Per Incuriam

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-24
CLNP Page ID:	2353
Page Categories:	Legal Principles
Citation:	Per Incuriam, CLNP 2353, <>, retrieved on 2024-11-24
Editor:	Sharvey
Last Updated:	2024/03/02

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R. v. Sullivan, 2022 SCC 19 (CanLII)

[57] In other words, in McCaw, Spies J. was right to conclude she was not free to ignore prior decisions but, with respect, she arrived at that conclusion for what appears to be the wrong reason (para. 76). It was right to say that, in considering whether to follow Dunn, the court was obliged to consider s. 33.1 as having been declared, by a judge of her court, as unconstitutional. But the result of that declaration was not that s. 33.1 was “off the books” (it remains of course on the books until Parliament chooses to remove it) (para. 76). Spies J. was bound to follow precedent because as a matter of horizontal stare decisis, Dunn was binding on courts of coordinate jurisdiction in the province as a matter of judicial comity, unless an exception to horizontal stare decisis was established. It was true that s. 33.1 was of no force and effect. It was true that the declaration in Dunn applied not just to the parties in that case but to all future cases. But, with respect, it was wrong to say that “judicial comity has no relevance to the issue before me” (McCaw, at para. 76). If she had concluded that Dunn had been rendered per incuriam (“through carelessness” or “by inadvertence”), for example, it would not have been binding on the court in McCaw based on the ordinary rules of stare decisis as interpreted in Spruce Mills. Indeed, as suggested by this Court in Martin, Spies J. could not apply an invalid law. It is certainly true, as suggested in Ferguson, that she had “no discretion” to do so (para. 35). Yet Spies J. was bound, as a matter of precedent, by the prior judgment of a court of coordinate jurisdiction to consider s. 33.1 to be unconstitutional, insofar as the doctrine of horizontal stare decisis so required.

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[75] The principle of judicial comity — that judges treat fellow judges’ decisions with courtesy and consideration — as well as the rule of law principles supporting stare decisis mean that prior decisions should be followed unless the Spruce Mills criteria are met. Correctly stated and applied, the Spruce Mills criteria strike the appropriate balance between the competing demands of certainty, correctness and the even-handed development of the law. Trial courts should only depart from binding decisions issued by a court of coordinate jurisdiction in three narrow circumstances:

1. The rationale of an earlier decision has been undermined by subsequent appellate decisions;

2. The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or

3. The earlier decision was not fully considered, e.g. taken in exigent circumstances.

[76] First, a judge need not follow a prior decision where the authority of the prior decision has been undermined by subsequent decisions. This may arise in a situation where a decision has been overruled by, or is necessarily inconsistent with, a decision by a higher court (see Rowe and Katz, at p. 18, citing Kerwin, at p. 542).

[77] Second, a judge can depart from a decision where it was reached without considering a relevant statute or binding authority. In other words, the decision was made per incuriam, or by inadvertence, a circumstance generally understood to be “rare” (see, e.g., The Owners, Strata Plan BCS 4006 v. Jameson House Ventures Ltd., 2017 BCSC 1988, 4 B.C.L.R. (6th) 370, at para. 132). The standard to find a decision per incuriam is well-known: the court failed to consider some authority such that, had it done so, it would have come to a different decision because the inadvertence is shown to have struck at the essence of the decision. It cannot merely be an instance in which an authority was not mentioned in the reasons; it must be shown that the missing authority affected the judgment (Rowe and Katz, at p. 19).

[78] Third and finally, a judge may depart where the exigencies of the trial required an immediate decision without the opportunity to consult authority fully and thus the decision was not fully considered. An unconsidered judgment is not binding on other judges (Rowe and Katz, at p. 18, citing Spruce Mills, at p. 592).

[79] These criteria define when a superior court at first instance may depart from binding judgment issued by a court of coordinate jurisdiction and apply equally to a prior ruling on the constitutionality of legislation. Where, as here, a judge is faced with conflicting authority on the constitutionality of legislation, the judge must follow the most recent authority unless the criteria above are met. In such a situation, the judge must, in determining whether the prior decision was taken per incuriam, consider whether the analysis failed to consider a binding authority or statute relevant to the legal question.