The Legal Effects of Canadian Federal Courts’ Constitutional Judgments

Presentation to the Justices of the Federal Court of Appeal and the Federal Court and their law clerks, Ottawa

8 June 2018

Does a Federal Court of Appeal or Federal Court judgment on a constitutional issue apply only to the parties to the case or can it extend as a precedent applicable to subsequent cases in parallel Canadian jurisdictions? In other words, beyond the purview of the principles of stare decisis and res judicata, are the effects of those courts’ constitutional rulings inter partes or erga omnes? The answer to this question will shape the conduct of public authorities and private actors, the deference accorded by other Canadian courts towards the Federal Courts’ constitutional rulings, and, ultimately, institutional respect within the community. Little guidance can be found in the Constitution Acts, 1867-1982, the provisions of which are compatible with both erga omnes and inter partes views. Normative considerations regarding the Federal Courts’ expertise, the efficiency of the dispute resolution process, as well as legal uniformity across Canada, do not clearly favour one view over the other either. As for provincial statutory courts, it has been held that their rulings produce inter partes effects only given the provincial superior courts’ distinct nature, including their characteristic inherent jurisdiction. However, vis-à-vis the Federal Courts, the resort to the criterion of inherent jurisdiction fails to reproduce this contrast. In the circumstances, the clearest answer is probably offered by judicial practice and statements over the years, to the extent that Canadian judges have generally assumed the constitutional holdings of the Federal Courts to be erga omnes.

This content has been updated on 18 October 2019 at 12 h 04 min.