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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