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.
除了“卡特诉加拿大案”(Carter v Canada)对加拿大法律带来了重要的实质性变化外，该判决还因其考虑到“先依先决”原则而意义重大。本文审查了加拿大法院，包括相关等级较低的法院，可能有权重新审议具有其他约束力的高等法院判例并偏离它们的情况。至少在宪法案件中，卡特案的审判决定确认，如果提出新的法律问题，或者情况或证据发生变化，“从根本上改变了辩论的参数”，审判法官可以重新考虑上级法院的裁决。在回顾了最近加拿大最高法院关于凝视判决的判例法(包括卡特案)之后，本文转而对最高法院重新审视下级法院判例的新明确方法提出了一些批评，并对这些批评做出了回应。这篇文章还关注了最近的判例法，在这些判例法中，法院基本上拒绝重新考虑高等法院的判例，这表明在加拿大法律中，遵循先例的吸引力仍然很强。
{"title":"Precedent Revisited: Carter v Canada (AG) and the Contemporary Practice of Precedent","authors":"Debra L. Parkes","doi":"10.2139/SSRN.3072729","DOIUrl":"https://doi.org/10.2139/SSRN.3072729","url":null,"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.","PeriodicalId":41276,"journal":{"name":"McGill Journal of Law and Health","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2016-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90330697","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article focuses on the intersection of health and one of the main drivers of the global economy, intellectual property (―IP‖). It is widely recognized that IP is an inter-sectoral issue with linkages to many other important public policy areas, such as health, agriculture, the environment, and education. In inter-sectoral issues such as IP, there is discussion on the need for governments around the world to achieve policy coherence not only across their various departments, but also between their domestic and international positions in important fora.
{"title":"Wicked Issues for Canada at the Intersection of Intellectual Property and Public Health: Mechanisms for Policy Coherence","authors":"J. Morin, T. Bubela, R. Gold","doi":"10.7939/R3H86J","DOIUrl":"https://doi.org/10.7939/R3H86J","url":null,"abstract":"This article focuses on the intersection of health and one of the main drivers of the global economy, intellectual property (―IP‖). It is widely recognized that IP is an inter-sectoral issue with linkages to many other important public policy areas, such as health, agriculture, the environment, and education. In inter-sectoral issues such as IP, there is discussion on the need for governments around the world to achieve policy coherence not only across their various departments, but also between their domestic and international positions in important fora.","PeriodicalId":41276,"journal":{"name":"McGill Journal of Law and Health","volume":null,"pages":null},"PeriodicalIF":0.2,"publicationDate":"2014-10-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75694230","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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