2021 QCCA 360, 2021 QCCA 360

Unofficial English Translation of the Judgment of the Court R. c. Lapointe 2021 QCCA 360 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007043-191 (700-36-001428-183, 700-36-001429-181, 700-36-001430-189) DATE: March 1, 2021 CORAM: THE HONOURABLE JULIE DUTIL J.A. DOMINIQUE BÉLANGER, J.A. ROBERT M. MAINVILLE, J.A. HER MAJESTY THE QUEEN APPELLANT – Impleaded party v.

YVON LAPOINTE MICHEL LAVIGNE PAUL-ÉRIC BÉLIVEAU RESPONDENTS – Applicants and ANDRÉ DIOTTE, in his capacity as justice of the peace CAROLE ANNE GIRARD, in her capacity as justice of the peace DIANE BÉLAIR, in her capacity as justice of the peace IMPLEADED PARTIES – Respondents JUDGMENT [ 1 ] The Crown is appealing from a judgment rendered on March 8, 2019, by the Superior Court, Criminal Division, District of Terrebonne (the Honourable Myriam Lachance), granting the three respondents’ applications for writs of certiorari and quashing the appearance notices and summons issued against them for the purpose of requiring them to submit to the identification measures set out in the Identification of Criminals Act (R.S.C. 1985, c.

I-1 ). [ 2 ] For the reasons of Mainville J.A., with which Dutil and Bélanger JJ.A. agree, THE COURT : [ 3 ] ALLOWS the appeal; [ 4 ] REVERSES the judgment of the Superior Court dated March 8, 2019; and [ 5 ] DISMISSES the three respondents’ applications for writs of certiorari . JULIE DUTIL J.A. DOMINIQUE BÉLANGER, J.A. ROBERT M. MAINVILLE, J.A.

Mtre Nicolas Abran Mtre Alexandre Dubois DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the appellant Mtre Nicolas Lemelin Mtre Khalid M’Seffar LEGAL AID OFFICE - ST-JÉRÔME For the respondents Date of hearing: November 3, 2020 REASONS OF MAINVILLE, J.A. [ 6 ] Pursuant to s. 784(1) of the C riminal Code ( “Cr.

C. ” ) , the Crown is appealing from the judgment rendered on March 8, 2019, by the Superior Court, Criminal Division, District of Terrebonne (the Honourable Myriam Lachance)( 2019 QCCS 792 ), granting the three respondents’ applications for writs of certiorari and quashing the appearance notices and summons issued against them for the purpose of requiring them to submit to the identification measures set out in the Identification of Criminals Act . [1] [ 7 ] The main issue raised by the appeal is whether an individual prosecuted by way of

summary conviction proceedings for a hybrid offence [2] may be compelled to submit to the identification measures set out in s. 2(1) (

c) of the Identification of Criminals Act in view of the rules stated in s. 34 of the

Interpretation Act . [3] More specifically, the appeal concerns the application of stare decisis pursuant to this Court’s 1981 decision in Lapointe v. Lacroix [4] (“ Lapointe ” ) , taking into account the decision rendered by the Supreme Court of Canada in R. v.

Dudley (“ Dudley ”) in 2009. [5] BACKGROUND [ 8 ] In Canada, bertillonage has its statutory origin in the Identification of Criminals Act , [6] which was assented to in 1898 and applies to “[a]ny person in lawful custody, charged with, or under conviction of an indictable offence / [t]oute personne légalement sous garde, soit accusée ou reconnue coupable d’un crime”.

Bertillonage was eventually replaced by other identification measures, namely fingerprinting. [7] The legislation was amended in 1947 to also subject persons arrested pursuant to the Extradition Act or the Fugitive Offenders Act to identification measures. [8] In 1950, its application was extended to offences under the Official Secrets Act . [9] [ 9 ] In 1971, ss. 453.3(3) and 455.5(5) were added to the Criminal Code as part of the Bail Reform Act [10] to provide that an accused named in the appearance notice, promise to appear, recognizance or summons alleged to have committed an indictable offence could be required to submit to the identification measures set out in the Identification of Criminals Act , even if the person was not incarcerated, the accused so appearing being deemed to be in lawful custody for the purposes of that Act .

The purpose of these amendments was to reduce the number of persons held in custody, while allowing measures to be taken to identify accused who had been released under the new, more flexible, release rules. [11] [ 10 ] In 1992, the Contraventions Act [12] further amended these provisions of the Criminal Code and the Identification of Criminals Act to provide for a reference to the provisions of the Criminal Code on the identification measures directly in the Identification of Criminals Act and also to ensure a better concordance between all applicable legislative provisions. [ 11 ] At the time the respondents were served with either a summons (April and May 2018) or an appearance notice (March 2018), the relevant provisions of the Criminal Code and of the Identification of Criminals Act provided as follows: Criminal Code : 501(3) An appearance notice issued by a peace officer or a promise to appear given to, or a recognizance entered into before, an officer in charge or another peace officer may require the accused to appear at a time and place stated in it for the purposes of the Identification of Criminals Act , where the accused is alleged to have committed an indictable offence and, in the case of an offence designated as a contravention under the Contraventions Act , the Attorney General, within the meaning of that Act, has not made an election under

section 50 of that Act. 501(3) Une citation à comparaître délivrée par un agent de la paix, une promesse de comparaître ou un engagement contracté devant un fonctionnaire responsable ou un autre agent de la paix peuvent enjoindre au prévenu de comparaître, pour l’application de la

Loi sur l’identification des criminels , aux temps et lieu y indiqués, lorsque le prévenu est présumé avoir commis un acte criminel et, dans le cas d’une infraction qualifiée de contravention en vertu de la

Loi sur les contraventions , si le procureur général, au sens de cette loi, ne se prévaut pas du choix prévu à l’article 50 de la même loi.

509(5) A summons may require the accused to appear at a time and place stated in it for the purposes of the Identification of Criminals Act , where the accused is alleged to have committed an indictable offence and, in the case of an offence designated as a contravention under the Contraventions Act , the Attorney General, within the meaning of that Act, has not made an election under

section 50 of that Act. 509(5) Une sommation peut enjoindre au prévenu de comparaître, pour l’application de la

Loi sur l’identification des criminels , aux temps et lieu y indiqués lorsqu’il est allégué que le prévenu a commis un acte criminel et, dans le cas d’une infraction qualifiée de contravention en vertu de la

Loi sur les contraventions , si le procureur général, au sens de cette loi, ne se prévaut pas du choix prévu à l’article 50 de la même loi. Identification of Criminals Act 2(1) The following persons may be fingerprinted or photographed or subjected to such other measurements, processes and operations having the object of identifying persons as are approved by order of the Governor in Council: 2(1) Est autorisée la prise des empreintes digitales, des photographies et de toute autre mensuration — ainsi que toute autre opération anthropométrique approuvée par décret du gouverneur en conseil — sur les personnes suivantes : (

a) any person who is in lawful custody charged with or convicted of

a) les personnes qui sont légalement détenues parce qu’elles sont inculpées — ou qu’elles ont été déclarées coupables — de l’une des infractions suivantes : (

i) an indictable offence, other than an offence that is designated as a contravention under the Contraventions Act in respect of which the Attorney General, within the meaning of that Act, has made an election under

section 50 of that Act, or (

i) un acte criminel, autre qu’une infraction qualifiée de contravention en vertu de la

Loi sur les contraventions et au

titre de laquelle le procureur général, au sens de cette loi, se prévaut du choix prévu à l’article 50 de la même loi, (ii) an offence under the Security of Information Act ; (ii) une infraction prévue par la Loi sur la protection de l’information ; (

b) any person who has been apprehended under the Extradition Act ;

b) les personnes qui ont été arrêtées en application de la

Loi sur l’extradition ; (

c) any person alleged to have committed an indictable offence, other than an offence that is designated as a contravention under the Contraventions Act in respect of which the Attorney General, within the meaning of that Act, has made an election under

section 50 of that Act, who is required pursuant to subsection 501(3) or 509(5) of the Criminal Code to appear for the purposes of this Act by an appearance notice, promise to appear, recognizance or summons; or

c) les personnes qui auraient commis un acte criminel autre qu’une infraction qualifiée de contravention en vertu de la Loi sur les contraventions et au

titre de laquelle le procureur général, au sens de cette loi, se prévaut du choix prévu à l’article 50 de la même loi, et qui, en vertu des paragraphes 501(3) ou 509(5) du Code criminel , sont tenues de comparaître en conformité avec une citation à comparaître, un engagement, une promesse de comparaître ou une sommation; (

d) any person who is in lawful custody pursuant to

section 83.3 of the Criminal Code .

d) les personnes qui sont sous garde légale conformément à l’

article 83.3 du Code criminel . [ 12 ] The issue of the application of these provisions of the Criminal Code and the Identification of Criminals Act to hybrid offences arose in this Court’s decision in Lapointe in 1981, in R. c. Tshernish [13] ( “Tshernish” ), also of this Court, rendered in 1990, and in the British Columbia Court of Appeal’s decision in R. v. Connors [14] (“ Connors ”) in 1998. [ 13 ] It should be noted that Quebec and British Columbia are both provinces where criminal charges must first be authorized by Crown counsel. For example, in Ontario, the police prosecute hybrid offences regardless of the mode of proceeding and the decision to proceed by indictment or by

summary conviction is made later. [15] That is not the case everywhere in Canada. In Quebec, the practice has long been that the Crown authorizes the criminal prosecutions and in doing so decides how to proceed as soon as the prosecution is instituted. [16] As a result, in Ontario the issue of identifying individuals charged with hybrid offences is much less important than in Quebec, where the mode of prosecution is determined at the outset.

A similar regime of prior authorization of the mode of proceeding also applies in British Columbia [17] and in New Brunswick. [18] According to the Crown, in the other Canadian provinces and territories, the applicable mode of prosecution is similar to that in Ontario. [ 14 ] In Lapointe , the accused was charged with a hybrid offence, but the summons for the accused indicated that the

summary proceeding set out in the Criminal Code would apply. The summons served on her also provided, in accordance with the s. 445.5(5) Cr. C. applicable at the time that she had to report to the police on April 23, 1980, for the purposes of the Identification of Criminals Act . The accused applied to the Superior Court for certiorari to quash that part of the summons on the ground that the provisions of the Identification of Criminals Act did not apply to individuals who, like her, were prosecuted by way of

summary conviction proceedings. The Superior Court dismissed the accused’s application and her appeal was dismissed. [ 15 ] Lavoie J.A., Bernier J.A. concurring, found that the mode of prosecution was of little relevance in the case of hybrid offences, even where the proceeding was instituted by way of

summary conviction, because the Crown could still elect to proceed by indictment, as long as that election was not [ translation ] “irrevocable”. On the basis of s. 27 of the

Interpretation Act , now s. 34, Lajoie J.A. found that the [ translation ] “description of the offence in the summons does not alter the indictable nature of the alleged offence so long as the

Attorney General has not made an irrevocable election, which is not the case here”[19] and therefore that [translation] “a reference in thesummons that the offence will be prosecuted by way of

summary conviction does not exempt the alleged offence from the application of paragraph (

a) of s. 27(3) [of the

Interpretation Act]”.[20] Indeed, the current version of the

Interpretation Act provides as follows: 34(1) Where an enactment creates an offence, 34(1) Les règles suivantes s’appliquent àl’interprétation d’un texte créant une infraction:(

a) the offence is deemed to be an indictableoffence if the enactment provides that theoffender may be prosecuted for the offence byindictment;

a) l’infraction est réputée un acte criminel si letexte prévoit que le contrevenant peut êtrepoursuivi par mise en accusation; (

b) the offence is deemed to be one for whichthe offender is punishable on

summaryconviction if there is nothing in the context toindicate that the offence is an indictable offence;and

b) en l’absence d’indication sur la nature del’infraction, celle-ci est réputée punissable surdéclaration de culpabilité par procéduresommaire; (

c) if the offence is one for which the offendermay be prosecuted by indictment or for whichthe offender is punishable on

summaryconviction, no person shall be considered tohave been convicted of an indictable offence byreason only of having been convicted of theoffence on

summary conviction.

c) s’il est prévu que l’infraction est punissablesur déclaration de culpabilité soit par mise enaccusation soit par procédure

sommaire, lapersonne déclarée coupable de l’infraction parprocédure

sommaire n’est pas censée avoir étécondamnée pour un acte criminel.

(2) All the provisions of the Criminal Coderelating to indictable offences apply toindictable offences created by an enactment, andall the provisions of that Code relating tosummary conviction offences apply to all otheroffences created by an enactment, except to theextent that the enactment otherwise provides.

(2) Sauf disposition contraire du texte créantl’infraction, les dispositions du Code criminelrelatives aux actes criminels s’appliquent auxactes criminels prévus par un texte et celles quiportent sur les infractions punissables surdéclaration de culpabilité par procéduresommaire s’appliquent à toutes les autresinfractions créées par le texte.

(3) In a commission, proclamation, warrant orother document relating to criminal law orprocedure in criminal matters,

(3) Dans tout document, notammentcommission, proclamation ou mandat, relatif audroit pénal ou à la procédure pénale :(

a) a reference to an offence for which theoffender may be prosecuted by indictment shallbe construed as a reference to an indictableoffence; and

a) la mention d’une infraction punissable surdéclaration de culpabilité par mise en accusationéquivaut à celle d’un acte criminel; (

b) a reference to any other offence shall beconstrued as a reference to an offence for whichthe offender is punishable on

summaryconviction.

b) la mention de toute autre infraction équivaut àcelle d’une infraction punissable sur déclarationde culpabilité par procédure

sommaire. [16] Beauregard, J.A., dissenting, would have allowed the appeal on the ground that the wording of a summons that clearly states thatthe infraction will be prosecuted by way of

summary conviction cannot be disregarded, thereby excluding it from the concept of “anindictable offence” for the purposes of the Identification of Criminals Act. [17] Be that as it may, in Lapointe, the approach of Lajoie J.A., for the majority, was later adopted by this Court in Tshernish. Theissue raised by that case was the validity of the Identification of Criminals Act in regard to s. 7 of the Canadian Charter of Rights andFreedoms. The Supreme Court of Canada had recently resolved the issue in Beare[21] by declaring that Act constitutional in a case thatproceeded by way of indictment.

The question was therefore whether this was also the case when the offence was prosecuted by way ofsummary conviction. Baudouin J.A., his colleagues Dubé and Tynsdale JJ.A. concurring, determined that the Act was constitutional,even in the case of a

summary conviction proceeding. He in fact noted that La Forest J.’s remarks in Beare suggested that fingerprintingfor hybrid offences was entirely legitimate. In doing so, Baudouin J.A. also expressly reiterated the remarks of Lajoie J.A. inLapointe:[22] First, our court in Lapointe v. Lacroix (QC CA), [1981] C.A. 497, concluded in a majority decision that s. 2(1) of theaforementioned Act and s. 509(5) of the Criminal Code permitted fingerprinting in respect of a hybrid offence being prosecuted by wayof

summary conviction, in so far as the Crown could subsequently elect to prosecute on indictment. Even if our decision was renderedprior to the Charter, the reasons given by François Lajoie J.A. still appear to me to be correct today. [18] A similar issue was raised before the Court of Appeal for British Columbia in Connors. The issue was whether the accused’sfingerprints could be validly collected in relation to a hybrid offence pursuant to the Identification of Criminals Act, even if the offence was prosecuted by way of

summary conviction. Cumming J.A.’s answer to this question was a resolute “yes”:[23] [66] Hybrid or Crown-electable offences are offences which may be prosecuted by indictment. Thus, where an enactment providesthat certain powers, such as the power to fingerprint, apply in the case of indictable offences, such enactment is deemed to apply tohybrid offences by virtue of the provisions of s. 34 of the

Interpretation Act. … [69] Counsel for the appellant submits that the passage from the headnote to R. v. Toor quoted by Seaton J.A. in R. v. B. is correct

save for the concluding phrase "until the Crown other​wise elects". At least for the purposes of the Identification of Criminals Act the term "indictable offence" includes of​fences which may be prosecuted summarily, but they retain their character as indictable offences no matter how the Crown elects. The Crown election has an impact procedurally on how and in what court the charge proceeds and, as well, on the maximum penalty that may be imposed, but does not change the character of the offence. It remains an indictable offence. I agree. [ 19 ] It is not disputed that, since Lapointe , any person prosecuted for a hybrid offence in Quebec, either by way of indictment or by way of

summary conviction proceeding, can be compelled to submit to the identification measures set out in the Identification of Criminals Act if the appearance notice, promise to appear, recognizance, or summons for that person so requires. [ 20 ] It is against this backdrop that the proceedings instituted by the respondents must be understood. They argue that the state of the law was modified by the Supreme Court of Canada’s decision in Dudley on December 17, 2009. As a result, the well-established practice in Quebec arising from Lapointe with respect to the measures to identify an accused is illegal if the Crown elects to proceed by way of

summary conviction. [ 21 ] In the case of the respondent Yvon Lapointe, the information dated May 29, 2018, accuses him of failing to comply with a condition of a probation order, which is a hybrid offence. The information states that the accused thereby allegedly committed the [ translation ] “offence punishable on

summary conviction set out in s. 733.1(1) (

b) of the Criminal Code ” . The summons issued that same day repeated the alleged offence and directed the accused (

a) to attend court on June 21, 2018, in order to be dealt with according to the law; and (

b) to go to the Saint-Jérôme police force the day before, that is, on June 20, 2018, for the purposes of the Identification of Criminals Act . [ 22 ] In the case of respondent Pierre-Éric Béliveau, the information dated April 24, 2018, accuses him of committing mischief in relation to property of a value not exceeding $5,000, which is a hybrid offence. The information states that the accused thereby allegedly committed the [ translation ] “offence punishable on

summary conviction set out in ss. 430(1) (

a) and 430(4) (

b) of the Criminal Code ” . The summons issued that same day repeated the alleged offence and directed the accused (

a) to attend court on May 29, 2018, in order to be dealt with according to the law; and (

b) to go to the Saint-Jérôme police force a few days before, that is, on May 23, 2018, for the purposes of the Identification of Criminals Act . [ 23 ] On March 18, 2018, respondent Michel Lavigne received an appearance notice from a peace officer in which it was alleged that he had committed the offences of [ translation ] “impaired driving. +80 mg%”. These are hybrid offences. That notice required him to attend court on June 26, 2018, in order to be dealt with according to law.

It also required that he appear on June 19, 2018, at the Police Division of Public Safety for the Ville de Saint-Eustache, for the purposes of the Identification of Criminals Act . The information was issued later, that is, on June 6, 2018, and accused him of two offences prosecuted summarily, that is, (a) [ translation ] “operating a motor vehicle while his ability to operate it was impaired by alcohol or a drug, thereby committing the offence punishable on

summary conviction set out in ss. 253(1) (

a) and 255(1) of the Criminal Code ” and (b) “operating a motor vehicle while having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds 80 milligrams of alcohol in 100 millilitres of blood , thereby committing the offence punishable on

summary conviction set out in ss. 253(1) (

b) and 255(1) of the Criminal Code ” . [ 24 ] Relying on Dudley , the respondents instituted certiorari proceedings before the Superior Court to quash the parts of the two summons and the appearance notice subjecting them to the identification measures set out in the Identification of Criminals Act , since, they submit, that Act does not apply where the Crown prosecutes a hybrid offence by way of

summary conviction. THE TRIAL JUDGMENT [ 25 ] The trial judge concluded that she was bound by Dudley and, accordingly, that the issue in dispute could be decided on the principles of precedent. She refused to conduct a purposive analysis of ss. 501(3) and 509(5) of the Criminal Code , applicable at the time, or of the Identification of Criminals Act , on the ground that it was pointless given the application of stare decisis . [24] [ 26 ] She also concluded that she was not bound by Lapointe because, according to her, the reasoning underlying that decision was rejected in Dudley .

In this regard, she said the following: [25] [ translation ] [57] In R. v. Dudley , the Supreme Court discusses the British Columbia Court of Appeal’s decision in R. v. Connors which, like Lapointe v. Lacroix , found that because of the presumption of s. 34(1) (

a) of the

Interpretation Act , the police have the power to fingerprint for hybrid offences regardless of the mode of proceeding elected. [58] It should be noted that like Quebec, British Columbia has adopted a system of preauthorization for Crown prosecutions. [59] In R. v. Dudley , Fish J. rejected the application of R. v. Connors , citing R. v. Abarca , whose conclusions are contrary to R. v. Connors and Lapointe v. Lacroix . [60] In R. v.

Abarca , the issue before the Ontario Court of Appeal involved an application for abuse of process related to the exercise of the prosecution’s discretionary power to elect a mode of proceeding. On the basis of Dallman v. The King , it stated: “Once the Crown elects to proceed by way of

summary conviction, it cannot compel the appearance of an accused for fingerprinting”. [61] In R. c. Singh , Boucher J., of this Court, addressed the issue without definitively deciding it while approving the following conclusion of the trial judge: “For all of the reasons mentioned above, I conclude that a defendant cannot be compelled to give his fingerprints for a hybrid offence after the Crown has made an election to proceed summarily”.

[62] The Crown insists on the fact that Fish J.’s obiter dicta in R. v. Dudley arose in a case that did not concern the application of the Identification of Criminals Act . That argument, however, does not withstand an overall analysis of the state of the law on the notion of “underlying character” of a hybrid offence. [63] Although Fish J. did not specify the scope of his obiter dicta and given that an obiter dicta must not be interpreted as ratio decidendi , it appears that the state of the law has changed since Lapointe v.

Lacroix . … [68] Nonetheless, where there is a public purpose or objective specifically related to criminal law, such as that of the Identification of Criminals Act , the Criminal Code , or the

Interpretation Act , the rules developed by the Supreme Court apply as presented. [69] As a result, the Court is bound by R. v. Dudley . [70] The principle of vertical stare decisis [ translation ] “is fundamental to ensuring the certainty of the law. Subject to extraordinary exceptions, a lower court must apply the decisions of higher courts to the facts before it”. [71] The evidence adduced does not establish that there is an extraordinary exception that would justify departing from the common law rule that precedents are binding. … [78] Indeed, according to the Supreme Court in R. v. Dudley , “ [ w ] here the Crown elects to proceed by way of

summary conviction … the hybrid … offence is treated in all respects as a

summary conviction offence”. [79] The Court concludes that the justices of the peace did not have the power to compel the applicants to submit to the Identification of Criminals Act as a result of the Crown’s election to lay the charges by way of

summary proceedings. [80] As a result, the respondents acted outside their jurisdiction. [References omitted] GROUNDS OF APPEAL [ 27 ] In its appeal brief, the Crown raises two grounds, which it describes as follows: [ translation ] (

a) The trial judge erred in law in modifying the principle of stare decisis when she stated that she was bound by the obiter dicta in Dudley which decide an issue unrelated to the one submitted by the respondents in their writ of certiorari . (

b) She erred in law in erroneously interpreting the Identification of Criminals Act on the basis of the prosecution’s discretion to elect to prosecute the offence according to the rules of

summary conviction proceeding, rather than invoking the presumption created by the

Interpretation Act ( s. 34(1) (a ) ). [ 28 ] Those grounds in fact involve three questions to be answered by the Court: 1. Did the trial judge err in law in deciding that she was bound by Dudley due to the principle of stare decisis ? 2. If so, can the Court reconsider the precedent it established in Lapointe and Tshernish ? 3. If so, how should the relevant provisions of the Criminal Code and of the Identification of Criminals Act be interpreted in this case? ANALYSIS First issue: vertical stare decisis [ 29 ] The trial judge refused to follow Lapointe and Tshernish , which deal directly with the issue before her, in favour of her

interpretation of an obiter dicta in Dudley , where the issue of the scope of the Identification of Criminals Act for hybrid offences was explicitly excluded from the analysis. That is an error of law.

Here are the reasons why. [ 30 ] The rule of stare decisis comes from English law; [26] it aims to guarantee certainty in the law and in fact constitutes one of the foundational principle of the common law. [27] It promotes predictability, enhances fairness and reduces arbitrariness . [28] Similarly, it makes justice more efficient and economical and discourages the multiplication of judicial proceedings. [29] [ 31 ] The rule of stare decisis is two-fold. The first type is “vertical” or “hierarchical” stare decisis . It requires that courts follow the precedents of a higher jurisdiction.

The second type is “horizontal” or “collegial” stare decisis . It applies to the decisions of the same level of court. The first step is to investigate vertical stare decisis. [ 32 ] The case law has identified several conditions for the application of vertical stare decisis . First, the decision establishing the precedent must come from a hierarchically higher court. [30] Indeed, the logic inherent to vertical stare decisis is partially related to the right of appeal and relies on an essentially hierarchical conception of the judicial order.

This hierarchical aspect means that a court is bound by the decisions of another higher court that is part of the same hierarchy. In this way, the Superior Court is bound by the decisions of the Court of Appeal and the Supreme Court of Canada, but not by those of another Canadian appellate court, although those

decisions can be persuasive, without being binding. [31] [ 33 ] Next, stare decisis only applies to the ratio decidendi of the decision that serves as a precedent, as Binnie J. strongly asserted in R. v. Henry , [32] “[t]he objective of the exercise is to promote certainty in the law, not to stifle its growth and creativity.

The notion that each phrase in a judgment of this Court should be treated as if enacted in a statute is not supported by the cases and is inconsistent with the basic fundamental principle that the common law develops by experience”. [33] [ 34 ] The concept of ratio decidendi is therefore intrinsically linked to both the factual situation in which the dispute arises and, in matters of statutory

interpretation, the wording of the law to be interpreted. Indeed, the facts relevant to the dispute must not be reasonably distinguishable from those of the precedent relied upon; only a similar or analogous factual framework will lead to the application of the stare decisis rule. [34] As the Supreme Court stated, “ there is no independent force to be found in selec​tive quotations from a portion of the reasons unless regard is had to issues raised and the context in which the quotations are found”. [35] Similarly, the use of stare decisis is dangerous when the legal principle at issue is not the same. Thus, in matters of statutory

interpretation, the

interpretation of another statute, even if the same words are used, cannot give rise to the application of stare decisis . [36] It may remain, however, an important, even persuasive, interpretative argument, but the

interpretation must nonetheless be carried out in accordance with accepted principles. [ 35 ] When the rule of vertical stare decisis applies and the lower court disagrees with the binding decision of the hierarchically higher court, it can certainly explain in its reasons what it considers problematic with the binding precedent, but it cannot refuse to apply it. [37] [ 36 ] It is true that in its judgments in Bedford [38] and Carter [39] the Supreme Court of Canada opened the door for lower courts to depart from a precedent in certain exceptional circumstances, that is (1) where a new legal issue is raised; or (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate”.

As the Supreme Court recently recalled in R. v. Comeau , [40] the threshold is high and applies primarily when constitutional questions are at issue and the factual situation that gave rise to the precedent is radically different. Other than these rare cases, the lower court must follow the hierarchical precedent. [41] [ 37 ] What of the present case? [ 38 ] Contrary to her conclusion, the trial judge was not bound by Dudley according to stare decisis since, in that case, the Supreme Court of Canada had specifically excluded the application of the Identification of Criminals Act from the analysis.

The judge herself acknowledged that the remarks in Dudley on which she relied were made in obiter dicta . [42] [ 39 ] The issue in Dudley was the

interpretation of s. 786(2) Cr. C. applicable to

summary conviction proceedings. It provides that, “[n]o proceedings shall be initiated more than twelve months after the time when the subject matter of the proceedings arose, unless the prosecutor and the defendant agree/à moins d’une entente à l’effet contraire entre le poursuivant et le défendeur, les procédures se prescrivent par douze mois à compter du fait en cause”. [ 40 ] Ms. Dudley was charged in Alberta with fraud not exceeding $5,000, which is a hybrid offence. The Crown elected to proceed summarily. When the matter got to court, counsel for Ms.

Dudley invoked the six-month prescription applicable at that time under s. 786(2) Cr. C. – that time limit was later amended to twelve months. In response, the Crown sought leave to proceed by indictment, which was denied at trial. The Court of Appeal of Alberta intervened on the ground that the Crown could re-elect to prosecute the alleged offence by indictment, which is not subject to a limitation period. [ 41 ] The appeal to the Supreme Court was dismissed.

Fish J., for the majority, was of the view that the Crown may proceed afresh by indictment, unless there has been abuse of process or an adverse adjudication on the merits of the

summary proceeding. [43] Relying on s. 34(1) (

a) of the

Interpretation Act , Fish J. concluded that hybrid offences are presumed indictable “unless the Crown elects, or is deemed to have elected, to try them summarily”, [44] and “until the Crown elects to proceed summarily”. [45] Fish J. concluded that although the limitation period set out in s. 786(2) Cr. C. applies to

summary proceedings, this does not negate the substantive criminal character of a hybrid offence, which can always be prosecuted by indictment if a

summary proceeding is no longer available, given that the limitation period invalidates the Crown’s election and not the information underlying the offence . The binding reason or ratio decidendi of Fish J.’s reasons is found in the following paragraphs: [46] [39] In virtue of s. 34 of the

Interpretation Act , hybrid offences are deemed indictable unless and until the Crown has elected to proceed summarily. Where the Crown elects to proceed summarily beyond the limitation period without the defendant’s consent, the Crown’s invalid election does not retrospectively invalidate an information . … [42] As mentioned earlier, the failure of the accused to consent to the prosecution of a hybrid offence by way of

summary conviction beyond the limitation period is fatal to the validity of the Crown’s election and to the proceedings that ensue. [43] It is for precisely this reason that the Crown is free to proceed by indictment on the original information, if valid on its face, where the accused refuses to consent. Although the information remains valid, the initial election and all subsequent proceedings are a nullity.

They can therefore have no effect on the Crown’s ability to proceed by indictment. [44] I agree with the Court of Appeal that it is not unfair to the accused to permit the Crown to proceed by indictment unless “the evidence discloses an abuse of process arising from improper Crown motive, or resulting prejudice to the accused sufficient to violate the community’s sense of fair play and decency” (para. 1). On the record as we have it, nothing of the sort may be said to have occurred here.

[Emphasis added.] [ 42 ] Charron J., for the minority, acknowledged that Fish J.’s reasoning is based on the premise that hybrid offences are indictable offences by operation of s. 34 of the

Interpretation Act , which explains his conclusion that the Crown can elect to proceed by indictment once a

summary proceeding becomes unavailable due to the limitation period: “If it were otherwise ... there would be no basis in law for the Crown to “re-elect” and continue the proceedings by indictment”. [47] [ 43 ] Charron J. took Fish J.’s reasoning further, however, and concluded that “[r]egardless of the timing of the Crown election, the offence is still deemed to be an indictable offence pursuant to the

Interpretation Act ”. [48] As a result, according to the judge, the limitation period set out in s. 786(2) Cr. C. does not apply to hybrid offences, whether or not prosecuted summarily, since that “would frustrate Parliament’s purpose”, [49] which purpose is to apply limitation periods to less serious offences and not to indictable offences, which includes hybrid offences. [50] The judge also stated that Fish J.’s approach could force the Crown to proceed by way of indictment when a

summary proceeding would be appropriate. [51] Accordingly, the judge concluded that hybrid offences can be prosecuted by way of

summary conviction without regard to the limitation period because s. 786(2) Cr. C. does not apply to this type of offence. Thus, according to Charron J., the Crown could prosecute Ms. Dudley by

summary conviction without regard to the limitation period. [ 44 ] Fish J.’s reaction to Charron J.’s position was to state that a hybrid offence prosecuted summarily is no longer an indictable offence as long as the Crown does not re-elect. [52] That said, Fish J.’s comments were not required for him to conclude that the limitation period set out in s. 786(2) Cr. C. applies to

summary proceedings , but not to the information related to the hybrid indictable offence, which allows the Crown to proceed by indictment when the limitation period set out in s. 786(2) has expired, even if the Crown initially elected to proceed summarily. [ 45 ] As can be noted, the dispute between Fish and Charron JJ. was the applicability of the limitation period set out in s. 786(2) Cr. C. to hybrid offences. Fish J. was of the view that the limitation period applies to

summary proceedings , which does not prevent the Crown from re-electing and proceeding by indictment once this limitation period has expired. Charron J. was instead of the view that the limitation period simply does not apply to hybrid offences, regardless of the procedural route chosen. [ 46 ] Be that as it may, both judges agreed that the application of the Identification of Criminals Act was not at issue in Dudley : “[a]s my colleague points out, the Identification of Criminals Act is not before us on this appeal” [53] ; “[t]he

interpretation of the Identification of Criminals Act is not before us.” [54] [ 47 ] The nature of the dispute in Dudley , which concerned the effect of the limitation period set out in 786(2) Cr. C. , and the specific remarks of Fish and Charron JJ. to the effect that the Identification of Criminals Act was not before the Court, lead to the conclusion that the trial judge could not invoke stare decisis to claim that she was bound by an obiter dicta . On the contrary, she was rather bound by Lapointe and Tshernish , which specifically and unambiguously concern the same issue as the one before her.

Second issue: horizontal stare decisis [ 48 ] In their joint appeal brief, the respondents acknowledge that Lapointe – which was taken up by Tshernish – serves as stare decisis in Quebec on the issues raised by their applications for certiorari , but they argue that the reasoning underlying these decisions must be set aside in light of Dudley . [55] In short, the respondents ask the Court to set aside Lapointe and Tshernish and instead adopt a new

interpretation of the statutory provisions at issue, which they claim are more consistent with the evolution of the case law. It must now be determined whether this panel must revisit Lapointe and Tshernish. [ 49 ] Contrary to vertical stare decisis , which requires a court to follow the precedents of a hierarchically higher court, horizontal stare decisis concerns the application of the precedent by members of the same court.

There is no need here to discuss the principles of horizontal stare decisis in a court of first instance, that is, the Superior Court, but rather in an appellate court, in this case within this Court. [ 50 ] Canadian appellate courts, including the Supreme Court of Canada, have generally established that their prior decisions must be followed, with some exceptions . Horizontal stare decisis is therefore not always rigid and the precedent is not always binding. It is the identification of situations where a departure from precedent is required that is problematic and sometimes controversial.

Thus, horizontal stare decisis aims to maintain the necessary balance between the imperative of guaranteeing the predictability and stability of the law and allowing the law to evolve so that it can adapt to the realities of an ever-changing society or, in other words, to avoid an injustice. [ 51 ] Citing Lord Denning and U.S. Justices Brandeis and Cardozo, John I.

Laskin J.A. of the Ontario Court of Appeal, in the well- known case David Polowin Real Estate Ltd. , aptly describes the conflicting tensions underlying the principles of horizontal stare decisis : [56] [118] Lord Denning once wrote, "The doctrine of precedent does not compel your Lordships to follow the wrong path until you fall over the edge of the cliff", to which Justice Brandeis might have replied: "It is usually more important that a rule of law be settled, than that it be settled right": see Ostime v.

Australian Mutual Provident Society , [1960] A.C. 459 , [1959] All E.R. 245 (H.L.) , at p. 489 A.C. and Di Santo v. Pennsylvania , 273 U.S. 34, 47 S. Ct. 267 (1927), at p. 270 S. Ct. respectively. These words, by two great jurists, capture the essence of the debate about stare decisis . [119] The values underlying the principle of stare decisis are well known: consistency, certainty, predictability and sound judicial administration. Adherence to precedent promotes these values. The more willing a court is to abandon its own previous judgments, the greater the prospect for confusion and uncertainty.

"Consistency", wrote Lord Scarman, "is necessary to certainty — one of the great objectives of law": see Farrell v. Alexander , [1976] 1 All E.R. 129 , [1977] A.C. 59 (H.L.) , at p. 147 All E.R. People should be able to know the law so that they can conduct themselves in accordance with it.

[120] Adherence to precedent also enhances the legitimacy and acceptability of judge-made law, and by so doing enhances the appearance of justice. Moreover, courts could not function if established principles of law could be reconsidered in every subsequent case.

Justice Cardozo put it this way in his brilliant lectures on The Nature of the Judicial Process (New Haven: Yale University Press, 1960) at p. 149: [T]he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him. [121] But there is, of course, a price to be paid for rigid adherence to precedent: injustices in individual cases, continued application of legal principles long since outdated as society has changed, and uncertainty bred by judges who draw overly fine distinctions to avoid stare decisis . [122] Most modern judges disavow both a rigid adherence to precedent and an unrestrained right to depart from their court's previous authority.

Instead, they apply stare decisis flexibly, seeking a reasonable point on the spectrum Chancellor Megarry describes so well: Much has been written and spoken on the doctrine of judicial precedent, and doubtless much more is still to come. At one extreme lies the goal of such certainty in the law as to obviate virtually all litigation save on disputed questions of fact; and the price to be paid is that of injustice in unforeseen cases. At the other extreme there is the goal of perfect hand-tailored justice in every case, at the price of great uncertainty in the law, and a flood of litigation.

Each price is too great; and inevitably the greatest of judges have differed in their views as to the point between the extremes at which the line is to be drawn. Those who feel most assured that they are wiser than their fathers are the most bold . [ 52 ] Thus, the Supreme Court of Canada adopted a flexible approach to stare decisis with respect to its own precedents.

In this regard it is noteworthy that the Supreme Court is in a special situation compared to the other Canadian appellate courts in that its decisions are not subject to appeal, which makes it all the more justified to relax the rules of precedent in its case. [ 53 ] According to the Supreme Court, the decision of whether to revisit a precedent is a balancing exercise between the two important values of correctness and legal certainty.

It is the exercise of discretion. [57] That being said, the Supreme Court will not revisit a precedent unless there are “compelling reasons”. [58] What are those compelling reasons? [ 54 ] In R. v.

Bernard , [59] Dickson C.J. listed four factors that justify overruling a precedent: (1) the decision predates the Charter and does not reflect its values; (2) subsequent developments in the law undermine the precedent’s validity; (3) the prior decision creates uncertainty, therefore contrary to the values of clarity and certainty underlying the principle of stare decisis ; (4) the prior decision operates against the accused by expanding his or her criminal liability beyond normal limits. This is not a comprehensive list. [60] More recently, in R. v.

Henry , [61] Binnie J. identified the following reasons that may justify overturning an earlier precedent: (1) the prior decision departed from the purpose of a Charter provision as articulated in an earlier precedent; (2) experience shows that the prior decision is unworkable as its application is unnecessarily complex and technical; (3) the prior decision is contrary to sound principles; (4) the prior decision it results in unfairness. [62] [ 55 ] Many of these reasons, as well as others, can be found in the recent decisions of the Supreme Court. In Canada (Minister of Citizenship and Immigration) v.

Vavilov , a majority of the Supreme Court indicated that it overrules precedents “that were determined to be unsound in principle, that had proven to be unworkable and unnecessarily complex to apply, or that had attracted significant and valid judicial, academic and other criticism.” [63] In Teva Canada Ltd v.

TD Canada Trust , Abella J. for the majority noted that the mere fact that a precedent is criticized is not, on its own, sufficient to overrule it. [64] [ 56 ] Nevertheless, one cannot help but notice that in its recent decisions, the Supreme Court has adopted a somewhat flexible approach to horizontal stare decisis with respect to its own prior decisions.

This more flexible vision of horizontal stare decisis is not without its critics, even within the judicial institution, [65] and is decried by some authors, [66] but praised by others. [67] [ 57 ] Before discussing the application of horizontal stare decisis in Quebec in greater detail, it is useful to briefly consider the approach taken by some of the other Canadian appellate courts, including the Federal Court of Appeal and the courts of appeal of British Columbia, Alberta and Ontario. [ 58 ] The Federal Court of Appeal has dealt extensively with horizontal stare decisis over the past 20 years, notably in 2002 in Miller , [68] and in numerous subsequent decisions. [69] For a

summary of the applicable law in this regard we may refer to the 2018 decision in Tan . [70] A panel of three Federal Court of Appeal judges may depart from a decision of another panel of that court in three circumstances: (

a) the decision was made per incuriam , i.e., carelessly or inadvertently, because it was manifestly wrong in the sense that it overlooked a relevant statutory provision, or a case that ought to have been followed; (2) the decision has been overtaken by subsequent Supreme Court jurisprudence; and (3) where there are compelling reasons to do so and correctness prevails over certainty.

Rennie J. stated the following in this regard: [71] [30] In this Court, a three judge panel may depart from a decision of another panel in three circumstances. [31] The first arises when the panel is satisfied that the decision was “manifestly wrong, in the sense that the Court overlooked a relevant statutory provision, or a case that ought to have been followed” ( Miller v. Canada (Attorney General) , 2002 FCA 370 at para. 10 , 220 D.L.R. (4th) 149 ( Miller ) ). The second arises when the decision has been overtaken by subsequent Supreme Court jurisprudence.

The third arises where there are compelling reasons to do so and correctness prevails over certainty ( J.P. v. Canada (Public Safety and Emergency Preparedness) , 2013 FCA 262 at para. 72 , [2014] 4 F.C.R. 371 ( J.P. ) ). [32] The manifestly wrong test has been consistently applied in this Court’s jurisprudence when it sits in its usual three-judge

formation (see e.g. Kossow v. Canada, 2013 FCA 283 at para. 33, [2014] 2 C.T.C. 1; Apotex Inc. v. Eli Lilly Canada Inc., 2016 FCA267 at para. 2, [2017] 3 F.C.R. 145). It is also the test in other appellate courts (see e.g. the cases reviewed at paragraph 126 of DavidPolowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), (ON CA), 76 O.R. (3d) 161, 255D.L.R. (4th) 633 (C.A.) (Polowin Real Estate)); see also the discussion at paragraphs 77 to 94 of R v. Neves, 2005 MBCA 112, 201 Man.R. (2d) 44; R. v. Grumbo (1998), (SK CA), 159 D.L.R. (4th) 577 at para. 54, 168 Sask.

R. 78; United Brotherhoodof Carpenters and Joiners of America, Locals 527, 1370, 1598, 1907 and 2397 v.

Labour Relations Board, 2006 BCCA 364 at para. 24,272 D.L.R. (4th) 253). [59] Clearly, a panel of five judges of the Federal Court of Appeal can depart from a precedent for the same reasons, but it can also doso in other circumstances, for example, when the precedent is not manifestly wrong, but in the Court’s view there are compelling reasons for no longer following it:[72] [33] The question that arises here, however, is the standard to be applied when a five-judge panel considers a decision of a three-judgepanel. [34] In Hospira Healthcare Corporation v.

Kennedy Institute of Rheumatology, 2016 FCA 215, [2017] 1 F.C.R. 331 (Hospira), a five-judge panel of this Court reversed a three-judge majority of a five-member panel decision in Canada v. Aqua-Gem Investments Ltd.(C.A.), (FCA), [1993] 2 F.C. 425, 149 N.R. 273 (F.C.A.) (Aqua-Gem) which established the standard of review onappeal from decisions of prothonotaries.

Nadon J.A., writing for the five-member panel, noted that the Miller test was not applicablebecause Aqua-Gem could not be said to be manifestly wrong, but that the rationalization of the law with respect to the standard of reviewhad “fundamentally shifted the parameters of the debate” (Hospira at paras. 61–64). [35] Other courts have stated that a five-judge panel may overrule a prior decision of a three-judge panel when the “earlier decision waswrong, or [where] for any other reason, the earlier decision ought to be overruled” (Nathanson, Schachter & Thompson v.

Inmet MiningCorp., 2009 BCCA 385 at para. 62, 96 B.C.L.R. (4th) 342). The Ontario Court of Appeal stated that the inquiry should be on the natureof the error, its impact and the consequences of maintaining it (Polowin Real Estate at para. 127). [36] These statements echo the compelling reasons test articulated by the Supreme Court in Craig and Teva and developed by this Courtin J.P. Subject to what follows, I would apply this test in a five-judge panel context as well. [37] The decision which we are asked to overturn consists essentially of two paragraphs in a decision dismissing an appeal on verynarrow grounds.

While Forrest FCA has been cited on a few occasions on the issue of whether immigration status is an analogous groundunder

section 15 of the Charter, in the twelve years since it was decided, it has never been cited on the issue at the heart of this appeal,except in the appellant’s case. As a result, this is not a case in which certainty and predictability in the law are in issue. Similarly, this isnot a case in which the parameters of the debate have shifted. [38] In the end, this panel was formed by the Chief Justice in response to a request from the parties who allege that Forrest FCA iswrongly decided and should be set aside.

Given the inapplicability of the factors referred to earlier in these reasons, and in the particularcircumstances of this case, I believe that this panel’s mandate is simply to decide if Forrest FCA and, by extension, Forrest FC werewrongly decided and if so, to provide further guidance to the Commission. [60] The British Columbia Court of Appeal adopted a similar approach, allowing a panel of three judges to overrule a precedent rendered per incuriam, if it would result in an injustice or is manifestly wrong.

Savage J. stated the following in this respect:[73] [185] It is open to a court to depart from the principle of stare decisis and to decline to follow one of its own prior decisions. Thecircumstances in which a three-justice division of the Court of Appeal of British Columbia may take such a course of action are,however, strictly limited.

The Court may overturn one of its own decisions only if “the previous decision is manifestly wrong, or shouldno longer be followed, because, for example, the previous decision failed to consider applicable legislation or binding authorities, or, iffollowed, would result in a severe injustice”: British Columbia v. Worthington (Canada) Inc. (1988), (BC CA), 29B.C.L.R. (2d) 145 at 148 (C.A.), leave to appeal ref’d [1988] S.C.C.A. No. 368; United Brotherhood of Carpenters and Joiners ofAmerica, Locals 527, 1370, 1598, 1907 and 2397 v. Labour Relations Board, 2006 BCCA 364 at para. 24; Bell v.

Cessna AircraftCompany (1983), (BC CA), 46 B.C.L.R. 145 at 148 (C.A.), leave to appeal ref’d [1982] S.C.C.A. No. 285. Here, noneof those conditions is met. The relevant legislation and authorities were put before the Court and fully considered, the words “severeinjustice” cannot in my view be applied here, and the result reached in Watson BCCA cannot be said to be “manifestly wrong”.

In myview, it is not open to this division to reconsider and overturn Watson BCCA. [61] In other cases, a panel of five judges may decide to overrule a precedent if that panel determines, for any other compelling reason, that it is appropriate to do so, even where the prior decision is not wrong:[74] [62] However, a conclusion that the Firm was estopped in these circumstances was precluded by this court's decision in Albion. Wehave convened as a five-judge division of the Court for the purpose of reconsidering that decision in accordance with the guidelinesdescribed in Bell v.

Cessna Aircraft Co. (1983), (BC CA), 149 D.L.R. (3d) 509, 46 B.C.L.R. 145 at 148 (C.A.), perCraig J.A., as summarized by Hutcheon J.A. in B.C. (Govt.) v. Worthington (Can.) Inc. (BC CA), [1989] 1 W.W.R. 1,29 B.C.L.R. (2d) 145 (C.A.): Those guidelines, in

summary, are: (1) that a three-judge division should not overrule a previous decision of a three-judge division unless the previous decision is manifestlywrong, or should no longer be followed, because, for example, the previous decision failed to consider applicable legislation or bindingauthorities, or, if followed, would result in a severe injustice; (2) that a five-judge division of the court may overrule the decision of a three-judge division if the five-judge division decides either thatthe earlier decision was wrong, or that for any other reason, the earlier decision ought to be overruled.

[62] In Alberta, the Alberta Rules of Court provide that leave must be obtained if a party wishes to reconsider a precedent of the Court, failing which the panel hearing the appeal may not revisit it.[75] This rule has been criticized even within the Alberta Court ofAppeal and does not always seem to be strictly followed.[76] That said, if leave is granted, there appears to be no requirement in theRules that the precedent must necessarily be reconsidered by a panel of more than three judges, although it appears that this is generally the case.

The Chief Justice decides, on a case-by-case basis, whether to assign a three-judge or a five-judge panel for this purpose.[77] In R. v. Effert,[78] the criteria for obtaining that leave were described as follows: [5] As the Practice Direction states, leave to re-consider a binding precedent will be granted in very limited circumstances.

Policyreasons for this are clear: rulings create expectations about the law; litigation must have an ending; binding decisions establish stabilityand certainty in the trial process; and the resources of appeal courts are not well spent by a forensic lottery of what differingcombinations of appellate judges might think about the issue at hand: R. v. Hayden (1997), 1997 ABCA 259 , 200 A.R. 279 atparas. 12-18; Barrett v. Krebs (1995), 1995 ABCA 310 , 174 A.R. 59 at para. 3. See similarly: McDiarmid Lumber Ltd. v. God’sLake First Nation, [2006] 2 S.C.R. 846, 2006 SCC 58 at para. 26; R. v.

Jenkins, 2010 ONCA 278 at para. 29. The factors relevant toassessing whether leave should be granted include: the age of the decision; treatment of the issues by other appeal courts; whether therewas “some simple, obvious, demonstrable flaw” in the previous decision; whether some binding statute or authority had beenoverlooked; whether the earlier decision has created settled expectations or resulted in other cases being settled or decided in a particularway; and whether the earlier decision was a memorandum of judgment delivered from the bench or a reserved, circulated judgment: seeR. v.

Oliver (1996), 1996 ABCA 282 , 187 A.R. 147, [1996] A.J. No. 732 (QL) at para 6; Agriculture Financial Services Corp.v. Redmond, 1998 ABCA 189, 216 A.R. 321, [1998] A.J. No. 618 (QL) at paras. 7-24.

Reliance is of reduced significance in criminalcases, but legal predictability and stability are not. [63] In any event, it does not appear that this rule prevents a regular three-judge panel of the Alberta Court of Appeal from overrulinga precedent rendered per incuriam, or where the subsequent Supreme Court of Canada jurisprudence has rendered the decisioninapplicable.[79] [64] In Ontario, the Practice Directions provide that, in both civil and criminal matters, a party that wishes to ask the Court of Appeal for Ontario to decline to follow one of its decisions must request that a five-judge panel be convened.[80] These directions do notnecessarily apply, however, when the precedent was decided per incuriam, in which case a three-judge panel can overrule it, as Rosenberg J. noted in McArdle v.

Bugler:[81] [26] There is a convention in this court that where a party seeks to have this court overrule one of its decisions, it should apply to theChief Justice to appoint a five-person panel. Coseco did not ask to do so until the day of the oral hearing. Given all the circumstances andespecially the lateness of the request, we declined to adjourn the case so that Coseco could apply to the Chief Justice. [27] There is at least one exception to the five-person convention. If the party can show that the earlier decision was reached perincuriam, stare decisis does not apply.

Laskin J.A. explained the per incuriam exception to stare decisis in David Polowin Real EstateLtd., at para. 111. In short, it must be shown that the panel deciding the earlier case did not advert to judicial or statutory authoritybinding on it and, had the panel considered this authority, it would have decided the case differently. In my view, neither condition issatisfied in this case. [65] In other cases, a five-judge panel must be convened in accordance with the Practice Directions. Such a panel may then overrulea precedent for any reason it considers compelling.

This is therefore fairly broad discretion, but one that should be exercised only rarely, as Harvison Young J. recently recalled:[82] [21] Generally, this court will follow its previous decisions in order to ensure the certainty and predictability of the law in Ontario.However, this is not an absolute. Where the advantages of departing from the precedent outweigh the disadvantages, taking into accountthe effect on the parties, future litigants and on the administration of justice, this court may exceptionally decline to follow a pastdecision: David Polowin Real Estate Ltd. v.

Dominion of Canada General Insurance Co. (2005), (ON CA), 76 O.R.(3d) 161 (C.A.), at para. 127, leave to appeal refused, [2005] S.C.C.A. No. 388-95. A decision to overrule precedent is rare because thevalues of certainty and predictability weigh heavily in favour of adherence to precedent. The circumstances in this case, however,warrant overruling Medhurst. [66] What about the Quebec Court of Appeal? [67] The Court has long adopted a flexible approach to horizontal stare decisis, much like the one taken more recently by the Supreme Court of Canada described above. In Lefebvre c.

Commission des affaires sociales du Québec,[83] a decision rendered nearly 30years ago, Baudoin J.A. explained the rationale for this flexible approach: [translation] In our system, however, the principle of stare decisis or the authority of precedent cannot and should not have the extreme rigidity that ithad previously in Britain, for two reasons. The first is that an error repeated over and over again will never create truth.

The BritishHouse of Lords, as my colleague points out, has itself realized that in modern times, with the increasing complexity of the law and thespeed of ideological developments, the rule of stare decisis can no longer be applied inflexibly and without nuance. The law must evolvealong with the ideas, attitudes and social context, while retaining the degree of certainty and reasonable predictability mentioned above.The second is that, with the advent of the Charters, our Supreme Court is now increasingly making "legal policy" decisions.

Itdetermines, for example, the legal and therefore social policy for all courts across Canada in human rights and criminal law matters byapplication of the constitutional Charter. This new role, or rather this remarkable shift in its task of “declaring” the law, is not, however,restricted to the application of the Charter. The Court's major administrative law decisions of recent years (which I need not list here)are, in my view, illustrations of this.

These decisions are, with respect, sometimes complex and, above all, nuanced because they do notnecessarily express only a clear, clean, and precise solution of positive law, but because they indicate to the other courts the general

context of the judicial policy that our country's highest court believes should be applied in this area. Of course, when a judgment clearly sets out a solution of positive law, it must be respected as long as the Supreme Court itself has not qualified, nuanced, or even reversed it. On the other hand, it seems normal to me, in the

interpretation and decoding by the trial and appellate courts of the Supreme Court's description of general judicial policies, that there is room for

interpretation and therefore that there may be, as an unusual effect, certain differences of opinion within the appeal courts themselves. The present case seems to me to fall squarely within this hypothesis. [ 68 ] The Court therefore may depart from precedent in the appropriate circumstances; however, this discretionary power must be used sparingly, in a balanced manner, when warranted by compelling reasons.

In 2000, Thibault J. conducted an exhaustive review of the applicable law and case law in Laurentienne-vie to conclude as follows about the state of the law in Quebec with respect to horizontal stare decisis : [84] [ translation ] [58] There are two conceptions of stare decisis . The first, which is very strict, requires the court to abide by the previous decision, regardless of the reasons for it. According to this

interpretation, stare decisis constitutes a rule that sets aside any argument that might otherwise have been considered for the purposes of the judgment. [59] The second more modern conception of stare decisis recognizes that a court is generally bound by a previous decision, but that this does not prevent it from reconsidering the reasons for the decision and adopting a different solution. [60] A review of this Court's recent jurisprudence shows that it is the modern approach of stare decisis that is applied in Quebec. … [68] In my opinion, we must avoid applying the concept of stare decisis too strictly by giving absolute authority to the decision of this Court in L'Excelsior .

It should also be noted that the parties did not plead this judgment on the merits.

If they had, this Court would have had the opportunity to reconsider the reasons for that decision and perhaps it would have adopted a different solution. [ 69 ] Although the Court often recalls the importance of horizontal stare decisis , its decisions generally note that a precedent can be revisited in the appropriate circumstances, such as when a subsequent decision of the Supreme Court of Canada invalidates the reasoning of the precedent decision, [85] where the Court finds an error [86] or where there are “compelling reasons” [87] or “compelling circumstances” [88] for doing so or if the prior decision is manifestly wrong. [89] [ 70 ] In its simplest form, horizontal stare decisis is a balancing exercise between the stability of the law and the correctness of the Court's decisions.

On the one hand, the fate of an appeal should not become uncertain depending on the composition of the panel, thus allowing for different outcomes to identical legal situations. On the other hand, the Court must both promote the evolution of the law and avoid being bound by prior decisions that are wrong or no longer meet contemporary requirements. Third issue: purposive analysis of the relevant provisions of the Criminal Code and of the Identification of Criminals Act [ 71 ] The modern principle of statutory

interpretation is that the provisions of

an Act are to be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” . [90] [ 72 ] As the Supreme Court noted in Beale , which was rendered after this Court’s decision in Lapointe , the identification measures set out in the Identification of Criminals Act , such as fingerprinting, are invaluable criminal investigation tools and are integral to every level of criminal justice. [91] The main purposes of the Identification of Criminals Act are to correctly identify the accused, thereby gaining access to his or her criminal record, to check whether warrants have been issued against him or her and to gather the evidence necessary to prosecute the offence: [92] I begin by referring to what has already been said regarding the purposes of the legislation and the many uses to which fingerprinting has been put in effecting those purposes.

In brief, the main purposes of the Identification of Criminals Act and the allied provisions of the Code , as they apply to a person charged with but not convicted of an offence, are to establish the identity and criminal record of the accused, to discover whether there are warrants outstanding for his arrest or if he has escaped from lawful custody, and, in some cases, to gather evidence which may be relevant to the question of whether or not he committed the crime with which he has been charged.

As already noted, it is appropriate and necessary for peace officers to check, confirm, or establish the identity of accused persons in a wide variety of situations. In urban areas, in particular, individuals are relatively anonymous. Virtually everywhere the population is very mobile. Peace officers themselves relocate and find themselves working in new communities, and thus may fail to recognize even long - time residents.

In this social context, the fact that accused persons often try to conceal their true identity or criminal past, and sometimes jeopardize innocent persons in the process, will very frequently justify the imposition of a requirement to submit to fingerprinting. That is what the impugned legislation seeks to do. [ 73 ] The identification measures set out in the Identification of Criminals Act are also useful in the judicial process by making it possible to positively identify the accused. They can also assist in determining the applicable punishment by revealing whether the accused is a first or repeat offender.

They often also prevent an innocent from being wrongfully identified with someone else’s criminal history record or with a specific criminal offence. [93] [ 74 ] La Forest J. added that the identification measures set out in the Act are by and large insubstantial and in no way violate the principles of natural justice where the person’s arrest is itself justified: [94] It seems to me that a person who is arrested on reasonable and probable grounds that he has committed a serious crime, or a person against whom a case for issuing a summons or warrant, or confirming an appearance notice has been made out, must expect a significant loss of personal privacy.

He must expect that incidental to his being taken in custody he will be subjected to observation, to physical

measurement and the like. Fingerprinting is of that nature. While some may find it distasteful, it is insubstantial, of very short duration, and leaves no lasting impression. There is no penetration into the body and no substance is removed from it. I am unable to accept that a provision providing for fingerprinting as an incident of being taken into custody for a serious crime violates the principles of fundamental justice.

While a search of one's premises requires a prior authorization based on reasonable and probable grounds to believe both that the offence has been committed and that evidence will be found, the custodial fingerprinting process is entirely different. It involves none of the probing into an individual's private life and effects that mark a search. Apart from this, the invasion of privacy on arrest on reasonable and probable grounds is a far more serious violation of the right to privacy. It is not significantly aggravated by the taking of the fingerprints of the person in custody.

As already mentioned, there are many cases where the United States courts, including the Supreme Court, have refused to accord constitutional protection against a general discretion in the police to take fingerprints from persons in custody; see Moenssens, supra, at pp. 62 - 70. [ 75 ] However, the provisions of the Criminal Code with respect to the identification of accused have another purpose, that is to reduce the number of persons who are arrested and taken into custody while nevertheless allowing the application of the Identification of Criminals Act to meet the above-described objectives of that Act : [95] I turn now to the specific purpose of ss. 453.3(3) and 455.5(5) of the Criminal Code .

These were enacted in 1971 as part of the Bail Reform Act , R.S.C. 1970 (2nd Supp.), c. 2, s. 5. Before that time persons who were to be charged with an indictable offence would either be arrested or served with a summons. Appearance notices were not used and summonses were used in only a minority of cases; see Criminal Code ,

Part XIV, ss. 448-459; Debates of the Senate , March 29, 1971, at pp. 786-792. It was to reduce the number of persons being arrested and held in custody that the Bail Reform Act was enacted; see Debates of the Senate , ibid. The Act largely reflected the recommendations of the Report of the Canadian Committee on Corrections, Toward Unity: Criminal Justice and Corrections , 1969 (The Ouimet Report), which recognized the need to make new arrangements for fingerprinting and photographing if the number of people arrested was to be substantially reduced.

The Report, at p. 98, states: As the Committee envisages that there will be fewer persons in custody if its recommendations are implemented, it will be necessary to extend the provisions of the Identification of Criminals Act to require a person, who has been summoned to appear to answer a charge of having committed an indictable offence, to present himself and submit to fingerprinting as directed in the summons. Failure to do so without lawful excuse should result in arrest.

As can be seen then, ss. 453.3(3) and 455.5(5) are integral parts of a larger scheme aimed at reducing the number of persons who are arrested and taken into custody. They are not simple expansions of the authority to take fingerprints and photographs. [ 76 ] Moreover, the identification measures set out in the Identification of Criminals Act are largely associated with the power of arrest. Thus, to the extent the police can arrest an accused, they can also, with some exceptions, apply identification measures.

It must also be noted that the power of arrest is itself closely linked to the issues of establishing the identity of the accused and securing evidence. [96] The same is true with respect to the accused’s release, as the identification of the accused and the securing of evidence are important factors to consider before releasing the accused. [97] As La Forest J. noted in Beare , it was precisely with the objective of reducing the number of arrests and detentions that the Criminal Code has provided, since 1971, that identification measures under the Identification of Criminals Act may be required in a summons or an appearance notice. [ 77 ] The

interpretation of the relevant provisions must therefore be interpreted with these objectives in mind. [ 78 ] The provisions of the Criminal Code with respect to establishing identify are found in

Part XVI of the Criminal Code (“Compelling Appearance of Accused before a Justice and Interim Release/Mesures concernant la comparution d’un prévenu devant un juge de paix et la mise en liberté provisoire”). This part of the Criminal Code also applies to

summary convictions, as set out in s. 795 Cr. C. Thus, there is no doubt - and this is not disputed on appeal - that s. 500(3) Cr. C. (in the case of an appearance notice) and s. 509(5) Cr. C. (in the case of a summons) can require the accused to appear for the purposes of the Identification of Criminals Act where it is alleged that the person has committed a hybrid offence, since that type of offence is clearly part of the “indictable offences” referred to in these subsections, by the indisputable effect of s. 34 of the

Interpretation Act . [ 79 ] The only issue in dispute is therefore to determine whether the hybrid offence loses its “indictable” character for the purposes of these Criminal Code and Identification of Criminals Act provisions because the prosecution is effectively instituted summarily. This issue must be also understood within the functional framework in which it arises, namely the divergent practices of the Canadian provinces in the manner in which the Crown elects the mode of proceeding. [ 80 ] With respect for the contrary view, I find it unusual to support an

interpretation of that Act that would result in two accused arrested for the same offence and both ultimately prosecuted summarily being functionally treated differently for the purposes of the Identification of Criminals Act , simply because the prosecution is instituted in Ontario in one case and in Quebec in the other. In Ontario, the mode of proceeding will not be specified at the outset and the accused must comply with identification procedures since the election to proceed summarily will be exercised much later.

In Quebec, the accused is exempt from the application of the Identification of Criminals Act at the outset because the Crown exercises its election at the start of the process of the laying of charges. [ 81 ] For at least half a century, the relevant provisions of the Criminal Code and the Identification of Criminals Act have not been interpreted or applied that way in Quebec. On the contrary, these statutory provisions are applied in Quebec to ensure that they, in effect, cover essentially the same types of accused as in the other Canadian provinces.

There is no reason to depart from this approach. [ 82 ] Since Lapointe, and as confirmed by Tshernish , it is well established in Quebec that for the purpose of the Identification of Criminals Act , the expression “indictable offence” includes hybrid offences, even where prosecuted by way of

summary conviction proceedings, so long as the Crown [ translation ] “has not made an irrevocable election”. [98] This

interpretation of the Identification of Criminals Act , which is based on s. 34 of the

Interpretation Act , is perfectly reasonable, especially considering the particular context in which criminal proceedings are instituted in Quebec. It ensures that the scope of the Identification of Criminals Act is substantially the same in Quebec as elsewhere in Canada so that the objectives of that federal statute can be achieved in Quebec as throughout Canada, as

they should be. [ 83 ] It is no accident that this Court and the British Columbia Court of Appeal have interpreted the relevant provisions of the Criminal Code and the Identification of Criminals Act in this way. Indeed, this

interpretation ensures the effective application of the law in every province, in view of the particularities specific to each province arising from the administration of justice in their respective territories, which is the exclusive jurisdiction of the provincial authorities. [99] It should be noted that in Quebec, authorization by the Crown of a criminal prosecution is found in a provincial statute, namely the Act respecting the Director of Criminal and Penal Prosecutions . [100] [ 84 ] Indeed, one of the functions of the courts of appeal in each of Canada's provinces is to ensure, where their wording so dictates, that federal legislation is interpreted and applied within each province in a manner consistent with both the legislation’s pan-Canadian objectives and the particularities and distinctions of the province concerned resulting from the exercise of provincial jurisdiction. [101] That is the very essence of modern cooperative federalism. [ 85 ] In 1990, Dickson C.J. made the following observation in R. v.

S. (S.) : [102] It is necessary to bear in mind that differential application of federal law can be a legitimate means of forwarding the values of a federal system. In fact, in the context of the administration of the criminal law, differential application is constitutionally fostered by ss. 91(27) and 92(14) of the Constitution Act, 1867 . The area of criminal law and its application is one in which the balancin

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