Certainty in the law requires that courts follow and apply authoritative precedents. Indeed, this is the foundational principle upon which the common law relies. The of when, if ever, such precedents may be departed from takes two forms. The first question is when, if ever, a lower court may depart “vertical” from a precedent established by a higher court. The second question is “horizontal” when a court such as the Supreme Court of Canada may depart from its own precedents. In this case, the precedent in question is the Supreme Court of Canada’s 1990 advisory opinion in the which upheld the Prostitution Reference, constitutionality of the prohibitions on bawdy-houses and communicating two of — the three provisions challenged in this case. The questions in that case were whether the laws infringed s. 7 or s. 2(b) of the and, if so, whether the limit was Charter, justified under s. 1. The Court concluded that neither of the impugned laws were inconsistent with s. 7, and that although the communicating law infringed s. 2(b), it was a justifiable limit under s. 1 of the While reference opinions may not be Charter. legally binding, in practice they have been followed (G. Rubin, Nature, Use and “The Effect of Reference Cases in Canadian Constitutional Law” (1960), 6 McGill L.J. 168, at p. 175). The application judge in this case held that she could revisit those conclusions because: the legal issues under s. 7 were different, in light of the
Certainty in the law requires that courts follow and apply authoritative precedents. Indeed, this is the foundational principle upon which the common law relies. The of when, if ever, such precedents may be departed from takes two forms. The first “vertical” question is when, if ever, a lower court may depart from a precedent established by a higher court. The second “horizontal” question is when a court such as the Supreme Court of Canada may depart from its own precedents. In this case, the precedent in question is the Supreme Court of Canada’s 1990 advisory opinion in the Prostitution Reference, which upheld the constitutionality of the prohibitions on bawdy-houses and communicating — two of the three provisions challenged in this case. The questions in that case were whether the laws infringed s. 7 or s. 2(b) of the Charter, and, if so, whether the limit was justified under s. 1. The Court concluded that neither of the impugned laws were inconsistent with s. 7, and that although the communicating law infringed s. 2(b), it was a justifiable limit under s. 1 of the Charter. While reference opinions may not be legally binding, in practice they have been followed (G. Rubin, “The Nature, Use and Effect of Reference Cases in Canadian Constitutional Law” (1960), 6 McGill L.J. 168, at p. 175). The application judge in this case held that she could revisit those conclusions because: the legal issues under s. 7 were different, in light of the