What happens when valid constitutional precedent, including precedent from our country’s highest court, is called into question in both fact and law? Such has been an increasingly familiar phenomenon in Canadian Charter jurisprudence. This is not necessarily surprising considering that the Charter is now over 30 years old and previous Charter issues once thought to be settled are starting to be relitigated in light of new social and legislative facts. It is amongst this backdrop that this paper considers, and makes attempts to disentangle, some of the thorny doctrinal issues associated with stare decisis and precedent in such situations. The paper uses and considers two cases, Bedford v Attorney (General Canada) and Carter v Canada (Attorney General), as examples of courts having to grapple with stare decisis and precedent based issues in face of binding Supreme Court of Canada precedent. Since this paper was published, new cases have emerged where trial and intermediate appellate courts have had to face similar, if not identical, issues with the doctrine of stare decisis in the Charter context [see e.g. The Saskatchewan Federation of Labour et al v The Queen, 2013 SKCA 43 leave to appeal granted 2013 CanLII 654102 (SCC)]. Ultimately, this paper goes on to provide a principled framework for navigating stare decisis and precedent based issues in trial and intermediate level appellate level Charter analysis.
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Adrian JW Toth, "Clarifying the Role of Precedent and the Doctrine of Stare Decisis in Trial and Intermediate Appellate Level Charter Analysis" (2013) 22 Dal J Leg Stud 34.