Stare Decisis and Constitutional Supremacy: Will Our Charter Past Become an Obstacle to Our Charter Future?

Supreme Court Law Review, Volume 58, 61-85


Co-authored with Joseph Arvay, Q.C. and Alison Latimer of Arvay Finlay, the paper addresses when and why a trial court should be entitled to revisit a previously decided constitutional issue on the basis of a significant and material change in social and legislative fact. The authors conclude that doctrinal, institutional and remedial considerations all support an approach whereby a trial court would conduct a Charter section 1 analysis on the new factual record, leaving appellate courts to fulfil their traditional function with regard to the both the finding of significant and material change and the section 1 analysis itself.

This paper originally appeared in the Supreme Court Law Review, volume 58 (2012). Reproduced here with permission from the publisher, LexisNexis Canada Inc.

Media Contact
Elizabeth Reymundo
Marketing Manager
Phone: 604.643.6494
Fax: 604.605.4878

Authors

Sheila M. Tucker
604.643.2980

Practice Areas