, without reference to his position on precedent. Further appeals to the Supreme Court of Canada, [1953] 1 S.C.R. 94, and to the Privy Council, [1955] A.C . x 627, were dismissed . ua (1961), 28 D.L .R. (2d) 485. [19291 2 K.B . 356, at p. 375. In Milk Board v. Hillside Farm Dairy Ltd., et al. (1963), 40 D.L.R. (2d) 731, the British Columbia Court of Appeal again took a similar position . '16 Woods Mfg. Co. v. The King, [195112 D.L.R. 465, at p. 475 .

644 THE CANADIAN BAR REVIEW [VOL. XLV 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 . Thorson P., who had maintained that the Supreme Court of Canada had overruled itself with respect to principles of assess- ment in expropriation proceedings," replied in The Queen (Ex rel. A.-G. Can.) v. Supertest Petroleum Corp. Ltd. :' [T]he restriction sought to be imposed is not required under even the strictest view of the doctrine of stare decisis and it is certainly not in accord with the spirit that has permitted Judges, even of Courts of first instance, to make a useful contribution to the administration of justice by pointing out defects in the law as they become manifest and recommending legislative action for their remedy when reform by judicial decision has become impossible. Under the circumstances, I respectfully suggest that the ends of justice will be better served by the continued freedom of enquiry of this Court than by the prohibition of it . A similar view was taken by Norris J.A., in the Nykorak case, but was. at variance with the position of the majority ." It would seem unlikely that in the long run the Supreme Court of Canada would take any less independent attitude towards English decisions than the provincial courts, but since its coming of age, the question of the binding effect of previous decisions has not squarely arisen, except with respect to pre-1950 House of Lords decisions in Fleming v. Atkinson .l9 There (are, however, scattered dicta in the cases. In Re Storgoff ," Rinfret J ., in dissent, had held that the abolition of appeals to the Judicial Committee in criminal cases abro- gated the binding authority of House of Lords and Privy Council decisions in the criminal field. Of course, the same reasoning would lead to the result that English decisions since 1949 have not been binding on the Supreme Court of Canada in any field. Kerwin C.J .C., in Reference Re Validity of the Orderly Payment of Debts Act (1959) Alta., c. 61,' more modestly said of an 1894 decision of the Privy Council : "In my view it is doubtful whether in view ne R. v. Sisters of Charity, [1952] 3 D.L.R. 358. "[19541 3 D.L .R. 245, at p. 251. In Drew v. The Queen (1961), 29 D.L.R. (2d) 114, the Supreme Court of Canada eventually approved the substantive position with respect to allowances for expropriation which had been originally adopted by Thorson P. 'Supra, footnote 112, at pp. 488-489. 'I 9 (1959), 18 D.L.R. (2d) 81 . "Supra, footnote 32. " (1960), 23 D.L.R. (2d) 449, at p. 453 (emphasis added) .

1967] Precedent and Policy in the Supreme Court 645 of later pronouncements of the Judicial Committee it would at this date be decided in the same sense." In Brewer v. McCauley," however, the court followéd English authority even though it was argued by counsel that the authority was wrong. Mr. Justice Rand uttered the unfortunate phrase "the authorities in England have pronounced",lz' of which Dr. Gilbert Kennedy wrote: "In this case our highest court has failed to discharge the heavy responsibility resting upon it. They have apparently renounced that responsibility in favour of `the authorities in England have pronounced.' " " However, Mr. Justice Rand's words in the Hog Marketing Refer- ence" indicate that his earlier phrasing cannot be taken as an endorsation of a passive role for the court: The powers of this Court in the exercise of its jurisdiction are no less in scope than those formerly exercised in relation to Canada by the Judicial Committee. From time to time the Committee has modified the language used by it in the attribution of legislation to the various heads of ss. 91 and 92, and in its general interpretive formulation, and that incident of judicial power must, now in the same manner and with the same authority, wherever deemed necessary, be exercised in revising or re-stating those formalities that have come down to us. This is a function inseparable from constitutional decision. It involves no departure from the basic principles of jurisdictional distribution ; it is rather a refinement of interpretation in application to the particularized and evolving features and aspects of matters which the intensive and extensive expansion of the life of the country inevitably presents . As Professor Joanes has written,' these words are "a clarion call" to judicial independence . The most direct response to this call has been in the case of Fleming v. Atkinson," in which a majority of a seven-man court refused to follow the House of Lords decision in Searle v. Wall bank," which held that the owner of land adjoining a highway owes no duty of reasonable care to users of the highway to prevent domestic animals not known to be dangerous from straying onto the highway. In the principal majority judgment Mr. Justice Judson declared :' A rule of law has . . . been stated in Searle v. YYallbank and followed in Noble v. Calder [by the Ontario Court of Appeal] which has little or no relation to the facts or needs of the situation and which ignores any theory of responsibility to the public for conduct which involves foreseeable consequences of harm. I can think of no logical basis for

' (1955), 1 D.L.R. (2d) 415. "Ibid., at p. 416. (1955), 33 Can. Bar Rev. 340, at p. 342; see also at p. 630, et seq. '-' (1957), 7 D.L.R. (2d) 257, at p. 271. "Supra, footnote 3, at p. 175. "Supra, footnote 119. " (19471 A.C. 341 . "Supra. footnote 119, at pp. 99-100.

646 LA REVUE DU BARREAU CANADIEN [VOL . XLV

this immunity and it can only be based upon a rigid determination to adhere to the rules of the past in spite of changed conditions which call for the application of rules of responsibility which have been worked out to meet modern needs. It has always been assumed that one of the virtues of the common law system is its flexibility, that it is capable of changing with the times and adapting its principles to new conditions. There has been conspicuous failure to do this in this branch of the law. . . . My conclusion is that it is open to this Court to apply the ordinary rules of negligence to the case of straying animals and that the principles enunciated in Searle v. Wallbank, dependent as they are upon historical reasons, which have no relevancy here, and upon a refusal to recognize a duty now because there had been previously no need of one, offer no obstacle. The language of Judson J., is the language of distinction, and be is careful to state that there is no "authority, with the exception of Noble v. Calder, which holds that the common law of England as defined in Searle v. Wallbank was ever the common law of the Province of Ontario" ." Nevertheless, the effect is not distinction, but overruling for, as Judson J., admits, "the real objection to the decision in Searle v. Wallbank is that a conclusion of fact has hardened into a rule of law when the facts upon which the original conclusion was based no longer exist"."1 This is to say that the House of Lords was wrong. Cartwright J., in dissent argues that there are no grounds for distinction a" With the greatest respect to those who entertain a contrary view, I can find no sufficient reason in the historical differences between the ways in which highways came into existence in England and in Ontario to warrant the formulation in the two jurisdictions of different rules of law as to the duty of the owner of a field abutting a highway. The English decisions reviewed and approved in Searle v. Wallbank, [1947] A.C. 341, appear to me to be based not on a supposed right of the owner to let his animals run at large on the highway but on the absence of any duty to users of the highway to keep his animals from straying thereon . . . . It is true that the rule affirmed in Searle v. Wallbank grew up before the advent of fast-moving traffic on the highways and there is much to be said for the view that with the coming of such traffic a duty which had not hirtherto existed should have been imposed upon the owners of animals . But that view was carefully considered and definitely rejected by the House of Lords in Searle v. Wallbank . Cartwright J ., unlike Judson J., was plainly unwilling to depart from the English precedent . A few qualifications prevent Flerning v. Atkinson from having

... Ibid., at p. 101. rn Ibid., at p. 99. "' Ibid., at p. 96.

1967] Precedent and Policy in the Supreme Court 647 the status of the definitive answer by the court to the problem of stare decisis. First, only Fauteux and Abbott JJ., joined in the opinion of Judson J. The separate concurring judgment of Rand J., with whom Taschereau J., concurred, clearly distinguished rather than overruled Searle v. Wallbank by limiting its effect to the negative situation "of pure non-feasance, total non-action and non-purpose" "3 on the part of the owner of an animal; thus where, as here, the owner does an affirmative act, the known or contemplated and inevitable consequence of which is that an animal goes upon the highway, a duty to exercise reasonable care arises. Locke J., dissenting, expressed no opinion "as to whether the common law of Ontario, as it affects the liability of the owner of domestic animals who allows them to stray upon a county highway, differs from the law of England as stated in Searle v. Wallbank"l'} Hence only four members of the seven-member court considered the question of stare decisis. Second, Judson J.'s opinion purported to distinguish rather than to overrule. And third, the court was not confronted with the principal issue : the binding effect of a previous decision of the Supreme Court itself, or of the Privy Council. For these reasons, the question of stare decisis has not yet been settled by the Supreme Court, as was recognized in a recent dissenting judgment of Cartwright J. :` I do not propose to enter on the question, which since 1949 has been raised from time to time by authors, whether this Court now that it has become the final Court of Appeal for Canada is, as in the case of the House of Lords, bound by its own previous decisions on the questions of law or whether, as in the case of the Judicial Committee or the Supreme Court of the United States, it is free under certain circumstances to re-consider them.

Since the Supreme Court of Canada is only one, albeit the principal one, of a complete system of courts, in order to understand its likely path with respect to precedent it is necessary to ascertain the existing trends in Canadian courts generally. One of the most elusive areas of the doctrine of precedent has always been the respect to be accorded by a single judge to the "Ibid., at p. 82. 11 Ibid., at p. 93. "Reg. v. George (1966), 55 D.L.R. (2d) 386, at p. 395. However, even on the assumption of the existence of rigid stare decisis, Cartwright J., was prepared to allow an exception on the ground of per incuriam. Perhaps this indicates a softening of his position since his comment in Rowe v. The King, [19511 4 D.L.R. 238, at p..247, about an earlier Supreme Court judgment: "We are, of course. bound by that judgment. . . .

648 THE CANADIAN BAR REVIEW [VOL . XLV opinion of another single judge of equal jurisdiction. English cases have gone both ways" but the better English view seems to be that expressed in Halsbury," that is, that there is no common law rule compelling one court to abide by the decision of another court of co-ordinate jurisdiction, and that the only ground for a similar decision by a second judge of co-ordinate jurisdiction is judicial comity, not stare decisis itself. However, Canadian courts have generally taken the position that judgments by courts of co- ordinate jurisdiction should be followed in the absence of strong reason to the contrary. Furthermore, in the case of R. v. Northern Electric Co., McRuer, C.J.H.C. explained:" I think that "strong reason to the contrary" does not mean a strong argumentative reason appealing to the particular judge, but something that may indicate that the prior decision was given without consideration of a statute or some authority that ought to have been followed. I do not think "strong reason to the contrary" is to be construed according to the flexibility of the mind of the particular judge. However, there are two areas where practice recognizes the existence of particular circumstances-(1) in criminal cases : "In a criminal case he [the judge] is permitted greater latitude, and if after giving great weight to the decision of a brother judge he still feels that on full consideration of the relevant authority he is fully convinced that the former decision is wrong, he should follow his own opinion" ;` (2) in matters of practice: "In matters of practice the decisions of one judge are not binding upon others unless the practice has become so settled that it ought not to be shaken." 1'" Other cases in which a single judge has refused to follow a decision by a judge of co-ordinate jurisdiction have usually involved some factor in addition to his personal preference, as, for example, the affecting by subsequent decisions of the validity of an earlier judgment. Thus in Re Curriel1= Verchere J., of the British Columbia Supreme Court refused to follow an earlier British Columbia decision which had been disapproved of both by the Ontario Court of Appeal and by a critical note. Similarly, ise Cf. Forster v. Baker, [1910] 2 K.B. 636, at p. 638 with Re Glass. [1950] 2 All E.R. 953, at p. 954. Halsbury's Laws of England (3rd ed., 1958), vol. 22, pp. 801-802. ' [1955] 3 D.L.R. 449, at p. 466. "Ibid., at pp. 466-467. 1.'o Gamble v. Gamble, [1952] 4 D.L.R. 525, at p. 528, per McRuer, C.J.H.C. 'Contra : see Rural Municipality of Brott's Lake v. Hudson Bay Com- pany (1918), 2 W.W.R. 962. "(1963), 41 D.L.R. (2d) 666. Actually Verchere J. made his comments on the earlier British Columbia decision by way of obiter, since he held that the cases could be distinguished.

1967] Precedent and Policy in the Supreme Court 649 in Hamilton v. Hamilton,"' Middleton J., was faced with a conflict between two single-judge precedents, and in these circumstances felt that he was "at liberty to follow that which commends itself most to me." In the case of Re Hansard Spruce Mills Ltd.,` Wilson J., as he then was, declared that he would go against a judgment of another judge of the same court only if: (a) subsequent decisions have affected the validity of the impugned judgment; (b) it is demonstrated that some binding authority in case law, or some relevant statute was not considered ; (c) the judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial judges, where the exigencies of the trial require an immediate decision without opportunity to fully consult authority. Despite the heavy preponderance of authority in favour of following earlier decisions, it is out of keeping with the general practice, however, to put the matter as it was phrased without qualification by Mr. Justice Wells in Dominion Bridge Co. Ltd. v. Carbno et al. :" "This judgment is binding on me and I think it is unnecessary for me to repeat the very exhaustive reasoning and examination which the Chief Justice undertook in deciding the matter ." It is preferable to state the rule as it was done in e Fenton,' where it was said that the practice in Manitoba is that a decision of one trial judge is accepted by others except under very exceptional circumstances. It must be admitted, however, that the language of "binding" is sometimes used." When there is a question of the pfect of judgments of higher courts, the usual practice is that a lower court follows "the latest expression of the views of the Appellate Court, leaving it to that Court to determine which is-the sounder, the earlier or the later decision" l'3 The position of a lower court when a Court of Appeal judgment has been subsequently appealed to the Supreme Court of

"3 (1920), 47 O.L.R. 359. '~ [19541 4 D.L.R. 590, at p. 592. 146 (1961), 29 D.L.R. (2d) 507, at pp. 508-509. The case he followed was decided less than a year earlier. l'e (1920), 30 Man. R. 246, at p. 249. 1}' Cf. National Trust Co. Ltd. v. Christian Community of Universal Brotherhood Ltd., [1940] 4 D.L.R. 767, rev'd on other grounds, [1941] 1 D.L.R. 268. "This rule, as stated in Fisken and Gordon v. Meehan (1.1;76), 40 U.C.Q.B. 146, at p. 159, was followed by Tucker J. of the Saskatchewan Queen's Bench in Texaco Canada Ltd. v. Moan (1963), 42 D.L.R. (2d) 596, at p. 601. In Bank of Montreal v. Bailey, [1943] 3 D.L.R. 517, Hope

650 LA REVUE DU BARREAU CANADIEN VOL. XLV Canada and it dismisses the appeal on grounds other than those taken by the Court of Appeal has recently been a matter of controversy. In Re Budd v. Budd,"' Mr. Justice Egbert considered a unanimous judgment of the Appellate Division of the Alberta Supreme Court to be binding upon him in such circumstances. Mr. Justice Wells, on the other hand, in Re Massey,"' felt himself free in similar circumstances to follow a decision of the English Court of Appeal rather than one of the Ontario Court of Appeal, though it had been affirmed by both the Supreme Court of Canada and the Judicial Committee of the Privy Council, but on different grounds. In a note on the Massey case," Mr. Arthur J. Stone takes the position that the conclusion of Egbert J. is to be preferred to that of Wells J., and this is undoubtedly preferable when the alternative course is to follow an English decision. It is probably true to say, as was held by Egbert J. in R. v. Dickie,l°°- that where a decision of a court of appeal has been expressly or impliedly overruled by a court of superior jurisdiction, a lower court judge is bound to follow the judgment of the court of highest jurisdiction, but it is unwarranted to conclude from the mere silence of a final court an expression of disapproval of the intermediate court decision.'" And as the rebuke of Egbert J. in Reg . v. MankoW" by McBride J.A., shows, a trial judge must be careful not to too readily conclude to an implied overruling: [1]f a trial Judge of this Court is of opinion that a considered judgment of this Division is no longer binding on him as having been wrongly decided or having been overruled, according to the judgment or judgments of a higher Court, it will be insufficient on the part of the trial Judge to support his viewpoint by general reasoning or reference to J. thus felt obliged to follow the later of two Ontario Court of Appeal cases which held that judgments are not specialties, and so may be sued on even after the twenty-year limitation period on specialities had run, but he effectively negatived it by founding a twenty-year limitation period on the equitable doctrine of laches . For a discussion of the issue see Mac- Guigan, Cases and Materials on Creditors' Rights (2nd ed., 1967), pp . 45- 46. However, in Royal Trust v. Jones (1962), 31 D.L.R. (2d) 292 the Supreme Court of Canada held unanimously that a trial judge has jurisdiction to entertain an original action to impeach a previous appellate judgment on the same matter and in the same cause where there is either fraud or newly discovered material evidence which was not available to the appellate court. (1958), 12 D.L.R. (2d) 783. 16 ° (1959), 21 D.L.R . (2d) 477 . 1~ (1960), 38 Can. Bar Rev . 405. ~ (195512 D.L.R. 757. In Hack v. London Provident Building Society (1883), 23 Ch.D. 103, at p. 112, Sir George Jessel took the position that the practice of the House of Lords was such that when they affirmed a case on different grounds that meant that they disagreed with the grounds taken by the court of appeal and that in such a case the court of appeal decision was no longer binding . Obviously this is not a safe generalization about appellate practice . " (1959), 22 D.L.R. (2d) 667, at pp. 672-673.

1967] Precedent and Policy in the Supreme Court 651

"innumerable cases". It will be essential to cite the precise case or cases explicitly justifying the position taken by him and on which he relies. Were it otherwise, the rule as to stare decisis would go by the board. That rule has been called a central pillar of our law and it permits no casual acceptance of any other doctrine displacing its authority. . . . By the rule as to stare decisis, subject to well understood exceptions having no application here, a judgment of this Division is binding on it and also on the trial Judges of this Court and on all lower Courts within the Province. )Furthermore, unless and until it is declared wrongly decided or overruled or modified by the Supreme Court of Canada or by appropriate legislation, it declares the law of this Province on this point. As pointed out by Harvey C.J.A., . . . in delivering the judgment of the Court in Dowsett v. Edmunds, the belief that a higher Court would take a different view from that expressed by this Division, though founded on general reasoning in other cases decided by the higher Court, is not a sufficient reason for not following the decision of this Division. Ford C.J.A., held that the previous case was indistinguishable and binding, but did not specifically endorse the reasons of McBride J.A. Johnson .& .A., dissenting, approved of the earlier result, but not its reasoning and said : "My concept of stare decisis does not compel me to perpetuate a test for determining the validity of legislation which is at variance with one which has been settled by superior courts which we are bound to follow ." " The law is somewhat unsettled as to whether lower courts should consider themselves bound by decisions of appellate courts in other provinces. Thus, in Hamilton (C.1.) âc Sons Ltd. v. Williams," Campbell C.I . felt free to choose between two Sas- katchewan Court of Appeal decisions, though in Re Hamill and C.N.R ." he reluctantly followed a decision of the Ontario Court of Appeal since it was "the only judgment of a provincial Court of Appeal on the point, and should be followed unless it is shown to be manifestly wrong". In Re Empire Timber Lumber and Tie Lumber Co. Limited" an Ontario trial judge refused to follow a decision of the Manitoba Court off Appeal, whereas in Reg. v. Constable Transport," another Ontario judge appeared to hold that he was bound by a prior decision of the same Court. In Alberta, a district court judge held himself bound by a decision of the British Columbia Court of Appeal "as the latest decision of a

"~ Ibid., at p. 677. `(1962), 34 D.L.R. (2d) 754. (1961). 27 D.L.R. (2d) 61, at p. 68. (1920). 48 O.L.R. 193, at p. 196. "fl9671 2 C.C.C. 167. However, in this case it was conceded by the appellant that the Manitoba decision was binding on the court and the argument was merely on the question of whether or not the case could be distinguished.

652 THE CANADIAN BAR REVIEW [VOL . XLV superior court on the point"," but courts in Manitoba and British Columbia have refused to follow decisions in other provinces ."' Chief Justice Wilson of British Columbia, has recently asserted that decisions of other provincial courts should be followed on "Federal statutes, particularly criminal statutes, with the intention of harmonizing the decisions and securing uniformity of application . . . throughout Canada" .` He cites authority to indicate that this rule is applicable even between courts of appeal in different jurisdictions, and that it a fortiori applies to a trial judge in the absence of any conflicting opinions by the Supreme Court of Canada or his own Court of Appeal." With respect to the important question of whether appellate courts can overrule themselves, there is a sharp contrast between the most freewheeling Canadian court, the British Columbia Court of Appeal, and the most conservative court, the Ontario Court of Appeal. In British Columbia it is apparently too clear for argument that the Court of Appeal may overrule its previous decisions.'" A full court of five judges overruled earlier decisions of the full court in In Re Tiderington," in In Re Rahint," in R. v. Gartshore," in Ex Parte Yuen Yick Jun,'" in Bell v. Klein et al. (No. 1),'°° and in R . v. Haas."' In the latter case, the court reversed its previous decision, even though it was argued that it should not be overruled, even if wrong, because it had stood for some years.'"

"Lethbridge Lodge No. 2, I.O.O.F. v. Afaganis, [1949] 1 W.W.R. 314, at p. 321, per Sissons D.J.C. There is a disapproving note by Gilbert D. Kennedy at (1949), 27 Can. Bar Rev. 465, at pp. 467-468 (corrected at p. 600) . '"' Schwartz v. Winkler (1901), 13 M.R. 493 (Man.), where Killam C.J. considered himself bound by a previous decision of the full court of King's Bench in preference to a contrary decision of the Ontario Court of Appeal : Price v. Price, [194914 D.L.R. 518 (B.C.) . "' Vancouver Seattle Bits Line v. L.G.I.C. (1963), 42 D.L.R. (2d) 82. "'See Harvey, C.J.A. in R. v. Glenfteld, [1935] 1 D.L.R. 31, at p. 40, speaking for the Alberta Court of Appeal to the same effect. '"For example, in Bell v. Klein et al. (No. 1), [1954] 4 D.L.R. 273, at p. 281 Robertson J.A. comments : "The respondent's counsel does not deny the power of this Court to overrule its former decision . but submits this should only be done where the Court is clearly of the opinion that it was wrongly decided." '~ (1912), 17 B.C.R. 81 . (1912), 17 B.C.R. 276. (1919), 27 B.C.R. 175. [1940] 2 D.L.R. 432. [1954] 4 D.L.R. 273. (1962). 35 D.L.R. (2d) 172. '" Interestingly enough, Sloane C.J.B.C., who had given judgment for the three-man court in the earlier decision, Staples v. Isaacs, [1940] 3 D.L.R. 473, dissented in Bell v. Klein, and Robertson J.A., who as trial judge had been reversed by the Court of Appeal in Staples v. Isaacs, was this time in the majority. None of the other judges in the Bell case had been involved in the Staples decision . See also Sorli v. Aubin and Blakelv (1963). 38 D.L.R. (2d) 774, decided by the Court of Appeal for the Yukon Territory consisting of three

1967] Precedent and Policy in the Supreme Court 653 Similarly in Sangster v. Pugsley, it overruled a long-established rule of practice on the ground that it is "the function of a Court of Appeal to make improvements in practice when the desirability of need of such improvements has been indicated" .' In Forsythe v. Forsythe," the court went so far as to overrule a seventy-four-year-old precedent, although a majority acted in the belief that an intervening Supreme Court of Canada decision had impliedly overruled the 1891 decision. Mr. Justice Davey, in dissent, while acknowledging the power of the court to overrule its previous decisions when convinced that they are wrongly decided, took the view that a precedent of such long standing should not be overruled without an explicit declaration of overruling by the Supreme Court of Canada. It is not clear from the dicta in these British Columbia decisions whether or not the Court of Appeal of that province as- sumes wider power of overruling than was enunciated by the English Court of Appeal in Young v. Bristol Aeroplane Company, Limited: In considering the question whether or not this Court is bound by its previous ,decisions and those of courts of co-ordinate jurisdiction, it is necessary to distinguish four classes of case. The first is that with which we are now concerned, namely, cases where this Court finds itself confronted with one or more decisions of its own or of a court of co-ordinate jurisdiction which cover the question before it and there is no conflicting decision of this Court or a court of co-ordinate jurisdiction. The second is where there is such a conflicting decision . The third is where this Court comes to the conclusion that a previous decision, although not expressly overruled, cannot stand with a subsequent decision of the House of Lords. The fourth (a special case) is where this Court comes to the conclusion that previous decision was given per incuriam . The relevant class of case here is the fourth-a decision per in- curiatn, which in Lord Green's words in the Young case, seems to come into play "where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute" ."' There is no doubt, however, that if the

judges from the British Columbia Court of Appeal: "II take it to be clear that judgments of the British Columbia Court of Appeal in British Colum- bia cases are no more binding upon this Court than are judgments of the Appeal Courts of the other Provinces. They are persuasive but not binding." Per Davey J.A., at p. 777. "2(1964), 49 D.L.R. (2d) 286, at p. 288, per Sullivan I.A. "" (1965), 56 D.L.R. (2d) 322. '7° [19441 2 All E.R. 293, at p. 298. "Ibid., at p. 300. Lord Greene added (ibid) : "We do not think it would be right to say that there may not be other cases off decisions given per incuriam in which this Court might properly consider itself entitled not

654 LA REVUE DU BARREAU CANADIEN [VOL. XLV British Columbia Court of Appeal intends to remain within the four corners of the per incuriam rule, its tendency is to apply it liberally and frequently. Most other provincial courts of appeal take an attitude similar to that of the British Columbia court. In R. v. Hartfeil" the Ap- pellate Division of the Supreme Court of Alberta overruled a pre vious decision of its own in a criminal matter, and in Davidson v. Davidson,"' the Saskatchewan Court o£ Appeal disregarded a former decision in a procedural matter. Similarly, in R. v. Thomp- son,1'8 the Manitoba Court of Appeal overruled an earlier decision of its own. In Black v. Brown,' a New Brunswick court of five judges unanimously overruled a decision of the same court con- stituted of five judges, and in Ford v. MacLeod," the Prince Ed- ward Island Supreme Court in banco per Campbell C.J., overruled a thirty-six-year-old precedent though primarily on the ground that in the interval there had been a conflicting decision by the Supreme Court of Canada and new provincial legislation. Sub- sequently the Prince Edward Island Court of Appeal in Equity'.. reversed an earlier unreported decision of the Supreme Court in banco." In Newfoundland a majority judgment has expressed the view that: "If precedent hinders practical justice, precedent should be stretched."' Even in Ontario, in R. v. Eakins," the Ontario to follow an earlier decision of its own. Such cases would obviously be of the rarest occurrence and must be dealt with in accordance with their special facts." Young was re-stated by Lord Goddard C.J ., in several cases in a way which appeared to relax the rule of stare decisis: see Friedmann, loc, cit., footnote 101, at pp. 737-739. 17e (1920), 55 D.L.R. 524. ... [19531 1 D.L.R. 297. There is an approbative note on this case by Kennedy (1953), 31 Can. Bar Rev. 87, in which it is noted that this case does not seem to be within the exception to stare decisis recognized by Young. ... [19311 2 D.L.R. 277. Moreover, in lit Re Fenton Estate (1920), 30 Man. R. 246, the Manitoba Court of Appeal overruled a 1902 trial court decision, despite the fact that it had followed the decision of the Ontario Court of Appeal. 149 (1894), 32 N.B.R. 631 . In Subsurface Surveys Ltd. v. John Burrows Ltd. (1967), 62 D.L.R. (2d) 700, at pp. 723-724, reported since this article was written, Limerick J.A. endorsed Lord Gardiner's statement on precedent of July 26th, 1966, and lauded a changing rather than a static concept of 180 justice. [19551 2 D.L .R. 46 . 'Gunston v. Montreal Trust Company et al. (1955), unreported, no . 1123. The Appeal Court endorsed the three reasons given by MacGuigan M.R., at first instance for rejecting a plea of res judicata : no formal order was ever signed by the court in the earlier case, the action was not between the same parties as the original action, and the original parties to the action agreed to its reconstitution . "Royal Exchange Assurance v. Montreal Trust Company (1948), unreported, no. 5601 . "Power v. Winter (1952), 30 M.P.R. 131, at p. 148, per Dunfield J. " [19431 2 D.L.R. 543.

1967] Precedent and Policy in the Supreme Court 655 Court of Appeal overruled an earlier decision of its own on the ground that it had overlooked a section of the Criminal Code. Generally, however, the Ontario courts have taken a narrow view of their power of overruling. In Driscoll v. Coletti, Mr. Jus- tice Riddell, speaking for a divisional court, followed a decision of an earlier divisional court, even though that court had been equally divided on the question, saying: "A decision is no less a decision because it is the decision of an equally divided court." " In e Goyan, Gibson J.A., speaking for the Court of Appeal, said of two conflicting decisions as to the meaning of a statute: "In my view we should be bound by the more recent decision."." however, in Woolfrey v. Fiche," LeBel .I.A., sitting alone on a Division Court appeal, -cited the authority of Young for the right to choose between two conflicting decisions of the Court of Appeal (both single-judge decisions on Division Court appeals) . In Re Hardy Trust, the Court of Appeal refused to depart from a previous decision because it could not find that it was given "per incuriam or was the result of any slip or inadvert ence"." In Topping v. L. .P. McGuinness & Co. Ltd., and Mimico Warehousing Co. Ltd.,' however, a five-judge court held an earlier decision to have been per incuriam, where relevant legislation had not been drawn to the court's attention and an earlier decision of the Ontario Court of Chancery had not been cited. The court refused to speculate on exceptions to the rule of stare decisis but took the view that even upon the strictest application of that p:i°in- ciple the case ought to be disregarded. Similarly in City of Kitchener yr Weinblatt,"° a three-judge Court of Appeal were prepared to overrule an unreported decision by a previous three-judge court made only a year earlier because the earlier decision did not refer to any authorities and in the opinion ®f the later court was not in accord with certain long established authorities. Yet, in Delta 4cceptance Corporation Ltd. v. Redman," two judges of the three-judge court took the position that they, could not overrule a previous decision because of the " (1926), 29 O.W.N. 460, at p. 462. '~` [1953] 2 D.L.R. 776, at p. 779. Dr. Kennedy comments (1953), 31 Can. Bar Rev. 697: "It does seem that in 1953, in the face of a conflict between two previous decisions of its own court, an appellate court ought to be allowed to choose." This view is supported by Young v. Bristol Aero- plane Company Limited. However, despite the dictum of Gibson J.A., the Ontario court was in fact following the only outstanding decision, since the second decision purported to overrule the first. 'FT (1958), 13 D.L.R. (2d) 605. `[1955] 5 D.L.R. 10, at p. 11 . (1960), 23 D.L.R. (2d) 86. `(1966), 58 D.L.R. (2d) 322. tnt (1966), 55 D.L.R. (2d) 481 .

656) THE CANADIAN BAR REVIEW [VOL . XLV doctrine of stare decisis."' The third judge, Mr. Justice Laskin, did not explore the application of stare decisis because, in his view, the two cases could be distinguished. Mr. Justice Laskin added, in obiter: "' Even if stare decisis does not apply, this court should not lightly depart from a previous decision. . . . Moreover, it may be imprudent to refuse to follow an earlier decision (which cannot be distinguished or otherwise explained away) where that decision has either stood for many years on the same bottom of circumstances, or has been re-affirmed by the court in intermediate cases. The civil law courts of Quebec have not been as free to ignore precedent as courts in France, where the highest court has no direct authority with respect to future cases and can bind a lower court only after re-argument."' The Supreme Court of Canada, for instance, held in Daoust, Lalonde & Cie., Ltee v. Ferland, in the words of Anglin C.J.C., that "the doctrine of stare decisis must equally apply in the determination of any case which comes before this court whatever may be the province of its origin"... However, although the Appeal Side of the Quebec Court of Queen's Bench normally follows precedent, it has not formally committed itself to the doctrine and on at least a few occasions has deliberately de- parted from precedent.' In a 1951 case, Langlais J., even went so far as to refuse to follow an 1888 judgment of the Supreme Court of Canada which he considered to be incorrect."' An eminent authority on the law of Quebec has recently supported this position :'.. A careful analysis of the cases in Quebec does not warrant the conclusion that the courts of the province have adopted the principle of stare decisis in all its rigour, whether or not decisions of the Supreme Court of Canada are concerned. It seems possible to assert that irre- "' It perhaps should be pointed out that only one of the two judges, Mr. Justice Schroeder, who was the dissenting judge in the earlier case, Park Motors (Barrie) Ltd. v. Vardy (1963), 36 D.L.R. (2d) 4, would have overruled the previous decision if he could have. Mr. Justice McGillivray, who delivered the majority opinion in the earlier case, showed no disposition to look at the substantive law differently the second time. Supra, footnote 191, at p. 495. 1"4 Friedmann, loc. cit., footnote 101, at p. 740. 106 supra, footnote 76, at p. 351 . " Friedmann, loc. cit., footnote 101, at p. 742. Levasseur v. Pineau, [19511 S.C. 448. Castel, The Civil Law System of the Province of Quebec (1962), p. 229. Dr. Castel takes issue with two views of Dr. Friedmann, supra, footnote 101, p. 746; (1) that stare decisis is accepted in all its rigour in so far as the decisions of the Supreme Court of Canada on the Quebec civil law are concerned; (2) that in its total practical effect, the Quebec doctrine and practice of precedent is remarkably close to that of the common law.

1967] Precedent and Policy in the Supreme Court 657 spective of the rank of the court which rendered them, precedents in Quebec may be highly persuasive but they are never absolutely binding. . . . A similar point of view was expressed by Mr. Cannon in the Par- liamentary debate on the abolition of appeals, with the qualification that his words applied to matters affecting the Civil Code :` When it comes to statutory law, and in particular the statutory law of the Province of Quebec as incorporated in the Civil Code, we have not the same principle [stare decisis] at all. There, decisions of the court have not the force of. law. They are simply interpretations of the law as it exists in the statutes, and have the value of authority, not the value of a statute. This survey of Canadian practice with respect to stare decisis has revealed that, while there is a tendency to a rigid view of precedent among the lower Canadian courts, the appellate courts across the country, except possibly that in Ontario, have embraced a more flexible concept of stare decisis which allows them fairly freely to overrule precedents which appear to lack legal relevance or social utility. Undoubtedly in time this trend would become sufficiently powerful to effect of itself a decision by the Supreme Court of Canada to abandon the rule of Stuart v. Bank of Montreal. But events elsewhere have not awaited the slow process of internal evolution. The most important development in this century with respect to the Canadian doctrine of stare decisis has occurred, not in Canada but in England, with the announcement by Lord Csardiner on July 26th, 1966, that in the future the House of Lords will no longer regard itself as absolutely bound by its own previous decisions." With this announcement, the doctrine of London Tram- "Op cit., footnote 1, p. 509. 2°° Practice Statement (Judicial Precedent), [1966] 1 W.L.R. 1234. The text of the statement by the Lord Chancellor 'is as follows: "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. IC 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 recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the future 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 especial need for certainty as to the criminal law. "This announcement is not intended to affect the use of precedent elsewhere than in this House."

658 LA REVUE DU BARREAU CANADIEN [VOL. XLV ways Co. v. L.C.C.,' which had been challenged over the years by thoughtful law lords like Wright,-°- Evershed, " Radcliffe,"' Den- ning,' and Reid,' was relegated to oblivion, and, to quote the comment of Professor Dias, "Not many will lament its passing".207 It has been a long-standing subject of disagreement whether the rule of stare decisis was one of law or practice.`" The fact that the change was made by means of a Practice Statement supports the view that it was a matter of practice. However, Dr. A. L. Goodhart has suggested "that the change has been established by a proceeding that seems to be partly legislative and partly judicial as it was announced in the Chamber of the House of Lords before judgments were given". In the light of the abandonment by the House of Lords of absolute stare decisis, it is now inconceivable that a rigid doctrine of precedent will retain sway in Canada. It is not only that the immense prestige of the House of Lords has now been thrown behind a more flexible rule of stare decisis such as the Supreme Court of the United States has always upheld; it is not even that all the States whose law substantially influences Canadian courts, the United Kingdom, the United States, Australia," and France, are now united in rejecting a rigid rule; it is not even the weight of the bi-cultural considerations which led Dr. Castel to complain that "The position of the Privy Council and of the Supreme Court of Canada, which led lower courts to adopt the stricter attitude towards the binding effect of precedents and statutory interpretation, has been detrimental to the development of the civil law 2°x [1898] A.C. 375. See Leach, Revisionism in the House of Lords: The Bastion of Rigid Stare Decisis Falls (1967), 80 Harv. L. Rev. 797, at p. 800, footnote 11, for a discussion of the miscitation of this case as the London Street Tramways Co. case . Stephens, The Role of a Final Appeal Court in a Democracy : The House of Lords Today (1965), 28 Mod. L. Rev. 509, at p. 514, footnote 13, notes that the case was really one of res judicata only. Precedent (1942), 4 U. of T.L.J. 247; reprinted (1943), 8 Camb . L.J . 118. The Court of Appeal in England (1950), p. 17. See also The History of the Court of Appeal (1951), 25 Aust. L.J. 386, at p. 389 . For comment, see Allen, Law in the Making (7th ed., 1964), p. 359, footnote 2. =°The Law and Its Compass (1960), p. 39. 2°' London Transport Executive v. Betts, [1959] A.C. 213, at p. 247 . 2'Scruttons Ltd. v. Midland Silicones Ltd., [1962] A.C. 446, at pp. 476-477 . "Case and Comment, [1966] Camb. L.J. 153, at p. 154. Excellent analyses of the previous situation are found in Dworkin, Stare Decisis in the House of Lords (1962), 25 Mod . L. Rev . 163 and Cross, Stare Decisis in Contemporary England (1966), 82 L.Q. Rev. 203. 2°s See ibid ., at pp. 154-155. Note (1966), 82 L.Q. Rev . 441 . "Parker v. The Queen (1963), 37 A.L.J.R. 3, at p. 11, per Dixon, C.J .

1967] Precedent and Policy in the Supreme Court 659

in Quebec",' and that, "To subscribe to a strict and mechanical approach in the application of the rule of stare decisis, is to ignore " the nature of the Civil Code." It is most of all that the House of Lords has now destroyed the reason for stare decisis in Canada by recognizing its own fallibility. It will no longer be possible for the Supreme Court of Canada to consider itself bound by the decisions of the highest English tribunals when the House of Lords itself has now joined the Privy Council in assuming the liberty of overruling them. It will be equally impossible for the Supreme Court of Canada, in these circumstances, to continue to be bound by its own pre-1950 decisions since they were based on and subordinate to decisions of English courts which will no longer be sacrosanct . And if the Supreme Court of Canada is not to be bound by English decisions, nor by its own pre-1950 decisions, it can hardly logically -or wisely-cling to stare decisis for post-1949 decisions." The English House of Lords, which in one incarnation or another created the rule of absolute stare decisis for Canada, has now effectively destroyed it. The end of stare decisis in its rigid form in Canada is more revolutionary in appearance than in reality, for in large part, both in Canada and in England, it has been a protective screen behind which judges legislated in silence and in secrecy. As Professor Robert Stevens has recently pointed out in a perceptive study," the judicial function was originally lodged in the House of Lords because it was felt that all aspects of law making should be vested in Parliament,,and it was not until Queen Victoria's reign that non-legal peers were excluded from hearing appeals and the law-malting function of the final appeal court no longer openly acknowledged. It is only since 1932 that appointees to the highest English court have been professional judges rather than politicians with legal training, and only since 1939 that the law lords have vociferously disclaimed any legislative competence. Even if such disclaimers could be believed," the period of judicial self-denial would be only a short interlude in English legal history. I have described elsewhere the Privy Council's blatant indul- n' Op. tit., supra, footnote 198, p. 232. M = 1bid., p. 229. -" Policy arguments on these points are effectively made by Boanes, lot. tit., footnote 3, at pp. 193-200. Loc. tit ., footnote 201. The fact that Lord Simonds, the high priest of rigid stare decisis and a limited role for the judiciary could assert in Shaw v. D. P. P., [19611 2 All E.R. 446 a residual power in the House of Lords to create a criminal offence in the absence of a statute arguably means that he was in all cases merely rationalizing his policy preferences.

660 THE CANADIAN BAR REVIEW [VOL . XLV gence in judicial legislation,-'" of which the study of Canadian constitutional law provides the most glaring examples. As many writers have shown,' on the basis solely of a process of pure textual interpretation the Judicial Committee could not possibly have reached results so far removed from the clearly expressed structure and meaning of the British North America Act, and, to use Lord Haldane's own metaphor,-'" it clearly fleshed out the bare bones of the Constitution with contours to its liking. Since the Tremblay Report" it has been clear that the Supreme Court of Canada cannot, in any event, escape the fires of political controversy, even with its present ambiguous stand on stare decisis. This year, moreover, a political scientist, using a computer to analyze the 1,122 cases heard by the court between 1950 and 1966, has classified the judges into liberal and conservative voting blocs,=" and, on the basis of their own value judgments, news- papers have begun to attack the court for its voting record." There is no doubt that, regardless of its stand on precedent, the court's role will increasingly be a matter of public debate, for the use of the other tools of the judicial craft is just as surely guided by the judges' value judgments as is their attitude to precedent.

IV Turning now from the realm of legal practice to that of legal theory, we find an overwhelming consensus against the Black- stonian theory that judges merely interpret, and never make the law. Even the most ardent positivist of the day, Professor H. L. A. Hart of Oxford, concedes that judges must necessarily be legislators, and desires merely to limit the scope of judicial legislation .'- It seems that the Legal Realists have so effectively transformed

"The Privy Council and the Supreme Court: A Jurisprudential Analysis (1966), 4 Alta. L. Rev. 419. "v See, e.g.. MacDonald, The Canadian Constitution Seventy Years After (1937), 15 Can. Bar Rev. 401 ; Scott, The Consequences of the Privy Coun- cil Decisions (1937 ), 15 Can. Bar Rev. 485; and Laskin, Peace, Order and Good Government Re-Examined (1947), 25 Can. Bar Rev, 1054. ''" Cf. Haldane, The Work for the Empire of the Judicial Committee of the Privy Council (1922), 1 Camb. L. Rev. 143, at p. 150. Sen. Huges- sen, op. cit.. footnote 4, at p. 112 makes much of Haldanes praise of Wat- son in an 1899 law journal article. "° Report of the Quebec Royal Commission of Inquiry on Constitutional Problems (1956) . "The best report of this study by Prof. Stephen Mitchell, to be pub- lished later this year, is in Maclean's, August, 1967, p. 1. 'See, e.g., the series of editorials in the Toronto Star, July 29th, July 31st, and August 1st (all on p. 6) . "Positivism and the Separation of Law and Morals (1958), 71 Harv. L. Rev. 593.

1967] Precedent and Policy in the Supreme Court 661 thinking about law that jurisprudence now recognizes judicial creativity as a fact, rather than as an issue. But does this mean that judges are then to be regarded as statesmen and politicians, untrammelled by any limitations except the nebulous restraint of their own consciences and whatever public pressures may be brought to bear on them? There are those, like Professor Martin Shapiro, who endorse such political jurisprudence :" The core of political jurisprudence is a vision of courts as political agencies and judges as political actors. Any given court is thus seen as a part of the institutional structure of American government, basically similar to such other agencies as the ICC, the House Rules Committee, the Bureau of the Budget, the City Council of Omaha, the Forestry Service and the Strategic Air Command. Judges take their places with the commissioners, congressmen, bureaucrats, city councilmen, and technicians who make the political decisions of government . In short, the attempt is to intellectually integrate the judicial system into the matrix of government and politics in which it actually operates and to examine .courts and judges as participants in the political process, rather than presenting law, with a capital L, as an independent area of substantive knowledge. Quite fundamentally, political jurisprudence subordinates the study of law, in the sense of a concrete and independent system of prescriptive statements, to the study of men, in this instance, those men who fulfill their political functions by the creation, application and interpretation of law. In my view, however, a flexible use of stare decisis does not necessarily entail political jurisprudence, for there is a third alternative open between the extremes of mechanical jurisprudence and political jurisprudence. It is, of course, too soon to turn to the House of Lords for a view of flexible stare decisis in operation, but it is instructive to look at the experience of the United States Supreme Court, which has been overruling its previous decisions since 1810. A detailed study by Blaustein and Field" reveals that between 1510 and 1956 the United States Supreme Court overruled itself ninety times, - in seventy of which the, court specifically declared that it was overruling previous decisipns and in the remainder did so by implication. To the extent that this list is complete, the evidence is that the Supreme Court has exercised its power of overruling with considerable restraint . Undoubtedly if the erosion of former "'Political Jurisprudence (1964), 52 Ky. L.J. 294 at p. 297. Professor Shapiro develops his thesis more fully in Law and Politics in the Supreme Court: New Approaches to Political Jurisprudence (1964). "'Overruling" Opinions in the Supreme Court (1958). 57 Mich. L. Rev. 151 .

662 LA REVUE DU BARREAU CANADIEN [VOL . XLV decisions were taken into account as well, there would be hundreds of additional cases," but such a test would undoubtedly yield a similar result even from the House of Lords or the Supreme Court of Canada. The cases overruled had a life span of from forty- two days to ninety-nine years. Fifty-two of the overrulings have taken place since 1930, with the largest number (twenty-one) ooccurring in the Stone court from 1941 to 1946 . While the American Supreme Court has been subject to strong attack, particularly since its 1954 decision in Brown v. Board of Education,"' comparatively little of the criticism` has been directed specifically to its exercise of the overruling power or to the power itself. In the words of Professors Bennett and Quade, "Institutional criticism of the judiciary has been subordinated to substantive criticism of Court decisions"," or as Professor Leonard W. Levy graphically puts it: "Much of the literature on the Supreme Court reflects the principle of the gored ox." '.° To many it has seemed that the only question to be put is whether judicial legislation is compatible with political democracy. That the answer to this query is not a simple one can be gauged from the amount of print devoted to it and from the difficulty of reaching a consensus as to the essential features of democracy. If, for instance, it is true, as Professors Bennett and Quade maintain, that "in our political theory, elections are the hallmark of democracy and responsibility", then the conclusion is plain that "judges . . . are the least democratic, the least responsible agents of government in this country".' But if, in the words of Eugene V. Rostow, "the task of democracy is not to have the people vote directly on every issue, but to assure their ultimate responsibility for the acts of their representatives, elected or appointed", -' then creative activity by the judiciary is by no means incompatible with the "ultimate responsibility" of the people. The authors note that there are also fifteen cases in which the court reversed prior orders denying certiorari and hundreds of cases in which it made a departure from former dictates : Ibid., at pp . 155-156. On the contrast between British and American attitudes to stare decisis, see MacGuigan, Jurisprudence : Readings and Cases (1966), pp . 509-511, 'See Nagel, Court-Curbing Periods in American History (1965); 18 Vand . L. Rev. 925. ' (1954), 347 U.S. 483 . 2' The Court as Legislator : A Crucial Symptom (1965), 10 St . Louis U.L .J . 92, at p. 98 . Judicial Review . History and Democracy: An Introduction in Judicial Review and the Supreme Court (1967), p. 1 . =" Loc. cit., footnote 229, at p. 104. 'The Democratic Character of Judicial Review (1952), 66 Harv . L. Rev. 193, at p. 197.

1967) Precedent and Policy in the Supreme Court 663 In the light of the philosophical difficulty of this problem, perhaps a different approach will prove more fruitful for the lawyer . Dean Joseph O'Meara has recently suggested that the best guaran tee against "personal justice" from the judiciary is that a judge makes his value judgment "according to his own intellect, experience and conscience"." This answer of itself hardly rescues the judicial task from the charge of subjectivism, but negatively at least, it suggests a line of inquiry, for, as stated, it fails to distinguish the judicial legislator from the parliamentary one, who surely can also, to the extent that he is a man of integrity, be said _to be bound by his "intellect, experience and conscience." What, then, is the difference between the two types of legislation? Adjudication (except in the atypical situation of opinions on references) involves the settling of controversies arising out of particular conduct, and in our system of law proceeds on an adver sary basis with a neutral decider placed above two or more special pleaders. But despite its particularity of origin and of result, a lawsuit, from the judicial viewpoint, is dominated by a quality of generality, for in order to attain its prime purpose of ordering conduct it must treat like cases alike. Professor Herbert Wechsler has developed this notion with his . theory of "neutral principles" of law. In his view, the legal quality of adjudication consists in its generality and its neutrality, "the main constituent of the judicial process" being precisely that "it must be genuinely principled, resting with respect to every step that is involved in reaching judgment on analysis and reasons quite transcending the immediate result that is to be achieved" . 234 Hence the judge cannot treat a particular case as a particular case, but must see every matter in relation to the whole of the law, sub specie aeternitatis, as it were. Whether he is merely re-applying a well- established rule or forging a new one, he must integrate what he does with the totality of the law, so that, as Edward H. Levi in- terprets Wechsler's thesis, "a judge who makes changes in the law must take seriously the duty of re-working the pattern of the law' .236

233 Law and Law (1960), 5 Natural L.F . 83, at p. 97. 234 Natural Everyday Wechsler, Toward Neutral Principles of Constitutional Law (1959), 73 Harv. L. Rev . 1, at .p. 15, subsequently incorporated in his Principles, Politics and Fundamental Law (1961) . See also Pollak, Racial Discrimina- tion and Judicial Integrity : A Reply to Professor Wechsler (1959), 108 U. Pa. L. Rev. 1 ; Hart, Forward : The Time Chart of the Justices (1959), 73 Harv. L. Rev . 84; Miller and Howell, The Myth of Neutrality in Con- stitutional Adjudication, op. cit ., footnote 230, pp. 198-241. 236 Law and Philosophy (1964), p. 274.

664 THE CANADIAN BAR REVIEW [VOL . XLV The quality of legal reasoning which leads to a result, therefore, and not just the result, is of the first importance for the judicial process. To be sure, this is a respect in which courts often fail to perform their judicial duty adequately. Thus, as John H. Mansfield puts it:-" Results merely sensed to be right, even if they are right, lack the quality of reasonableness necessary for acceptable law-making. They contribute nothing to the upbuilding of a structure of general thought within which the solution of genuinely difficult problems can proceed. Such failure is one for which the level of competence rather than the value system of the judge is responsible. It is true that such restraints on judges are wholly internal (though they are to some extent enforced by the influence of his peer group) and that there is no way to protect judges from the necessity of reaching value judgments, with whatever degree of subjectivity these may involve. But judicial legislation is like delegated legislation in that, where value judgments have already been made and structures established by the legislature they will be accepted without question by the subordinate legislators (though judicial power is unlike delegated power in that it is original rather than derivative, arising as it does from the nature of the judicial function itself) . Moreover, the range of a judge's choice is limited where there has been a clear policy determination in advance by the legislature or where there is a shared consensus among the participants in the judicial process (or at least in society at large) about the values to be used in arriving at the decision. Where thus guided the judge can legislate the social consensus through what Profes- sor Fuller calls "a collaborative articulation of shared purposes".°-'' It may be argued that only in such cases is an issue "justiciable", but the difficulty in accepting such a conclusion is that a judge could not refuse to decide a real controversy even if it thus appeared to be theoretically "non-justiciable" . Where there is no consensus and the judge cannot articulate the existing aspirations of society, he will have to impose on the litigants values which may be accepted by only part of the society, which he believes to be the, most appropriate and valid in the circumstances. Of course, the consequence of the judge's dealing with such a "non-justiciable" issue may be that it is not resolved satisfactorily, or, more likely, that in the view of a part of the community it is not resolved satis- Informed Choice in the Law of Torts (1961), 22 La. L. Rev. 17, at p. 18. Human Purpose and Natural Law (1958), 3 Natural L.F. 68, at p. 73 .

1967] Precedent and Policy in the Supreme Court 665 factorily. Thus the judge's decision, because it is based on values which are not shared by the majority of the community (although the majority may not have any single view), may well become a matter of political controversy. However, it is also possible that the judgment will have the effect of lessening social discord through gradual acceptance of it either as a result of its own moral force, or merely because there is now a social judgment where previously there was none. Perhaps the fundamental question can be said to be whether judicial decision-making is purely subjective and possibly, therefore, emotional, or whether it can be said to be objective and rational. It is my contention that it is in large part rational, even if somewhat defectively so. It is objective in that, to the extent that there is social consensus on a particular matter, it will enun- ciate that consensus. It is rational in that the judge has the duty of integrating his decision with the rest of the law, and also in that the judge must attempt rationally to justify even his value judgments. It is defectively rational only in that, as Levi puts it:' [Tlhe kind of reasoning involved in the legal process is one in which the classification changes as the classification is made. The rules change as the rules are applied. It is in this power of changing the rules while applying them that judicial creativity consists. Ultimately, then, it is the exigencies of the judicial process itself which guarantee a large measure of objectivity in judicial decision-making. This objectivity is unstable and incomplete, for the subjective element is inevitable, regardless of the jurisprudential theory invoked. We are thus in the last analysis compelled to accept even the subjectivity of judicial legislation, and seem to have only the choice of accepting it gratefully or grudgingly. There is little peculiarly Canadian in all this, and little that is new. All that is native and novel is that it is about to become an issue in Canada, for although the Supreme Court's past de votion was to precedent, its future commitment must surely be to policy.

"An Introduction to Legal Reasoning (1961), p. 3.