Exceprt from pdf version of decision - Pg 7
The common law principle of stare decisis is subordinate to the
Constitution and cannot require a court to uphold a law which is unconstitutional.
However, a lower court is not entitled to ignore binding precedent, and the threshold
for revisiting a matter is not an easy one to reach. The threshold is met when a new
legal issue is raised, or if there is a significant change in the circumstances or
evidence. In this case, the application judge was entitled to rule on the new legal
issues of whether the laws in question violated the security of the person interests
under s. 7, as the majority decision of this Court in the Prostitution Reference was
based on the s. 7 physical liberty interest alone. Furthermore, the principles of
fundamental justice considered in the Prostitution Reference dealt with vagueness and
the permissibility of indirect criminalization. The principles raised in this case —
arbitrariness, overbreadth, and gross disproportionality — have, to a large extent,
developed only in the last 20 years. The application judge was not, however, entitled
to decide the question of whether the communication provision is a justified limit on freedom of expression. That issue was decided in the Prostitution Reference and was
binding on her.
end Excerpt
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