18 Mar 2015

The principle of Stare Decisis is not etched in stone

By Rizwan Ahmad Khan Gondal
In response to the arguments by the Attorney General of Canada and the Attorney General of Ontario in the recent Supreme Court of Canada case Carter v. Canada (Attorney General), 2015 SCC 5, the  Court opined that “The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system.” (para 44.) However, the Court further stated that “stare decisis is not a straitjacket that condemns the law to stasis.” (para 44.)

The issue in the Carter case was the prior holding of the Supreme Court of Canada in Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519. In the Rodriguez case, the Court had stated that the concerned provision, s241(b) of the Criminal Code, did not violate the claimant’s rights under Sections 7 and 12 of the Charter. Furthermore, that even if the said provision of the said Code did violate the claimant’s rights under s15 of the Charter, such an infringement was permissible under the reasonability test established by s1 of the said Charter. In the Carter case, the Attorney Generals of Canada and Ontario argued that “the trial judge was bound by the Rodriguez precedent and not entitled to revisit the constitutionality of the legislation prohibiting assisted suicide.” (para 43.) The respective Attorney Generals further argued that “all lower courts [are] to rigidly follow the [Supreme Court of Canada’s] Charter precedents unless and until [the Supreme Court of Canada] sets them aside.” (para 43.)
In Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, the Court relied upon the opinion of Laskin J.A. in David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2006), 76 OR (3d) 161, where he had stated that “[t]he values underlying the principle of stare decisis are well known: consistency, certainty, predictability and sound judicial administration. . . . Adherence to precedent . . . enhances the legitimacy and acceptability of judge-made law, and by so doing enhances the appearance of justice” (Saskatchewan Federation of Labour at para 137.) Given such reliance by the community at large upon the principle of established precedent, the Court in Saskatchewan Federation of Labour hence stated that “the threshold for overturning prior judgments is high” and that “[i]n determining whether the threshold is met, courts must balance certainty against correctness (Bedford, at para. 47).” (Saskatchewan Federation of Labour at para 138.)
In declining to overturn precedent, the Court in Saskatchewan Federation of Labour, relied upon the test as outlined in Canada (Attorney General) v. Bedford, 2013 SCC 72. The Court opined that the required threshold had not been met. However, the Court in Carter agreed with the reasoning and the test as outlined in Bedford and sided with the intervener, the David Asper Centre for Constitutional Rights, who had argued that “the common law principle of stare decisis is subordinate to the Constitution and cannot require a court to uphold a law which is unconstitutional.” (Bedford at para 43.)
In reliance upon the argument in the Bedford case, the Court in the Carter case stated that the:
 “Trial courts may reconsider settled rulings of higher courts in two situations:  (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate” (Carter at para 44.)
Given the facts of the case in Carter, the Court ruled that the above quoted two conditions as outlined in Bedford had been met. There was a material change in “the principles of overbreadth and gross disproportionality” (para 46) surrounding the framework of s7 of the Charter in the context of the principle of fundamental justice. And, that the Court in Rodriguez had not considered the issue of proportionality.
In Carter, the trial court was also given new evidence of a change in perceptions and values of the society at large. It was shown that over the course of time, the “moral or ethical distinction between passive and active euthanasia” (para 47) had blurred and that there was a “substantial consensus” that an outright prohibition on euthanasia was unnecessary “to protect the vulnerable” (para 47).
The Supreme Court of Canada agreed with the assessment of the trial judge in Carter and opined that “the prohibition on physician assisted dying” (para 56) violates the principle of fundamental justice and infringes upon s7 rights “to life, liberty and security” of the Claimant and persons situated similar to her.
To read this decision in its entirety, click here.

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