When a trial judge rules that a law is unconstitutional, who is bound by that decision? In R v Sullivan, 2022 SCC 19, the SCC has made it crystal clear: these declarations are ordinary rulings of law, subject to ordinary rules of stare decisis.

As a bonus, the Court clarified the Spruce Mills test. The “plainly wrong” standard is, well, plainly wrong. We’re stuck with the specific grounds enumerated in the original test.

Background

Sullivan is a criminal case. Its underlying facts are both grisly and sad; a detailed recounting isn’t necessary. In brief, the case deals with two accused who, in unrelated incidents, committed violent assaults while under the influence of drugs. Their trials were held in front of the Ontario Superior Court of Justice. Both accused resorted to the “automatism” defence, arguing that they were so intoxicated their actions were involuntary, and thus they could not be convicted.

Section 33.1 of the Criminal Code blocks an accused from using the automatism defence where the offence involves assault. However, previous cases from the Ontario Superior Court of Justice have found s. 33.1 to be unconstitutional, and thus of no force or effect per s. 52 of the Charter. The two accused were convicted despite that precedent.

The main issue before the SCC was whether the Ontario Superior Court of Justice was bound by its own prior decisions on this point, and if so, to what extent they were bound. Should the court have treated s. 33.1 as if it had been effectively stricken from the books, or was it entitled to depart from its prior decisions? If it was entitled to depart from them, on what basis?

Discussion

For non-legal readers, a simplified explanation of stare decisis will be helpful:

• “vertical” stare decisis means that a court must follow the decisions of its own superior appellate courts (ex. the BC Supreme Court must follow decisions of the BC Court of Appeal); and
• “horizontal” stare decisis means that a court must usually follow its own decisions, but may depart from them in certain circumstances.[1]

Stare decisis does not require a court to follow:

• decisions of another jurisdiction’s appellate courts (so as a rule, the BC Supreme Court does not have to follow the Ontario Court of Appeal); nor
• decisions of another jurisdiction’s courts “on the same level” (the BC Supreme Court does not have to follow the Ontario Superior Court of Justice).

These rules are surprisingly fundamental. They support two of Canada’s constitutional pillars: federalism, by respecting the autonomy of the provinces; and the rule of law, by increasing the uniformity and predictability of our courts’ decisions.

However, there are times when departing from precedent is necessary. The test for departing from horizontal stare decisis—ie. making a decision inconsistent with the court’s own prior decisions—is laid out in Re Hansard Spruce Mills Ltd., [1954] 4 DLR 590. A court may depart from its own ruling where:

• the rationale of an earlier decision has been undermined by subsequent appellate decisions (ie., a decision of the superior appellate court “trumps” the old judgment);
• the earlier decision was reached per incuriam, which means “through carelessness or inadvertence” (for example, where the court “missed” an appellate decision that contradicted their legal reasoning); or
• the earlier decision was not fully considered, e.g. was made in exigent circumstances (for example, an oral decision made in urgent circumstances).

Some later cases have summarized the test as being whether the prior decision was “plainly wrong”. More on that later.

The rules of horizontal stare decisis, including the test in Spruce Mills, are well-known. However, their application to s. 52 declarations have been somewhat unclear. Counsel has occasionally invited courts to treat s. 52 declarations as somehow more binding than a regular decision. For example, acting as if such a declaration at the trial level renders the law essentially nonexistent for the purposes of later decisions by the same court, or even by acting as though a declaration in one province binds the courts of another province.

In Sullivan, the SCC made it crystal clear that ordinary stare decisis rules apply to a s. 52 declaration. A court can refuse to follow its own s. 52 declarations on the grounds listed in Spruce Mills.

Furthermore, these declarations are simple rulings of law. They have no greater force or effect than any other ruling of law a court might make. They cannot, for example, bind another province’s courts or “strike” a statute from the books.

In coming to this conclusion, the SCC clarified some loose or figurative language used in prior judgments that may have confused the issue. For example, they clarified that the impugned laws are not rendered “null and void…effectively removed from the statute books”, nor are they “struck down”. Per the SCC, these are figures of speech. Only the legislature can strike a law from the statutes. A s. 52 declaration merely renders the law inoperative to the extent of its inconsistency with the Charter.

Finally, we return to the test in Spruce Mills. Sullivan clarifies that the test should be applied as it is articulated in the original Spruce Mills judgment: horizontal stare decisis can be departed from only in one of the three circumstances listed above. The “plainly wrong” standard should not be used. The Court noted this reformulation of the test is too subjective, opening the door for rulings to be overturned based on a simple disagreement between judges.

Key Takeaways

Sullivan may not have changed the law, but it did provide clarity on two previously muddled points: the precise effect of a declaration of constitutional invalidity, and the precise test for departing from horizontal stare decisis.

In sum, s. 52 declarations:

• are subject to ordinary rules of stare decisis; and
• may thus be departed from on the grounds listed in Spruce Mills.

To act otherwise is to defy our constitution, federalism, and the proper role of the courts.

In applying Spruce Mills, courts should use the specific criteria enumerated in the case. Using summarized standards, like “plainly wrong” or “in extraordinary circumstances” is an error, and one that harms the rule of law.

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[1] Technically this rule applies to all “courts of coordinate jurisdiction”, ie. any court that has jurisdiction to hear the same dispute. In most cases, that just means the same court.

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For more information contact Myles Brown or Allison Sproule of our Litigation Group with questions and comments.