Stare Decisis

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General Principles

The principle of stare decisis (to "stand by things decided") refers to the requirement that when a legal issue has been determined and decided, other courts should follow the decision.[1]

The principle is the "glue that holds together the various levels of Canadian courts and it is the principle that elevates the rule of law above the rule of individual judges."[2] It is considered "essential to law" and a "central pillar" to our system of law. It ensures predictability without which differing results would be unjust.[3]

The requirement ensures "consistency, certainty, predictability and sound judicial administration" and the adherence to precedent "enhances the legitimacy and acceptability of judge-made law, and by so doing enhances the appearance of justice".[4]

The principles does not apply where a decision does not lay out a "substantive rule of law", but simply applies an existing rule to a set of facts.[5]

A statement of a legal principle will amount to an "opinion of the Court" where the principle is accepted by a majority of the Court.[6]

Components of Stare Decisis
The principle can be divided into two components. Stare decisis as among the same level of court ("horizontal" stare decisis) and as between different levels of court ("vertical" stare decisis).[7]

Irrelevant Factors to Application
The application of stare decisis does not depend on factors such as the length of the judgement, the extent of the judgement's analysis, or whether the decision is wrong in law.[8]

Previous Dissenter
A judge who previously dissented on the same issue before the court, should generally apply to law as it was decided by the majority on the prior case.[9]

  1. ↑ Canada (Attorney General) v Bedford, 2013 SCC 72 (CanLII), per McLachlin CJ at para 38 ("...the law requires that courts follow and apply authoritative precedents. Indeed, this is the foundational principle upon which the common law relies.)
  2. ↑ R v Hummel, (1987), 36 CCC (3d) 8, 1987 CanLII 4075 (ON SC), per Ewaschuk J at para 7
  3. ↑ R v Arcand, 2010 ABCA 363 (CanLII), per curiam at para 182
  4. ↑ David Polowin Real Estate Ltd. v. The Dominion of Canada General Insurance Co., 2008 ONCA 703 (CanLII), per Laskin JA
    R v Roberts, 1997 CanLII 3313 (BC CA), per Hall JA ("The law should not appear to materialize as a revolutionary rabbit from a judicial magician's hat.")
  5. ↑ Delta Acceptance Corporation Ltd. v Redman, 1966 CanLII 130 (ON CA), per Schroeder JA
  6. ↑ R v Ibanescu, [2013] 2 SCR 400, 2013 SCC 31 (CanLII), per curiam at para 1 ("a statement of a legal principle that is accepted by a majority of the Court constitutes the opinion of the Court with respect to that legal principle. This is so even if some of the members of the Court who endorse that legal principle dissent from the majority’s disposition of the appeal. ")
  7. ↑ R v Puddicombe, 2013 ONCA 506 (CanLII), per Doherty JA at para 65
    Canada v Bedford at para 39
  8. ↑ R v Youngpine, 2009 ABCA 89 (CanLII), per Fraser CJ, at para 18
  9. ↑ e.g. R v Morin, [1992] 1 SCR 771, 1992 CanLII 89 (SCC), per Lamer CJ in dissent, referring to his dissent in Askov (1990) ("While I have never changed my mind as regards my dissenting position, I will, as I should, apply Askov to the facts of this case.")

Exceptions

English common law sets out three exceptions of the principles of stare decisis.[1]

  1. "The court is entitled and bound to decide which of two conflicting decisions of its own it will follow"
  2. "The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords";
  3. "The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam, for example, where a statute or rule having statutory effect which would have affected the decision was not brought the attention of the earlier court"

When considering overruling a precedent from the Supreme Court, the Court should balance the importance of correctness against certainty, considering whether it is more important to maintain certainty with the precedent or ensure correctness by changing it.[2] The Court should be satisfied that there are compelling reasons the precedent should be overruled. [3]

A trial judge can deviate from precedent where it is based on an argument not raised in the precedent cases or where new legal issues are raised as a product of "significant developments in the law" or if changes "in the circumstances or evidence...fundamentally" changes the "debate".[4]

The threshold for overturning prior judgement is considered "high".[5] As it should not be that the "precedential value of a ...decision ... was thought to expire with the tenure of the particular panel of judges that decided it".[6]

Overturning Precedent
A precedent established by a court should not be "lightly discarded or overruled".[7]

  1. ↑ Young v Bristol Aeroplane Co., [1944] K.B. 718
    Cross and Harris, Precedent in English Law, (4d) (Clarendon Press, Oxford, 1991) at p. 143
  2. ↑ Bedford v Canada, 2014 SCC 72 (CanLII), per McLachlin CJ at para 47
  3. ↑ Canada v Craig, 2012 SCC 43 (CanLII), per Rothstein J at para 27
  4. ↑ Bedford, supra at para 42 ("In my view, a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue. Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.")
  5. ↑ Bedford, ibid. at para 44
    Ontario (Attorney General) v Fraser, 2011 SCC 20 (CanLII), per McLachlin CJ and LeBel J at para 57
  6. ↑ Plourde v Wal-Mart Canada Corp., 2009 SCC 54 (CanLII), per Binnie J at para 13
  7. ↑ Canada (Attorney General) v Bedford, 2013 SCC 72 (CanLII), [2013] 3 SCR 1101, per McLachlin CJ, at para. 38
    Carter v Canada (Attorney General), 2015 SCC 5 (CanLII), [2015] 1 SCR 331, per curiam, at para. 44
    R v Cody, 2017 SCC 31 (CanLII), per curiam at para 3

Horizontal Stare Decisis (Same Level of Court)

Prior decisions of a judge of the same level of court not binding upon a judge. However, where an issue has been decided upon by the same level of court the rule in Re Hansard Spruce Mills Ltd. directs that courts apply "judicial comity" and should follow the same decision unless it is in the interests of justice to do otherwise. [1]

There is some suggestion that a declaration of invalidity in relation to federal law under s. 52 of the Constitution Act, 1982 is binding on judges of the same level of court.[2]

  1. ↑ Re Hansard Spruce Mills Ltd., (1954), 13 W.W.R. 285, 34 C.B.R. 202 (B.C.), 1954 CanLII 253 (BC SC), per Wilson J
    Ottaway (Re), 1980 CanLII 401 (BC CA), per Seaton JA
  2. ↑ R v McCaw, 2018 ONSC 3464 (CanLII), per Spies J

Plurality Judgements

A plurality judgement is one were a Court, usually in a panel of 5 or more, decides a case but are unable form a full majority upon the reasons for judgement.

There are no known cases in Canada that address this problem of interpreting the precedential value of the judgement.

In American law, the Courts have developed the "Narrowest Grounds" doctrine which requires inquiry into the ratio decedendi of the case which is to be the narrowest grounds upon which the concurring judgement decided the case. [1]

In South Africa, there cannot be any binding ratio for a case with less than half of the sitting judges joining the judgement.[2]

  1. ↑ Marks v United States 430 U.S. 188 (1977) - original case to develop the Narrowest Grounds doctrine, sometimes call the "Marks rule" as a result
    see also Mark Alan Thurmon, When the Court Divides 1992 Duke Law Journal Vol 42
  2. ↑ Fellner v Minister of the Interior, 4 S. AFR. L. REP. 523
    Thurmon
    (App. Div. 1954)

Ratio Decidendi and Obiter Dicta

Each statement of a judge should not be treated as if it were legislation.[1]

Ratio decidendi ("ratio") and obiter dicta ("obiter") are the terms used to distinguish between binding statements of law and commentary within a decision.

Any judicial comment in a decision that forms part of the rationale to reach his decision is considered part of the ratio and is binding upon lower courts.

A comment by a judge in a decision that does not form part of the rationale to reach his decision is considered obiter. Judicial comments that are obiter do not have binding authority on lower courts. Obiter can have persuasive authority, however.

This distinction between ratio and obiter can be fluid.[2]

The degree of weight the obiter has is proportionate to its proximity to the ratio decidendi.[3]

Stated negatively, the statements of a higher court are not binding where the words are "sufficiently tangential to the disposition of the case".[4]

On the outer edge from the ratio consists of "commentary, examples or exposition that are intended to be helpful, but are certainly not 'binding'". [5]

Courts should begin from the premise that obiter dicta from the Supreme Court is binding.[6]

The purpose of this distinction is to both promote certainty in the law as well as permit "growth and creativity".[7]

  1. ↑ R v Henry, 2005 SCC 76 (CanLII), per Binnie J ("The notion that each phrase in a judgment of this Court should be treated as if enacted in a statute is not supported by the cases and is inconsistent with the basic fundamental principle that the common law develops by experience.")
  2. ↑ e.g. see discussion in Henry, supra
  3. ↑ Henry, supra at paras 52-59 ("All obiter do not have, and are not intended to have, the same weight. The weight decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative. ")
  4. ↑ Canada (Attorney General) v Bedford, 2012 ONCA 186 (CanLII), per curiam at para 69 appeal to SCC, [2013] 3 SCR 1101, 2013 SCC 72 (CanLII), per McLachlin CJ
    R v Prokofiew, 2010 ONCA 423 (CanLII), per Doherty JA, aff’d 2012 SCC 49 (CanLII), per Moldaver J
    Henry
  5. ↑ Henry, supra
  6. ↑ R v Puddicombe, 2013 ONCA 506 (CanLII), per Doherty JA ("In characterizing obiter from the Supreme Court of Canada, lower courts should begin from the premise that the obiter was binding.")
  7. ↑ Henry, supra
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