In R v McCaw, 2018 ONSC 3464, the Ontario Superior Court decided that constitutional declarations of invalidity are binding on other judges of the Ontario Superior Court. The case concerned s.33.1 of the Criminal Code, under which Parliament narrowed the common law defence of extreme intoxication set out in Daviault, denying it in general intent cases. In McCaw, the Court was faced with conflicting authority: previous Ontario Superior Court decisions declared that s.33.1 of the Criminal Code infringed ss.7 and 11(d) of the Charter, and that the infringement could not be saved by s.1. But these previous cases had all considered the issue anew, rather than considering it finally decided. McCaw centred on the effect of these previous cases: was s.33.1 unconstitutional for the purposes of this case? The court said yes, considering itself bound.
I do not propose to get into the facts of the case or any criminal law substance, except for the specific remedies question of one superior court judge binding another through a constitutional declaration of invalidity (inspired by discussions on Twitter!) Putting aside whether the Supreme Court’s remedies doctrine is sound, McCaw represents a faithful application of it, particularly the Court’s strong-form interpretation of s.52 of the Constitution Act, 1982. Section 52 has been interpreted to provide the courts power to issue declarations of invalidity, but textually provides that laws are of no force or effect to the extent of their inconsistency with the Constitution.
First, the McCaw court’s holding that it was bound by the previous ONSC authority on point is consistent with the operation of constitutional remedies—particularly declarations of invalidity. In Hislop, the Supreme Court confirmed that in most cases, courts granting constitutional declarations are operating in a “Blackstonian paradigm” (on this, see Dan Guttmann’s illuminating article). In the ordinary course, courts seek to resolve past wrongs. A typical case involves Party A claiming against Party B for Event C, which occurred in the past. A court discovers the law that applied to that past event. In the constitutional context, the Blackstonian paradigm essentially tells us that a law declared unconstitutional by a court was always unconstitutional, from the time of its enactment (Hislop, at para 83). And the Supreme Court confirmed this idea: a judicial declaration does not cause a legislative provision to be unconstitutional—rather, s.52(1) as a remedial authority dictates what is and isn’t constitutional (see Martin, at para 28). The judicial declaration is simply a recognition that s.52 always regarded the impugned provision as unconstitutional. This has particular effect in benefits cases, where claimants previously denied can claim retroactively.
At the same time, a declaration of invalidity also operates prospectively (Hislop, at para 82). For obvious reasons, the government cannot pursue causes of action under an unconstitutional statute after the judicial recognition that the statute is unconstitutional; nor can a court (itself subject to law) deny a defence to a claimant if it is unconstitutional to do so. So, if what the Supreme Court says is true, once a statute is recognized as unconstitutional, it is systemically unlawful reaching backwards and forwards. After the declaration, subsequent courts dealing with causes of action arising before or after the declaration are bound by s.52, which now views the provision as unconstitutional.
The timing question is central. If s.33.1 was always unconstitutional, and continues to be, a later judge dealing with a case is bound temporally. If a cause of action arose before the declaration (but the case is heard after), a claimant should have access to the common law defence (to the extent s.33.1 abridges it). If a cause of action arose after the declaration, the claimant should also have access to the defence because the declaration applies s.52 prospectively. Section 52 therefore has independent meaning.
I’m alive to the criticism: isn’t it wrong for one s.96 judge to bind another (or the hundreds of other) s.96 judges? In some specific remedial situations, this is true. But in those situations, we are talking only about the typical Party A vs Party B case, where the validity of a law is not impugned. Accordingly, the only remedy sought is personal. But if we are talking about the specific context of s.52, things are more complicated because of a second feature of s.52—its systemic application with virtually no exceptions, as opposed to personal remedies under s.24(1) of the Charter. This is a strong distinction drawn by the Supreme Court. As it confirmed in Martin, the unconstitutionality of a law is dealt with by s.52(1) independently. Section 52(1) confers no discretion on judges, and once a judge declares a law unconstitutional, s.52 operates to effectively remove it from the statute books completely (Ferguson, at para 65). If we accept this authority, we should view the McCaw problem not as one judge binding another judge in a typical horizontal stare decisis sense (or even a weaker judicial comity sense), but s.52 itself binding other judges. This is perfectly consistent with the hierarchy of laws, under which the Constitution binds all state actors. If this is true, one judge cannot later get out of the declaration of invalidity by simply reasoning around it. Similarly, the remedy for the Crown is to appeal the declaration, not collaterally attack it in a later proceeding.
Take the counterfactual and think about it in the context of the Supreme Court’s doctrine. If a subsequent Ontario Superior Court judge could conclude that s.33.1 is constitutional, even if a previous judge found it unconstitutional, the principle that no one should be subject to unconstitutional laws could be abridged. A subsequent judge could, in effect, conclude that a law is constitutional on certain facts—even though it has been previously found unconstitutional. But this is directly contrary to the Supreme Court’s own authority, which holds that a law rendered unconstitutional by s.52 is just that: unconstitutional. It cannot be patched up later on a case-by-case basis, and it is sufficient for the law to have an unconstitutional effect on one person to be unconstitutional in law (particularly under s.7). Put differently, if a law is unconstitutional in one regard, it is unconstitutional in all regards, past and present (subject to specific doctrines such as qualified immunity). The fortune or misfortune of drawing a later case and a later judge is, unfortunately, not sufficient to oust s.52.
There is room to criticize this strong-form interpretation of s.52. I don’t know if it necessary follows from the text of s.52 that a law unconstitutional in one regard is unconstitutional in all regards–for example, that we cannot have meaningful
“as-applied” remedies, as the Americans do. Section 52 simply says that unconstitutional laws are invalid to the extent of their inconsistency with the Constitution. Here, in the interstices of “extent of inconsistency,” is where the debate occurs. This phraseology justifies our understandings of remedies like severance and reading-in, but these are statutory remedies that apply to all persons equally. It seems to be a different order of business altogether for Judge B to disregard Judge A’s (operating in the same court) finding of unconstitutionality, unless we want to change what we mean by an “unconstitutional” law. Could it be that a law is unconstitutional to one person and not another?
There are many open questions here, some of which I hope are addressed by the Court of Appeal for Ontario. But all this to say, I do not see McCaw as flatly wrong on the current understanding of constitutional remedies.
Double Aspect 
The question arises often in patent context the Federal Court (in part because the NOC system resulted in re-litigation of exactly the same issues). In that context, the FCA 2012 FCA 308, [48] has said that a prior decision of law by a Federal Court judge is not strictly binding on a subsequent FC judge: “the general view appears to be that the conclusions of law of a Federal Court judge will not be departed from by another judge unless he or she is convinced that the departure is necessary and can articulate cogent reasons for doing so. On this test, departures should be rare.” And see http://www.sufficientdescription.com/2012/12/comity-cannot-solve-problem-of.html
This is interesting, thanks for your comment. This seems to be a strong form of comity. The Federal Court is an interesting beast when it comes to constitutional declarations, though, because of Karakatsanis J’s comments in Windsor. The thought crossed my mind writing this piece but I did not want to address it at this stage.
I agree that a s. 52 declaration of invalidity made by a Superior Court ought to bind other s. 96 judges (at least once the delay to appeal has run out) since, as you pointed out, otherwise it would empty s. 52 of its meaning. Do you think the same applies to a (non-suspended) declaration of invalidity that is under appeal?
You might be interested in this case: Société canadienne des postes c. Bergeron, 2018 QCCS 328 (CanLII), . The Québec Superior Court found (at paras. 13-23) that it is not bound by a s. 52 declaration of invalidity by the Ontario Superior Court of Justice. Stare decisis does not, according to the QCSC run across provincial boundaries and the ON decision can only be cited as (non-binding) precedent.
While admitting to some difficulty with the question, I think the s.52 declaration ought to bind within the jurisdiction unless it has been successfully appealed. But this is simply my intuition. The legal and constitutional force of the order would stand if and until it has been overturned. However, there could be good institutional reasons why lateral courts in the same jurisdiction might not want to rely on an order under appeal.
Interesting case re Quebec. The issue becomes more complicated extraprovincially. There, I think the Quebec court may have the right idea based on the powers of s.96 courts.