Canada: The Rise of Judgments with Suspended Effect
Ch. 11 in E. Steiner, ed., Comparing the Prospective Effect of Judicial Rulings Across Jurisdictions (Cham, Switzerland: Springer, 2015) 247-259
13 Pages Posted: 16 Sep 2015
Date Written: July 12, 2014
In principle, all court orders in Canada have retroactive effect. However, the Supreme Court of Canada, proceeding pragmatically, has decided that it has the power to depart from this when it deems it appropriate to do so. Such occasions have arisen in relation to declarations of constitutional invalidity. Rarely, the Court has made orders that operate only prospectively. More commonly, indeed one might say quite routinely, it makes orders whose effect is suspended for a defined period. When the period expires, the order is retroactive, but the suspension allows the legislature to intervene and react to the court order with new legislation, before the order takes effect. The basis for such orders is contested by some.
This is the national report for Canada in a multi-jurisdictional comparative study of judicial rulings with prospective effect.
Keywords: precedent, prospective, retrospective, retroactive, stare decisis
JEL Classification: K00, K40
Suggested Citation: Suggested Citation