Stare Decisis and Constitutional Supremacy: Will Our Charter Past Become an Obstacle to Our Charter Future?

Abstract

With three decades of jurisprudence to Canada's account, the authors consider the common law doctrine of stare decisis in Charter litigation. They ask whether, notwithstanding prior higher court authority on the issue, a trial court that is satisfied that there has been a significant and material change in social and legislative facts should conduct Charter analysis anew on the record before it, in light of the role played by such facts in section 1 analysis in particular. They conclude that the constitutional imperative imposed by section 52 of the Constitution Act, 1982 obliges a trial court satisfied of such a change to distinguish a prior Charter decision and subject the law to a section 1 analysis unencumbered by precedent to determine whether the law in question remains constitutional. The authors offer the view that doctrinal, institutional and remedial considerations all support an approach whereby the trial court would conduct a full section 1 analysis, leaving the appellate courts to fulfil their traditional function of reviewing both the trial court's finding that there has been a significant and material change in legislative and social facts, and its section 1 analysis.