Simon's Legal Resources

Stare Decisis - Per Incuriam

. Ramos (Re)

In Ramos (Re) (Ont CA, 2025) the Ontario Court of Appeal allowed a defendant's NCR appeal, here brought against a decision continuing detention on the grounds that it was "inconsistent with the requirement under s. 672.54 ['Dispositions by a Court or Review Board - Terms of Dispositions'] of the Criminal Code, R.S.C. 1985, c. C-46, to impose the least onerous and least restrictive disposition that is compatible with public safety."

Here the court notes an instance of a per incuriam ['through lack of care'] ruling, as a stare decisis exception:

[38] Thus, to the extent that it suggests otherwise, Negash was rendered inadvertently or per incuriam. It overlooked both Young and Conception. Had those precedents been considered, the outcome would have differed: R. v. Sullivan, 2022 SCC 19, [2022] 1 S.C.R. 460, at para. 77.

[39] Because per incuriam decisions are an exception to the five-judge rule, a three-judge panel may overturn Negash on this point: McArdle v. Bugler, 2007 ONCA 659, 87 O.R. (3d) 433, at para. 27. Respecting Young and Conception requires doing so here: Sullivan, at para. 75; R. v. Kirkpatrick, 2022 SCC 33, [2022] 2 S.C.R. 480, at paras. 205, 267, per Côté, Brown, and Rowe JJ. (concurring).