Administrative segregation and vertical stare decisis | Lawrence David
Thursday, June 04, 2020 @ 11:13 AM | By Lawrence David
In December 2019, for example, the Supreme Court of Canada released its highly anticipated decisions in Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65, NFL and Bell Canada v. Canada (Attorney General) 2019 SCC 66. Buttressed by the submissions of 27 interveners, the court overhauled the standards applying to the judicial review of administrative action.
This followed a period in which the Supreme Court of Canada departed from precedent in order to recognize a constitutional right to strike (Saskatchewan Federation of Labour v. Saskatchewan 2015 SCC 4), set out a new framework for assessing the reasonableness of trial delays (R. v. Jordan 2016 SCC 27), struck down absolute prohibitions on the constitutional right to die with dignity (Carter v. Canada (Attorney General) 2015 SCC 5 and adopted new appellate standards of review on questions of contractual interpretation (Sattva Capital Corp. v. Creston Moly Corp. 2014 SCC 53).
I discuss this in further detail in my upcoming book to be published via LexisNexis, Stare Decisis, The Charter and the Rule of Law in the Supreme Court of Canada.
Bedford v. Canada (Attorney General) 2013 SCC 72 also marks a watershed in setting out the framework applying for vertical stare decisis — that is, the rule that all courts in the Canadian judicial hierarchy are bound by the judgments of courts of higher instances. All courts in Canada are, therefore, presumptively bound by the decisions of the Supreme Court.
But this rule is not ironclad. In Bedford, the court identified two exceptional circumstances under which a lower court — including a court of first instance — may come to revisit and possibly depart from Supreme Court of Canada precedent. The first exception arises where new legal issues amounting to significant developments in the law have arisen in the interim period between the Supreme Court decision and the trial judge’s revisitation of that precedent.
The second exception is factual. A trial court may revisit and possibly depart from binding Supreme Court of Canada precedent when the facts established on the evidence differ significantly from the factual basis under which that precedent was decided. Not all changes in the facts or evidence will suffice. The evolution in the evidence and surrounding legislative and social context must fundamentally shift the parameters of the legal debate at issue in the Supreme Court precedent.
Carter is an excellent example. The Supreme Court unanimously accepted the trial court’s conclusions that the two Bedford conditions had been met in order to revisit and depart from its 1993 decision in Rodriguez v. British Columbia  3 S.C.R. 519.
Advocates of judicial restraint have been particularly critical of the Supreme Court’s authorization of lower courts departing from its own precedents. Professor Dwight Newman, for example, criticizes the Bedford approach to stare decisis as “a breakdown of judicial method” and for ceding too much power to trial courts’ factual conclusions in determining the continuing validity of Supreme Court precedent.
The opposite may actually be true. The first Bedford exception imposes a rigorous legal threshold as a condition precedent to any revisitation of Supreme Court of Canada precedent by a trial or appellate court. Any departure from precedent is then subject to at least one level of appellate review.
The second Bedford exception adds clarity and stability to the role of facts in the practice of vertical stare decisis. As has long been recognized, stare decisis is a doctrine about the application of law — not about the finding of facts. The legal holding of a higher court has never prevented trial courts from engaging in fresh factual findings and applying them to the relevant legal frameworks (Edmonton (City) v. Edmonton East (Capilano)  2 S.C.R. 293). Bedford merely identifies the point at which inevitable evolution in social and evidentiary facts may play a role in vertical stare decisis.
This understanding of vertical stare decisis at the trial and intermediate appellate levels has figured prominently in recent class action litigation, challenging the constitutionality of administrative segregation at the federal and provincial levels in Ontario and British Columbia.
In all three proceedings, trial and appellate courts have been unanimous that the administrative segregation regime violates inmates’ rights under ss. 7 and 12 of the Charter. Separate applications for declaratory relief brought by the Canadian Civil Liberties Association and the British Columbia Civil Liberties Association were also successful.
In both provinces, the appellate courts upheld or varied historic aggregate Charter damage awards and called for significant institutional reform in addition to invalidating the statutory regime. On April 21, the Attorney General of Canada filed notices of discontinuance of their appeals in the Supreme Court.
The above proceedings only dealt with challenges to the federal administrative segregation regime, as administered nationally by the Correctional Service of Canada. They did not address provincial administrative segregation legislation, as enforced in Ontario’s provincial correctional facilities and administered by the minister of community safety. This constitutional class action — also brought under ss. 7 and 12 of the Charter — was, rather, decided on April 20 in Francis v. Ontario 2020 ONSC 1644.
A key issue before Justice Paul M. Perell was the plaintiff’s argument that the legal and factual findings in the three discontinued appeals from Ontario were binding. In other words, Justice Perell ought to adopt those legal and factual findings and apply them, mutatis mutandis, to Ontario’s provincial administrative regime.
Conrey Francis claimed that Justice Perell was bound to these legal and factual findings as a matter of stare decisis. As a result, the class action ought also to be successful on summary judgment and similarly entitled to aggregate Charter damages under ss. 7, 12 and 24(1). Justice Perell largely agreed. A total of $30 million in Charter damages were awarded.
The stare decisis question was resolved on the basis of first principles: stare decisis only operates to binding lower courts on questions of law found in the judgments of higher courts. Justice Perell was not, therefore, strictly bound by the factual findings and evidentiary record in the previous proceedings. The proven essential facts in Francis were, however, largely the same as those in the three discontinued appeals. Stare decisis was, therefore, posited as the alternative, rather than primary, basis supporting the award in Francis.
The takeaway? The traditional conception of stare decisis sees judgments as binding only on questions of law. But this oversimplifies things. In Canada, factual and evidentiary findings may be binding on lower courts where the proven facts are virtually identical to those addressed in previous litigation. And, as per Bedford, the factual and evidentiary findings underlying Supreme Court of Canada judgments are also binding absent a significant shift in the underlying facts capable of shifting the parameters of the legal debate.
As Justice Perell’s decision in Francis demonstrates, this might actually be a good thing.
Lawrence David is part-time professor of law, criminal law and procedure, University of Ottawa, Faculty of Law — common law section. He can be contacted at firstname.lastname@example.org.
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