THE LAST WORD | CASE COMMENTS

It has happened more than once, that a counsel, who is the last on his/ her feet will quip with the Court that, "well I guess I have the last word", to which the reply from the Chief Justice is: "no we do".

It has often been pointed out, correctly, that the Supreme Court is not always right: just last. The reasons for this are many and too complex and unfortunate to detail here on a terse page of a website. Suffice it to boil it down to the essence that, try as we may, "the law is a human institution".

The unfortunate consequence(s) of this dynamic is that lower Courts of Appeal, to varying degrees, and varying with the times, depending on the perceived intellectual strength of the composition of the Supreme Court, will often ignore rulings of the SCC, outright, or under the guise of "distinguishing" SCC rulings as part and parcel of the development of the common law.

There is the doctrine of stare decisis which states that lower Courts are to be bound by rulings of higher appellate Courts. Anyone who is a seasoned trial / appellate barrister and not a cynic, but even an optimist with too much of experience, will tell you that this is akin to incantation, belief, and hope.

In law, only the SCC is entitled to over-rule itself. But this happens too often indirectly. Recently, the SCC had to directly admonish the Federal Court of Appeal for directly, purporting to over-turn it. - Canada v Craig, 2012 SCC 43, [2012] 2 S.C.R. 489.

Given this pre-existing condition and reality, the SCC has perhaps given itself, and in turn the Rule of Law and society at large, more that it can bargain for when it loosened the grips of stare decisis, when it "reversed itself" on the issue of assisted suicide, in Carter, by stating:

44 The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system. It provides certainty while permitting the orderly development of the law in incremental steps. However, stare decisis is not a straitjacket that condemns the law to stasis. 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" (Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 42).

While the first criteria is rational and cogent, the second criteria, particularly in the face of Canada's history to the present, lends itself and invites "palm-tree justice". Clearly this will be an invitation that will be taken up, albeit selectively, by lower (appellate) Courts simply because they disagree with SCC jurisprudence, rather than a principled application of the notion of stare decisis.

So we see and know that the SCC, despite its constitutional entrenchment, in the Nadon Reference, does not really have the last word in the ever-evolving process of stare decisis, the common law, constitutional law, and its application by lower Courts.

On an even broader and higher, (or lower, depending on your prospective), plane, public opinion, and the public at large, also weigh in.


Stay tuned for our Case Comments…

PUBLISHED: SEPT 1, 2020

“Stay tuned for our case comments – Coming Soon!”—Rocco Galati

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