In a recent post I explored the concept of “judicial minimalism” coming out of a recent Supreme Court decision not to revisit a precedent on whether the Charter of Rights applied to activities of Canadian authorities outside of Canada.
His position appears to be that if a precedent is to be challenged it should come from the parties to the case, not third parties. Or failing that, it should be made an issue at the trial level, with full arguments/evidence presented there and all the way through the appeals process.
...either of which, at first glance, seem like an odd limits to set given what the Court otherwise says it wants from intervenors. Parties to litigation are arguably less likely to frame their cases as requiring the reversal of precedent (if they can help it), especially when they have invested in a trial and two appeals.
Yes. Carter (the medical aid in dying case) is an example, which was upheld by the SCC. But the Court is quite strict about when lower courts can do this (see, for example, Comeau, the 'free the beer' case).
Thanks for breaking down the subject, a great summary of the role of interveners.
"Rowe’s implicit conclusion that arguments about whether a particular precedent should stand ought to be out of bounds."
Does Justice Rowe have an opinion about how precedents can be challenged?
His position appears to be that if a precedent is to be challenged it should come from the parties to the case, not third parties. Or failing that, it should be made an issue at the trial level, with full arguments/evidence presented there and all the way through the appeals process.
...either of which, at first glance, seem like an odd limits to set given what the Court otherwise says it wants from intervenors. Parties to litigation are arguably less likely to frame their cases as requiring the reversal of precedent (if they can help it), especially when they have invested in a trial and two appeals.
This question will reveal my naïvety, but have judges in lower courts reversed precedents set by the Supreme Court?
Yes. Carter (the medical aid in dying case) is an example, which was upheld by the SCC. But the Court is quite strict about when lower courts can do this (see, for example, Comeau, the 'free the beer' case).