Stare Decisis and Precedent in Canada

Introduction

Stare decisis (to stand by things decided) is the doctrine of precedent that forms a cornerstone of the Canadian common law tradition. The principle requires courts to follow earlier judicial decisions when deciding subsequent cases with similar facts, ensuring certainty, predictability, consistency, and coherence in the law. At the same time, Canadian courts recognize the need for flexibility to allow the common law to evolve in response to changing social conditions.

The hierarchy of Canadian courts creates a vertical structure of precedent, while the relationship between courts of coordinate jurisdiction raises questions of horizontal precedent and interprovincial comity.

The Supreme Court of Canada

The Supreme Court of Canada (SCC) sits at the apex of the Canadian judicial hierarchy. Its decisions are binding on all lower courts across Canada, including provincial superior courts, provincial courts of appeal, and the Federal Court of Appeal.

Historically, the SCC regarded itself as bound by its own precedents. However, the modern position is that the SCC may overrule its own decisions when appropriate. This power was affirmed and exercised in Canada (Attorney General) v. Bedford, [2013] 3 SCR 1101, where the Court overruled its earlier decision in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Prostitution Reference), [1990] 1 SCR 1123.

The test for overruling was articulated in Canada (Attorney General) v. Carter, [2015] 1 SCR 331, where the Court overruled Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519. The Court held that overruling is appropriate where:

1. There has been a significant change in circumstances or evidence; or
2. The earlier decision has proven to be unworkable or has generated inconsistent results; or
3. The earlier decision is based on a misapprehension of legal principles that has led to unjust results.

In R v. Comeau, [2018] 1 SCR 342, the Court reaffirmed that it will not lightly overrule its precedents, emphasizing the importance of institutional stability and reliance interests. The Court distinguished between overruling constitutional precedents (where legislative correction is unavailable) and common law precedents (where legislatures may intervene).

Vertical Precedent

The doctrine of vertical stare decisis requires lower courts to follow the decisions of higher courts within the same judicial hierarchy. In Canada:

• Provincial superior courts are bound by the decisions of their respective provincial courts of appeal and by the Supreme Court of Canada.
• Provincial courts of appeal are bound by the Supreme Court of Canada.
• Provincial courts (inferior courts) are bound by their provincial superior courts and the SCC.
• Federal Court and Federal Court of Appeal are bound by the SCC.

A lower court may distinguish a binding precedent on its facts, avoiding its application without overruling it. Distinguishing is permitted where the material facts of the current case differ from those of the precedent in a legally significant way.

Lower courts may not refuse to follow binding precedent even if they consider it wrongly decided. If a lower court concludes that a binding precedent is erroneous, its proper course is to apply the precedent and note reasons for disagreement, preserving the issue for appeal.

Court of Appeal Rules

Provincial courts of appeal have developed specific rules regarding which of their own decisions bind subsequent panels. The leading case is R v. Chan, [2021] 2 SCR 315, where the Supreme Court addressed the circumstances in which a provincial court of appeal may depart from its own precedent.

The Court held that a Court of Appeal is not strictly bound by its own previous decisions but should not depart from them lightly. A subsequent panel may overrule an earlier decision only where:

• The earlier decision was per incuriam (rendered in ignorance of a binding statute or precedent)
• The earlier decision is plainly wrong and has led to demonstrable injustice
• There has been a material change in circumstances or legal framework

The Chan framework emphasizes collegial decision-making and judicial comity. Where a panel considers an earlier decision to be wrongly decided, the proper course may be to release a reserved judgment explaining why the earlier case should be reconsidered, allowing the Chief Justice to convene a full court (five or seven judges) to reconsider the issue.

Interprovincial Comity and Horizontal Precedent

The relationship between courts of coordinate jurisdiction across provinces raises complex questions. Decisions of one provincial court of appeal are not binding on other provincial courts of appeal, but they carry persuasive authority. The principle of interprovincial comity encourages courts to respect decisions of other provinces to maintain national legal coherence.

However, in R v. Henry, [2005] 3 SCR 609, the Supreme Court confirmed that courts should not lightly depart from well-reasoned decisions of other appellate courts, particularly where uniformity of law is desirable. Divergent appellate decisions often prompt the SCC to grant leave to resolve the conflict.

Trial Court Precedent

Trial courts are bound by the decisions of appellate courts within their province but are not bound by decisions of other trial judges or by courts of other provinces. Trial judges should follow decisions of other trial judges in the same province as a matter of comity, but may decline to do so where they consider the earlier decision clearly wrong.

The von Zuben principle, applied in Ontario, holds that a trial judge should not disregard a prior decision of a coordinate court unless convinced it was wrongly decided. Mere disagreement is insufficient.

Role of Dissenting Judgments

A dissenting judgment does not constitute binding precedent, but it may carry considerable persuasive authority, particularly where:

• The dissent was authored by a distinguished judge
• The dissent has been followed in other jurisdictions
• The dissent identifies flaws in the majority reasoning that later prove significant
• The dissent anticipates future legal developments

Dissents may influence the evolution of the law. The dissenting opinion of L’Heureux-Dubé J. in R v. Seaboyer, [1991] 2 SCR 577 ultimately influenced Parliament’s reform of sexual assault evidence rules. Similarly, the dissent of McLachlin J. (as she then was) in Rodriguez v. British Columbia (Attorney General) was later adopted by the majority in Carter.

Conclusion

Stare decisis in Canada strikes a balance between stability and evolution. The Supreme Court retains the power to correct its own errors when circumstances warrant, while lower courts operate within a clear hierarchical framework. The doctrine ensures that Canadian law develops incrementally and coherently, respecting both reliance interests and the need for the common law to adapt to changing social realities.