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Disagreement is not enough: Supreme Court clarifies horizontal stare decisis

The Supreme Court has recently pronounced a judgement in R v Sullivan, 2022 SCC 19, discussing the contours of horizontal stare decisis – the extent to which a decision of a court is binding on other courts of coordinate jurisdiction within a province. A court may only depart from previous rulings of a coordinate court in narrow circumstances – it is not enough to simply disagree with previous rulings, or to hold that they are “plainly wrong”.


The respondents, Mr. Sullivan and Mr. Chan, committed violent crimes while under the influence of intoxicating substances. Both argued at their trials that their extreme state of intoxication rendered their actions involuntary, thereby precluding a guilty verdict. Their respective trial judges did not allow this defence by virtue of s. 33.1 of the Criminal Code, RSC 1985, c C-46, and both Mr. Sullivan and Mr. Chan were convicted.[1]

The appeal of the two convictions were heard together and reached the Supreme Court. In R v Brown, 2022 SCC 18, a decision released concurrently, the Supreme Court had already concluded that s. 33.1 of the Code violated the Charter and was of no force or effect under s. 52(1) of the Constitution Act, 1982 – a ruling which entitled Mr. Sullivan to an acquittal and Mr. Chan to a new trial.[2]

In the present appeal, the Supreme Court dealt with the character and force of a s. 52(1) declaration of unconstitutionality. Mr. Sullivan raised the argument before the Supreme Court that the trial judge was bound by a previous declaration of a Superior Court judge in the province which held that s. 33.1 was to be of no force or effect. The Supreme Court noted that this provided an “opportunity to clarify whether a declaration made under s. 52(1) binds the courts of coordinate jurisdiction in future cases due to the principle of constitutional supremacy, or whether the ordinary rules of horizontal stare decisis apply”.[3]

The Decision

The Supreme Court reviewed the rules of horizontal stare decisis. While not binding in the same way as vertical stare decisis, decisions of the same court should be followed as a matter of judicial comity. A decision may not be binding if it is distinguishable on its facts or the court has no practical way of knowing it existed. If it is binding, however, a trial court may only depart from it one of three narrow circumstances:[4]

  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).

A s. 52(1) declaration does not involve striking down legislation, but instead involves an ordinary judicial task of determining a question of law. Consequently, the conventional principles of horizontal stare decisis govern the manner in which previous declarations of unconstitutionality subsequently constrain courts of coordinate jurisdiction in a province.[5]

Implication for Stare Decisis

The Supreme Court’s decision indicates that the exceptions to horizontal stare decisis are much more narrow than what had been previously thought. The Supreme Court observed that the analytical framework of horizontal stare decisis has at times been blurred and the criteria difficult to apply. In particular, some courts have held that prior decisions can be ignored if they are “plainly wrong” or where there is a “good reason” for doing so. The trial judge in Mr. Chan’s case, for instance, concluded that he did not feel constrained to follow “one school of thought more than the other” regarding the constitutionality of s. 33.1 of the Code, because trial courts across the country had expressed different views. These are qualitative tags susceptible to extending to almost any circumstance and do not provide precise guidance. Disagreement between trial judges is not enough to depart from precedent – instead, a binding decision of a coordinate court must be followed unless one of the three enumerated exceptions apply.[6]

The decision of the Supreme Court increases the significance of parallel judgements issued by courts of coordinate jurisdictions. Moving forward, previous judgements issued by a coordinate court will carry more weight and play an increasingly important role in litigation across the country.

Case Information

R v Sullivan, 2022 SCC 19.

Docket: 39270

Date: May 13, 2022


[1] R v Sullivan, 2022 SCC 19 at paras 1-3 .

[2] Ibid at paras 5, 26, 32, 93 and 98.

[3] Ibid at para 6.

[4] Ibid at paras 65, 75 and 86.

[5] Ibid at paras 43-45 and 65.

[6] Ibid at paras 74 and 82-83.



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