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 ...