Questioning Precedent: A Critique of Constitutional Stare Decisis at the Supreme Court of Canada
Sterling Mancuso, 3L, Volume 81 Executive Editor of Forum Conveniens
Stare decisis—the principle that courts should follow their own precedents—is currently a hot topic in North America. Last summer, the Supreme Court of the United States (SCOTUS) sent shockwaves across the entire world with its judgment in Dobbs v Jackson Women’s Health Organization, 597 US _ (2022) (Dobbs). The majority in Dobbs overruled the famous judgment in Roe v Wade, 410 US 113 (1973) (Roe), and completely reversed course on the constitutional right to an abortion. In dissent, Breyer, Sotomayor, and Kagan JJ sharply criticized this approach for failing to adhere to precedent and “departing from stare decisis for no legitimate reason” (Dobbs at 57).
Meanwhile, the Supreme Court of Canada (SCC) in 2022 issued two of its most comprehensive analyses ever on stare decisis. First, in R v Sullivan, 2022 SCC 19 (CanLII) (Sullivan), the SCC unanimously adopted a restrictive framework for when trial courts may depart from their own precedents. And then in R v Kirkpatrick, 2022 SCC 33 (CanLII) (Kirkpatrick), a concurring judgment of four justices outlined a similarly restrictive framework, positing that the SCC should always follow its own precedents with only very limited exceptions. The Court released Kirkpatrick only a month after the Dobbs decision, and its oblique references to stare decisis in American abortion jurisprudence can be read as a subtle critique of its American counterpart’s looser approach to precedent (Kirkpatrick at para 184).
Against this high-profile, high-stakes backdrop, I wish to present my own thoughts on the matter. Bluntly, I think when it comes to constitutional cases, the Canadian Supreme Court has gotten stare decisis all wrong. The structure and text of the Constitution compel the Supreme Court to overrule any constitutional precedent that it subsequently considers to be erroneous. Judges invented stare decisis to protect and preserve the unwritten common law: therefore, it lacks legitimacy when used to preserve an incorrect interpretation of Canada’s written Constitution. Stare decisis thus has no role to play in constitutional adjudication at the Supreme Court. You might be skeptical; allow me to convince you.
A Highlights Tour of Stare Decisis
Every law student in a common law jurisdiction learns that courts are supposed to follow precedent. Indeed, even most laypeople know that courts are supposed to decide like cases alike, and that judges are not at liberty to overrule prior judgments on a whim. Stare decisis is merely the fancy Latin phrase for following precedent. The term derives from the even fancier phrase “stare decisis et non quieta movere,” meaning “to stand by decisions, and not to disturb settled points.”
Rather than recount the full history of stare decisis, I would point the reader to a recent article on the topic, co-written by Justice Malcolm Rowe and one of his former law clerks, Leanna Katz: “A Practical Guide to Stare Decisis.” Their article outlines a conventional view of stare decisis, whereby the Supreme Court is bound to follow its previous precedents, except in five limited circumstances. The Kirkpatrick concurrence largely adopted this framework, although it narrowed the exceptions from five to just three: unworkable precedents, precedents fundamentally eroded by legal or societal change, and precedents made per incuriam (without considering binding precedents or relevant statutes).
Three of Rowe J and Katz’s points are especially relevant to my argument:
1. Stare decisis developed out of the common law system and has never applied in civil law systems, including Quebec’s (at 2);
2. Stare decisis is a relatively young doctrine, “crystalliz[ing] as a rule in the late 19th century” (at 5);
3. Stare decisis is an entirely judge-made principle and is not mandated by any statute or the Constitution (at 6).
Rowe J signed on to the Kirkpatrick concurrence, showing his support for a strict form of constitutional stare decisis with only limited, narrow exceptions. I believe, however, that these three points above actually form the foundation for an argument against the binding nature of constitutional precedents upon the Supreme Court.
The Misguided Nature of Constitutional Stare Decisis
The single most significant aspect of the Canadian Constitution for our present purposes is that it is written down. Our Constitution is a body of positive law drafted and adopted by politicians. It is not judge-made law. Unwritten principles exist in Canadian constitutional law, but they are limited in function, and cannot be used to invalidate other laws (Toronto v Ontario, 2021 SCC 34 (CanLII) at paras 55-56). The Constitution is thus very different from judge-made common law, where stare decisis developed. At the very least, this should mean it was not inevitable or obvious that the common law approach to precedent would also apply to the Constitution.
When the Canadian Constitution came into force in 1867, stare decisis was still a relatively new doctrine which did not apply uniformly across the country. As noted previously, Quebec used (and of course still uses) civil law, based on its own Civil Code. In the civil law tradition, precedent is generally not considered binding since the written code forms the law rather than judicial opinions (Rowe J and Katz at 2). The Constitution recognizes the distinctive nature of Quebec law in provisions such as section 94. Given the relative youth of common law stare decisis, and the significant portion of the country which did not use the doctrine, one might have expected the highest court in the land to thoroughly consider whether the doctrine should apply to interpretations of the national governing blueprint. Unfortunately, this did not happen then, and has not happened since. Our courts have simply run with the assumption that the judge-made, common law principle of stare decisis should apply to precedents of a politician-drafted, mixed law constitution.
The case against constitutional stare decisis became more pointed with the coming into force of the Constitution Act, 1982. Prior to 1982, one could only claim that the Constitution was implicitly the highest law in the land, supreme to all judge-made law. Now, section 52 of the Constitution Act, 1982 makes it clear that “[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” This is explicit, mandatory language. There is no contemplation that laws which are inconsistent with the constitution may continue to apply, even on the strength of stare decisis.
Sriskandarajah v United States of America, 2012 SCC 70 (CanLII) (Sriskandarajah) is a useful example of the theoretical problems inherent in the SCC’s unwillingness to consider the problems of applying a judge-made common law doctrine to our supreme, written constitution. In this case, the Court declined to reconsider and overrule a series of precedents on section 6 of the Canadian Charter of Rights and Freedoms. In justifying this refusal, McLachlin CJ stated that “[t]he Court does not lightly depart from the law set out in the precedents. Adherence to precedent has long animated the common law” (Sriskandarajah at para 18). Why does it matter that adherence to precedent has long animated the common law? The Canadian Constitution is not common law. In a different context, unrelated to stare decisis, the SCC has acknowledged that “[t]he application of private law principles in the realm of public and constitutional law is not without its difficulties” (Kingstreet Investments Ltd v New Brunswick (Finance), 2007 SCC 1 (CanLII) at para 36). Indeed. Applying stare decisis to the Constitution forces a judge-made square peg into a codified round hole. It is time for the Court to face this difficulty and abandon stare decisis for constitutional precedents.
Even if stare decisis was not inconsistent with the structure of the Constitution, and the explicit text of section 52, it would still be a questionable constitutional doctrine. The underlying rationale for treating precedents as binding is not as applicable in a constitutional context, especially with rights and obligations at stake. Judges invented stare decisis to promote certainty, efficiency, humility, and comity (Rowe J and Katz at p. 4). Doubtless, these are all worthy goals. When it comes to judge-made common law, it is perfectly legitimate to prioritize these goals over correctness - especially given that correctness is a somewhat nebulous concept when considering uncodified law anyway. However, when it comes to a written document—drafted and adopted by representative politicians—which declares itself supreme and says nothing about judicial precedent, judges avoid their duties by merely deferring to precedent. If the SCC finds that a prior interpretation of the Constitution is wrong, a strict interpretation of stare decisis requires the Court, by default, to uphold that incorrect interpretation. This necessarily means that Canadians’ constitutional rights and obligations could be incorrectly adjudicated to satisfy a doctrine that is nowhere to be found in the Constitution. Rather than defend the Constitution, the Court is forced to knowingly approve its violation. Even the most ardent defender of the merits of precedent should be, at the very least, troubled by this outcome.
A Response to Some Counterarguments
Before I conclude, I will respond to some counterarguments. To avoid a straw-man argument, I will address the supposed benefits of stare decisis advanced in the Kirkpatrick concurrence itself.
First, the concurrence argues that stare decisis “promotes legal certainty and stability” (at para 184). While this may be true to a degree, it is likely overstated. Unless a court is eternally bound by all precedents, there will always be some uncertainty and instability. To that point, pre-Kirkpatrick, the SCC overturned numerous constitutional precedents, applying all manners of supposed exceptions to stare decisis (for a series of examples, see Schmidt v Canada, 2018 FCA 55 (CanLII) at paras 91-97). Right now, nobody knows ahead of time when the SCC will adhere to stare decisis and when it will determine that a case falls into an exception allowing it to overturn precedent. If we simply eliminated stare decisis in the constitutional context, everything could happen in the open, and litigants could have a fair and frank debate about the correct interpretation of the constitution. No longer able to simply defer to precedents, the Supreme Court would have to develop an ever more rigorous and principled method of constitutional interpretation. Unsound doctrines or modes of interpretation would quickly be swept aside by future judgments. Constitutional jurisprudence would become the survival of the fittest, with justices labouring to write clear and convincing judgments that will be adopted by future judgments. Such an outcome would, I believe, lead to a long-term increase in legal certainty and predictability.
Second, the concurring justices in Kirkpatrick argued that stare decisis promotes the rule of law by ensuring that like cases are decided alike (at paras 185-86). Consistency is certainly one element of the rule of law, but its pursuit should not shackle the Court forever to incorrect constitutional interpretations. Certainly, courts should not treat litigants arbitrarily, or with discrimination. But at the same time, courts should not treat everyone wrongly, so that they may also treat them samely. The order that cases come before a court is arbitrary, with no correlation to how likely the court is to decide the case correctly. If we eliminated constitutional stare decisis, then precedents would stand and fall not based on the arbitrary factor of which came first, but based on the soundness of their reasoning. This would be beneficial for the rule of law.
Lastly, there is an argument in Kirkpatrick that stare decisis upholds judicial efficiency and legitimacy (at paras 187-89). I find both arguments to be speculative. As noted above, the existence of stare decisis has not stopped many parties from successfully attempting to re-litigate questions of constitutional law. This casts doubt on the efficiency argument. As regards legitimacy, it is not at all clear to me that the public holds the judiciary in higher regard because it strives to uphold precedents, even when they may be incorrect. It seems to me at least plausible that the public would better trust a court that always strives to be correct regarding the Constitution, given its centrality to individual rights and our political organization.
I want to emphasize that reasonable people may disagree with my responses to these counterarguments. And maybe they are right and I am wrong – hence why I do not propose eliminating stare decisis for common law precedents. But the Constitution is different, and should be treated differently. I hope my counterarguments at least illustrate that ending constitutional stare decisis would not beget legal Armageddon, but on the contrary would have many salutary effects.
Unfortunately, the Kirkpatrick concurrence never considered or responded to the argument that stare decisis should not apply to constitutional precedents. This is particularly lamentable, because the concurring justices were very likely aware of the argument – Rowe J and Katz briefly mentioned it (without rebuttal) in their article (at 13). A similar argument has also long been advanced by Justice Clarence Thomas of SCOTUS in judgments such as Gamble v United States, 587 US _ (2019) [1]. Perhaps the concurrence did not consider the special status of constitutional precedents because none of the parties or intervenors in Kirkpatrick raised the issue in their submissions. Hopefully, the next time the SCC faces a question of stare decisis, it will at least receive and consider submissions arguing against the binding value of constitutional precedents.
Conclusion
I readily acknowledge that my argument is heterodox, and unlikely to be adopted by Canadian courts anytime soon. Stare decisis is ground into common law Canadian legal professionals from the first day of law school onward. And of course, the example of Roe’s right to an abortion being overturned in the United States will not make my argument any more palatable to the general Canadian audience.
Nevertheless, I hope my argument makes you to think more deeply about the application of stare decisis to the Canadian Constitution. As far as I know, no Canadian court or academic has tried to justify why this judge-made doctrine should trump the correct interpretation of our written Constitution. I hope that one day, courts realize the error of the doctrine, and cease to apply stare decisis to constitutional questions. For now, I would be pleased for defenders of stare decisis to at least mount a defence of the doctrine within the constitutional context. Our (correctly interpreted) rights and freedoms depend on it.
[1] Although my argument is somewhat more radical––since I believe all incorrect constitutional precedents should be overturned–– Justice Thomas would only overturn “demonstrably erroneous” precedents. I struggle to see a difference between erroneous and demonstrably erroneous precedents.