Departing from Higher Authority: Vertical Application of Precedent after Bedford
The ratio of a case answers the question: “what was decided?” It conveys the judicial reasoning that determines a legal issue. This reasoning synthesizes legal rules, evidence and social values. The ratio of an appellate court decision binds courts of first instance, requiring the lower court to apply the ratio to any analogous case over which they preside.
“As a general rule our function is to maintain the predictability and certainty of the law, that’s the whole idea of stare decisis and adhering to precedent” commented the Honourable Justice Marshall Rothstein when questioned about the relationship of the Supreme Court of Canada to precedent during a lecture hosted by IP Osgoode (1:19.30) last fall.
Comparably, the Chief Justice began her analysis in Canada (Attorney General) v Bedford,  3 SCR 1101 [Bedford] with: “certainty in the law requires that courts follow and apply authoritative precedents. Indeed, this is the foundational principle upon which the common law relies.”
A few paragraphs later, the Chief Justice reviewed the guidelines for when a lower court is permitted to depart from precedent set by a higher court. Either (1) A new legal issue must be raised; or (2) circumstances or evidence must change in a way that fundamentally shifts the parameters of the debate.
So what does Bedford mean for trial judges?
Violations of Life, liberty and Security of Person are Separate Legal Issues
The trial judge’s entitlement to rule on new legal issues was not seriously disputed. The live question was whether the s. 7 “security of person” raised in Bedford and a s.7 liberty challenge that had previously failed in the Reference re ss. 193 and 195.1(1)(C) of the criminal code (Man),  1 SCR 1123 [Prostitution Reference] raised different legal issues.
The Chief Justice confirmed that the security of person challenge was a new legal issue because liberty and security of person are separate rights. Ultimately, several laws prohibiting conduct related to prostitution were found to be unconstitutional violations of the right to security of person (for more see Ryan’s post here).
Thus, the trial judge was correct to depart from past precedent, at least in the context of s. 7. In contrast, the trial judge was fully bound to apply the Prostitution Reference to the issue of whether the prohibition of communicating for the purpose of prostitution was a justified limit of free expression. The re-characterization of the argument as a safety issue, rather than a purely economic question, was insufficient to raise a new legal issue.
Notably, the Supreme Court of Canada was not required to decide whether it should revisit its own decision in the Prostitution Reference, which would have entailed a separate balancing of correctness and certainty.
Fundamental Shift in the Parameters of the Debate: Strict Standard but Some Room for Interpretation
Departing from precedent when a new legal issue is raised is a familiar practice. The more controversial question was whether a change in evidence or circumstances could warrant departure from past precedent. The Ontario Court of Appeal recently found that evolution in evidence, legislative facts, values, attitudes or perspectives is insufficient to trigger a reconsideration of precedent by a lower court (Bedford v Canada (Attorney General), 2012 ONCA 186, para 83). The Supreme Court of Canada took a slightly different approach in Bedford, holding that a change in evidence or circumstances which fundamentally shift the parameters of the debate justifies departure from past precedent.
The word “fundamental” betrays the strictness of this standard. According to the Chief Justice, the changes in evidentiary record and social attitudes in Bedford were insufficient to justify the trial judge reconsidering whether the communication prohibition was a justified limit of free expression. In laying out a strict standard, the Supreme Court of Canada strikes a balance between the need for finality and stability with the recognition that “appropriate” cases arise for revisiting precedent. Still, the standard is somewhat novel, leaving potential room for future interpretation.
Evidence and circumstances will vary to some degree in almost every trial. Given the number of trials which take place, a stringent standard is needed to discourage excessive efforts to overturn established precedent. However, as a society develops, widely held beliefs may change and new information may become available, rending precedent obsolete.
One way to think about the standard is from the perspective of justification. The justification for a previous decision may be displaced by changes in beliefs and information. For instance, if an assumption or rationale underlying a decision is subsequently refuted by widely accepted empirical evidence.
If the core justification determining an established precedent becomes disconnected from generally accepted evidence and/or normative beliefs, it is preferable for the trial judge to decide the contested issue on its merits in the present circumstances and either depart from precedent or establish a legitimate justification for the decision. This type of case requires re-articulation of the debate and the evidence, a task for which trial courts are well suited. In contrast, where the core justification of a precedent is contentious or controversial, the Supreme Court of Canada constrains departure from precedent to higher levels of court. The balancing of interests in such cases may be more likely to benefit from the expertise of a jurisprudential court.
Deference and the Judicial Division of Labour
The Supreme Court of Canada sketched a limited jurisprudential role for a trial judge presented with potentially authoritative precedents. In rare cases where the strict fundamental shift in circumstances or evidence standard is met, trial judges may depart from precedent and decide the issue on its merits. Otherwise, the role of the trial judge is limited to gathering evidence and making findings of credibility and fact. This establishes an evidentiary record, should an appellate court eventually decide to reconsider their own decision.
The Chief Justice emphasized the basic division of labour underpinning the Canadian court system. Trial courts evaluate and weigh evidence, appellate courts review decisions for correctness, and in the case of the Supreme Court of Canada, decide jurisprudential debates. Thus, the trial judge’s findings of fact, including facts about society at large (legislative and social facts), are entitled to deference. The Supreme Court of Canada disagreed with the Ontario Court of Appeal, deciding that it would be unnecessarily onerous and confusing to apply different standards of deference to adjudicative facts and general facts about society.
Still, this division of labour creates complications. As Smith J commented in the Carter v Canada (Attorney General) trial (2012 BCSC 886): “facts are not normally found in a legal vacuum – they are found in a context, for a reason and with a purpose.” Thus, trial judges will still have to be mindful of how the facts they determine potentially apply to the legal analysis that they themselves are likely barred from performing.
What did Bedford Decide?
One issue that is not entirely clear to me is the scope of fundamental shift test. In para 44, the Chief Justice agrees with the Asper Center that as a matter of constitutional supremacy, a violation of a constitutional right cannot be trumped by the common law doctrine of precedent. This justification applies in the context of a Charter challenge, but can it be extended to, for instance, the domain of tort law?
Stable and predictable application of law promotes rule of law. To follow the law, people need to be reasonably aware of the law. That said, rule of law operates in symbiosis with other values like constitutionalism, fairness and human dignity (Reference re Secession of Quebec,  2 SCR 217, para 49). Adherence to precedent may be the foundation of the common law, but it is the law’s ability to adapt to changes in the substantive experience of Canadians which has sustained its relevance. On this basis, I would argue that the fundamental shift test should extend beyond the Constitutional context.
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