Precedent Revisited: Carter v Canada (AG) and the Contemporary Practice of Precedent

Abstract

In addition to the important substantive changes to Canadian law brought about by Carter v Canada (AG), the decision is significant for its consideration of the doctrine of stare decisis. This article examines the circumstances under which Canadian courts, including courts lower in the relevant hierarchy, might be entitled to revisit otherwise binding, higher court precedents and to depart from them. At least in constitutional cases, the Carter trial decision affirms that trial judges may reconsider rulings of higher courts where a new legal issue is raised or where there is a change in circumstances or evidence that “fundamentally shifts the parameters of the debate.” Following a review of the recent Supreme Court of Canada case law on stare decisis, including Carter, the article turns to some critiques of the Court’s newly articulated approach to revisiting precedents in lower courts, and responds to those critiques. The article also looks to the recent case law in which courts largely reject attempts to reconsider precedents from higher courts, revealing that the pull to follow precedent remains strong in Canadian law.