Overruling "final" decisions: Chandler v The State (Trinidad and Tobago) No 2) [2022] UKPC 19

You can’t read Chandler v The State (Trinidad and Tobago) (No 2) [2022] UKPC 19 without thinking of the anticipated overruling by the Supreme Court of the United States of Roe v Wade.

When will a court of final appeal overrule its own earlier decision, particularly on a point of constitutional interpretation?

The Board addressed the jurisprudence on this at [55]-[66]. The main points are:

Strong reasons for departure from the earlier decision are needed [56].

Stare decisis requires the greatest of hesitation before re-opening the issue; the earlier decision must be shown to have been wrong and lacking a sufficient foundation [57].

As the SCOTUS has said, a special reason for departure is needed, beyond a mere belief that the earlier decision was wrong [58].

It is necessary to avoid damage to the rule of law [58].

Something more than simply thinking the earlier decision was wrong is needed: for example it may have hampered the proper development of the law or distorted the law by being in conflict with established legal principles or by having to be distinguished in subsequent cases to such an extent that the law is uncertain [59].

There needs to have been a material change in circumstances since the earlier decision [60].

Where the court interpreted legislation, it will be more appropriate for the legislature to make the change, in contrast to common law which is more appropriately left to judges to change (citing Posner) [61].

The fact that the earlier decision was that of a mere majority does not weaken it, because the law has to have some way of resolving differences between judges [63].

Stare decisis promotes certainty, predictability, planning and the giving of legal advice [64].

As Lon L Fuller said, a system of legal rules has eight “desiderata”, relevantly here - retroactive laws should be avoided, legal rules should be clear, there should be a constancy of law through time, there should be correct administration of law [66].

 I add this: Another thing lawyers can’t help thinking about in this context is the difference between the internal and the external morality of law. If conformity with the requirements of the rule of law is a matter of the internal morality of the law, does such conformity tend to serve the requirements of external morality too? The (sadly, late) Professor of Jurisprudence at Oxford, John Gardner, considered this in his Law as a Leap of Faith (2012, OUP) Chapter 8, where at 220 he concludes, “Fuller is no legalist but he is surely, on this front, a bit of a quietist. He encourages lawyers to think that they are already doing their bit, qua lawyers, to save us from the abyss so long as they are upholding the rule of law. But there is always more, and sometimes more important, work to do.”

Judicial responses to rights-infringing legislation: Brown v R, 2022 SCC 18

In Brown v R, 2022 SCC 18 (May 13, 2022) the Supreme Court of Canada declared  unconstitutional, and of no force or effect, s 33.1 of the Criminal Code.

The effect of s 33.1 was to remove a defence of automatism to crimes of general intent.

This provision was contrary to the principles of fundamental justice in that it allowed criminal liability for acts that were not voluntary. This infringed s 7 of the Canadian Charter of Rights and Freedoms. It also breached the presumption of innocence by replacing the prosecution’s obligation to prove mens rea with mere proof of intoxication. This infringed s 11(d) of the Charter.

On the critical question of whether the limits on rights imposed by s 33.1 were justified in a free and democratic society under s 1 of the Charter, the Court held that, while there was a rational connection between s 33.1 and Parliament’s purpose, the impairment of rights was not minimal because alternative means of achieving the purpose could be devised. The benefits of s 33.1 were outweighed by its negative effects: the risk of wrongful conviction, the failure to distinguish between grades of moral culpability, and the disproportionate punishment that would have to be imposed.

In a companion judgment delivered the same day, two Crown appeals were dismissed because of the invalidity of s 33.1: R v Sullivan, 2022 SCC 19. This judgment addresses stare decisis issues, particularly horizontal stare decisis: when a court is bound to follow a decision of a court at the same level in the hierarchy in the same Province.

The power to declare statutory provisions unconstitutional is in s 52(1) of the Constitution Act, 1982, which states: “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”

In New Zealand we don’t have a provision corresponding to s 52(1). Our courts have no power to declare a parliamentary enactment to be of no force or effect. We do have an equivalent of s 1 of the Charter. This is s 5 of the New Zealand Bill of Rights Act 1990 (NZBORA).

However, our Supreme Court has held that there is a power to make a declaration of inconsistency with NZBORA: Attorney-General v Taylor [2018] NZSC 104 per Glazebrook and Ellen France JJ at [65], Elias CJ at [74], (William Young and O’Regan JJ dissenting at [122]).

What should be the consequences of such a declaration? These are still to be worked out.

Possibilities are the taking into account of a declaration as a mitigating factor when determining an appropriate sentence, or when deciding whether to discharge an offender without conviction. Where a provision unjustifiably limits the right to be presumed innocent and the right to a fair trial, dismissal of a charge at trial or quashing a conviction on appeal should be appropriate. As we say these days, the consequences of a declaration of inconsistency will probably be contextual and evaluative judgement will be necessary.