Stare Decisis: Difference between revisions

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This page was last substantively updated or reviewed January 2019. (Rev. # 95562)

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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] It is considered as "fundamental to our legal system", providing "orderly development of the law in incremental steps."^[4]

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."^[5]

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.^[6]

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 regardless of the number of dissenters on the result.^[7]

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).^[8]

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.^[9]

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.^[10]

Supreme Court of Canada

The refusal to hear an appeal by the Supreme Court of Canada does not amount to an endorsement of the conclusion of the lower court.^[11]

↑ Canada (Attorney General) v Bedford, 2013 SCC 72 (CanLII), [2013] 3 SCR 1101, 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.)
↑ R v Hummel, 1987 CanLII 4075 (ONSC), 36 CCC (3d) 8, per Ewaschuk J, at para 7
↑ R v Arcand, 2010 ABCA 363 (CanLII), 264 CCC (3d) 134, per curiam, at para 182
↑ Bedford, supra, at para 42
↑ David Polowin Real Estate Ltd. v The Dominion of Canada General Insurance Co, 2008 ONCA 703 (CanLII), 300 DLR (4th) 491, per Laskin JA
R v Roberts, 1997 CanLII 3313 (BCCA), 34 WCB (2d) 232, per Hall JA ("The law should not appear to materialize as a revolutionary rabbit from a judicial magician's hat.")
↑ Delta Acceptance Corporation Ltd. v Redman, 1966 CanLII 130 (ON CA), 55 DLR (2d) 481, per Schroeder JA
↑ R v Ibanescu, 2013 SCC 31 (CanLII), [2013] 2 SCR 400, 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. ")
↑ R v Puddicombe, 2013 ONCA 506 (CanLII), 299 CCC (3d) 543, per Doherty JA, at para 65
Canada v Bedford, supra, at para 39
↑ R v Youngpine, 2009 ABCA 89 (CanLII), 242 CCC (3d) 441, per Fraser CJ, at para 18
↑ e.g. R v Morin, 1992 CanLII 89 (SCC), [1992] 1 SCR 771, 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.")
↑ R v Cote, 1977 CanLII 1 (SCC), [1978] 1 SCR 8, per de Grandpre J at 16 (SCR)

Exceptions to Stare Decisis

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

"The court is entitled and bound to decide which of two conflicting decisions of its own it will follow"
"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";
"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"

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."^[2]

↑ Young v Bristol Aeroplane Co., [1944] K.B. 718
Cross and Harris, Precedent in English Law, (4d) (Clarendon Press, Oxford, 1991), at p. 143
↑ 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.")

Overturning Precedent

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.^[1] The Court should be satisfied that there are compelling reasons the precedent should be overruled. ^[2]

The threshold for overturning prior judgement is considered "high."^[3] 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."^[4]

A precedent established by a court should not be "lightly discarded or overruled."^[5] This will be particularly true where the precedent had been affirmed by a "firm majorit[y]" and elaborated on for a number of years.^[6]

The decision to overturn a precedent is a balancing of correctness against certainty.^[7]

Judicial modesty and minor adaptation of the common law is preferable over "radically innovative or adventurous" changes to the law as the latter would make for uncertainty and unpredictability.^[8]

Mere criticism of a judgment "is not sufficient to justify overruling it."^[9]

Overturning Charter Precedent

It was noted that when considering overturning a Charter precedent the "Court should be particularly careful before reversing a precedent where the effect is to diminish Charter protection."^[10]

↑ Canada (Attorney General) v Bedford, 2013 SCC 72 (CanLII), [2013] 3 SCR 1101, per McLachlin CJ, at para 47 ("...the question of whether this Court should depart from its previous decision on the s. 2(b) aspect of this case. At heart, this is a balancing exercise, in which the Court must weigh correctness against certainty ... . ")
↑ Canada v Craig, 2012 SCC 43 (CanLII), [2012] 2 SCR 489, per Rothstein J, at para 27 ("The Court must ask whether it is preferable to adhere to an incorrect precedent to maintain certainty, or to correct the error. Indeed, because judicial discretion is being exercised, the courts have set down, and academics have suggested, a plethora of criteria for courts to consider in deciding between upholding precedent and correcting error.")
↑ Bedford, ibid., at para 44
Ontario (Attorney General) v Fraser, 2011 SCC 20 (CanLII), [2011] 2 SCR 3, per McLachlin CJ and LeBel J, at para 57 ("The seriousness of overturning two recent precedents of this Court, representing the considered views of firm majorities, cannot be overstated. This is particularly so given their recent vintage. Health Services was issued only four years ago, and, when this appeal was argued, only two years had passed. ")
↑ Plourde v Wal-Mart Canada Corp, 2009 SCC 54 (CanLII), [2009] 3 SCR 465, per Binnie J, at para 13
↑ Bedford, supra, 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), [2017] 1 SCR 659, per curiam, at para 3
R v Nur, 2015 SCC 15 (CanLII), [2015] 1 SCR 773, per McLachlin CJ, at para 59
↑ Nur, ibid., at para 59
Fraser, supra, at paras 56 to 57
Craig, supra, at para 27
↑ Nur, supra, at para 59
Craig, supra, at para 27
Bedford, supra, at para 47
↑ Lord Tom Bingham, The Rule of Law, London: Allen Lane, 2010 at pp. 45 to 46 ("it is one thing to move the law a little further along a line on which it is already moving, or to adapt it to accord with modern views and practices; it is quite another to seek to recast the law in a radically innovative or adventurous way, because that is to make it uncertain and unpredictable, features which are the antithesis of the rule of law.")
R v Salituro, 1991 CanLII 17 (SCC), [1991] 3 SCR 654, per Iacobucci J, at p. 670 (SCR)
Friedmann Equity Developments Inc v Final Note Ltd, 2000 SCC 34 (CanLII), [2000] 1 SCR 842, per Bastarache J, at para 42
R v Kang-Brown, 2008 SCC 18 (CanLII), [2008] 1 SCR 456, per Lebel J, at paras 14 to 16, and , at paras 73 to 74, per Binnie J (concurring)
↑ Ontario (Attorney General) v Fraser, 2011 SCC 20 (CanLII), [2011] 2 SCR 3, per McLachlin CJ, at para 86
↑ R v Henry, 2005 SCC 76 (CanLII), [2005] 3 SCR 609, per Binnie J
Nur, supra, at para 59

Horizontal Stare Decisis (Same Level of Court)

Prior decisions of a judge of the same level of court not binding upon a judge and mhas merely persuasive value. However, where an issue has been decided upon by the same level of court the principle of judicial restraint directs that courts apply "judicial comity" and should follow the same decision unless it is in the interests of justice to do otherwise, including when the previous decision was "clearly wrong."^[1] The rule of judicial restraint is especially pronounced for decisions on the constitutionality of legislation^[2]

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.^[3]

↑ Re Hansard Spruce Mills Ltd, 1954 CanLII 253 (BC SC), 13 WWR 285, 34 C.B.R. 202 (B.C.), per Wilson J
Ottaway (Re), 1980 CanLII 401 (BCCA), 110 DLR (3d) 231, per Seaton JA
R v Sarmales, 2017 ONSC 1869 (CanLII), 139 WCB (2d) 164, per R. Smith J, at para 12 ("stare decisis, namely that a judge is not bound by a decision of another judge of the same court on the same issue. A decision by a judge of a court of concurrent jurisdiction is of persuasive value only")
R v Scarlett, 2013 ONSC 562 (CanLII), 105 WCB (2d) 493, per Strathy J, at para 43
↑ Sarmales, ibid. at para 12
Scarlett, supra
↑ R v McCaw, 2018 ONSC 3464 (CanLII), 48 CR (7th) 359, 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.

International

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]

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

Ratio Decidendi and Obiter Dicta

Judgements Not Like Legislation

Each statement of a judge should not be treated as if it were legislation. Some parts are binding and others are not.^[1]

Ratio vs Obiter

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

There are no "strict and tidy demarcation[s]" between what is ratio and what is obiter in a judgement.^[2]

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.

Obiter will often take the form of commentary, examples and exposition. These are intended to be helpful to the reader and may be considered "persuasive" by other courts.^[3] 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. ^[4]

Stated negatively, the statements of a higher court are not binding where the words are "sufficiently tangential to the disposition of the case."^[5]

Purpose

The purpose of this distinction is to both promote certainty in the law as well as permit "growth and creativity."^[6]

Weight of Ratio

The application of stare decisis does not depend on quality of the appellate court's decision including length of judgement, depth of analysis or even correctness in law.^[7]

Weight of Obiter

The degree of weight the obiter has is proportionate to its proximity to the ratio decidendi.^[8]

Courts should begin from the premise that obiter dicta from the Supreme Court is binding.^[9]

↑ R v Henry, 2005 SCC 76 (CanLII), [2005] 3 SCR 609, 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.")
↑ Henry, ibid., at para 52 ("The submissions of the attorneys general were predicated on a strict and tidy demarcation between the narrow ratio decidendi of a case, which is binding, and obiter, which they say may safely be ignored. This supposed dichotomy is an oversimplification of how the common law develops.")
↑ Henry, supra, at para 57 ("...there will be commentary, examples or exposition that are intended to be helpful and may be found to be persuasive, but are certainly not “binding”...")
↑ Henry, supra
↑ Canada (Attorney General) v Bedford, 2012 ONCA 186 (CanLII), 282 CCC (3d) 1, 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), 256 CCC (3d) 355, per Doherty JA, aff’d 2012 SCC 49 (CanLII), per Moldaver J
Henry, supra
↑ Henry, supra
↑ R v Youngpine, 2009 ABCA 89 (CanLII), 242 CCC (3d) 441, per Fraser JA (3:0), at para 18 ("The doctrine of stare decisis, that is precedent, is not based on the length of the Court of Appeal’s judgments nor on the extent of its analysis in individual cases. It is not even based on whether the Court of Appeal’s decision is arguably wrong in law.")
↑ Henry, supra, at paras 52 to 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. ")
↑ R v Puddicombe, 2013 ONCA 506 (CanLII), 299 CCC (3d) 543, per Doherty JA ("In characterizing obiter from the Supreme Court of Canada, lower courts should begin from the premise that the obiter was binding.")

[1] Canada (Attorney General) v Bedford, 2013 SCC 72 (CanLII), [2013] 3 SCR 1101, 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 CanLII 4075 (ONSC), 36 CCC (3d) 8, per Ewaschuk J, at para 7

[3] R v Arcand, 2010 ABCA 363 (CanLII), 264 CCC (3d) 134, per curiam, at para 182

[4] Bedford, supra, at para 42

[5] David Polowin Real Estate Ltd. v The Dominion of Canada General Insurance Co, 2008 ONCA 703 (CanLII), 300 DLR (4th) 491, per Laskin JA
R v Roberts, 1997 CanLII 3313 (BCCA), 34 WCB (2d) 232, per Hall JA ("The law should not appear to materialize as a revolutionary rabbit from a judicial magician's hat.")

[6] Delta Acceptance Corporation Ltd. v Redman, 1966 CanLII 130 (ON CA), 55 DLR (2d) 481, per Schroeder JA

[7] R v Ibanescu, 2013 SCC 31 (CanLII), [2013] 2 SCR 400, 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. ")

[8] R v Puddicombe, 2013 ONCA 506 (CanLII), 299 CCC (3d) 543, per Doherty JA, at para 65
Canada v Bedford, supra, at para 39

[9] R v Youngpine, 2009 ABCA 89 (CanLII), 242 CCC (3d) 441, per Fraser CJ, at para 18

[10] .g. R v Morin, 1992 CanLII 89 (SCC), [1992] 1 SCR 771, 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.")

[11] R v Cote, 1977 CanLII 1 (SCC), [1978] 1 SCR 8, per de Grandpre J at 16 (SCR)

[12] Young v Bristol Aeroplane Co., [1944] K.B. 718
Cross and Harris, Precedent in English Law, (4d) (Clarendon Press, Oxford, 1991), at p. 143

[13] 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.")

[14] Canada (Attorney General) v Bedford, 2013 SCC 72 (CanLII), [2013] 3 SCR 1101, per McLachlin CJ, at para 47 ("...the question of whether this Court should depart from its previous decision on the s. 2(b) aspect of this case. At heart, this is a balancing exercise, in which the Court must weigh correctness against certainty ... . ")

[15] Canada v Craig, 2012 SCC 43 (CanLII), [2012] 2 SCR 489, per Rothstein J, at para 27 ("The Court must ask whether it is preferable to adhere to an incorrect precedent to maintain certainty, or to correct the error. Indeed, because judicial discretion is being exercised, the courts have set down, and academics have suggested, a plethora of criteria for courts to consider in deciding between upholding precedent and correcting error.")

[16] Bedford, ibid., at para 44
Ontario (Attorney General) v Fraser, 2011 SCC 20 (CanLII), [2011] 2 SCR 3, per McLachlin CJ and LeBel J, at para 57 ("The seriousness of overturning two recent precedents of this Court, representing the considered views of firm majorities, cannot be overstated. This is particularly so given their recent vintage. Health Services was issued only four years ago, and, when this appeal was argued, only two years had passed. ")

[17] Plourde v Wal-Mart Canada Corp, 2009 SCC 54 (CanLII), [2009] 3 SCR 465, per Binnie J, at para 13

[18] Bedford, supra, 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), [2017] 1 SCR 659, per curiam, at para 3
R v Nur, 2015 SCC 15 (CanLII), [2015] 1 SCR 773, per McLachlin CJ, at para 59

[19] Nur, ibid., at para 59
Fraser, supra, at paras 56 to 57
Craig, supra, at para 27

[20] Nur, supra, at para 59
Craig, supra, at para 27
Bedford, supra, at para 47

[21] Lord Tom Bingham, The Rule of Law, London: Allen Lane, 2010 at pp. 45 to 46 ("it is one thing to move the law a little further along a line on which it is already moving, or to adapt it to accord with modern views and practices; it is quite another to seek to recast the law in a radically innovative or adventurous way, because that is to make it uncertain and unpredictable, features which are the antithesis of the rule of law.")
R v Salituro, 1991 CanLII 17 (SCC), [1991] 3 SCR 654, per Iacobucci J, at p. 670 (SCR)
Friedmann Equity Developments Inc v Final Note Ltd, 2000 SCC 34 (CanLII), [2000] 1 SCR 842, per Bastarache J, at para 42
R v Kang-Brown, 2008 SCC 18 (CanLII), [2008] 1 SCR 456, per Lebel J, at paras 14 to 16, and , at paras 73 to 74, per Binnie J (concurring)

[22] Ontario (Attorney General) v Fraser, 2011 SCC 20 (CanLII), [2011] 2 SCR 3, per McLachlin CJ, at para 86

[23] R v Henry, 2005 SCC 76 (CanLII), [2005] 3 SCR 609, per Binnie J
Nur, supra, at para 59

[24] Re Hansard Spruce Mills Ltd, 1954 CanLII 253 (BC SC), 13 WWR 285, 34 C.B.R. 202 (B.C.), per Wilson J
Ottaway (Re), 1980 CanLII 401 (BCCA), 110 DLR (3d) 231, per Seaton JA
R v Sarmales, 2017 ONSC 1869 (CanLII), 139 WCB (2d) 164, per R. Smith J, at para 12 ("stare decisis, namely that a judge is not bound by a decision of another judge of the same court on the same issue. A decision by a judge of a court of concurrent jurisdiction is of persuasive value only")
R v Scarlett, 2013 ONSC 562 (CanLII), 105 WCB (2d) 493, per Strathy J, at para 43

[25] Sarmales, ibid. at para 12
Scarlett, supra

[26] R v McCaw, 2018 ONSC 3464 (CanLII), 48 CR (7th) 359, per Spies J

[27] Marks v United States 430 U.S. 188 (1977) - original case to develop the Narrowest Grounds doctrine, sometimes called the "Marks rule" as a result
see also Mark Alan Thurmon, When the Court Divides 1992 Duke Law Journal Vol 42

[28] Fellner v Minister of the Interior, 4 S. AFR. L. REP. 523
Thurmon, supra
(App. Div. 1954)

[29] R v Henry, 2005 SCC 76 (CanLII), [2005] 3 SCR 609, 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.")

[30] Henry, ibid., at para 52 ("The submissions of the attorneys general were predicated on a strict and tidy demarcation between the narrow ratio decidendi of a case, which is binding, and obiter, which they say may safely be ignored. This supposed dichotomy is an oversimplification of how the common law develops.")

[31] Henry, supra, at para 57 ("...there will be commentary, examples or exposition that are intended to be helpful and may be found to be persuasive, but are certainly not “binding”...")

[32] Henry, supra

[33] Canada (Attorney General) v Bedford, 2012 ONCA 186 (CanLII), 282 CCC (3d) 1, 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), 256 CCC (3d) 355, per Doherty JA, aff’d 2012 SCC 49 (CanLII), per Moldaver J
Henry, supra

[34] Henry, supra

[35] R v Youngpine, 2009 ABCA 89 (CanLII), 242 CCC (3d) 441, per Fraser JA (3:0), at para 18 ("The doctrine of stare decisis, that is precedent, is not based on the length of the Court of Appeal’s judgments nor on the extent of its analysis in individual cases. It is not even based on whether the Court of Appeal’s decision is arguably wrong in law.")

[36] Henry, supra, at paras 52 to 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. ")

[37] R v Puddicombe, 2013 ONCA 506 (CanLII), 299 CCC (3d) 543, per Doherty JA ("In characterizing obiter from the Supreme Court of Canada, lower courts should begin from the premise that the obiter was binding.")

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