View cases - Stewart McKelvey

[140] In the case of Health Services, I am of the opinion that the following considerationsare relevant and justify overruling.[141] First, the error in Health Services concerns a question of constitutional law. Thus,not only does it go to one of the foundational principles of our legal system, but it is notsusceptible to being corrected in a lasting way by the legislative branch. While s. 33 of theCharter may allow Parliament or the legislatures to suspend, temporarily, the force of this2011 SCC 20 (CanLII)Court’s ruling, history over the last two decades demonstrates that resort to s. 33 by legislatureshas been exceedingly rare. Health Services will, if left to stand, set out abiding principles ofconstitutional law. Only the Court may correct this error in fundamental principle. As noted inPlanned Parenthood, it is “common wisdom that the rule of stare decisis is not an ‘inexorablecommand,’ and certainly it is not such in every constitutional case” (p. 854). The jurisprudenceof this Court contains similar observations. Because the Charter involves the most fundamentalprinciples underlying our law, it is particularly important that its provisions be correctlyinterpreted.[142] The Chief Justice and LeBel J. say that the constitutional nature of Health Servicesshould only be a final consideration with respect to overruling difficult cases (para. 58). In myrespectful view, and as my reasons will endeavour to demonstrate, there are no shortage ofreasons to believe that Health Services is problematic on other grounds.[143] Relying on Henry, my colleagues also warn that this Court should be wary ofoverruling Health Services because doing so might have the potential to diminish Charter