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Stare decisis and equal protection of law: Respect for precedent | Lawrence David

Monday, August 10, 2020 @ 8:19 AM | By Lawrence David

Lawrence David %>
Lawrence David
Abiding by precedents that protect fundamental rights and freedoms is key to upholding the rule of law’s promise of equal protection of the law. Where judicial precedent crystallizes dimensions of liberty, equality and human dignity, or where the evidence otherwise shows that discarding the precedent would undermine existing legal protections, Canadian courts should not overrule or depart from it in the absence of truly overwhelming compelling reasons.

My previous column in The Lawyer’s Daily argued that Canadian courts should not hesitate to overturn precedents that perpetuate systemic discrimination or that are otherwise premised on unacceptable discriminatory attitudes (see “Stare decisis and equal protection of the law”).

The present column nuances the argument by affirming the importance of abiding by precedents that affirm key constitutional protections, or that otherwise protect the equality, dignity and liberty to which all are entitled.

Upon close inspection, these two columns are complementary and mutually sustaining. Taken together, the columns highlight how, depending on the circumstances, either affirming or departing from precedent may promote equal protection of the law. The path to take in a given case is that which best advances this fundamental legal guarantee.

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

The notion that adhering to previously decided case law may promote equal protection of the law was recently highlighted in the Supreme Court of the United States’ decision in June Medical Services LLC v. Russo 207 L. Ed. 2d 566.

In a 5-4 decision, the court invalidated legal restrictions that placed an undue burden on access to abortion services. In striking down the restrictions, the Supreme Court of the United States expressly relied upon — and thereby affirmed — the precedents in Roe v. Wade 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992). These precedents hold that the right to access abortion services is constitutionally protected and cannot be limited by measures amounting to an undue burden.

In Canada, the case of R. v. Morgentaler [1988] 1 S.C.J. No. 1 also recognizes a constitutional right to seek abortion services under s. 7 of the Charter. Any limitation must be consistent with the principles of fundamental justice and be demonstrably justified under s. 1 thereof.

Abiding by Morgentaler in any subsequent case involving limitations on abortion services will, therefore, be key to ensuring equal protection of the law in Canada. The opposite is also true: overruling Morgentaler to hold that s. 7 does not protect a right to seek an abortion would undermine equal protection by disrupting long-standing constitutional entitlements relied upon by many groups and individuals. It would also likely be condemned, if not rejected, by broad swaths of the Canadian population.

The Supreme Court of Canada generally subscribes to the two-pronged approach to stare decisis outlined in my column. My previous column highlighted several examples of the court departing from precedent in order to advance equal protection.

This column tackles the second prong of the court’s approach: the general presumption against departing from precedent where the result would be to shrink the scope of previously recognized legal or Charter protections. In other words, the court will show considerable pause before overruling cases that protect legal — including Charter — rights and freedoms (see for example R. v. Henry [2005] S.C.J. No. 76).

This resonates with a key legal postulate: the arc of the moral universe is long, but it bends towards justice
(Saskatchewan Federation of Labour v. Saskatchewan [2015] S.C.J. No. 4 at para.1). A conception of stare decisis allowing for frequent revision of previously recognized legal protections could not, in good faith, deliver on that promise or otherwise long serve the cause of equal protection of the law.

A key example concerns the Canadian jurisprudential saga involving medical assistance in dying. In 1993, a divided court in Rodriguez v. British Columbia (Attorney General) [1993] S.C.J. No. 94 refused to find that access to such assistance is protected under s. 7 of the Charter. Rodriguez, therefore, can be said to have denied constitutional protection to the claimant and persons similarly situated.

Fast-forward to 2015. Under a vastly evolved legal framework under s. 7, and in light of considerably different evidence, the court in Carter v. Canada (Attorney General) [2015] S.C.J. No. 5 reversed Rodriguez to find that s. 7 does indeed protect access to medical assistance in dying.

Carter was then upheld in Carter v. Canada (Attorney General) [2016] S.C.J. No. 4 and in a miscellaneous motion to the court expressly asking for Carter I to be vacated and overruled (see Roger Foley v. Lee Carter (No. 35591)).

From a stare decisis perspective, then, abiding by the precedents in Carter v. Canada (Attorney General), upholds and protects equal protection of the law in Canada. Overruling them would have the precise opposite effect and, for this reason, should not be countenanced in any future litigation.

However, because stare decisis is not “an inexorable command” (see Ramos v. Louisiana 590 U.S.__ (2020)), there may still be room for nuancing the constitutional protections set out in Carter. Circumstances that were not before the court in Carter may call for restricting or expanding the class of potential rights-bearers or allow for permissible justifications consistent with the principles of fundamental justice and with s. 1 of the Charter.

Under any of these scenarios, however, the right to seek medical assistance in dying as set out in Carter crystallizes a form of equal protection of the law and should not, therefore, be overruled.

Overall, adhering to precedents that protect key constitutional protections or otherwise serve as ramparts against discrimination is key to advancing the rule of law’s promise of equal protection and benefit of the law. Adhering to such precedents further strengthens the stability, consistency and predictability upon which the rule of law ultimately depends.

Author’s note: The views contained in this column are expressed in a purely private and independent capacity and do not necessarily represent the views of any of Lawrence David’s employers.

 Lawrence David can be contacted at

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