The Circumstances of Change: Understanding the Bedford/Carter Exceptions to Vertical Stare Decisis

Abstract

In 2013, the Supreme Court of Canada held that, in some cases, trial courts do not have to follow precedents from higher courts (the “Bedford/Carter exceptions”). However, lacking clear rules for when these exceptions apply, trial courts have been understandably reluctant to use this power. This article proposes that the Bedford/Carter exceptions should apply in three circumstances: where the legal test has changed, where assumptions necessary to the holding no longer apply, and where the precedent conflicts with non-binding law. It comes to this conclusion through two analytical paths. First, it identifies the theoretical justifications for vertical stare decisis and shows that they are weaker in these circumstances. Second, it shows that courts have in fact applied the exceptions in those circumstances.

Keywords: Stare Decisis, Precedent, Judicial Powers, Judicial Activism