Vol. 29 Dalhousie Journal of Legal Studies 97 THE BEDFORD TRILOGY AND THE SHIFTING FOUNDATIONS OF VERTICAL STARE DECISIS: EMANCIPATION FROM JUDICIAL RESTRAINT? Shannon Hale* ABSTRACT The paper examines the evolution of stare decisis in English and Canadian common law and the reorientation of vertical stare decisis following the Bedford Trilogy, in which the Supreme Court of Canada refashioned the doctrine of vertical stare decisis and provided trial judges 2020 CanLIIDocs 1958 with additional leeway to depart from precedent in certain circumstances. Some legal scholars criticize the Bedford test for upsetting the balance between the role of trial courts to make findings of fact and that of appellate courts to review lower court decisions for legal errors. Others caution that the Bedford test could, among other things, incentivize the re-litigation of settled issues. A survey of lower court decisions shows that, at least in the early stages of the Bedford test’s application, these concerns are unfounded. Rather, lower courts predominantly continue to adhere to binding precedents in a principled manner, largely for two reasons: the threshold to invoke the Bedford test is reserved for exceptional cases and the SCC has offered limited direction on the circumstances warranting judicial intervention. These decisions demonstrate that lower courts require further direction on when they could and should apply the Bedford test. Without knowing when the factual record or circumstances have sufficiently shifted the parameters of debate, lower courts may feel ill- equipped to depart from binding precedents. The paper proposes a five-part framework lower courts could apply to determine with greater certainty when the requirements of the Bedford test are met. Citation: (2020) 29 Dal J Leg Stud 97 * Juris Doctor (2019), Schulich School of Law at Dalhousie University. This paper has been awarded the Dalhousie Journal of Legal Study’s John D. Stevenson Essay Prize for Volume 29. 98 THE BEDFORD TRILOGY: EMANCIPATION FROM JUDICIAL RESTRAINT? Vol. 29 INTRODUCTION Stare decisis is integral to the rule of law. The term stems from the Latin maxim “stare decisis et non quieta movere,” which means “to stand by decisions and not to disturb settled matters.”1 At its core, the doctrine engages the principles of certainty and correctness, which at times pursue contradictory aims. Throughout the evolution of the common law, courts have struggled to strike an appropriate balance between these two values. Underpinning this tension is a fundamental conceptualization of the proper role of courts and the ambit of their powers. Judicial philosophy influences the weight judges assign to these principles, which, in turn, leads the courts to adopt a more interventionist or restrained posture when developing the law. If the courts prioritize correctness, judges must 2020 CanLIIDocs 1958 intervene to amend the law accordingly. In contrast, to preserve certainty in the law, judges must exercise restraint. The doctrine of stare decisis raises the spectre of this dilemma: the courts must choose between relaxing the doctrine to shape laws that reflect changing social mores and remaining faithful to the doctrine to maintain predictability in the law.2 At this point, it is helpful to appreciate that stare decisis can be conceptualized in two distinct categories: horizontal and vertical. Horizontal stare decisis requires a court to follow its own previous decisions unless exceptional circumstances warrant changing the law.3 In contrast, vertical stare decisis requires lower courts to follow higher courts’ binding decisions, including those of the Supreme Court of Canada (the “SCC”) (or the Judicial Committee of the Privy Council [the “JCPC”] for criminal appeals prior to 1933 and other appeals before 1949).4 The SCC explained this distinction in Canada (Attorney General) v Bedford.5 In that case, McLachlin CJC wrote that the question of whether courts can overturn past decisions manifests in two ways: “The first ‘vertical’ question,” she explained, is 1 Gerald Gall, The Canadian Legal System (Toronto: Carswell, 2004) at 431. 2 Reference re Same-Sex Marriage, 2004 SCC 79 at paras 22–23 [Reference re Same-Sex Marriage]. 3 Debra Parkes, “Precedent Unbound – Contemporary Approaches to Precedent in Canada” (2006) 32 Man L J 135 at 147. 4 Ibid at 138. 5 Canada (Attorney General) v Bedford, 2013 SCC 72 [Bedford]. Vol. 29 Dalhousie Journal of Legal Studies 99 if or when lower courts may ignore a higher court’s decision, while “the second ‘horizontal’ question” asks whether an appellate court may overrule one of its past decisions.6 These distinctions are significant because different rules applied to each category of stare decisis prior to Bedford. A trilogy of recent decisions defines the SCC’s modern approach to vertical stare decisis.7 In Bedford, the SCC articulated the test for when lower courts may disregard binding decisions of higher courts. The SCC restated and applied the Bedford test in a straightforward manner in Carter v Canada (Attorney General).8 Finally, in R v Comeau, the SCC clarified the limits of the Bedford test and emphasized the narrow exceptions in which the test is available.9 Adam Goldenberg suggests that these cases, taken together, form the “Bedford Trilogy,” which elucidates the SCC’s current position on a more flexible yet measured 2020 CanLIIDocs 1958 interpretation of vertical stare decisis.10 Some legal scholars warned that Bedford created the potential for lower courts to become increasingly interventionist and retry cases in light of “new evidence or a fresh perspective,” which could erode “the legitimacy of Charter decisions and the rule of law.”11 These fears are not unfounded, since courts have cited Bedford nearly 400 times in the last four years.12 However, an analysis of several decisions reveals that, so far, the Bedford Trilogy has not dramatically altered lower courts’ adherence to vertical stare decisis. While the Bedford test relaxed the circumstances in which lower courts could develop the law when new legal 6 Ibid at para 39. 7 Adam Goldenberg, “Beer, Bedford, and beyond – the Supreme Court of Canada and the limits of precedent in R v. Comeau” (25 April 2018), online: McCarthy Tetrault. <www.mccarthy.ca/en/insightsblogscanadian-appeals-monitor/beer-bedford-and- beyond-supreme-court-canada-and-limits-precedent-r-v-comeau> [perma.cc/WYP9- 3L2S]. 8 Carter v Canada (AG), 2015 SCC 5 [Carter]. 9 R v Comeau, 2018 SCC 15 [Comeau]. 10 Goldenberg, supra note 7. 11 Dwight Newman, “Judicial Power, Living Tree-ism, and Alterations of Private Rights by Unconstrained Public Law Reasoning” (2017) 36:2 UQLJ 247 at 256; Canada (AG) v Bedford, 2012 ONCA 186 at paras 83–84 [Bedford ONCA]; Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 12 See Bedford, supra note 5. 100 THE BEDFORD TRILOGY: EMANCIPATION FROM JUDICIAL RESTRAINT? Vol. 29 issues arise, for the most part, lower courts continue to apply precedents in a principled manner. In part, this disciplined approach may stem from lower courts heeding the SCC’s advice in Bedford that the threshold to depart from precedent is high and is met only in exceptional circumstances.13 But lower courts may also exercise restraint because the SCC, in significantly reorienting the doctrine of vertical stare decisis, has offered limited direction on the content of the revised doctrine. Absent further guidance on when lower courts could or should disregard binding past decisions of higher courts, trial judges may not feel equipped to apply the Bedford test in circumstances meriting a departure from precedent. As this paper argues, the impact of the Bedford Trilogy is significant because the Bedford test empowered lower courts to adopt a more flexible 2020 CanLIIDocs 1958 approach to vertical stare decisis to develop the law when new legal issues emerge. Yet, it appears the SCC did not appreciate fully the magnitude of how significantly the Bedford test altered vertical stare decisis, which could explain, in part, why it offered little guidance to lower courts in its analysis leading up to the creation of the new test. If the SCC does not clarify the parameters on when the Bedford test should be employed, the SCC risks creating uncertainty and unpredictability in the law, while diluting the legitimacy of its precedents.14 To substantiate these claims, this paper begins with an overview of the origins of stare decisis in English and Canadian common law. It then discusses the evolution of the Bedford Trilogy, with a specific focus on the limits the SCC imposed on the doctrine of vertical stare decisis in Comeau. The next part of the paper evaluates lower court decisions in the wake of the Bedford Trilogy to assess the implications of the Bedford test on vertical stare decisis. Finally, the paper recommends a five-part framework lower courts could adopt to determine if the issues before the courts satisfy the parameters of the Bedford test. 13 Bedford, supra note 5 at para 44. 14 David Polowin Real Estate Ltd v Dominion of Canada General Insurance Co, (1995), 255 DLR (4th) 633 at paras 119–120, 76 OR (3d) 161 (CA) [Polowin]; Adryan Toth, “Clarifying the Role of Precedent and the Doctrine of Stare Decisis in Trial and Intermediate Appellate Level Charter Analysis” (2013) 22 Dal J Legal Stud 34 at 40. Vol. 29 Dalhousie Journal of Legal Studies 101 HISTORICAL OVERVIEW OF THE DOCTRINE OF STARE DECISIS For centuries, English and Canadian courts have endeavoured to strike an appropriate balance between consistently applying the law and correcting legal injustices. Legal philosophy offers a crucial starting point to understand how the tension created by judicial preferences for certainty or correctness—two principles inherently at odds yet actively engaged in the doctrine—influence adherence to stare decisis.15 Conceptualizing stare decisis through the lens of legal philosophy reveals one reason for the gradual relaxation of the dominance of stare decisis in the Charter era.