May 1, 2020

(Don't) Do It Again: using horizontal precedent to strike down a mandatory minimum.

R. v. Bruce, 2019 ONSC 5865 (CanLII)

This case deals with the issue of horizontal precedent in lower courts.

In Bruce, Justice Labrosse held that an Ontario decision invalidating a mandatory minimum sentence should be followed by all judges of coordinate jurisdiction within Ontario. The mandatory minimum sentence is "effectively off the statute books" in that province until the decision is overturned by an appellate court. [para. 14]

Bruce is an acknowledgment of two important juridical principles: judicial comity and judicial economy.

Judicial comity refers to the practice of judges extending mutual courtesy and recognition to decisions by judges of the same court. The practice is grounded in the rationale that courts should stand by things already decided because it promotes consistency, certainty, and predictability in the law. In that regard, consistency enhances the legitimacy of the common law.

Judicial economy is concerned with the reality that legal resources are scarce. It takes time for matters to arrive at the appellate level . Meanwhile, lower courts must revisit the same legal questions over and over. If lower courts are consistently arriving at the same conclusions, then the process begins to appear redundant. Redundancy is draining on both the courts' and accused's resources.

Redundancy was the scenario before Justice Labrosse in Bruce. The constitutionality of the mandatory minimum sentences for weapons trafficking offences, provided under s. 99(2) of the Criminal Code, had already been before the Superior Court on five occasions. On each occasion, the Superior Court had found that the provision was invalid.

Justice Labrosse reasoned that the previous declarations of invalidity were binding on the basis of several considerations:

  • The guidance from the Supreme Court in R. v. Ferguson 2008 SCC 6 was against a case-by-case option of granting remedies under s. 52(1) of the Charter. This guidance would be superfluous if it is only applied to vertical precedent, as vertical stare decisis is already well-established.
  • The removal of a mandatory minimum does not prevent sentencing from going forward. The court merely proceeds in its normal course without reference to the mandatory minimum. Therefore, the harm of having a wrong decision in effect before appellate intervention is lessened.
  • A case-by-case approach would inject uncertainty into the sentencing hearing. The post-Jordan era is calls for post-trial certainty. Thus, there is clearly a need to avoid unnecessary adjudication of constitutional questions when there has already been a declaration of invalidity.
  • There is further uncertainty in the courts, as having conflicting decisions on the issue will leave provincial courts not knowing whether a mandatory minimum sentence remains in force and effect or not.
  • There are also public policy concerns about the availability of legal aid and the need to limit drawn out constitutional challenges.
  • In any event, the Crown may ask a sentencing judge to suspend the declaration of invalidity.
  • As well, in appropriate cases, the Crown may also to seek a stay pending appeal of a declaration of invalidity.

Justice Labrosse appears to endorse a more forceful iteration of Justice Strathy's (as he then was) view in R. v. Scarlett 2013 ONSC 562 that "decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them." [at para. 43] Bruce certainly adds to the case law recognizing the significance of horizontal precedent.

This decision is a welcome recognition that constitutional issues do not need to be decided by appellate courts to give legal certainty. It is fundamental to the rule of law that the law must accessible, clear and predictable. A case-by-case consideration of mandatory minimum sentences invites uncertainty into the justice system. As Chief Justice McLachlin remarks in Ferguson, "[i]t impairs the right of citizens to know what the law is in advance and govern their conduct accordingly." Further, 'it creates an unnecessary barrier to the effective exercise of the convicted offender’s constitutional rights, thereby encouraging uneven and unequal application of the law." [para. 72] Consistent decision-making enhances the ability of accused to engage with the criminal justice system, and understand legal consequences. Clarity and predictability underpin the functioning of the plea resolution system. On this point, the reasoning in Bruce supports greater efficiency in the courts. Moreover, the reasoning of this decision is not confined to s. 99(2) of the Code. It may be applied to the all mandatory minimum decisions. Although, it is bittersweet, and perhaps somewhat ironic, that it comes from the Superior Court.