I’m currently on a two-week visit at the University of Alberta Faculty of Law, and while here, my eye was caught by a recent Alberta Court of Appeal decision on an application for leave to appeal and for reconsideration of a decision.
In R. v. Caswell, 2015 ABCA 97 (link below), the majority of the Court of Appeal panel that considered the application takes on the Supreme Court of Canada’s recent moves away from adherence to precedent and its encouragement of anticipatory overruling by the lower courts, trying to bring some coherence to their application.
In dissent, Justice Veldhuis was inclined to revisit a prior right to counsel case on the basis of the Supreme Court’s rule in Bedford and Carter that the courts can revisit an issue “based on developments in the law and a change in circumstances that fundamentally shifts the parameters of the debate” (para. 15). The applicant had framed this into an argument that the courts should engage in “appropriate modernization of legal principles where circumstances require it”.
However, in a judgment carrying Justice Wakeling to make up a majority, Justice Brown skilfully dissects the Supreme Court’s recent moves away from stare decisis and tries to offer a route forward. Justice Brown highlights that Bedford has fundamentally changed the rules to allow anticipatory overruling beyond the old per incuriam situation required for lower courts to engage in the practice. He is concerned, though, that Bedford not be seen as “a declaration of open season on stare decisis” or the courts will be put in the impossible position of constantly reconsidering extensive bodies of precedent on the purported basis that “it’s different now”.
Justice Brown develops the argument that making sense of the Bedford rule on precedent requires a strict application of the threshold of genuinely fundamental change in the parameters of debate before the courts can start taking shots at precedents. In this analysis, for instance, something needs to have changed in the law or legislative facts that genuinely invalidates a starting premise of the rationale for the prior rule.
There is enormous wisdom in Justice Brown’s approach. The Supreme Court of Canada’s seeming invitation to the lower courts to engage in anticipatory overruling had opened an enormous Pandora’s box, and Justice Brown has started to find a way to control the potentially ensuing problems that the Supreme Court's slimly articulated approach would otherwise cause. This decision will not end the stream of applications the lower courts are going to be forced to deal with in light of recent Supreme Court activism, but Justice Brown's analysis provides a means of overcoming the problems.
For more, see R. v. Caswell, http://www.canlii.org/en/ab/abca/doc/2015/2015abca97/2015abca97.html
Recent Comments