Precedent

Precedent There is no power in Venice Can alter a decree established. Twill be recorded for a precedent, And many an error by the same example Will rush into the state William Shakespeare(1) But because there is no Judge Subordinate, nor Sovereign, but may err in a Judgment of Equity; if afterward in another like case he find it more consonant to Equity to give a contrary Sentence, he is obliged to doe it. No mans error becomes his own Law; nor obliges him to persist in it. Neither (for the same reason) becomes it a Law to other Judges .... Thomas Hobbes(2) A foolish consistency is the hobgoblin of little minds .... Ralph Waldo Emerson(3)

Judicial Precedent System whereby judges create/interpret laws for future judges to follow Stare Decisis et non quieta movere- stand by what has been decided and do not unsettle the established Its existence is to provide for fairness and an element of certainty to the law

A Judgment (F) Summary of Facts (I) a review of the basic legal arguments (D) the ratio decidendi- the reasons for the judicial decision- the principles of law used- includes final decision (held, affirmed, upheld, denied, quashed etc…)

Ratio Decidendi Reason for the actual decision Any rule expressly or by implication treated by the judge as a necessary step in reaching his or her conclusion It is not the decision that becomes the precedent but the ratio- the applied reasoning

Obiter Dictum/Dicta Other things said within the decision Speculation from the judges in regards to issues pertaining to their judgment Hypothetical questions/situations used by the judges

Ratio vs. Obiter Obiter is not part of the binding precedent- the Ratio IS the binding precedent Therefore it is essential to separate where the judge is reasoning and not provided speculation or hypothesizing This isn’t easy as a judgment is delivered in continuous prose- very difficult

The Court System Court of First Instance- 1 judge- one decision Divisional Appeals court- 1 or 3 judges- 1-3 decisions Court of Appeal- 3 or 5 judges…get the trend? Supreme Court of Canada- 5, 7 or 9 judges In appeals courts you will have a majority decision, which therefore means there can be dissenting decisions, sometimes more then 1 Dissenting opinions have their own Ratio and can be used in later cases

Original Precedent An area of law where a decision has never been made before- no past cases for a judge(s) to base their decision A judge will then look at the closest possible cases (in principle) Reasoning by analogy

Binding Precedent and Persuasive Precedent Precedent from an earlier case that must be followed- even if the later judge doesn’t agree BUT the facts of the later case must be sufficiently similar to those in the previous case Persuasive Precedent is not binding- these are from the lower courts and can include obiter, dissenting judgments and even decisions from other jurisdictions

Precedent NOT Followed Distinguishing if the facts of the later case are sufficiently different from the earlier one Overruling- if the court feels the legal rule in an earlier case is wrong Reversing- if on appeal a higher court feels that a lower court has made the wrong decision, this is in the same case of course