Kane – Quebec Superior Court states it was bound by horizonal stare decisis to follow a declaration of unconstitutionality in another Superior Court decision under appeal

The applicants in this case were Mohawks who were charged 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, so that he continued to be bound by vertical stare decisis, i.e., 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, if any, of the Covenant Chain.

Accordingly, he was bound to follow Montour and declare that s. 42 was constitutionally inoperative in respect of the applicants before him. Before rejecting the submission of the Attorneys General that the Montour decision was not binding because it was under appeal, he stated that it was not for him to determine that Montour was “plainly wrong” as alleged and that “the effect of a declaration of unconstitutionality has always been immediate unless the effect is suspended by the court.”

Neal Armstrong. Summary of R. v. Kane, 2024 QCCS 5012 under General Concepts – Stare decisis.