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Stare decisis and equal protection of the law | Lawrence David

Thursday, June 25, 2020 @ 2:15 PM | By Lawrence David


Lawrence David %>
Lawrence David
Overturning precedents that perpetuate systemic discrimination is key to advancing the rule of law’s promise of equal protection under the law. Where judicial precedent is premised upon unacceptable discriminatory attitudes, or where the evidence establishes that a precedent’s real world application has had a disproportionate impact on racialized persons and other vulnerable communities, Canadian courts should not hesitate to overturn or modify it.

Stare decisis refers to the practice of applying judicial precedents in subsequent cases raising the same or similar legal issues. This is inextricably linked to the rule of law. Stare decisis ensures predictability, consistency and non-arbitrariness in judicial decision making and vouchsafes the principle that there is one law for all.

I discuss this in my upcoming book, Stare Decisis, The Charter and the Rule of Law in the Supreme Court of Canada.

The rule of law also purports to guarantee equality before and under the law and the equal protection and benefit of the law. This is crystallized in s. 15(1) of the Charter. Section 28, moreover, expressly provides that the Charter’s protections are to be interpreted and applied “in a manner consistent with the preservation and enhancement” of Canadian multiculturalism.

Equal protection of the law is of particular importance at this historical juncture. Police and state power have systemically and systematically been used to deprive or deny equal protection of the law to racialized Canadians. The death of racialized and Indigenous persons at the hands of police are spectacular failures of the rule of law in Canada. 

The Canadian judiciary has a special responsibility to ensure and advance the equal protection and benefit of the law. This flows from their duty as guardians of the rule of law, and as “trustees” of Canadians’ Charter rights and freedoms (Vriend v. Alberta [1998] S.C.J. No. 29, at paras. 134-135).

Equal protection and benefit of the law are advanced when courts render judgments that affirm the equality rights of a claimant under s. 15(1). Consistent adherence to these precedents by all actors to whom they apply, in turn, strengthens a conception of the rule of law anchored in substantive equality.

As concerns stare decisis, the Supreme Court of Canada has, moreover, insisted on a presumption against revisiting or departing from precedent where the result would be to decrease the scope of existing Charter protections (R. v. Henry [2005] S.C.J. No. 44). Precedents consonant with the Charter value of equality but that do not invoke s. 15(1) also advance equal protection under the law in Canada.

But the opposite is also true. Rigid adherence to precedent can itself undermine equal protection and benefit of the law and undermine the rule of law. Two types of precedents risk confronting this constitutional deficiency.

The first are precedents whose rationale or reasoning is premised upon unacceptable discriminatory attitudes. Such precedents are, unfortunately, less rare than desirable, owing to the fact that many rules and precedents decided at common law were devised in monocultural societies that did not anticipate Canada’s wonderful multicultural mosaic.

Further, misogynistic attitudes owing to white male domination of judicial office resulted in numerous precedents denying women equal protection of the law. Thus, in R. v. Ewanchuk [1999] S.C.J. No. 10, the Supreme Court of Canada repudiated the notion of implied consent to sexual activity in Canada, premised as it is on discriminatory attitudes against women.

Precedents may be tainted with discriminatory attitudes whether or not the relevant court intended or acknowledged as much. A cornerstone of substantive equality in Canada is that discrimination can arise solely based on impact and independently of the state actor’s intent (see e.g., Kahkewistahaw First Nation v. Taypotat [2015] S.C.J. No. 30).

This is unlike the United States, where equal protection only guards against intentional discrimination (see e.g., Washington v. Davis 426 U.S. 229 (1976)).

This links to the second type of precedents that frustrate equal protection of the law: namely, precedents crystallizing doctrines that have a disparate or disproportionate negative impact on racialized persons or other marginalized groups.

The judicial task involves giving life to constitutional text. This may require the crafting of judge-made doctrines thought to satisfactorily implement given constitutional protections. But judges are not fortune tellers. Even with the best of intentions, courts may not be able to anticipate the actual real world impact of their judgments and decision rules.

Thus, where the evidence before the court establishes that a precedent’s real world application has had a disproportionate harmful impact on racialized persons or other vulnerable communities, Canadian courts should not hesitate to overturn or modify it.

The Supreme Court of Canada has done so many times. Recently, the court drastically limited police powers to entrap innocent individuals in criminal conduct. In R. v. Mack [1998] S.C.J. No. 91, the bona fide inquiry prong authorized police to engage individuals with opportunity to commit crimes without individualized reasonable suspicion. This police tactic was particularly used in low-income neighbourhoods.

The court recently changed that in R. v. Ahmad [2020] S.C.J. No. 11, noting that anything short of individualized suspicion would be, and had been, disproportionately used to deny equal protection of the law to racialized Canadians.

Case law under s. 15(1) has also expanded equal benefit and protection of the law for women in Canada. The court’s decisions in R v. Kapp [2008] S.C.J. No. 42 and Withler v. Canada (Attorney General) [2011] S.C.J. No. 12 discarded the formalistic comparator approach to the equality analysis devised in Law v. Canada (Minister of Employment and Immigration) [1999] S.C.J. No. 12.

This had the effect of restoring substantive equality’s primacy in the s. 15(1) analysis. Quebec (Attorney General) v. A [2013] S.C.J. No. 5 then overturned Nova Scotia (Attorney General) v. Walsh [2002] S.C.J. No. 84 to hold that the exclusion of common law spouses from benefits reserved for married couples is discriminatory.

Finally, the Supreme Court’s decision on June 12 in Conseil francophone de la Colombie-Britannique v. British Columbia [2020] S.C.J. No. 13 revisited Mahe v. Alberta [1990] S.C.J. No. 19 and strengthened the rights of Canadian linguistic minorities protected under s. 23.

Overall, departing from precedent that perpetuates systemic discrimination is key to advancing the rule of law’s promise of equal protection and benefit of the law. Far from undermining the rule of law, it is actually a clear affirmation thereof.

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 lawrencedavidlegal@gmail.com.

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