Words and Phrases - "horizontal stare decisis"

The applicants were Mohawks who were charged in under s. 42 of the Excise Act for failure to pay duty on tobacco products. In Montour, Bourque, J. had found that s. 42 was constitutionally inapplicable to the Mohawks in that case, who had also failed to pay duty on tobacco products:

• by reason of the circumstances of the case before her warranting a departure from the framework developed in Van der Peet ([1996] 2 S.C.R. 507) in respect of Aboriginal rights - so that the applicants' participation in the tobacco trade should be considered protected by an Aboriginal right to freely trade; and
• by reason of an inferred meta-treaty (the Covenant Chain) having been unjustifiably breached by s. 42 because the Crown had not discussed tobacco-related issues with the Mohawks prior to the passage of the Excise Act.

Here, Royer, JSC, found that no circumstances had been established before him justifying a departure from the Van der Peet framework (minimal evidence had been submitted), so that the Court continued to be bound by vertical stare decisis, and the Montour decision respecting Aboriginal rights could not be followed. However, the finding in Montour respecting treaty rights was subject to the doctrine of horizontal stare decisis (i.e., the requirement to follow prior decisions of the same court in the province) given inter alia that no court had made a finding one way or the other, prior to Montour, as to the effect of any of the Covenant Chain.

Accordingly, he was bound to follow Montour and declare that s. 42 was constitutionally inapplicable and inoperative by virtue of s. 52 of the Constitution Act, 1982, in respect of the applicants before him. Before so concluding, he rejected the submission of the Attorneys General that the Montour decision was not binding because it was under appeal, stating (at para. 14) that he was "not aware of any such rule under which the losing party in a dispute can automatically suspend the effect of a first instance judgment simply by lodging an appeal" and that it was not for him to determine that Montour was “plainly wrong” as alleged (para. 23) and also stated (at para. 17) that “the effect of a declaration of unconstitutionality has always been immediate unless the effect is suspended by the court.”