Personal Stare Decisis, HIV Non-Disclosure, and the Decision in Mabior

Abstract

The doctrine of stare decisis has long been considered foundational to our judicial system. The concept operates in two manners: (1) to bind lower courts to the previous decisions of higher courts, which is known as vertical precedent; and (2) horizontal precedent — the practice of a court adhering to its own prior decisions.

This article examines the adherence to horizontal precedent by appellate courts and, in particular, how appellate judges that have substantially disagreed with the majority through a concurring judgment should treat this concurrence in a subsequent case in which the majority’s legal rule has become a horizontal precedent. The discussion focuses primarily on Chief Justice McLachlin’s adherence to the majority’s decision in R. v. Cuerrier in her unanimous decision in R. v. Mabior, even though she wrote a concurring opinion in Cuerrier strongly disagreeing with the majority’s decision. This article argues that if precedent must prevail, Chief Justice McLachlin should have followed her own personal stare decisis rather than horizontal precedent.