1. Precedent

2. 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)

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

4. 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…)

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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