Beer, Bedford, and beyond — the Supreme Court of Canada and the limits of precedent in R. v. Comeau
R. v. Comeau, made headlines because of its sudsy subject matter: Does s. 121 of the Constitution Act, 1867 guarantee the free flow of liquor across interprovincial boundaries? The Supreme Court of Canada held that it does not, a conclusion that my colleagues Jacob Stone and Alexandre Saulnier-Marceau analyze in their blog post.
But Comeau was not just a case about federalism. It was also — and, arguably, more importantly — about the limits of precedent, and the circumstances in which trial courts may seek to change the law.
The Court held that binding vertical precedent must stay binding unless it has been overtaken by profound social or legal change, which in turn must be proved by evidence adduced at trial. Such evidence was not before the court in Comeau. Instead, the trial judge relied on testimony from a historian, who opined that the Supreme Court of Canada’s interpretation of s. 121 — set out nearly a century ago, in Gold Seal Ltd. v. Attorney-General for the Province of Alberta — was inconsistent with the intentions of the Constitution’s drafters. The need to correct this error, the trial judge held, justified departing from precedent, not because society or the law had evolved, but because the precedent was wrongly decided in the first place.
For the Supreme Court of Canada, this simply was not kosher:
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.
Put differently, if a litigant seeks to change settled law, it is not enough to adduce evidence that “proves” the law was erroneously settled in the first place. A court can only escape the shackles of “vertical” precedent on the basis of “evolving legislative and social facts” that add up to profound “social change”. In Comeau, it concluded, “[t]his high threshold was not met”.
Lawyers rarely ask courts to depart from precedent. But sometimes — as for Gerard Comeau’s counsel in the New Brunswick Provincial Court — that is what the case demands. For advocates who find themselves in that situation, Comeau will be required reading. It completes (for now) a trilogy begun in 2013 in Canada (Attorney General) v. Bedford, and continued two years later in Carter v. Canada (Attorney General). Together, these three judgments provide the Supreme Court of Canada’s guidance to Canada’s courts on the doctrine of vertical precedent.
Bedford and Carter distinguished
Bedford involved a challenge to Canada’s prostitution laws. Carter contested the prohibition of physician-assisted suicide. Both succeeded, at first instance and ultimately in the Supreme Court of Canada, despite binding precedent to the contrary.
In Carter, a unanimous Court summarized what it has since described as “the evidence-based exception to vertical stare decisis”, as follows:
The doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system. It provides certainty while permitting the orderly development of the law in incremental steps. However, stare decisis is not a straitjacket that condemns the law to stasis. Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate”.
The trial judge in Comeau thought the case before him belonged in the second category. The record at trial contained evidence about what its drafters intended s. 121 of the Constitution Act, 1867 to accomplish — namely, free trade between Canada’s provinces. This evidence, which was presented in the form of expert testimony from a historian, was a game changer, in the trial judge’s view; since comparable evidence had not been considered in Gold Seal or any of its (binding) progeny, the historical evidence “fundamentally shifted the parameters of the debate”, and justified his departing from precedent to correct a “long-standing misinterpretation of the intent of the Fathers of Confederation”: ibid., at para. 165.
Not so, said the Supreme Court of Canada. It held that “a re-discovery or re-assessment of historical events is not evidence of social change”, and that “[d]iffering interpretations of history do not fundamentally shift the parameters of the legal debate”.
Put differently, courts must adhere to binding precedent even in the face of evidence that the precedent was wrongly decided in the first place. If, however, the record establishes that the legal framework, the wider world, or both have changed since the previous judgment was rendered, then the “straightjacket” of vertical precedent may yield, as it did in Bedford and Carter.
Comeau will thus keep ambitious litigants and trial judges from waging battle on behalf of the text of the Constitution — as they conclude its provisions were originally intended or understood — against what they believe to be wrongly-decided, judge-made constitutional law. Though Comeau acknowledges that “[h]istorical evidence can be helpful for interpreting constitutional texts” (at para. 36), it concludes that the potential helpfulness of such evidence does not permit escapes from vertical precedent.
Read alongside Bedford and Carter, Comeau completes the Court’s current take on the doctrine of vertical precedent. The rule, simply stated, is that courts may depart from vertical precedent when a new issue is raised or to reflect shifts in social circumstances or legal doctrine, but only an appellate court can overturn a past decision for having been wrongly decided ex ante.
The stickiness of stare decisis
It was open to the Supreme Court of Canada, in Comeau, to revisit its interprovincial trade jurisprudence. The Court could have overturned Gold Seal and the line of cases that have followed it, most notably the Privy Council’s judgment in Atlantic Smoke Shops Ltd. v. Conlon, and the Court’s own decision in Murphy v. Canadian Pacific Railway Co. Whether or not it was appropriate to do so would have been a question of horizontal precedent, or stare decisis, rather than of vertical precedent.
In deciding whether to overrule one of its own decisions, the Court balances the virtue of certainty in the law against the Court’s obligation to articulate the law correctly. The question, in each case, is whether the reasons to overturn precedent outweigh the virtues of leaving the law as it is. To overrule a prior decision, the Court held in a 2012 judgment, “the Court must be satisfied based on compelling reasons that the precedent was wrongly decided and should be overruled”.
In Comeau, the Court looked at the political and jurisdictional landscape and noted the many apple carts it would upset if it were to unsettle the federal and provincial governments’ common understanding of s. 121 of the Constitution Act, 1867. From those governments’ perspective, the rules of Canada’s economic union are understood, if not universally applauded. Reading between the lines of the Court’s judgment, one suspects that, even if it had agreed that Canada’s longstanding approach to interprovincial trade were indeed based on a century-old misinterpretation of s. 121 — and, it should be noted, the Court explicitly declined to do so — then it might nonetheless have concluded that the need for certainty had to trump the need for correctness. It would have countenanced keeping an incorrect constitutional precedent to avoid inviting political chaos.
The Court’s jurisprudence on horizontal stare decisis leaves room for this admittedly uncomfortable outcome. As noted above, the Court must conclude both that a precedent “was wrongly decided” and that it “should be overruled” in order to reverse it. It is with respect to second criterion that practical concerns may argue in favour of letting sleeping dogs lie.
One detects this balancing act in the background of the Comeau reasons. In the end, however, the Court avoided having to stand by an error of constitutional law. It simply concluded that no such error existed. Whether it did so purposefully, or merely incidentally, is open for debate.
For those who read the Court’s jurisprudence as inconsistent with the text of the Constitution, all of this will be disheartening. It suggests that, once the Court has interpreted a provision and political actors have arranged their affairs accordingly, stare decisis will nearly always prevail, even over evidence that potentially undermines the basis of the prior decision. Judicial interpretations of constitutional provisions — the stuff of constitutional law — will not be overtaken by appeals to the text of the Constitution itself, at least at first instance. And whether such arguments fare better on appeal will have as much to do with their practical implications as with their substantive merit. This, despite McLachlin C.J.’s admonition, in Bedford, that “stare decisis … cannot require a court to uphold a law which is unconstitutional”. Once lower courts take their cue from Comeau, stare decisis in Canada could become stickier than ever.
But perhaps that is as it should be. We expect our governments — and one another — to follow the law. Doing so is impossible unless the law is consistent, predictable, and intelligible. A strict approach to stare decisis can ensure that this is so, even if it means that we sometimes have to live with judicial imperfection.
The bottom line
Comeau constrains the power of trial judges to depart from binding precedent. It holds that: (1) lower courts must follow higher courts’ decisions, despite evidence that those decisions should have come out differently; and (2) courts should refrain from overruling themselves, even in matters of constitutional interpretation, where overturning long-entrenched precedent would be broadly disruptive. The Supreme Court of Canada’s approach to stare decisis, both vertical and horizontal, reminds lawyers and judges that a commitment to the rule of law requires more than a desire to reach the right answer; it also demands forbearance in the face of a functioning status quo.
U.S. Supreme Court Justice Robert Jackson famously said of himself and his colleagues, “[w]e are not final because we are infallible, but we are infallible only because we are final”. So it is with the Court’s interpretation of s. 121 of the Constitution Act, 1867.
For now, anyway.
R. v. Comeau, 2018 SCC 15
Date of Decision: April 19, 2018
Adam Goldenberg is a litigator at McCarthy Tétrault LLP and an Adjunct Professor of Law at the University of Toronto, where he teaches appellate practice and procedure.
 R. v. Comeau, 2018 SCC 15 [“Comeau”].
 Gold Seal Ltd. v. Attorney-General for the Province of Alberta (1921), 62 S.C.R. 424.
 Comeau, at para. 34 (emphasis added), quoting Canada (Attorney General) v. Bedford, 2013 SCC 72,  3 S.C.R. 1101, at para. 42.
 Comeau, at para. 36.
 Comeau, at para. 35.
 Carter v. Canada (Attorney General), 2015 SCC 5,  1 S.C.R. 331.
 In a system of common law adjudication, courts are bound by: (1) their own previous decisions; and (2) the decisions of courts that rank above them in the judicial hierarchy. The doctrine that requires courts to follow their own previous decisions is known as “horizontal” precedent, or stare decisis. The doctrine that requires courts to follow the decisions of the appellate courts over them is known as “vertical” precedent.
 Comeau, at para. 17.
 Carter, at para. 44, quoting Bedford, at para. 42 (emphasis added).
 R. v. Comeau, 2016 NBPC 3, 448 N.B.R. (2d) [“trial reasons”], at para. 125.
 Comeau, at para. 36.
 Comeau, at para. 37.
 Cf. E. Meese, “The Law of the Constitution: A Bicentennial Lecture” (Oct. 21, 1986), at p. 15.
 Atlantic Smoke Shops Ltd. v. Conlon,  4 D.L.R. 81 (J.C.P.C.).
 Murphy v. Canadian Pacific Railway Co.,  S.C.R. 626.
 See Canada v. Craig, 2012 SCC 43,  2 S.C.R. 489, at para. 27; see also Ontario (Attorney General) v. Fraser, 2011 SCC 20,  2 S.C.R. 3, at para. 139, per Rothstein J. (concurring); Teva Canada Ltd. v. TD Canada Trust, 2017 SCC 51,  2 S.C.R. 317, at para. 140, per Côté and Rowe JJ. (dissenting).
 Craig, at para. 25 (emphasis added).
 See Comeau, at paras. 2-3 (emphasis added).
 See Comeau, at para. 106.
 Bedford, at para. 43.
 Brown v. Allen (1953), 344 U.S. 443, at p. 540.