There is an uneasy tension at the heart of Canada’s legal system between the inherent conservatism of our legal principles and the inherent liberalism of the actors tasked with applying them. Traditionally, Supreme Court of Canada decisions were final and binding on lower courts. Today, by the courts’ own doing, this bedrock principle is being eroded.
Last week, Ontario’s highest court heard a challenge to the Ontario law society’s decision to deny accreditation of Trinity Western University’s law school. The law society’s decision relates to the university’s controversial Community Covenant, which prohibits sexual intimacy except between married heterosexual couples. This case, and the similar ones winding through the B.C. and Nova Scotia courts, are almost certain to end up at the Supreme Court.
If the TWU case sounds familiar, that’s because it is. In 2001, in a case now colloquially referred to as TWU-1, the Supreme Court ruled on the very issues now at play in TWU-2: namely, whether degree-granting institutions (in 2001, a teachers’ college; today, law societies) can consider TWU’s Covenant when deciding whether to recognize a professional program, and if so, whether these institutions properly balanced TWU’s religious rights against others’ equality rights.
It would be difficult to find two cases more similar in fact and law than TWU-1 and TWU-2. And yet, TWU-2 is headed to the Supreme Court. One might rightly wonder why this is the case; why the ruling in TWU-1 hasn’t determined how TWU-2 is decided. Traditionally, that is how things would go, with lower courts being obliged to apply the logic of higher courts’ prior rulings to their present, factually similar cases. This principle — known as stare decisis — is foundational to our legal system. It ensures that the law is applied consistently in like circumstances; it allows litigants to predict with some certainty whether they will succeed in court; and it assures successful litigants that their win is final.
One exception to stare decisis, it said, is if there has been a fundamental change in circumstances or evidence since when an earlier case was decided. As other cases have clarified, this exists where the “social, political or economic assumptions underlying the previous decision are no longer valid.” This exception is wide enough to drive a truck through. Indeed, it would be the odd case where social, political or economic assumptions hadn’t changed between one case and another. The other exception, the court explained, is when a case raises a new legal issue. The court provided little guidance on when this threshold is met.
It is the breadth of these exceptions, more than their existence, which is troubling. The law should allow for necessary corrections. We would not want legal certainty to trump correctness at all costs. But the circumstances in which lower courts can depart from precedent should be defined in the narrowest and clearest of terms. As it stands, trial judges will have little difficulty departing from precedent whenever they are inclined to do so. If people do not like the outcome of some Supreme Court ruling, they need only wait awhile, arm themselves with new social, economic or political data, and re-litigate the matter again. This will surely undermine the goals of consistency, predictability and finality that stare decisis has for generations existed to protect.
One also wonders whether these wide exceptions are a solution to a problem of the court’s own making. A court that was deciding cases from first principles would, one would think, not need to revisit its cases whenever social, political or economic data changed. Principles stand the test of time. Policy-driven, outcome-oriented decisions, on the other hand, do not. They must be revisited as social mores shift.
While it would simplistic to characterize the court’s decisions as being of one character or the other, it is certainly telling that the court has taken to reversing some of its controversial decisions with about the frequency that we change governments. Parliament is designed to push through comprehensive legal and policy reforms as the times change. The courts are not — or at least not without blowing up time-tested principles of law.
This article was originally published in and is being republished courtesy of the National Post
The premise of this article is that the holding of TWU1 governs (or ought to have governed) the result of TWU2. The court of appeal in TWU2 gave reasons for its view that this case is materially different from and not governed by TWU1. This article does not address or engage with those reasons at all, and indeed even creates the impression that the court offered no such reasons. I don’t think the conclusions offered in this article can stand until the author attempts to refute those reasons.