The evolution of five legal doctrines in the Supreme Court of Canada.

• Author: Bowal, Peter

Introduction

Legislation is enacted, amended and repealed over time in response to improvements and changes in social currents. The common law also evolves in the same way as judges pronounce, tweak and elaborate and then occasionally over-rule their previous legal doctrines. A recent search identified over 500 Supreme Court of Canada decisions that had been over-ruled by subsequent panels of the Court, of which 55 over-rulings came in the last 10 years.

Supreme Court of Canada is not Bound by its Own Decisions

As early as 1901, the Supreme Court asserted that it is not bound by its previous decisions. In Burrard Election Case (Duval v. Maxwell), http://canlii.ca/t/ggxht, Gwynne J. said:

I feel difficulty in concurring in the proposition that it is not competent or proper for this court to reverse a judgment of the court differently constituted if it clearly appear to be erroneous. This court is not invested with the prerogative of finality as is the House of Lords whose judgments are the law of the land until and unless varied by Parliament. Nor is this court invested with the prerogative of infallibility so as to prevent its seeing error in one of its own judgments. The modern Court said overturning itself is a step not to be lightly undertaken. It must be convinced on compelling reasons that the precedent was wrongly decided and should be overruled, especially where the precedent was the product of strong Court majorities: Ontario v Fraser (2011, http://canlii.ca/t/fl63q). Occasionally, and counter-intuitively, the Court has over-ruled precedent to generate greater certainty: Minister of Indian Affairs and Northern Development v Ranville (1982, http://canlii.ca/t/1z1cx).

In practice, across all legal subjects, the Court has overruled itself many times. A few of these over-rulings are: R. v Chaulk (1990, http://canlii.ca/t/1fspm); R. v B. (1993, http://canlii.ca/t/1fs50); R. v Robinson (1996, http://canlii.ca/t/1frbh); R. v Salituro (1991, http://canlii.ca/t/1fshg); and Canada v Bedford (2013, http://canlii.ca/t/g2f56).

The Development of Five Legal Doctrines

This article describes how five different legal doctrines were developed over time by the Supreme Court of Canada.

1. Collective Bargaining and Freedom of Association

   In the 1999 decision of Delisle v Canada (http://canlii.ca/t/1fqn7), the Supreme Court of Canada found that federal legislation, which denied RCMP members employee status to collective bargaining, did not infringe their constitutional freedom of association under section 2(d) of the Charter. The majority 5-2 ruling held the Charter right existed independently of any legislation protecting the rights of the RCMP. The members enjoyed freedom of association apart from the legislation.

   Sixteen years later, the same question subjected to the same law, was answered differently by the same Court. In Mounted Police Association of Ontario v Canada (http://canlii.ca/t/gfxx8) a new 6-1 majority found the same legislative exclusion to be a violation of section 2(d)...