Canada’s beer drinkers are crying in their suds over last week’s Supreme Court decision on interprovincial trade barriers. But Ottawa lawyer Albertos Polizogopoulos says a legal principle at the heart of that ruling might put smiles on the mugs of Trinity Western University supporters.
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What do (1) Prostitution, (2) Assisted Suicide, (3) Beer and (4) an Evangelical Christian University have in common?
Even if you stare hard at the question, you might not get that all are connected by the ancient legal principle known by its Latin name stare decisis. The vast majority of Canadians have likely never heard of it, yet it’s been a critical common element in three crucial Supreme Court rulings over the past five years.
In 2013, the Supreme Court of Canada released its decision in R. v. Bedford, which struck the Criminal Code prohibitions on activities surrounding prostitution. In that decision, the Supreme Court chose not to reprimand the trial and appellate courts that did not follow a Supreme Court of Canada precedent that was materially on-point.
In explaining why it was appropriate for the lower courts to do so, the Supreme Court stated that if “new legal issues are raised,” or if there is a “change in the circumstances or evidence that fundamentally shifts the parameters of the debate,” binding precedent might not be binding at all:
 In my view, a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue. Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.
In Canada, our legal system is one of Common Law. “Common Law” means that rather than operating solely on legislation, where all law is codified (Quebec is a civil law jurisdiction using a Civil Code for provincial matters), our legal system is developed by and operates through decisions or case law made by judges, courts, arbitrators and tribunals.
To maintain order, Common Law holds to a very important legal principle called stare decisis, which comes from the Latin phrase “Stare decisis et non quieta movere,” meaning “to stand by decisions and not disturb the undisturbed.” In simple terms, it means that earlier decisions are used as precedents to be used in future similar cases. A basic tenet of stare decisis is that lower courts cannot overturn a precedent by a higher court….
Because of stare decisis, lawyers can for example, (or could prior to Bedford) counsel clients with confidence on cases and issues which had already been decided by the courts. Again, the notion of stare decisis exists to create order, coherence and certainty in our legal system. I am convinced one of the consequences of the Bedford decision will be a turning of this legal principle on its head. There will be a checkerboard of decisions by lower courts across the country overturning decisions of the Supreme Court of Canada until the facts establish a case in which the Supreme Court can make a course correction.
Just over one year later, the Supreme Court released its decision in Carter v. Canada, which struck the Criminal Code prohibitions on assisted suicide. In Carter, the Supreme Court focused heavily on the above paragraph from Bedford, again because the trial judge in Carter had departed from Supreme Court precedent that was exactly on-point. In Carter, at least, the Court of Appeal in British Columbia had reprimanded the trial judge and concluded that the Supreme Court of Canada’s earlier decision in Rodriguez v. British Columbia was binding on her.
And now comes R. v. Comeau, a decision released last week that has become known colloquially as the “Free the Beer” case. In Comeau, a New Brunswick man was charged with violating provincial law banning the possession of alcohol purchased from outside of New Brunswick. In defending the charges, Comeau argued that the law in question violated the Constitution’s free trade guarantee that prohibits provincial tariffs on Canadian goods within Canada. He was successful at the trial and appellate level, and New Brunswick appealed to the Supreme Court.
In its decision, the Supreme Court reprimanded the trial judge for refusing to follow an earlier Supreme Court decision on the same issue. In reprimanding the trial judge, the Supreme Court explained that when it earlier took the position that binding Supreme Court decisions might not be binding, the door it was opening was actually quite narrow and should only be walked through in rare circumstances. It stated:
 To reiterate: departing from vertical stare decisis on the basis of new evidence is not a question of disagreement or interpretation. For a binding precedent from a higher court to be cast aside on the basis of new evidence, the new evidence must “fundamentally shif[t]” how jurists understand the legal question at issue. It is not enough to find that an alternate perspective on existing evidence might change how jurists would answer the same legal question.
This, to me, is the Supreme Court trying to put the genie back in the box. And that is a good thing because putting the genie back in the box restores order to our legal system. It may also be a sign of what else is coming from the Court. And this is where the fourth part of the question at the beginning this piece comes in: the Evangelical Christian University.
In 2001, the Court ruled in Trinity Western University v. British Columbia College of Teachers that the British Columbia College of Teachers had no legal justification for refusing to accredit Trinity Western University’s (“TWU”) graduates on the basis of TWU's Community Covenant. By signing the Covenant, students commit to abstaining from certain activities and behaviours during their studies including the viewing of pornography, the possession or use of alcohol on campus, and sexual intimacy that violates the sacredness of marriage between a man and a woman.
In 2001, the Court found no evidence that TWU students who had signed and abided by the Community Covenant demonstrated any discriminatory behaviour in the exercising of their duties as teaching professionals.
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Fast forward to 2014 when the Law Society of Upper Canada, the legal regulator in Ontario, voted to refuse to accredit graduates of TWU’s proposed law school. Similar votes were made by the law societies in Nova Scotia and British Columbia. The reason for their rejection of TWU’s graduates? TWU’s Community Covenant and, more specifically, the pledge to abstain from sexual intimacy outside of the confines of a biblical marriage between one man and one woman. Sounds familiar, right?
All three law societies’ decisions were litigated. TWU won at the trial level in Nova Scotia and British Columbia, but lost in Ontario. All three cases were appealed. TWU won at the appeal level in Nova Scotia and British Columbia, but lost in Ontario. The Ontario and British Columbia cases went up to the Supreme Court; its decision is expected next month.
As lawyers, we look at earlier cases for guidance on legal issues. Finding a Supreme Court case that is on-point is what we hope for. Finding a Supreme Court case that is less than 20 years old, that deals with virtually the same issue, and even involves the same party is a litigator’s dream. Such was the case with the TWU litigation.
In the TWU litigation, the Supreme Court was asked to consider whether the law societies in Ontario and British Columbia acted properly and within their authority in refusing to recognize law degrees from TWU because of the latter’s view and position on marriage and sexuality. Again, in 2001, the Supreme Court was asked to consider whether the British Columbia College of Teachers acted properly in refusing to recognize Teachers’ College degrees from TWU because of its same view and position on marriage and sexuality. As I said, the cases are almost identical.
And that’s why the Comeau decision is encouraging to me. As someone who lives in a city that straddles the Quebec border, where beer is significantly cheaper, the Comeau decision is a disappointment. But as someone who has been advocating for TWU’s law school and for the rule of law in that regard, it strikes me that it may be a sign of what is to come in the TWU litigation.
Comeau is, I’m hopeful, a sign that the Supreme Court is taking back its ultimate authority and restoring the principle of stare decisis.
If that’s the case, it bodes well for the coming decision involving TWU.
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