Stare Decisis

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

• < Criminal Law

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.

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

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."

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.

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.

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).

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.

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.

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.

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"
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"

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."

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. The Court should be satisfied that there are compelling reasons the precedent should be overruled.

The threshold for overturning prior judgement is considered "high." 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."

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

The decision to overturn a precedent is a balancing of correctness against certainty.

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.

Mere criticism of a judgment "is not sufficient to justify overruling it."

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."

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." The rule of judicial restraint is especially pronounced for decisions on the constitutionality of legislation

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.

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.

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

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.

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.

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. 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.

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

Purpose

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

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.

Weight of Obiter

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

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