Too Much Water in the Garden? Vertical Stare Decisis in Bedford v Canada
Bedford v Canada, 2010 ONSC 4264, was a constitutional challenge to several Criminal Code provisions prohibiting operation of brothels, criminalizing persons who live on the avails of prostitution, and prohibiting public communication for the purpose of engaging in prostitution [s. 210, 212(1)(j) and 213(1)(c) of the Criminal Code, RSC 1985, c C-46]. Himel J. found that the impugned provisions, which prevent prostitutes from taking precautions that would decrease their risk of facing violence, deprived the applicants of security of person [2010 ONSC 4264 at para 362]. Possible imprisonment also impaired the applicants’ liberty [2010 ONSC 4264 at para 281]. Finally, the impugned provisions were found to be arbitrary and grossly disproportionate to their objectives, and the bawdy-house and living off the avails provisions were found to be overbroad [2010 ONSC 4264 at para 385-388, 436, and 402].
Based on the applicants’ constitutional right to be free from arbitrary, overbroad or grossly disproportionate deprivations of liberty or security of person and the finding that the deprivations could not be justified as a reasonable limit of a constitutionally guaranteed right, the provisions were ruled unconstitutional [2010 ONSC 4264 at para 440-441]. The judge also found that the communications prohibition to be a violation of free expression which failed to minimally impair the right in question and had disproportionately deleterious effects, rendering the communications provision unconstitutional [2010 ONSC 4264 at para 505].
Vertical stare decisis is a principle requiring judges to strictly adhere to precedent set by the decisions of higher courts. In the Prostitution Reference,  1 SCR 1123, the Supreme Court upheld the communications prohibition as a justified infringement of the right to free expression and also found that neither the communications provision nor the bawdy-house provisions were unconstitutional deprivations of liberty.
While Himel J. describes the Prostitution Reference as “prima facie binding” [2010 ONSC 4264 at para 66], she adds that in light of substantial amounts of new research, changing social, political and economic assumptions and reframing of the type of expression involved, it was open to reconsider the issue of whether the limitation was justified. Furthermore, the jurisprudence governing justified violations of the rights to life and security of person had evolved to the extent that the challenges in Bedford were distinguishable from the Prostitution Reference, leaving them open for consideration [2010 ONSC 4264 at para 75].
The Appeal and Intervention at the Supreme Court
In 2012, the Ontario Court of Appeal agreed that the provisions prohibiting brothels and living off the avails of prostitution were unconstitutional [2012 ONCA 186 at para 5-6]. However, overturning the trial judge, the constitutionality of the prohibition on communication was upheld [2012 ONCA 186 at para 7]. The Court of Appeal agreed that the liberty and security arguments in Bedford concerned legal issues that were not before the court in the Prostitution Reference. Thus, Himel J. was not bound by a ruling of a higher court. In contrast, to the extent that the Prostitution Reference court upheld the communication provisions as justified infringement’s of freedom of expression, the Court of Appeal ruled that the trial judge was fully bound by precedent [2012 ONCA 186 at para 75].
On June 13, 2013, submissions on the Bedford case were made to the Supreme Court. While the issue of vertical stare decisis is technically moot at the highest level of court, the David Asper Centre for Constitutional Rights intervened, seeking clarification for lower courts. The Centre argued that the role of the trial judge includes reconsidering whether a state limitation of a right is reasonable, submitting that the Court of Appeal erred by disregarding the significance of a change in legislative or social facts in the constitutional context [David Asper Centre Factum at para 11].
The factum argued that stare decisis, a common law doctrine, should operate differently in the constitutional context because constitutional supremacy subordinates the doctrine to the dictates of the constitution [David Asper Centre Factum at para 13-15]. Where the rationale for a decision is based on legislative or social facts, subsequent courts should only be bound to the extent of a common factual matrix [David Asper Centre Factum at para 20]. Allowing trial judges to be rendered constitutionally mute by a common law doctrine may be an unconstitutional exercise in itself [David Asper Centre Factum at para 25].
Annuals, Dead Branches or Root Rot?
According to the Court of Appeal, when a court of first instance is faced with the argument that a prior decision of a higher court should be reconsidered on the basis of changed factual circumstances, its role is limited to establishing an evidentiary record. If the Supreme Court eventually hears the case, the record will provide the basis for submissions on the issue [2012 ONCA 186 at para 76].
The submissions of the Centre for Constitutional Rights sketch a more active role for the trial judge. The Centre proposes “significant and material change” as a standard for reconsideration of a constitutional challenge on the basis of changed factual circumstances and offers a non-exhaustive list of guiding criteria [David Asper Centre Factum at para 34].
In Canada, we have traded watertight compartments for an arborescent image of the constitution. The Court of Appeal describes the lower court’s approach as “yielding a garden of annuals to be regularly uprooted” [2012 ONCA 186 at para 84]. The Centre responds that trial judges are merely being asked to occasionally trim dead branches from the living tree [David Asper Centre Factum at para 29].
The vertical stare decisis question is about balancing the coherence of hierarchical structure with the malleability to adapt to changes in human circumstances. The fear is that adopting the “significant and material change test” will lead to more than occasional pruning. Too much change too quickly would be like over-watering the living tree. While the tree needs water to grow and thrive, too much water will eventually choke the roots and if the roots rot, the tree starves.
Rights ←→ Remedies
The Centre’s argument has a compelling access to justice justification. To force constitutional litigants through two layers of court before their arguments may even be heard is a serious burden. The burden is intensified by the reality that the Supreme Court must limit the number of cases it agrees to hear. However, the Centre likely understates the degree to which stare decisis is ingrained in the roots of our constitution. “Significant and material change,” while somewhat nebulous, may be a workable standard. But do we have enough assurance that a more fluid approach to stare decisis will not destabilize the Canadian legal framework?
Ultimately, some laws are more unconstitutional than others. Canadian judges employ a wide range of remedies for constitutional violations. In Bedford, the appeal court read “in circumstances of exploitation” into the crime of living off the avails [2012 ONCA 186 at para 267].
Similarly, while the word prostitution was struck from the definition of bawdy-house, the bawdy-house provisions still apply to “acts of indecency” [2012 ONCA 186 at para 214]. Furthermore, the Court of Appeal’s partial invalidation of the bawdy-house provisions was suspended for 12 months [2012 ONCA 186 at para 218]. In practice, it is through remedy that courts temper the effect of their decisions and pursue constitutional dialogue with Parliament.
Bedford illustrates how the fluid approach to stare decisis is tempered by remedy. The effect seems to be a moderate shifting of burden from the litigant to the state. If the state intends to pursue the issue in a higher court or to redraft legislation, the courts are open to making suspended declarations of invalidity. This may be problematic for litigants seeking immediate relief. However, it increases pressure on the government to act. Furthermore, the Supreme Court retains its role as constitutional guardian without placing an undue burden on attempts to re-litigate issues on the basis of changing factual circumstances.
To conclude, I find the Centre’s position persuasive. A flexible approach to vertical stare decisis is unlikely to function much differently than contemporary practice. However, it may increase pressure on Parliament to participate in constitutional dialogue and moderately lessen the burden on litigants who raise constitutional challenges on the basis of changing factual circumstances.