Stare Decisis and Superior Court Declarations of Invalidity
Section 52(1) of the Constitution Act,
1982 provides that “any law that is inconsistent with the provisions of the
Constitution is, to the extent of the inconsistency, of no force or effect”
When
the Supreme Court of Canada declares a law invalid under s. 52(1), the law is
invalid for all future cases; cannot be enforced; is “null and void, and is
effectively removed from the statute books.
Nova Scotia (Workers' Compensation Board) at para. 31; Canada
(Attorney-General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429, at para.
82.
However,
that is not the case when a superior court makes a declaration of invalidity:
the declaration does not determine the validity or enforcement of the statute
“for all future cases”.
R. v.
Sullivan, 2020 ONCA 333, at para. 35.
Justice
Paciocco, writing for himself and Justice Watt in R. v. Sullivan at para. 38, sets out how the principles of stare decisis
operate after a superior court judge has made a s. 52(1) declaration of
invalidity.
The application of the principles of stare
decisis to s. 52(1) declarations made by superior court judges does
not mean that a superior court declaration will have no effect in other cases.
Other superior court judges should respect an earlier declaration of
unconstitutionality, absent cogent reason to conclude that the earlier
declaration is plainly the result of a wrong decision: R. v. Scarlett,
2013 ONSC 562, at para. 43; Re Hansard Spruce Mils Ltd., [1954] 4
D.L.R. 590 (B.C.S.C.), at p. 592. It is obvious that a superior court judge
cannot determine that there is cogent reason to conclude that the earlier
decision is plainly wrong without the benefit of argument, facilitated by fair
notice to the parties. Therefore, where a party seeks to rely on a statutory
provision that has been declared to be unconstitutional by a superior court
judge, a subsequent trial judge should apply that earlier declaration of
invalidity and treat the statutory provision as having no force or effect,
unless the underlying constitutional issue has been raised by the Crown before
them through submissions that the earlier decision is plainly wrong. In this
way, the principles of stare decisis can operate, while
recognizing that the effect of a s. 52(1) declaration is not confined to the
litigation in which the declaration is made.
In short,
absent cogent reasons to believe the earlier declaration of invalidity is plainly
wrong, a superior court within the same province should treat the declaration
as binding.
Note: Justice Lauwers, concurring in the result, splits from the rest of the Court on this issue. We may see an appeal to the Supreme Court of Canada.
Written by Stuart O’Connell
(Barrister/Solicitor).
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