C. Stare Decisis and the Role of Precedent

• Author: Ted Tjaden
• Profession: National Director of Knowledge Management McMillan LLP
• Pages: 101-102

Page 101

The doctrine of stare decisis ordinarily requires a judge to follow past court decisions from higher courts within that judge’s jurisdiction. This requirement provides certainty and stability in the way in which the

Page 102

common law develops since it restricts a judge from making completely ad hoc rulings depending on how she was feeling that day.

Because of this doctrine, which is also known as judicial precedent, it becomes important for lawyers and law librarians to find "like" cases, that is, cases from the past dealing with the client’s issue that are similar on the facts and which result in a favourable ruling for the lawyer’s client. Much of the lawyer’s advocacy skills will be in convincing the judge that the cases that the lawyer is relying upon in support of his arguments are more similar and therefore more relevant than those of his opponent. In doing so, the lawyer "distinguishes" the cases of his opponent.

Because of stare decisis, an Ontario lawyer, for example, is less interested in a previous trial decision of a judge in Prince Edward Island than a previous decision of the Ontario Court of Appeal or the Supreme Court of Canada on the same facts and issues. This is because the decision of the judge in Prince Edward Island is of less precedential value and not necessarily binding on the Ontario judge, whereas the past decisions of the Ontario Court of Appeal or the Supreme Court of Canada on the same facts and issues are binding on the Ontario...