Stare Decisis and Constitutional Supremacy: Will Our Charter Past Become an Obstacle to Our Charter Future?
Bibliographic record
Abstract
With three decades of jurisprudence to Canada’s account, the authors consider the common law doctrine of stare decisis in Charter litigation. They ask whether, notwithstanding prior higher court authority on the issue, a trial court that is satisfied that there has been a significant and material change in social and legislative facts should conduct Charter analysis anew on the record before it, in light of the role played by such facts in section 1 analysis in particular. They conclude that the constitutional imperative imposed by section 52 of the Constitution Act, 1982 obliges a trial court satisfied of such a change to distinguish a prior Charter decision and subject the law to a section 1 analysis unencumbered by precedent to determine whether the law in question remains constitutional. The authors offer the view that doctrinal, institutional and remedial considerations all support an approach whereby the trial court would conduct a full section 1 analysis, leaving the appellate courts to fulfil their traditional function of reviewing both the trial court’s finding that there has been a significant and material change in legislative and social facts, and its section 1 analysis.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.008 | 0.018 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.001 |
| Bibliometrics | 0.001 | 0.001 |
| Science and technology studies | 0.012 | 0.038 |
| Scholarly communication | 0.016 | 0.008 |
| Open science | 0.002 | 0.003 |
| Research integrity | 0.008 | 0.010 |
| Insufficient payload (model declined to judge) | 0.004 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".