The Supreme Court of Canada Changes Its Mind.

• Author: Bowal, Peter
• Position: ViewPoint

[on the Supreme Court of Canada being 'the most progressive in the world'] I would say so, yeah, and I must say I'm very proud of that. --Richard Wagner, Chief Justice of the Supreme Court of Canada (June 2018) Introduction

In an article for Law Now a few years ago, I was staggered to see how quickly the Supreme Court of Canada had changed its own test for sniffer dog evidence in interpreting the Charter of Rights "search and seizure" provision (section 8). Four new judges had joined the Court, and quietly the Court significantly changed the law in the next case only five years after its first pronouncement. There was no acknowledgement by three of the judges from the earlier case that they had even changed their position, much less any reasons for doing so.

In 1901 the Supreme Court of Canada decided it was not bound by its previous decisions. Obviously, the Court occasionally will need a do-over but the Court's modern near indifference to its own precedent is a concern. We need stability, certainty and predictability, especially in Charter cases where human rights are enduring and not subject to frequent change. The Court cannot give and take rights away according to whim and changing ideologies of new judges. Respect for both the Charter and the Court will decline and litigation will rise steeply if rights depend more on the politics of judges than Charter text. Precedent is a foundational pillar of our legal system, indispensable to the Rule of Law. It must be venerated.

Our top Court is theoretically accountable to no one. The judges decide the scope of their work, their workload and their pace. They interpret the very legislation under which they are appointed. They can overrule an appointment by the prime minister to their Court. They have a hand in all aspects of our lives.

The legislatures may have wiggle room to override some decisions under s. 33 of the Charter but, in practice, this has become an illusion. The judges of the Supreme Court of Canada effectively possess complete discretion and final say about the Charter without the burden of real checks and balances. For example, they can set out the principles of mootness (when a case should not be heard) and yet freely hear and decide their choice of moot cases.

They enjoy personal immunity for their work and tenure to age 75. They let their decisions speak for themselves, which decisions are not always easy to penetrate even for lawyers. For example, in Thomson Newspapers v Canada, the five judges on the case gave five different opinions on the applicable "basic tenet" of the legal system, which was "fundamental justice".

Virtually everyone in the legal system --lawyers, litigants, lower court judges, journalists, parties, law clerks, academics, staff, politicians--desire to please this Court. They hesitate to challenge or cross it. Indeed, the legal profession may punish lawyers...