THE SUPER PANEL DOCTRINE.

• Author: De Vries, Jonathan

1. INTRODUCTION

   The idea of stare decisis is an essential component of a common law legal system. It ensures stability and predictability in law, avoids the need to re-litigate the same disputes, and maintains impartiality in adjudication. (1) Yet in common law Canada, the application of stare decisis is changing. This has occurred both with vertical stare decisis, under which courts are bound to follow the statements of law from courts above them in a judicial hierarchy, and horizontal stare decisis, under which a court adheres to the statements of law contained in its own past decisions.

   Recent jurisprudence and scholarly commentary have focused on stare decisis in its vertical form, particularly on the recognition of new exceptions to its application based on societal developments, new evidence, or constitutional considerations. (2) Yet the horizontal form has also undergone substantial, if quite different, changes, and their locus has not been the Supreme Court of Canada but rather Canada's intermediate appellate courts. In these courts, stare decisis has also been transforming into a more flexible, less strict doctrine. But alongside this substantive change in stare decisis there has been a parallel emergence of a new procedural aspect. Under this aspect, which began as a convention but has now hardened into a legal doctrine approaching a rule, courts will not depart from their prior decisions unless they are sitting in a unique mode, typically as a larger panel of judges than normal. This procedural aspect--referred to as the super panel doctrine--is the subject of this article.

   The purpose of this article is to explain the development of the super panel doctrine and how it is integrated into the doctrine of stare decisis in Canada's intermediate appellate courts. (3) It provides a critical assessment of the doctrine, particularly its rationale, justifications, and use. While the super panel doctrine is, on balance, a positive development in Canadian law, there are problems with the way the doctrine is currently being applied, and this article concludes with several proposals for reforming the doctrine.

   While the purpose of this article is ultimately prescriptive, since its subject has been relatively unstudied, a significant amount of context must be established first. The first part of this context is historical. This article begins with a history of the development of the super panel doctrine, which involves parallel overviews of the development of stare decisis in Canadian law and the institutional history of Canada's intermediate appellate courts, to show how the super panel doctrine developed as a kind of procedural counterweight to an increasingly liberalized idea of stare decisis. The article then moves to the potential explanations and justifications for the super panel doctrine. Given the previously mentioned lack of commentary on the super panel doctrine, the context for this part of the article is comparative. The article compares the experiences of Canada's intermediate appellate courts and their use of super panels with those of their American federal counterparts, the United States Courts of Appeal and their en banc procedures. Since the latter have been the subject of considerable commentary, they afford a rich source of ideas and insights that can be applied to the former. With this context established, this article concludes with its prescriptive content by identifying significant problems with the super panel doctrine and proposing possible reforms. In particular, this article argues that Canada's intermediate appellate courts should create and publicize specific procedures governing how they will decide to employ super panels when hearing appeals.

2. KEY CONCEPTS: STARE DECISIS, APPEAL COURTS, AND SUPER PANELS

   Since the subject of this article is a specific and somewhat unstudied judicial phenomenon, it is appropriate to identify and define the key concepts and terms that are employed.

   1. STARE DECISIS

   Stare decisis must be distinguished from precedent, of which it is a sub-concept. Precedent, in its legal usage, describes a prior judicial pronouncement that can have some influence on a current legal dispute, and it is an idea that has been present in the common law since its earliest days. (4) Stare decisis, on the other hand, describes a prior judicial pronouncement that has a binding, mandatory effect on a later legal dispute. (5) A court is bound to follow the prior decision even if it doubts the decision's correctness or believes it to be wrong. (6)

   Stare decisis was not an externally imposed idea but was instead created by courts themselves as a form of procedural common law. (7) The modern idea of stare decisis only came into existence in the mid to late 19th century, alongside the creation of formal judicial hierarchies which are a precondition to stare decisis in its vertical form. (8) Horizontal stare decisis was always weaker than vertical stare decisis, lacking the institutional element underlying the latter and the latter's ability to be enforced by the blunt instrument of appellate review and reversal. (9) Horizontal stare decisis is usually understood as a matter internal to any given court in a judicial hierarchy. (10) It was based upon ideas of comity between courts, sound judicial administration, decisional efficiency, and courtesy amongst judges sitting in courts of coordinate jurisdiction. (11) It was only later in the 19th and early 20th centuries that some courts began applying horizontal stare decisis as a strict rule. (12)

   2. APPEAL COURTS

   The focus of this article is on the appellate courts in common law Canada that sit directly below the Supreme Court of Canada in the various provincial and federal judicial hierarchies. These courts will be referred to as Canadian appeal courts or appeal courts, terms which encompass the nine provincial courts of appeal and the two federal courts of appeal. (13) They do not include the appellate jurisdiction exercised by provincial superior courts, whether over provincial courts, themselves, (14) or administrative tribunals via judicial review.

   Canadian appeal courts all share common characteristics. Unlike provincial superior courts, which exercise the historic jurisdiction of English royal courts, appeal courts are exclusively statutory--their structures, jurisdiction, and powers are all defined by legislative authority.

   Canadian appeal courts, like all intermediate appellate courts, serve a duel appellate role of error correction and development and restatement of law. (15) Traditionally, the role of appeal courts was to maintain stability and consistency in the law, (16) but more recently they have taken on a greater role in making law. This expanded law-making role has been caused by three factors: the abolition of appeals to the Judicial Committee of the Privy Council, the Supreme Court of Canada gaining an (almost) purely discretionary appellate jurisdiction, and the advent of the Canadian Charter of Rights and Freedoms. (17) The practical lack of appeals of their decisions to the Supreme Court of Canada, and that Court's tendency to focus on constitutional issues, results in Canadian appeal courts being both the de facto court of last resort and the main law-making court in their respective jurisdictions. (18)

   3. SUPER PANELS

   All Canadian appeal courts are multimember courts which hear appeals in panels. Save for one exception, none of these courts are required to employ panels composed of a specified number of judges. (19) Rather, the only requirement is that a panel be composed of at least three judges. (20) At present, due to caseload pressures, appeal courts normally discharge their day-to-day business via panels of three judges. (21) However, if an appeal requires it, specialized panels, referred to here as super panels, can be assembled. While super panels are employed for various kinds of cases, (22) the focus here is on the use of super panels when appeal courts are considering overruling one of their prior decisions that would normally bind them via stare decisis.

   The term super panel is a neologism. It is not a term that Canadian appeal courts have employed themselves. Rather, these courts often refer to specialized panels through some variant of five-judge/member/justice panel/court/bench, since these larger panels usually consist of five judges. However, expressions of this sort will not be used in this article. First, from a literary perspective, they are both inelegant and cumbersome. Second, while these larger panels usually consist of five judges, in the past (and potentially in the future), panels of differing sizes have been used and, as will be discussed below, there is no special significance to using five judges. Finally, there is no consistency among those courts that have adopted a particular usage. (23) In the interests of accuracy and fairness, the term super panel will be used. It is a panel because it is composed of less than the total membership of the court but still exercises the court's full powers. Super refers to both the size of the panel (usually larger than a regular three judge panel) (24) and the extra powers the super panel has when compared with a regular panel.

   4. THE SUPER PANEL "DOCTRINE"

   As the title of this article indicates, what is being described here is a legal doctrine. It is not an institutional or historical analysis of Canadian appeal courts, although many excellent studies have been published on this topic. (25) Nor does this article draw upon or pretend to offer any behind-the-scenes sources or insights into appeal courts' practices or decision making. Instead, it focuses solely on the statements of law contained within the reasoned decisions of those courts and how those statements of law may be compared and reconciled into legal doctrine.

3. CANADIAN APPEAL COURTS & STARE DECISIS

   Tracing the institutional history of Canadian appeal courts and their...