For the third time in little more than a year, the Supreme Court of Canada has granted Advocates for the Rule of Law leave to intervene to assist the Court in addressing a significant public law issue. This time, ARL will make submissions on when intermediate appellate courts may depart from their own binding precedents. This question of horizontal stare decisis arises in two military justice appeals, both from judgments of the Court Martial Appeal Court: Master Corporal C.J. Stillman, et al. v. Her Majesty the Queen, et al., and Her Majesty the Queen v. Corporal R.P. Beaudry.
Stillman and Beaudry, in brief
The appeals concern the constitutionality of s. 130(1)(a) of the National Defence Act, and specifically whether it violates s. 11(f) of the Charter. Section 130(1)(a) provides that, subject to limited exceptions, any act or omission “that … is punishable under … the Criminal Code or any other Act of Parliament” is an offence that may be tried in the military justice system. Section 11(f) guarantees the right to trial by jury for offenses punishable by five years’ imprisonment or a more severe punishment, “except in the case of an offence under military law tried before a military tribunal”.
The principal issue before the Court Martial Appeal Court in both cases was whether, in the absence of a “military nexus” requirement, s. 130(1)(a) captures offences that cannot be described as being “under military law”, and thus infringes s. 11(f).
Three decisions, two outcomes
In the span of just over two years, the Court Martial Appeal Court released three judgments on the issue described above. First, in Royes (2016), the Court held that the impugned provision did not infringe s. 11(f). Less than a year later, in Stillman (2017), the Court reached the same result unanimously, but only on the basis that they were bound by Royes. A majority of the three-judge panel in Stillman “would not have reached the same conclusion as the panel in Royes” (at para. 31), and offered lengthy obiter to explain why. A little over a year later, in Beaudry (2018), a majority of a mostly-different panel concluded thatit was not bound by either Royes or Stillman; it held that s. 130(1)(a) violated the Charter.
Stillman and Beaudry thus raise the question of when, if ever, an intermediate appellate court may decline to follow its own binding precedent. This question was dispositive in Stillman, and could have been in Beaudry. And, as the Stillman majority observed, Canada’s various intermediate appellate courts take different approaches on this issue; whether a court will depart from one of its own prior decisions depends on the jurisdiction.
The Supreme Court of Canada now has an opportunity to clarify this crucial area of the law. ARL’s intervention is aimed to assist it in doing so. The appeals are scheduled to be heard in Ottawa on March 26, 2019. ARL will be there to make brief oral submissions.
How sticky is horizontal stare decisis?
ARL will make two submissions. First, ARL will argue that horizontal stare decisis reflects underlying constitutional constraints on appellate judicial decision making, namely: (1) everyone is entitled to equality under the law, and so like cases must be treated alike; and (2) the law must be certain and ascertainable, so that those who are subject to it can order their affairs accordingly. To ensure that these aspects of “constitutionalism and the rule of law” (see Reference re Secession of Quebec, at para. 70) are respected, the common law doctrine of horizontal stare decisis must insist on adherence to binding precedent — at least in its horizontal form, in intermediate appellate courts, in all but exceptional cases.
Second, ARL will submit that, except where stare decisis does not apply, an intermediate appellate court may only depart from its own precedent in rare circumstances. Further, because our country’s courts of appeal operate under the same Constitution, the circumstances in which an intermediate appellate court may reverse a prior decision should be consistent across jurisdictions. This will require two significant doctrinal developments, for which ARL will advocate:
- ARL will ask the Court to draw a distinction between circumstances in which an intermediate appellate court may depart from binding precedent, and circumstances in which horizontal stare decisis simply does not apply — i.e., where there are conflicting decisions of the same court, where there is inconsistency with a decision of the Supreme Court of Canada, or where the prior decision was given per incuriam or in disregard of binding legal or statutory authority (see Stillman, at para. 89). ARL will argue, an intermediate appellate court must first determine whether a prior decision is binding on it. Only if it is will the court need to decide whether it can or should depart from precedent.
- ARL will submit that the Court should endorse a common set of factors to guide intermediate appellate courts’ determination of whether to depart from binding precedent. To date, each intermediate appellate court has made its own rules in this regard. The Court should even the field, such that precedent is equally binding (or not) everywhere in Canada. ARL will propose a principled framework to accomplish this.
We are hard at work on ARL’s written submissions, which we will file with the Court in early March. Watch this space — we will post a copy of our factum once it is filed.
Adam Goldenberg and Peter Grbac are litigators at McCarthy Tétrault LLP. They are representing ARL in these appeals.