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

See all articles by Lionel Smith

Lionel Smith

Downing Professor of the Laws of England; University of Oxford - Faculty of Law

Date Written: July 12, 2014

Abstract

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

Smith, Lionel, Canada: The Rise of Judgments with Suspended Effect (July 12, 2014). Ch. 11 in E. Steiner, ed., Comparing the Prospective Effect of Judicial Rulings Across Jurisdictions (Cham, Switzerland: Springer, 2015) 247-259, Available at SSRN: https://ssrn.com/abstract=2659606

Lionel Smith (Contact Author)

Downing Professor of the Laws of England ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

HOME PAGE: http://www.law.cam.ac.uk/people/academic/d-smith/83102

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Rd
Oxford, OX1 3UL
United Kingdom

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