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.
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. HLA Hart led the development of legal positivism, which argues that social facts, untethered from morality, determine the legitimacy of laws.16 According to 2020 CanLIIDocs 1958 this school of thought, judicial intervention is essential since the law must evolve to reflect changing social norms. Assuming the inevitability of economic and social change, legal positivists disagree with the notion of judicial restraint, especially if it hinders lower courts from changing the law to avoid unjust results that may arise “when old precedents are applied in modern social contexts.”17 Consequently, this perspective accords with a flexible interpretation of stare decisis necessary to uphold the rule of law and ensure public confidence in the administration of justice.18
15 A detailed explanation of legal rights theory and the political and policy preferences of Canadians in the post-Charter era exceed the scope of this paper. Nevertheless, a brief synopsis of the overarching philosophical discussions capturing the essence of this debate illustrates why the SCC’s interpretation and application of the doctrine of stare decisis is important and controversial. 16 Scott J Shapiro, “The ‘Hart-Dworkin’ Debate: A Short Guide for the Perplexed” in Arthur Ripstein, ed, Ronald Dworkin 22.49 (Cambridge: Cambridge University Press, 2007) 22 at 26. See also Ronald Dworkin, Taking Rights Seriously (London: Gerald Duckworth & Co Ltd, 1977) 15–45, 126–27; HLA Hart, The Concept of Law (Oxford: Oxford University Press, 1961) 124–54. 17 J David Murphy & Robert Rueter, Stare Decisis in Commonwealth Appellate Courts (Toronto: Butterworths, 1981) at 99. 18 Joseph J Arvay, Sheila M Tucker & Alison M Latimer, “Stare Decisis and Constitutional Supremacy: Will Our Charter Past Become an Obstacle to Our Charter Future?” (2012) 58 SCLR 61 at 62–63, 81.
102 THE BEDFORD TRILOGY: EMANCIPATION FROM JUDICIAL RESTRAINT? Vol. 29
A more malleable approach to stare decisis seems compatible with modern jurisprudence in the Charter era, since Charter analysis largely depends on the specific legislative or social facts before lower courts. As Joseph Arvay and others point out, lower courts do not defy vertical stare decisis if, upon an assessment of the facts, they decide a past decision no longer applies.19 Rather, they argue, lower courts must perform this function to fulfil their constitutional obligations and make “a proper record and findings … for a Charter matter to proceed.”20 This view echoes the assertion of an American jurist, Douglas J, that new facts require the courts to “[discard] … old ideas that have outlived their usefulness.”21 According to this viewpoint, it is more important to adapt the law to changing circumstances than rigidly apply binding precedents, which may be unworkable or incorrect. 2020 CanLIIDocs 1958 On the other side of the debate, Ronald Dworkin, a fervent critic of legal positivism, argues for a “right answer thesis,” which determines the legitimacy of laws according to moral principles.22 Dworkin’s thesis contends only one correct answer exists, even in cases without a clear outcome. Accordingly, judges must interpret the law with restraint. This perspective necessitates faithful adherence to stare decisis because “judges are not free … to pick and choose amongst the principles and policies,” otherwise “no rule could be said to be binding.”23 Proponents of this school of thought prioritize certainty in the law and believe increased judicial intervention will erode the integrity of Canada’s democratic institutions. They assert that the consistent application of the law enhances the legitimacy of the courts, ensures judges adhere to the rule of law, and increases respect for judicial decisions.24 Often, courts oscillate between exercising judicial intervention or restraint, a friction that shaped the evolution of the doctrine of stare decisis. At the doctrine’s earliest origins, as J. David Murphy and Robert Rueter explain, stare decisis was not
19 Ibid at 77. 20 Ibid at 79. 21 Murphy, supra note 17 at 98. 22 Shapiro, supra note 15 at 26. 23 Dworkin, supra note 16 at 38. 24 Michael Gentithes, “In Defense of Stare Decisis” (2009) 45:4 Willamette L Rev 799 at 804, 806-808; Polowin, supra note 14 at para 120.
Vol. 29 Dalhousie Journal of Legal Studies 103
an absolute principle. Rather, at this time, horizontal stare decisis was a permissive doctrine that enabled the highest courts in England and Canada to overturn precedents in limited circumstances.25 In his Commentaries, Sir William Blackstone explained stare decisis required courts to follow precedents, provided they were not “flatly absurd or unjust.”26 Despite allowing limited flexibility, the doctrine imposed strict limits on judicial power. Blackstone cautioned that stare decisis ensured “the scale of justice” remained “even and steady, and not liable to waver with every new judge’s opinion.”27 If, however, a court overturned one of its past decisions, at that time, judges did not perceive this action as creating new laws, but rather as a mechanism to “vindicate the old [law] from misrepresentation.”28
According to some legal commentators, the courts adhered to stare decisis
29
out of judicial comity to secure “certainty, stability and propriety in the law.” For 2020 CanLIIDocs 1958 the most part, comity favoured legal certainty over correctness to foster consistent decision-making and prevent the re-litigation of settled issues. However, the principle still permitted the House of Lords to overturn its past, incorrect decisions.30 For instance, in Birtwhistle v Vardill, Lord Brougham urged judges to “retrac[e] their steps, rather than persist in their error” if parties sought to apply an incorrect precedent to the disposition of a case.31 Nevertheless, legal certainty seemed preferable to Lord Brougham. He also explained that judges should apply incorrect precedents consistently if they declined to remedy an unworkable precedent. From his perspective, legal uncertainty was “the most miserable of all inconveniences.”32
25 Murphy, supra note 17 at 3. 26 William Blackstone, Commentaries on the Laws of England vol 3 (Oxford: Clarendon Press, 1765-1769) at 70, online: The Avalon Project Yale Law School
104 THE BEDFORD TRILOGY: EMANCIPATION FROM JUDICIAL RESTRAINT? Vol. 29
Horizontal stare decisis became more restrictive in the early twentieth century and limited this type of judicial discretion when the doctrine’s “period of absolutism” was at its height.33 Most scholars agree London Tramways Co v London County Council marked the inception of an inflexible posture characterized by judicial deference to the legislature to rectify wrongly decided precedents.34 In London Tramways, Lord Halsbury definitively stated that “a decision of [the House of Lords] once given upon a point of law is conclusive” and “nothing but an Act of Parliament” could overturn an error.35 Notably, as some scholars point out, in making this statement, Lord Halsbury relied on Beamish v Beamish, a case where the House of Lords upheld an unworkable precedent even though it produced an unjust result for the parties involved in the dispute.36 At the time, the general view was that the rule of law required the courts to apply past decisions, even if they were unworkable or incorrect, because the alternative – judicial intervention to 2020 CanLIIDocs 1958 overturn an incorrect decision – would encroach on the legislature’s law-making function.37 After it was established in 1875, the SCC adopted a similar approach to that of the House of Lords and diligently applied precedents—even unworkable or incorrect ones—despite the possibility that this approach could yield unjust outcomes. Stuart v Bank of Montreal, a decision in which the majority agreed that the SCC could overturn a past decision in “exceptional circumstances,” illustrates the forceful constraint of stare decisis at this juncture.38 In his concurring opinion, Anglin J emphasized the “supreme importance” of “loyal adherence to the doctrine of stare decisis” in order to know “with certainty what the law is.”39 Prioritizing certainty in the law preserved the legitimacy of judicial decisions. Justice Anglin feared that the SCC would diminish the weight of its decisions if it
33 Murphy, supra note 17 at 3. 34 London Tramways Co v London County Council, [1898] AC 375 at 379 (UKHL) [London Tramways]. See Murphy, supra note 17 at 3. 35 London Tramways, supra note 34 at 379; Murphy, supra note 17 at 5. 36 Beamish v Beamish, 11 ER 735, (1861) 9 HL Cas 274 at 739 [Beamish]. See Murphy, supra note 17 at 3, 96; Murphy, supra note 17 at 3. 37 Beamish, supra note 36 at 761, 763; Murphy, supra note 17 at 3. 38 Stuart v Bank of Montreal, (1909) 41 SCR 516 at 536, 550–51, 1909 CarswellOnt 779 [Stuart]. 39 Ibid at 550–51. See Murphy, supra note 17 at 20.
Vol. 29 Dalhousie Journal of Legal Studies 105
disregarded past decisions too frequently. Although this approach could result in an inequitable disposition of an appeal, he reasoned that the advantages of loyalty to horizontal stare decisis outweighed any disadvantageous effects.40 London Tramways and Stuart capture the tension inherent in the doctrine of stare decisis. The courts acknowledged that fidelity to stare decisis could result in “hardship” or “inconvenience” to the parties, especially in difficult cases or when evolving social norms outpaced the development of the law.41 Still, during this time, judges sought to avoid the inconsistent application of legal principles to curtail greater societal injustices caused by creating uncertainty in the law, incentivizing re-litigation, jeopardizing contractual rights, and undermining the rule of law.42
Horizontal stare decisis entered a new phase in 1966 when the House of Lords’ 2020 CanLIIDocs 1958 Practice Statement refashioned the doctrine by permitting the apex court to depart from previous decisions when the interests of justice militated against “too rigid adherence to precedent.”43 Despite this significant change to horizontal stare decisis, the House of Lords still called for judicial restraint. In Jones v Secretary of State for Social Services, Lord Reid commented that the courts should use the exception “sparingly” to prevent creating uncertainty in the law.44 Apart from instances where a public policy issue or “a question of legal principle” was at stake, Lord Reid did not enumerate other categories of cases where the courts should overturn past decisions.45 Although the Practice Statement enabled the House of Lords to apply its precedents with greater flexibility, at this time, the prevailing view was that judges could not depart from precedent simply on the belief a previous decision was incorrect.46
40 Stuart, supra note 38 at 551. 41 Ibid at 551; London Tramways, supra note 35 at 380; Birtwhistle, supra note 31 at 639–40. 42 Stuart, supra note 38 at para 94. See Murphy, supra note 17 at 93–97. 43 Practice Statement (Judicial Precedent), [1966] 1 WLR 1234 [Practice Statement]; Murphy, supra note 17 at 6–7. 44 Jones v Secretary of State for Social Services, [1972] AC 944 (UKHL) at 966 [Jones]; Murphy, supra note 17 at 7–9. 45 Murphy, supra note 17 at 9, 98–99. 46 Ibid at 10.
106 THE BEDFORD TRILOGY: EMANCIPATION FROM JUDICIAL RESTRAINT? Vol. 29
Shortly after the publication of the Practice Statement, the SCC also relaxed its approach to horizontal stare decisis. In Binus v the Queen, Cartwright J, writing for the majority, stated the SCC could overrule a past decision but “only for compelling reasons.”47 While similar to the “exceptional circumstances” standard articulated in Stuart, the Binus threshold signalled a departure from absolute deference by enabling the SCC to intervene and overturn previous incorrect or unworkable decisions. Nevertheless, it does not appear that this development was intended to be construed as a radical transformation. Rather, horizontal stare decisis retained a strong hold as, at this point, the SCC applied the Binus test rarely. Successive decisions reiterate this view.48 While this change did not give the SCC carte blanche to overturn any decision on any basis, it opened the door to relaxing the doctrine in subsequent decisions, especially when remedial provisions were at issue. For instance, in R v Henry, Binnie J cited examples of when the SCC had 2020 CanLIIDocs 1958 departed from precedent where constitutional provisions, Charter infringements, or human rights were at issue.49
Although Binus and its subsequent line of authorities expanded the freedom to overrule incorrect precedents, the SCC recognized the value of horizontal stare decisis in creating certainty and predictability in the law. As Murphy and Rueter explain, the SCC may have adapted its approach to horizontal stare decisis because it had only recently become the final court of appeal.50 Despite adopting a more relaxed posture toward horizontal stare decisis, the doctrine remained an important feature of Canadian jurisprudence, especially to maintain confidence in the public administration of justice and uphold the rule of law.51 Like the approach to horizontal stare decisis prior to Binus, the courts had a similar orientation toward the doctrine of vertical stare decisis prior to Bedford. Until Bedford, vertical stare decisis was practically absolute. Lower courts were required to follow binding decisions from higher courts unless they could distinguish the case
47 Binus v the Queen, [1967] SCR 594 at 602, 1967 CarswellOnt 14 [Binus]; Murphy, supra note 17 at 21. 48 Murphy, supra note 17 at 22–23. 49 R v Henry, 2005 SCC 76 at para 44 [Henry]. See Parkes, supra note 3 at 140. 50 Murphy, supra note 17 at 21, 112. 51 Binus, supra note 47 at 602; Henry, supra note 49 at para 44; Ontario (AG) v Fraser, 2011 SCC 20 at para 132 [Fraser].
Vol. 29 Dalhousie Journal of Legal Studies 107
before them so that a prior precedent was inapplicable. In the pre-Bedford era, vertical stare decisis required strict fidelity from lower courts; departures occurred only rarely.52 THE BEDFORD TEST: VERTICAL STARE DECISIS REVISITED
The SCC modified its approach to vertical stare decisis in Bedford. At issue was whether the trial judge improperly overruled the SCC’s decision in Reference re ss 193 and 195.1(1)(c) of the Criminal Code (Man) to strike down various federal prostitution laws as unconstitutional.53 The trial judge concluded that the Prostitution Reference did not apply due to significant legal developments concerning 2020 CanLIIDocs 1958 section 7 Charter rights and profound changes in the social and legislative facts in evidence before the court.54 The Court of Appeal for Ontario agreed that an evolution in Charter jurisprudence permitted the trial judge to revisit the parties’ section 7 Charter arguments. However, the Court of Appeal for Ontario held the trial judge incorrectly disregarded the Prostitution Reference with respect to the parties’ section 2(b) Charter claims because the SCC “definitively decided [the] issue … and only that court may revisit it.”55 Ultimately, the SCC found the challenged prostitution laws were unconstitutional and overturned the Prostitution Reference, which it had decided 23 years prior to Bedford.56 Bedford is significant because, through it, the SCC relaxed its position on vertical stare decisis. Until this point, vertical stare decisis in Canadian jurisprudence was near absolute, requiring lower courts to follow higher courts’ decisions to ensure “consistency, certainty and predictability in the law, sound judicial administration, and … the legitimacy … of the common law.”57 Lower courts
52 Bedford ONCA, supra note 11 at para 52; Polowin, supra note 14 at para 121. See Michael Adams, “Escaping the ‘Straitjacket’: Canada (Attorney General) v Bedford and the Doctrine of Stare Decisis” (2015) 78 Sask L R 325 at 331–32. 53 Reference re ss 193 and 195.1(1)(c) of the Criminal Code (Man), [1990] 1 SCR 1123, [1990] 4 WWR 481 [Prostitution Reference]. 54 Bedford, supra note 5 at para 17. 55 Bedford ONCA, supra note 11 at para 52. 56 Bedford, supra note 5 at para 165. 57 Bedford ONCA, supra note 11 at para 56.
108 THE BEDFORD TRILOGY: EMANCIPATION FROM JUDICIAL RESTRAINT? Vol. 29
could depart from past binding decisions if the case at bar presented a distinct legal issue or if the past decision had been subsequently overruled. However, if neither of those factors were present, the decision to overturn a precedent rested with a higher court alone, even if following the precedent led to injustices at the trial level.58 Bedford altered this approach by suggesting that, in some instances, it is acceptable for lower courts to perform the role traditionally reserved for higher courts in departing from precedent.59 Although Bedford expanded the role of lower courts, the test did not entirely abolish the restrictive limits imposed on vertical stare decisis. In Bedford, the SCC established a new test for when lower courts could disregard a past decision of a higher court. The SCC explained that lower courts were free to reconsider precedents if new legal issues materialized in one of three 2020 CanLIIDocs 1958 circumstances: 1) parties raise Charter provisions not argued previously; 2) “significant developments in the law” emerge; or, 3) there is “a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.”60 The courts characterize the third category as the “evidence-based exception.”61 Crucially, McLachlin CJC stressed that the threshold for the Bedford test “is not an easy one to reach.”62
In many respects, in Bedford, the SCC may be seen as reconciling its approach to stare decisis, both horizontal and vertical, albeit with stricter limits placed on
58 Ibid at para 51; Polowin, supra note 14 at para 121. See Adams, supra note 52 at 327, 331. Michael Adams cites Wakeford v Canada (Attorney General) (2001), 81 CRR (2d) 342 at 348, [2001] OJ No 390 (Sup Ct), aff’d 156 OAC 385, leave to appeal to SCC refused, [2002] SCCA No 72 [Wakeford], where the trial judge found she did not have the authority to reconsider the Court’s decision in Rodriguez v British Columbia (AG), [1993] 3 SCR 519, 107 DLR (4th) 342 [Rodriguez]. The trial judge concluded “on a strict reading of precedent [the applicant’s] case fails” because he sought to overturn the same Criminal Code provisions at issue in Rodriguez (Wakeford at para 9). While the trial judge recognized the SCC could overturn its past decisions, she held that lower courts could not presume the SCC would do so in every case. The trial judge held that “there must be some indication – either in the facts pleaded or in the decisions of the Supreme Court – that the prior decision may be open for reconsideration” (ibid at para 14). On this basis, together with the SCC’s decision in Rodriguez, the trial judge dismissed the action (ibid at para 20). 59 Bedford, supra note 5 at para 42. 60 Adams, supra note 58 at 335; Bedford, supra note 5 at para 42. 61 Comeau, supra note 9 at para 29. 62 Bedford, supra note 5 at para 44.
Vol. 29 Dalhousie Journal of Legal Studies 109
when lower courts may invoke the power to ignore the binding decisions of higher courts.63 Prior to Bedford, the SCC weighed several factors in deciding whether to overturn one of its previous decisions. In his concurring judgment in Ontario (Attorney General) v Fraser,64 Rothstein J summarized these grounds as including legal developments; unworkable decisions; decisions contrary to Charter values; and decisions that create uncertainty, cause unfairness, or are incorrect.65 Moreover, in Reference re Same-Sex Marriage, the SCC substituted its view of horizontal stare decisis as a “frozen concept” with that of “a large and liberal, or progressive, interpretation” of the doctrine amenable to the “realities of modern life.”66 Although this interpretation provided the SCC with greater flexibility to correct previous decisions, the factors enumerated by Rothstein J in Fraser suggest it would not exercise its discretion in an unprincipled manner. 2020 CanLIIDocs 1958 The Bedford test narrows the gap between the two orientations of stare decisis and restructures vertical stare decisis to resemble the principles Rothstein J referred to in Fraser.67 The first type of new legal issue in Bedford, which arises when parties rely on a new Charter provision not raised previously, aligns with the SCC’s willingness to overturn precedents that conflict with Charter values.68 In addition, allowing for legal developments to create new legal rules corresponds to a longstanding tradition among Canadian, English, and other common law courts
63 Fraser, supra note 51 at para 133. See also R v Bernard, [1988] 2 SCR 833, [1988] CarswellOnt 93 [Bernard]; R v Chaulk, [1990] 3 SCR 1303, [1991] 2 WWR 385 [Chaulk]; Henry, supra note 49. 64 Fraser, supra note 53 at para 133. As Newman explains, Rothstein J did not invent these factors. Rather, Rothstein J referred to various factors considered in existing bodies of domestic and international law, including the Supreme Court of the United States, as well as academic scholarship (Newman, supra note 11 at 255–56). 65 Fraser, supra note 51 at paras 133–34. 66 Reference re Same-Sex Marriage, supra note 2. 67 Newman, supra note 11 (criticizing the Bedford decision for “utterly fail[ing] to engage with [Rothstein J’s concurring judgment in Fraser] in this regard or even with any similar sorts of factors” at 255–56). This section attempts to respond to Newman’s critique by showing how the SCC could have engaged with the factors enumerated by Rothstein J to demonstrate how the Bedford test accords with established principles the SCC draws upon when considering whether to overrule a prior decision. 68 Bernard, supra note 63 at 860–61; Chaulk, supra note 63 at 1353; Henry, supra note 49 at para 45; Fraser, supra note 51 at para 58. Note that this analogy is imperfect. The majority in Fraser cautioned that the “constitutional nature of a decision” is “at best a final consideration in difficult cases” (Fraser, supra note 51 at para 58).
110 THE BEDFORD TRILOGY: EMANCIPATION FROM JUDICIAL RESTRAINT? Vol. 29
of overturning decisions on the basis of significant developments in the law.69 Furthermore, the evidence-based Bedford exception parallels a propensity among higher courts to overturn decisions when social or legislative facts have changed so significantly that the precedent in question no longer applies.70 Finally, the high threshold required to meet the Bedford test conforms to the SCC’s established preference of only overturning precedents for “compelling reasons” in “exceptional circumstances.”71 Where Bedford truly departs from earlier SCC decisions, however, is in bestowing upon lower courts the power to adopt a “liberal, functional approach” in deciding whether to disregard precedents—a role traditionally reserved for higher courts.72 The SCC designed a more meaningful role for lower courts, compared to their historical function of acting as “‘mere scribes’” simply “‘filling 2020 CanLIIDocs 1958 in gaps’” in the law.73 On this basis, Bedford expanded the capacity of lower courts to overturn unworkable or irrelevant precedents in the face of fundamental shifts in the circumstances or evidence. Yet, the SCC provided little clarity on whether this change to vertical stare decisis also enabled lower courts to go further and disregard binding decisions to avoid injustices or absurdities in the law. Carter, the second decision in the Bedford Trilogy, represents a straightforward application of the Bedford test. In Carter, the trial judge found that federal laws prohibiting physician-assisted death were unconstitutional due to new issues raised, legal developments, and changes in social and legislative facts.74
69 Fraser, supra note 51 at paras 134–37; Parkes, supra note 3 at 149. 70 Fraser, supra note 51 at para 136; Newman, supra note 11 at 256. In Fraser, Rothstein J cited Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833 (1992) [Casey] as an example of when courts overturn precedent on the basis of new facts (Fraser, supra note 51 at para 136). In Casey, the Supreme Court of the United States explained it could depart from stare decisis when the “facts [have] so changed … as to have robbed the old rule of … justification” (Casey at 854–55). 71 Fraser, supra note 51 at para 131; Henry, supra note 49 at para 44; Stuart, supra note 38 at 536, 550–51. 72 Parkes, supra note 3 at 158. 73 Bedford, supra note 5 at paras 43–44; Parkes, supra note 3 at 147, citing Alvin Esau, “The Formal Conventions of Precedent in the House of Lords,” University of Manitoba Legal Systems Course Materials (2006) [unpublished, archived with the author at the University of Manitoba Faculty Level]. 74 Carter, supra note 8 at para 28.
Vol. 29 Dalhousie Journal of Legal Studies 111
On that basis, the trial judge applied the Bedford test and concluded that she was not bound to follow the SCC’s decision in Rodriguez v British Columbia (Attorney General), even though Rodriguez considered almost identical adjudicative facts 21 years prior.75 When the matter reached the SCC, it concluded in a unanimous decision that the trial judge’s “exhaustive review of the extensive record before her” met the high threshold of the Bedford test.76 For the most part, the SCC agreed with the trial judge’s analysis. The SCC determined that changes in social and legislative facts could invalidate the conclusions drawn in Rodriguez with respect to ethical considerations, measures to “protect the vulnerable,” and the necessity of “a blanket prohibition … to protect against the slippery slope.”77 In addition, the
SCC held legal developments could “lead to a different answer” on the issues of 2020 CanLIIDocs 1958 overbreadth and gross disproportionality, since Bedford substantially changed the approach to section 7 Charter analysis.78 However, in Carter, the SCC appeared to make conflicting statements about the strength of vertical stare decisis. The SCC disagreed with the argument that “vertical stare decisis is a constitutional principle” mandating lower courts to adhere to precedents “unless and until [the SCC] sets them aside.”79 While the SCC recognized the crucial role the doctrine of stare decisis performs in “permitting the orderly development of the law in incremental steps,” it also emphasized, “stare decisis is not a straitjacket that condemns the law to stasis.”80 Its approach to vertical stare decisis in Carter (and Bedford) raises the question of whether the SCC appreciates that there even exists a distinction in the firmness of the grip of horizontal as compared to vertical stare decisis. Prior to the substantial changes Bedford made to vertical stare decisis, higher court decisions bound lower courts more tightly than the degree to which appellate courts were bound by their own
75 Rodriguez, supra note 58; Carter, supra note 8 at paras 5, 42, 46–47. 76 Carter, supra note 8 at para 3. 77 Ibid at para 47. 78 Ibid at para 46. 79 Ibid at para 43 [emphasis in original]. 80 Ibid at para 44. The limited guidance offered by the SCC in both Bedford and Carter on when the parameters of the Bedford test are satisfied compound these conflicting statements; see Adams, supra note 52 at 341.
112 THE BEDFORD TRILOGY: EMANCIPATION FROM JUDICIAL RESTRAINT? Vol. 29
decisions. Yet, on the basis of the comments made in Carter alone, it is possible to construe the SCC as suggesting the relaxed approach to vertical stare decisis invites lower courts to apply the Bedford test liberally. However, the SCC’s subsequent guidance in Comeau suggests otherwise. COMEAU AND THE BEDFORD TEST: RETRENCHMENT AND RETREAT
Comeau is the third case in the Bedford Trilogy in which the SCC made its most recent definitive statement on the limits of the Bedford test and signalled a more restrictive application of the doctrine. At issue was whether New Brunswick’s liquor control laws created a trade barrier violation and restricted inter-provincial free trade under section 121 of the Constitution Act, 1867.81 Gerard Comeau, a New Brunswick resident, argued that the province could not restrict 2020 CanLIIDocs 1958 residents from bringing alcohol purchased in one province to another.82 Following the application of the Bedford test, the trial judge concluded that expert evidence tendered by Mr. Comeau regarding the drafting and legislative history and context of section 121 “fundamentally shifted the parameters of the debate.”83 The trial judge believed the SCC would have reached a different conclusion in Gold Seal Ltd v Dominion Express Co, the precedent at issue, if the same evidence were before it in 1921.84 Furthermore, the purposive approach to constitutional interpretation did not exist in 1921 when the SCC decided Gold Seal.85 For these reasons, the trial judge determined that Gold Seal did not apply and New Brunswick’s liquor laws established trade barriers contrary to section 121 of the Constitution Act, 1867.86
81 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5, s 121. 82 R v Comeau, 2016 NBPC 3 at paras 1–12 [Comeau NBPC]. 83 Ibid at paras 42–45, 47–48, 54, 57–58, 125. See generally R v Big M Drug Mart, [1985] 1 SCR 295 at 344, 18 DLR (4th) 321; R v Blais, 2003 SCC 44 at paras 34, 40; R v Kapp, 2008 SCC 41 at para 82; Reference re Same-Sex Marriage, supra note 2 at paras 22–23. 84 Comeau NBPC, supra note 82 at para 188; Gold Seal Ltd v Dominion Express Co, [1921] 62 SCR 424, 62 DLR 62 [Gold Seal]. 85 Comeau NBPC, supra note 82 at para 116. 86 Ibid at para 193.
Vol. 29 Dalhousie Journal of Legal Studies 113
The SCC disagreed with the trial judge’s analysis, holding that the historical evidence did not satisfy the “high threshold” of the Bedford test to establish new social or legislative facts, nor had such evidence “fundamentally shift[ed] the parameters of the debate.”87 Notably, the SCC ruled “differing interpretations of history” could militate towards an alternative statutory interpretation from that reached in a previous case, but different interpretations alone could not shift the debate.88 The SCC stressed that the only difference resulting from conflicting interpretations of section 121 “is [in] the answer provided.”89 Moreover, the SCC concluded that the trial judge did not conduct a purposive interpretation of section 121, since he restricted his analysis solely to “the words and context of the provision in light of the historical evidence.”90 Nevertheless, the SCC did not discount entirely the role of historical evidence, which it characterized as “one 2020 CanLIIDocs 1958 non-dispositive ingredient in the multi-faceted statutory interpretation exercise.”91 In this case, however, the SCC found the evidence simply represented an alternative perspective on the “ingredients” of interpreting section 121 and upheld Gold Seal since “the recipe [for statutory interpretation] remain[ed] the same.”92 Arguably, certainty outweighed correctness in this decision. The SCC had an opportunity to reconsider the scope of section 121, especially since the evidence introduced at trial may have altered the historical context surrounding the interpretation of the provision.93 Upon an examination of the historical evidence, the SCC concluded, “at best, [it] provides only limited support for the view” that section 121 establishes “an absolute guarantee of trade free of all barriers.”94 Upholding settled expectations and the principle of federalism significantly influenced the SCC’s analysis.
87 Comeau, supra note 9 at paras 29, 35–43. 88 Ibid at para 37. 89 Ibid at para 42. 90 Ibid at para 39. 91 Ibid at para 43. 92 Ibid. 93 Comeau NBPC, supra note 82 at para 191; Comeau, supra note 9 at paras 57–60, 69, 90. 94 Comeau, supra note 9 at para 67 [emphasis in original].
114 THE BEDFORD TRILOGY: EMANCIPATION FROM JUDICIAL RESTRAINT? Vol. 29
Considering the broader implications of the trial judge’s decision, the outcome in Comeau is not surprising. The SCC recognized the trial judge’s interpretation would substantially jeopardize legal certainty guaranteed by long- settled law, which is consistent with its remarks in Reference re Secession of Quebec that a written constitution provides “legal certainty and predictability.”95 Gold Seal was settled law for nearly a century. Nevertheless, upholding a longstanding precedent, despite historical evidence suggesting a possible alternative interpretation, contradicts the SCC’s reasons for introducing the Bedford test in the first place. One would expect significant social change to occur over the span of a century compared to over a few decades. However, the SCC likely appreciated a broader interpretation of section 121 would upset widespread established expectations. The trial judge alluded to this reality when he remarked that the SCC would need to “re-examine all other cases dealing with section 121” 2020 CanLIIDocs 1958 if it “agree[d] that Gold Seal was wrongly decided.”96 In Comeau, the SCC was alive to the “jurisdictional balance” it had to strike in weighing “regional autonomy” against “the scope of the federal government’s jurisdiction.”97 Both the SCC and the trial judge recognized the “resounding impact” a broader definition of section 121 could produce on federal and provincial regulatory schemes governing “environmental, health, commercial, [and] social” affairs.98 Even if the SCC agreed that the historical evidence shifted the debate, commentators suggest the SCC still would have prioritized certainty over correctness to prevent the “political chaos” likely to ensue by overturning Gold Seal.99 Comeau therefore represents a modern example of the SCC heeding Lord Brougham’s dictum that, if courts fail to correct an erroneous precedent, they should apply that decision consistently to avoid causing the worst injustice— that of uncertainty.100
95 Reference re Secession of Quebec, [1998] 2 SCR 217 at 249, 161 DLR (4th) 385 [Secession Reference]. 96 Comeau NBPC, supra note 82 at para 189. 97 Comeau, supra note 9 at paras 82–83. 98 Comeau NBPC, supra note 82 at para 191; Comeau, supra note 9 at paras 3, 51. 99 Goldenberg, supra note 7. 100 Murphy, supra note 17 at 3; Birtwhistle, supra note 31 at 636.
Vol. 29 Dalhousie Journal of Legal Studies 115
Importantly, the SCC used Comeau to affirm that vertical stare decisis retained its restrictive limits despite the substantial changes it had introduced in Bedford. The SCC reiterated vertical stare decisis requires lower courts to apply binding authorities to ensure “certainty in the law.”101 Lower courts must follow precedents unless “extraordinary exceptions” arise.102 Furthermore, the SCC emphasized the fundamental importance of vertical stare decisis in ensuring the law does not fluctuate according to “shifting judicial whims or the introduction of new esoteric evidence by litigants dissatisfied by the status quo.”103 The SCC also stressed the Bedford test created “narrow exceptions to vertical stare decisis” and the threshold to reconsider a decision “is not an easy one to reach.”104
On this restrictive read of vertical stare decisis, the SCC noted the trial judge
erred in relying on expert evidence to assess the “correct interpretation of [section] 2020 CanLIIDocs 1958 121,” as it is the responsibility of appellate courts to perform this task.105 Here, the SCC restored clarity around the boundaries of vertical and horizontal stare decisis: the categories remain distinct, despite now bearing similar features. Moreover, the SCC attempted to recast the doctrine of vertical stare decisis in a more constrained manner, emphasizing that “the exceptions provided in Bedford and Carter are narrow” to prevent “instability in the law.”106 The SCC explained that lower courts are not free to reconsider constitutional interpretations any time expert evidence establishing “an alternate interpretation” emerges; otherwise, the law would be thrown into “disarray.”107 Crucially, the SCC confirmed that Bedford and Carter do not change the “strict” application of vertical stare decisis, but rather relaxed the standard in a specific set of circumstances.108 Notably, in Comeau, the SCC clarified the type of evidence required to satisfy the “evidence-based exception to vertical stare decisis” created in Bedford.109 First,
101 Comeau, supra note 9 at para 26. 102 Ibid. 103 Ibid. 104 Ibid at paras 28, 30, citing Bedford, supra note 5 at para 44. 105 Ibid at para 40 [emphasis added]. 106 Ibid at para 41. 107 Ibid. 108 Ibid. 109 Ibid at para 29.
116 THE BEDFORD TRILOGY: EMANCIPATION FROM JUDICIAL RESTRAINT? Vol. 29
new evidence must amount to more than a “different characterization of a particular interest.”110 Similarly, merely presenting “an alternative perspective on existing evidence” or an “alternate answer” is insufficient to alter the court’s understanding of a legal issue.111 The permissible evidence must transcend questions of “disagreement or interpretation.”112 For instance, if legal developments make previously “unknowable or not pertinent” social or legislative facts relevant to the analysis, that evidence may satisfy the evidence- based Bedford exception.113 Moreover, the exception does not invite lower courts “to reconsider binding authority on the basis of any type of evidence.”114 Rather, the evidence must demonstrate fundamental changes to the “underlying social context that framed the original legal debate.”115 In Comeau, the SCC appeared to impose a stricter standard on historical 2020 CanLIIDocs 1958 evidence compared to its treatment of social and legislative facts. Although the SCC recognized historical evidence assists with constitutional interpretation, the SCC characterized the trial judge’s findings of fact as “a description of historical information and one expert’s assessment of that information.”116 On this basis, only in limited circumstances could historical evidence arise to “a profound change in social circumstances” prompting a departure from a binding precedent.117 It is difficult to reconcile this outcome with the SCC’s advice that courts must undertake constitutional interpretation “in a manner that is sensitive to evolving circumstances” to account for the realities of the present age, while also
110 Adams, supra note 58 at 336–37; Bedford, supra note 5 at paras 42, 46. 111 Comeau, supra note 9 at paras 32, 34. 112 Ibid at para 34. 113 Ibid at para 32. 114 Ibid at para 31 [emphasis in original]. 115 Ibid. 116 Ibid at para 36. 117 Ibid; Leonid Sirota, “Unmaking History” (20 April 2018), online: Double Aspect
Vol. 29 Dalhousie Journal of Legal Studies 117
accounting for the historical context.118 As Goldenberg explains, under the evidence-based Bedford exception, if “the record establishes that the legal framework, the wider world, or both have changed since the previous judgment,” lower courts may disregard a higher court’s binding decisions.119 Yet, by their nature, historical facts do not fit neatly into the categories of social and legislative facts capable of changing how the courts interpret an issue. Nevertheless, the SCC offers limited instruction on when historical facts could satisfy the evidentiary threshold required to apply the Bedford test. Since other considerations, such as the principle of federalism, overtook its analysis, that could explain, in part, why the SCC refrained from exploring a more comprehensive approach to the treatment of historical evidence under the Bedford test.120 Regardless, the characterization of historical evidence as differences of opinion makes it difficult, if not impossible, for lower courts to make historical 2020 CanLIIDocs 1958 findings of fact that could dramatically alter the courts’ understanding of the intentions of the constitutional drafters.121 Comeau exemplifies the inherent tension created by the doctrine of stare decisis and the SCC’s difficult task in balancing certainty and correctness. In Comeau, the SCC prioritized certainty over correctness and refrained from overruling Gold
118 Comeau, supra note 9 at para 52. See also Reference re Same-Sex Marriage, supra note 2 at para 30. 119 Goldenberg, supra note 7. 120 Comeau, supra note 9 at paras 52, 77–88. 121 Honickman, supra note 117. See also Sirota, supra note 117. In R v Caron, Slatter J opined that simply retrieving “new documents through archival research” does not meet the evidence-based Bedford exception since that approach substantiates the record “with more historical evidence” and does not significantly alter “the parameters of the debate”: 2014 ABCA 71 at paras 1–2, 58, 85, aff’d 2015 SCC 36, [2015] 3 SCR 511. However, Slatter J held that “material” historical evidence, or evidence that “had some prospect of changing the outcome of the binding precedent if it had been known” when the court decided that case, satisfied the evidentiary threshold in Bedford (supra note 5 at para 86). This characterization is different from the SCC’s analysis in Comeau. Justice Slatter upheld the binding precedent in question since the evidence introduced at trial was either known at the time or irrelevant to the outcome of that decision (ibid at paras 87–89). Yet, applying the same analysis to Comeau could have led the SCC to overturn Gold Seal, since the evidence introduced had the potential to change the understanding of section 121: Comeau, supra note 9 at paras 66–67. However, the restrictive analysis applied to historical evidence in Comeau renders that outcome impossible on these facts or in future cases (ibid at paras 106, 114).
118 THE BEDFORD TRILOGY: EMANCIPATION FROM JUDICIAL RESTRAINT? Vol. 29
Seal. Conversely, the SCC assumed a more interventionist role in Bedford and Carter because correctness primarily motivated the outcome reached in those decisions. It is possible the SCC strove for correctness in those cases because Charter rights were at issue.122 In prior decisions, the SCC emphasized that it should exercise its power to overturn precedents cautiously if the “effect [would] diminish Charter protection.”123 Moreover, the SCC remains alive to the possibility a “large and liberal” interpretation that gives meaning to fundamental Charter rights may require a departure from precedent if societal expectations have changed.124 In contrast, the SCC seems to be less interventionist when federalism is at issue, likely because it recognizes that respect for the division of powers is necessary to “reconcile diversity with unity,” given the complex “underlying political and cultural realities” that persist across the country.125 Apart from these considerations, the SCC may have applied the Bedford test restrictively in Comeau 2020 CanLIIDocs 1958 because the trial judge found Gold Seal was incorrectly decided, rather than simply inapplicable.126 Consistent with its prior statements on the narrow boundaries of vertical stare decisis, it is possible the SCC used Comeau to impose stricter limits on the Bedford test to prevent lower courts from inappropriately expanding their power to opine on the correctness of past decisions.127 Nevertheless, the outcome of Comeau could attract criticism regarding the SCC’s analysis of the evidentiary record. In Carter, the SCC overturned Rodriguez because the evidence demonstrated that the legislative and social facts were sufficiently different so that the conclusions reached in Rodriguez could not be supported.128 Arguably, the evidentiary record in Comeau contained new historical facts concerning the
122 Reference re Same-Sex Marriage, supra note 2 at paras 23, 34, 51; Bedford, supra note 5 at paras 42–44; Carter, supra note 8 at paras 40, 46–47. See Parkes, supra note 3 at 137, 145- 46. 123 Henry, supra note 49 at para 44. 124 Reference re Same-Sex Marriage, supra note 2 at paras 23, 34, 51. 125 Secession Reference, supra note 95 at para 43. See Murphy, supra note 17 at 102. 126 Comeau, supra note 9 at paras 15, 40. See Goldenberg, supra note 7; Sirota, supra note 117. 127 Bedford, supra note 5 at paras 42–44; Carter, supra note 8 at para 44; Comeau, supra note 9 at paras 29–34. 128 Carter, supra note 8 at para 47; Rodriguez, supra note 58.
Vol. 29 Dalhousie Journal of Legal Studies 119
drafters’ intent of section 121 that undermined aspects of the conclusions drawn in Gold Seal.129 Ultimately, however, different considerations led the SCC to apply the Bedford test more restrictively in Comeau than in Carter. THE “STRAITJACKET” OF VERTICAL STARE DECISIS STILL BINDS LOWER COURTS
Creating a more expansive role for lower courts has sparked criticism of the Bedford test. Some scholars cautioned that lower courts do not possess the expertise to consider whether a departure from precedent is appropriate. Leonid Sirota, for example, fears the Bedford test could upset the balance between the duty of lower courts to make findings of fact and the subsequent function of appellate 2020 CanLIIDocs 1958 courts to review decisions of lower courts for legal errors; in transferring a role traditionally reserved for appellate courts to lower courts, Sirota argues Bedford could increase the power of trial judges who are “neither expected nor prepared to wield it.”130 Sirota cautions that this power transfer, coupled with the deference afforded to lower courts’ findings of fact, could restrict the ability of appellate courts to review and correct lower courts’ decisions, especially in “complex constitutional cases.”131
Dwight Newman similarly concludes the Bedford test represents a “concomitant augmentation of judicial power.”132 From Newman’s perspective, the Bedford test could incentivize the re-litigation of settled issues. In Charter litigation, courts rely on the evidentiary record to evaluate legislative facts and determine when infringements of Charter rights are proportionate.133 But, as Newman explains, the evidentiary record before the courts cannot “encompass everything that could bear on [this assessment].”134 In creating a category of new
129 Comeau NBPC, supra note 82 at para 189; Comeau, supra note 9 at paras 43, 67; Honickman, supra note 117. 130 Leonid Sirota, “Off Course” (23 December 2013), online: Double Aspect
120 THE BEDFORD TRILOGY: EMANCIPATION FROM JUDICIAL RESTRAINT? Vol. 29
legal issues on the basis of “a change in ‘evidence,’” Newman fears the Bedford test effectively enables the courts to “retry almost any constitutional issue at any point on the basis of a new record.”135 Nevertheless, Newman does not advocate for an inflexible approach to vertical stare decisis, despite his concern Bedford could introduce uncertainty into the law if courts apply the test liberally.136 Although the impact of the Bedford Trilogy is still in its nascent stages, the preliminary results of the Bedford test’s application suggest vertical stare decisis is not at risk of erosion, despite the critiques of some scholars.137 It would appear that the Bedford Trilogy has not liberated lower courts to reconsider decisions in light of new evidence, contrary to the fears of those who advocate for judicial restraint.138 In theory, if lower courts apply the Bedford test liberally, this outcome could materialize. Yet, in practice, lower courts have invoked the Bedford test to 2020 CanLIIDocs 1958 substantiate a departure from precedent only in rare instances. Even in Comeau, the trial judge recognized vertical stare decisis required he “follow [the] law and not deviate from it unless an exception is warranted.”139 In fact, the SCC’s repeated clarification throughout the Bedford Trilogy that lower courts must adhere to a strict approach to vertical stare decisis suggests it does not intend lower courts to interpret the Bedford test as a radical departure from that doctrine. Rather, the courts should reserve the Bedford test for exceptional circumstances.
The above conclusions are supported by the following analysis,140 which considers recent lower court decisions from British Columbia, Alberta, and Ontario to assess the strength of the critique that the Bedford test would liberate lower courts from the confines of judicial restraint. This analysis demonstrates
135 Ibid. 136 Ibid at 255–56. 137 Parkes, supra note 3 at 162. 138 Newman, supra note 11 at 255. 139 Comeau NBPC, supra note 82 at para 187. 140 This research is confined to cases in British Columbia, Alberta, and Ontario that cited and considered Bedford, Carter, and Comeau. The cases citing Bedford were narrowed to those that explicitly mentioned stare decisis, whereas cases citing Carter were confined to those that considered Bedford. Given the recent vintage of Comeau, the cases citing it were not restricted. In addition, the decisions examined in the paper are limited to cases decided between 2015 and 2018. These searches generated just over 100 cases, of which approximately 25 considered the Bedford test in some detail.
Vol. 29 Dalhousie Journal of Legal Studies 121
that, so far, lower courts have applied the Bedford test in a conservative manner. From these cases, it would appear that lower courts have heeded the SCC’s instructions to adhere to vertical stare decisis and apply the Bedford test sparingly.141 For the most part, lower courts rarely invoke the evidence-based Bedford exception to depart from a binding precedent.142 Within the confines of this research, there is only one example of when lower courts in Alberta and Ontario applied the evidence-based Bedford exception inconsistently on similar facts.143 While lower courts are more inclined to apply the Bedford exception in response to significant legal developments, they do so cautiously. On occasion, however, intermediate appellate courts have held that lower courts should have used the Bedford test to depart from precedent due to the emergence of new legal issues.144 Conversely, in most cases where lower courts determine that the Bedford test has been met, 2020 CanLIIDocs 1958 appellate courts generally reverse those decisions.145 This section examines each of these conclusions in turn. Notwithstanding Comeau, lower courts have proved hesitant to find that new social or legislative facts satisfy the evidence-based Bedford exception.146 In R v
141 See e.g. R v Hair, 2016 ONSC 900 [Hair]; R v Caswell, 2014 ABPC 55, rev’d 2016 ABCA 305, leave to appeal to SCC refused, [2016] SCCA No 516 [Caswell ABPC]; Robson v Law Society of Upper Canada, 2016 ONSC 5579, aff’d 2017 ONCA 468; R v Topham, 2017 BCSC 259; R v Ejigu, 2016 BCSC 1487; R v Wagner, 2015 ONCJ 66, aff’d 2016 ONSC 8078; R v Proctor, 2015 ABQB 97; Catholic Children’s Aid Society of Toronto v MC, 2018 ONCJ 619; R v Catling, 2018 BCPC 186, aff’d 2018 BCPC 186; Ontario Federation of Anglers and Hunters v Ontario (Minister of Natural Resources and Forestry), 2016 ONSC 2806 (Div Ct), aff’d 2017 ONSC 518 (Div Ct); R v Fitts, 2015 ONCJ 262; R v Singh, 2017 ONCJ 378 [Singh]. See also Michael Schneer, “Stare Decisis or a License to Disturb Settled Matters? The Impact of the Decision in Carter v Canada on Commercial Litigation” (2016) 1-2, online (pdf): Commercial and Business Litigation Review
122 THE BEDFORD TRILOGY: EMANCIPATION FROM JUDICIAL RESTRAINT? Vol. 29
Hair, the applicants challenged the constitutionality of gaming provisions in the Criminal Code on the basis they were ultra vires the scope of the federal criminal law power.147 The trial judge relied on testimony from gaming experts to conclude social circumstances had not changed significantly in the intervening decade to justify overturning the precedent at issue.148 Crucially, the applicant’s expert witness admitted, “gambling practices and attitudes have changed little since 2005.”149 In his survey of existing case law, the trial judge relied on two decisions from the 1990s where lower courts also found social attitudes had not grown in favour of decriminalizing gambling.150 The trial judge concluded there was no justification based on “the legal or evidentiary foundation in the last [twelve] or so years” to employ the evidence-based Bedford exception to invalidate the challenged Criminal Code provisions.151 2020 CanLIIDocs 1958 Similarly, in R v Caswell, the trial judge applied the evidence-based Bedford exception in a restrictive manner. In Caswell, the accused argued his section 10(b) Charter right to counsel was violated when the police refused to let him contact a lawyer on his mobile phone before providing a roadside breath sample.152 The trial judge reiterated that longstanding precedents acknowledged the requirement to comply without delay violates individuals’ section 10(b) Charter rights. However, she found that the infringement was justified under section 1 of the Charter.153 Counsel for the accused argued that legal developments suggested some willingness on the part of the courts to permit the accused to contact a lawyer when such requests “can be ‘reasonably accommodated.’”154 Moreover, counsel for the accused contended that technological advances over the previous 20 years signified “a change of circumstances” authorizing the trial judge to depart from
147 Hair, supra note 141 at paras 3–4, 155; Criminal Code, RSC 1985, c C-46 [Criminal Code]. 148 Hair, supra note 141 at para 48. 149 Ibid at paras 26, 48. 150 Ibid at paras 42, 47. 151 Ibid at para 48. 152 Caswell ABPC, supra note 141 at paras 34–35. 153 Ibid at para 35. 154 Ibid at para 37.
Vol. 29 Dalhousie Journal of Legal Studies 123
precedent and decide “anew” whether the accused’s right to legal counsel had been unjustifiably infringed in the circumstances.155 The trial judge disagreed with the argument that the proliferation of mobile phones met the evidentiary threshold required under the evidence-based Bedford exception.156 In particular, the trial judge interpreted the Bedford test as prohibiting lower courts from departing from binding decisions “at all or in very rare cases” unless there were “substantial compelling evidence and compelling reasons to do so.”157 In her assessment of two relevant precedents, R v Thomsen and R v Orbanski, the trial judge concluded the SCC definitively held that there were no exceptions to the suspension of section 10(b) Charter rights when asked to provide a roadside breath sample.158 Moreover, since the SCC had reaffirmed Thomsen in Orbanski in
2005, the trial judge in Caswell surmised that the SCC’s position remained 2020 CanLIIDocs 1958 unchanged.159 Until the SCC made the right to contact counsel beforehand a “live issue,” the trial judge opined she was “bound by precedent” to find there was no Charter violation.160 In its decision granting leave to appeal from the conviction entered, the Court of Appeal of Alberta agreed with the trial judge’s analysis in Caswell and emphasized that lower courts should interpret the Bedford test restrictively. Justice Brown (as he was then), writing for the majority, recognized the pervasive use of mobile phones was “undeniable, but insufficient” to satisfy the evidence-based Bedford exception.161 Moreover, he interpreted the Bedford test strictly and remarked that the new doctrine was not “a declaration of open season on stare decisis.”162 Justice Brown stressed courts should not interpret the Bedford test to permit the re-litigation of every issue because that would burden the courts, delay justice, and thwart longstanding principles compelling the law to be “intelligible, clear and
155 Ibid at paras 40–41. 156 Ibid at para 42. 157 Ibid at para 44. 158 R v Thomsen, [1988] 1 SCR 640, 4 MVR (2d) 185 [Thomsen]; R v Orbanski, 2005 SCC 37 [Orbanski]; Caswell ABPC, supra note 141 at para 48. 159 Caswell ABPC, supra note 141 at para 48. 160 Ibid at para 44. 161 R v Caswell, 2015 ABCA 97 at para 43 [Caswell ABCA]. 162 Ibid at para 37.
124 THE BEDFORD TRILOGY: EMANCIPATION FROM JUDICIAL RESTRAINT? Vol. 29
predictable.”163 In addition, Brown JA cautioned lower courts that the threshold for the Bedford test is high and warrants “the most demanding and stringent application” to ensure the courts do not eliminate the role of the legislature in changing the law.164 Otherwise, he feared a “relaxed threshold” would convert the dialogue between courts and legislatures into a “court-to-legislator monologue.”165 In addition to illustrating the understanding that vertical stare decisis remains rather firmly entrenched even in the aftermath of Bedford, the trial level decision in Caswell is important because it demonstrates the potential for lower courts to apply the Bedford test inconsistently on similar facts. Caswell and R v Singh, an Ontario Court of Justice decision, both addressed whether the proliferation of mobile phones warranted a reconsideration of the law governing whether the accused has a section 10(b) Charter right to contact a lawyer before providing a 2020 CanLIIDocs 1958 roadside breath sample.166 Unlike the trial judge in Caswell, the trial judge in Singh found significant legal developments and new social facts amounted to a fundamental change in circumstances.167 While the trial judge in Caswell interpreted the SCC’s decision in Orbanski as a reaffirmation of Thomsen, the trial judge in Singh held that the facts in evidence met the Bedford exceptions, which permitted a reconsideration of Thomsen.168 In particular, the trial judge held the section 1 Oakes analysis in Orbanski was substantially different from that in Thomsen and the ubiquity of mobile phones “change[d] the factual context” from that of 29 years prior when the SCC decided Thomsen.169 For these reasons, the trial judge applied Orbanski to the case, rather than Thomsen, even though both precedents provided that suspending section 10(b) Charter rights was justified when police detained individuals to provide roadside breath samples.170 The decision to apply Orbanski matters because the SCC explicitly considered proportionality in that decision, while Thomsen did not
163 Ibid at para 38 [emphasis in original]. 164 Ibid at para 40. 165 Ibid at para 38. 166 Singh, supra note 141 at paras 1–3. 167 Ibid at para 25. 168 Ibid at para 24; Caswell ABPC, supra note 141 at para 48. 169 Singh, supra note 141 at para 25. 170 Ibid at paras 18–20, 22, 26.
Vol. 29 Dalhousie Journal of Legal Studies 125
consider proportionality at the section 1 Oakes justification stage.171 Although the trial judges in Caswell and Singh arrived at similar conclusions regarding the limitations on section 10(b) Charter rights, the possibility lower courts may inconsistently apply the Bedford test is evident. Intermediate appellate courts have also interpreted the Bedford test with caution. Black v Owen and Laverick v Alberta are two instances where intermediate appellate courts held the trial judge incorrectly applied the Bedford test to ignore a binding past decision.172 At issue in Black was whether trustees had a legal obligation to pay annual maintenance fees according to the terms of a Trust Deed.173 The Court of Appeal for Ontario found the Divisional Court judge (the “appeal judge”) erred by ignoring the majority opinion in Amberwood Investments
Ltd v Durham Condominium Corp No 123, an authoritative decision directly 2020 CanLIIDocs 1958 applicable to the case.174 Justice Cronk explained that the appeal judge could not “disregard the binding majority opinion … and, instead… adopt and follow the minority opinion” unless the Court of Appeal for Ontario overturned Amberwood or the SCC rendered a decision that “displaces the majority’s holdings in Amberwood.”175 Justice Cronk held the Bedford test was not met since section 7 Charter rights were not at issue, the parties did not argue a new legal issue not previously raised in Amberwood, and there had been no significant legal developments.176 Justice Cronk then opined on the restrictive nature of the Bedford test. She stressed lower courts must follow binding authorities according to the doctrine of vertical stare decisis, which ensures “certainty and stability in the administration of justice, and the orderly development of the law.”177 Citing principles from Bedford and Carter, Cronk JA emphasized lower courts have “limited” authority to
171 Ibid at paras 20, 22. As the trial judge noted in Singh, in Orbanski the SCC held evidence obtained before the accused is informed of his Charter rights to legal counsel can only be used for investigative not incriminatory purposes (ibid at para 23). 172 Black, supra note 145; Laverick, supra note 145. 173 Black, supra note 145 at para 1. 174 Amberwood Investments Ltd v Durham Condominium Corp No 123, (2002), 211 DLR (4th) 1, [2002] OJ No 1023 (CA); Black, supra note 145 at paras 36, 41. 175 Black, supra note 145 at para 41. 176 Ibid at para 45. 177 Ibid at para 42.
126 THE BEDFORD TRILOGY: EMANCIPATION FROM JUDICIAL RESTRAINT? Vol. 29
disregard higher courts’ decisions.178 She clarified that lower courts, when faced with a problematic precedent, cannot ignore that decision on the basis of disputing the principles it stands for or due to legal developments by lower courts “in the same jurisdiction, or … in another jurisdiction.”179 Instead, Cronk JA held that the appeal judge should have both applied Amberwood and explained “why she viewed it as problematic.”180 These reasons reaffirmed the SCC’s dictum articulated throughout the Bedford Trilogy that lower courts may depart from vertical stare decisis only in exceptional circumstances. The Court of Appeal of Alberta adopted a similar approach in Laverick, in which the applicant requested a constitutional exemption from a driver’s license suspension.181 Just after the applicant was charged with committing “alcohol- related driving offences” under the Criminal Code, the Court of Appeal of Alberta 2020 CanLIIDocs 1958 struck down the provincial regulatory regime in question as unconstitutional in Sahaluk v Alberta (Transportation Safety Board).182 Although the Court of Appeal of Alberta suspended its declaration of invalidity for one year, in additional reasons to that decision, the Court did not permit personal exemptions on constitutional grounds during that time.183 Nevertheless, in Laverick, the trial judge concluded the applicant could receive an exemption under section 24(1) of the Charter, despite the Court of Appeal of Alberta’s previous decision.184 The Court of Appeal of Alberta held the trial judge erred in granting the applicant a constitutional exemption.185 Crucially, the Court stressed vertical stare decisis requires lower courts to follow binding decisions from intermediate appellate courts and the SCC until those courts amend their decisions.186 Even if
178 Ibid at para 43. 179 Ibid at para 46. 180 Ibid. 181 Laverick, supra note 145. 182 Laverick v Alberta (Transportation Safety Board), 2018 ABQB 57 at paras 1–2; Sahaluk v Alberta (Transportation Safety Board), 2017 ABCA 153 [Sahaluk I]. 183 Sahaluk I, supra note 182 at para 2; Sahaluk v Alberta (Transportation Safety Board), 2017 ABCA 233 [Sahaluk II]. 184 Laverick, supra note 145 at para 24. See also Sahaluk I, supra note 182; Sahaluk II, supra note 183. 185 Laverick, supra note 145 at paras 17, 26. 186 Ibid at para 19.
Vol. 29 Dalhousie Journal of Legal Studies 127
trial judges disagree with these authorities, they are not at liberty to “disregard [these] pronouncements.”187 Moreover, the Court emphasized the role stare decisis plays in upholding “respect for the administration of justice,” which requires “a fair and effective adjudicative process.”188 According to the Court of Appeal of Alberta, it is undesirable for litigants to retry settled issues, as the applicant did in Laverick, because “re-litigation raises the spectre of inconsistent results and diminishes the overall authority of the adjudicative process.”189 Like Black, the reasoning in Laverick also suggests intermediate appellate courts are loath to sanction a liberal interpretation of the Bedford test at the trial level. Despite the propensity to proceed with caution, in rare instances intermediate appellate courts have determined that significant legal developments
warranted a departure from precedent. Two cases, R v B(M) and Rosas v Toca, 2020 CanLIIDocs 1958 illustrate this point.190 B(M) concerned child pornography charges stemming from the non-consensual texting of sexual images between adolescents, as well as charges related to threats to cause bodily harm.191 The accused invoked the evidence-based Bedford exception to argue that the increased use of smartphones and the prevalence of adolescents texting each other intimate images signified a fundamental change in circumstances.192 The trial judge disagreed with these arguments on the basis the court was alive to the “ease of widespread distribution of images by electronic means,” although not mobile phones in particular, when it originally considered the precedent at issue, R v Sharpe.193 The British Columbia Court of Appeal overturned the trial judge’s decision, although not on the basis of the evidence-based Bedford exception. Instead, Bauman CJBC found significant legal developments regarding section 7 Charter challenges generated new legal issues, even though the accused had only raised this argument on appeal.194 Specifically, recent changes in the legal framework
187 Ibid at paras 17, 19–20. 188 Ibid at para 18. 189 Ibid. 190 B(M), supra note 144; Rosas, supra note 145. 191 B(M), supra note 144 at paras 4–10. 192 Ibid at paras 19, 21–22. 193 Ibid at paras 21–22; R v Sharpe, 2001 SCC 2 [Sharpe]. 194 B(M), supra note 144 at paras 48, 67, 69–70.
128 THE BEDFORD TRILOGY: EMANCIPATION FROM JUDICIAL RESTRAINT? Vol. 29
governing the principles of overbreadth and gross disproportionality justified a reconsideration of the impugned provisions.195 On this basis, Bauman CJBC ordered a new trial, even though it was “far from certain [the accused would] succeed in her [section] 7 challenge.”196 He did not opine on whether the appellant’s evidentiary arguments established a “fundamental [shift of] the parameters of the debate.”197 However, he found there was a “reasonable likelihood” the evidence could assist the trial judge in deciding the constitutional challenges at issue.198 Notwithstanding the fundamental changes Bedford introduced to section 7 Charter jurisprudence, the British Columbia Court of Appeal may have been more willing to reconsider the legal issues raised because, in Sharpe, the court explicitly permitted lower courts, in future, to “refine the analysis in light of the facts and considerations that emerge with experience.”199 2020 CanLIIDocs 1958 Furthermore, in Rosas, the British Columbia Court of Appeal also held legal developments justified a departure from precedent. The case involved a contract dispute between friends; one loaned the other some of her lottery winnings to purchase a new house.200 The trial judge held the forbearance agreements between the parties were invalid for lack of consideration, and the claims were therefore statute-barred for being filed after the limitation period expired.201 On appeal, Bauman CJBC noted that the parties did not raise Charter issues, but relied on Bedford, Carter, and Comeau to invoke the Bedford test on the basis of new legal issues created by significant legal developments.202 After a thorough and careful analysis of more recent developments in the law, Bauman CJBC concluded the precedents governing the “doctrine of consideration for post-contractual variations” had substantially changed in the wake of Williams v Roffey Bros & Nicholls (Contractors) Ltd.203 In arriving at this conclusion, he extensively considered
195 Ibid at paras 67–69. 196 Ibid at paras 70–72, 74. 197 Ibid at para 74. 198 Ibid. 199 Ibid at para 55, citing Sharpe, supra note 193 at para 55. 200 Rosas, supra note 144 at paras 1–10. 201 Ibid at para 19. 202 Ibid at para 172. 203 Ibid at paras 5–10, 173. See Williams v Roffey Bros & Nicholls (Contractors) Ltd, [1991] 1 QB 1, [1990] 1 All ER 512.
Vol. 29 Dalhousie Journal of Legal Studies 129
several competing developments in English and Canadian law as well as a broad survey of academic commentary to confirm that the high threshold of the Bedford test was met in this case.204 The foregoing analysis demonstrates lower courts are following the SCC’s direction that they must continue to adhere to vertical stare decisis and that the Bedford test applies only in a narrow set of circumstances.205 At the time of writing this paper, no appeals from the decisions discussed are pending. While the courts appear more willing to depart from precedent on the basis of significant legal developments, the area of law at issue is not a determinative reason to do so. In general, the Bedford test succeeds when Charter rights are at issue, with the exception of the contractual dispute in Rosas.206 While the SCC was not explicit on
this point, it may be that it intended the Bedford test to be applied in Charter – or 2020 CanLIIDocs 1958 at least constitutional – litigation, seeing as all three decisions in the Bedford Trilogy are constitutional cases. That said, federalism is an area where lower courts have been reluctant to apply the Bedford test, apart from the trial level decision in Comeau.207 Based on the analysis of the limited research considered in this paper, the jurisprudence stemming from lower courts’ decisions disproves, so far, the critique that the Bedford test has liberated the courts from the bonds of vertical stare decisis.208 DESIGNING A MEANINGFUL ROLE FOR LOWER COURTS: A FIVE-PART FRAMEWORK
While lower courts have heeded the SCC’s direction to apply the Bedford test and only depart from binding precedent in exceptional circumstances, they may also exercise restraint because the SCC has not elaborated the parameters in which the Bedford test could or should apply. In the decision granting leave to appeal in Caswell, Brown JA, writing for the majority, critiqued the threshold of
204 Rosas, supra note 144 at paras 49–173. 205 Comeau, supra note 9 at para 26. 206 See B(M), supra note 144; Bedford, supra note 5; Carter, supra note 8; Rosas, supra note 144. 207 See Comeau, supra note 9; Caron, supra note 121. 208 Newman, supra note 11 at 255.
130 THE BEDFORD TRILOGY: EMANCIPATION FROM JUDICIAL RESTRAINT? Vol. 29
the Bedford test as being “highly abstract.”209 Moreover, he continued, without more comprehensive direction on the circumstances when higher courts’ decisions do or do not bind lower courts, “the best lower courts can do is take Bedford’s stated threshold seriously by applying it strictly.”210 The SCC should address these uncertainties to enable lower courts to adopt the more meaningful role in developing the law that McLachlin CJC envisioned in Bedford.211 Justice Veldhuis’ dissenting reasons in the Caswell leave to appeal decision propose a framework courts could apply to evaluate whether new legal issues sufficiently fit within the parameters of the Bedford test. Among these factors, the most relevant are the age of the decision, significant legislative changes made after the precedent at issue was decided, whether settled expectations exist, and the decisions of other appellate courts.212 In addition, as evidenced by lower courts’ 2020 CanLIIDocs 1958 application of the Bedford test so far, the SCC should clarify the qualitative and quantitative evidentiary requirements that “fundamentally shift the parameters of the debate.”213 Together, these factors form a five-part framework that could assist lower courts in applying the Bedford test with greater certainty, while safeguarding against the dilution of vertical stare decisis.214 While no single factor in the framework should be determinative, the age of the precedent, the existence of settled expectations, and the nature of the evidence could receive greater weight in the application of the Bedford test. The age of the precedent is an important factor. When assessing the applicability of the Bedford test, lower courts consider whether the SCC has recently pronounced on the issue at bar and, if so, generally accept that decision as the prevailing view.215 Some scholars contend that newer precedents provide
209 Caswell ABCA, supra note 161 at para 40. 210 Ibid. 211 Bedford, supra note 5 at paras 43–44. 212 Caswell ABPC, supra note 141 at para 14. 213 Bedford, supra note 5 at para 42; Caswell ABPC, supra note 141 at paras 42–44, 46–52; Singh, supra note 141 at paras 24–26; B(M), supra note 144 at paras 19–22, 50, 74. 214 Comeau, supra note 9 at para 26. 215 Caswell ABPC, supra note 141 at para 48.
Vol. 29 Dalhousie Journal of Legal Studies 131
stronger justifications for courts to follow those decisions.216 Chief Justice McLachlin endorsed this approach in Fraser when she remarked that, “the seriousness of overturning two precedents, representing the considered views of firm majorities, cannot be overstated,” especially given their “recent vintage.”217 Yet, there is no specific age at which it is always permissible to overturn a decision. For instance, in Saskatchewan Federation of Labour v Saskatchewan, the SCC overturned aspects of Fraser, which it had decided only four years earlier.218 Conversely, in Bedford and Carter, the SCC overturned precedents that were over 20 years old. However, the SCC upheld a precedent decided almost 100 years earlier in Comeau.219 There are risks associated with overturning a precedent based on its age, such as creating a perception that the legitimacy of a decision depends on the individual members of the SCC.220 2020 CanLIIDocs 1958 Settled expectations are another consideration that the SCC has been alive to when departing from stare decisis. In Bow Valley Husky (Bermuda) Ltd v Saint John Shipbuilding Ltd, McLachlin CJC remarked that the SCC would not amend the law to reflect new social circumstances if such changes “will have complex and far-reaching effects.”221 Yet, in Fraser, McLachlin CJC recognized “the Court cannot be oblivious to errors in prior decisions.”222 Rather, she continued, the SCC “must balance correctness and certainty” in deciding whether to overturn precedents.223 The SCC heeded this advice in Comeau when it refrained from
216 Murphy, supra note 17 at 95. But see Polowin, supra note 14 (where the Court of Appeal for Ontario held that, in the context of horizontal precedent, overruling a more recent decision may be warranted because it is “better to correct an error early than to let it settle in” at para 139). 217 Fraser, supra note 51 at para 57. 218 See Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4 at para 137. 219 Bedford, supra note 5 at para 165; Carter, supra note 8 at para 5; Comeau, supra note 9 at para 14. 220 Bruce Harris, “Final Appellate Courts Overruling Their Own ‘Wrong’ Precedents: The Ongoing Search for Principle” (2002) 118 L Q Rev 408 at 416. 221 Bow Valley Husky (Bermuda) Ltd v Saint John Shipbuilding Ltd, [1997] 3 SCR 1210 at para 93, 153 DLR (4th) 385. 222 Fraser, supra note 51 at para 143. 223 Ibid.
132 THE BEDFORD TRILOGY: EMANCIPATION FROM JUDICIAL RESTRAINT? Vol. 29
overruling a longstanding decision to prevent the upheaval of established federal and provincial regulatory regimes.224 Although the SCC cannot provide a mathematical formula for lower courts to know when the evidence qualitatively and quantitatively shifts the parameters of the debate, the SCC should provide more direction on the type or degree of evidence that satisfies Bedford’s evidentiary threshold. As demonstrated by the foregoing analysis, lower courts repeatedly struggle with determining when the high threshold of the Bedford test is met, particularly with regards to the emergence of new social or legislative facts. Several decisions reveal that lower courts are unsure whether technological advancements satisfy the evidence-based Bedford exception.225 At times, this uncertainty has produced inconsistent results, which conflicts with the predictability and stability vertical stare decisis attempts to 2020 CanLIIDocs 1958 achieve in the law.226 While, in Comeau, the SCC elaborated on the type of historical evidence that does not comply with the evidence-based Bedford exception, similar guidance on the nature and quality of social or legislative facts could also assist lower courts in deciding when to apply the Bedford test.227 Collectively, these factors could enable lower courts to apply the Bedford test judiciously.228 The potential for lower courts to indiscriminately disregard precedents exists.229 Further instruction from the SCC on the parameters in which lower courts could or should depart from precedent could alleviate fears that lower courts will apply the Bedford test liberally or inconsistently. Only in this way will the SCC empower lower courts to assume a more meaningful role in developing the law, while maintaining certainty, predictability, and the legitimacy of judicial decision-making.230
224 Comeau, supra note 9 at paras 3, 51. 225 Caswell ABPC, supra note 141 at paras 42–44; Singh, supra note 141 at paras 24–26; B(M), supra note 144 at paras 19–22, 50, 74. 226 See Caswell ABPC, supra note 141; Singh, supra note 141. 227 Comeau, supra note 9 at paras 31–32, 34, 46. See also Michael Bloodworth, “A Fact is a Fact: Stare Decisis and the Distinction Between Adjudicative and Social Facts in Bedford and Carter” (2014) Nat J of Con L 193 at 195, 198–99, 200. 228 Ibid at paras 30–31. 229 Newman, supra note 11 at 254–56. 230 Bedford, supra note 5 at paras 42–44; Fraser, supra note 51 at para 139; Henry, supra note 49 at para 57.
Vol. 29 Dalhousie Journal of Legal Studies 133
CONCLUSION
The doctrine of stare decisis has experienced a profound transformation since its inception in the common law. Contrary to popular perceptions, in its nascent stages as a nimbler doctrine, higher courts could overturn precedents to avoid absurd or unjust results. Only in the early twentieth century did courts adopt a more restrictive approach, favouring certainty in the law over correctness or fairness. In the latter half of the twentieth century, the SCC followed the UK House of Lord’s pursuit of a more flexible conceptualization of horizontal stare decisis, which permitted higher courts to overrule past decisions as long as compelling or exceptional circumstances existed.231
Similarly, this more relaxed posture influenced the development of the 2020 CanLIIDocs 1958 Bedford test, which significantly changed the orientation of vertical stare decisis in Canada by expanding the role of lower courts in developing the law. At first, it seemed the Bedford test essentially imported the flexibility of horizontal stare decisis into vertical stare decisis. Yet, as the Bedford Trilogy has clarified, lower courts may perform this function only in narrow or exceptional circumstances.232 While some scholars cautioned that the Bedford test signalled a commitment to frequent judicial intervention, the cases analyzed in this paper suggest that it has not freed lower courts from the bonds of judicial restraint imposed by vertical stare decisis.233 In the wake of Comeau, this trend could continue depending on the issues before the courts. As the foregoing analysis also suggests, absent clearer guidance from the SCC, lower courts likely will continue to err on the side of caution with the high threshold of the Bedford test rarely being met.234 The SCC should endeavour to develop a framework for when lower courts could or should apply the Bedford test to ensure courts revisit precedents
231 Murphy, supra note 17 at 3; Blackstone, supra note 26 at 70; London Tramways, supra note 34 at 379; Stuart, supra note 38 at 536, 550–51; Henry, supra note 49 at para 44; Binus, supra note 47 at 602. 232 Bedford, supra note 5 at paras 42–44; Carter, supra note 8 at para 44; Comeau, supra note 9 at paras 26, 28, 30–31, 41. 233 See Hair, supra note 141; Caswell ABPC, supra note 141; Singh, supra note 141; B(M), supra note 144; Rosas, supra note 144; Black, supra note 145; Laverick, supra note 145. 234 Caswell ABPC, supra note 141 at para 40.
134 THE BEDFORD TRILOGY: EMANCIPATION FROM JUDICIAL RESTRAINT? Vol. 29
consistently and judiciously, while embracing a more meaningful role by not blindly following past precedents when there is compelling evidence that supports a finding that they are inapplicable or unworkable. Clarifying the Bedford standard could provide a more principled basis for lower courts to exercise judicial intervention or restraint. Otherwise, a more lenient yet vague standard of vertical stare decisis may create destabilizing effects on the rule of law, diminishing certainty, predictability, and the binding power of past higher court decisions.235 2020 CanLIIDocs 1958
235 Harris, supra note 220 at 411; Bloodworth, supra note 227 at 195; Adams, supra note 52 at 341.