PRECEDENT, PRINCIPLES, AND PRESUMPTIONS.

• Author: Skolnik, Terry

1. INTRODUCTION

   How do judges decide cases? And, how should they? Throughout the history of Canadian law, judges have used various adjudicative tools to resolve legal disputes. First, judges consider precedent and employ analogical reasoning--they appeal to past judgments to decide present cases. (1) Precedent plays a central role in the common law and is exemplified by the doctrine of stare decisis. (2) Precedent protects expectations, promotes stability, and fosters predictability. (3) Yet in some cases, judicial decisions are clearly wrong and lead to profound injustices. In other cases, precedent affords no clear answer to a given legal question. (4) Or, some groundbreaking political or historical event--such as the advent of the Canadian Charter--requires courts to abandon precedents in order to breathe life into constitutional rights. (5)

   Second, judges rely on legal principles. This article adopts Ronald Dworkins definition of "principles": a standard that must be respected for reasons of justice, fairness, or morality. (6) As Dworkin notes, principles are distinct from "policies": standards that set out "a goal to be reached, generally an improvement in some economic, political, or social feature of the community". (7) Legal principles include the rule of law, respect for legislative supremacy, lenity (strict construction of criminal statutes), and the prohibition against punishing involuntary conduct--principles that help judges depart from precedent to decide cases. (8) Though principle-based reasoning has advantages--flexibility, adaptability to social change, counter-majoritarianism--it also results in certain problems. Some contend that principles can be vague, applied inconsistently, or allow judges to depart from legislative intent in order to pursue their own political or ideological preferences. (9) Furthermore, legal principles frequently conflict with one another, which raises questions about how to balance their respective weight in an objective and predictable manner. (10) In an effort to reconcile competing principles, courts develop frameworks and multi-factor balancing tests that weigh countervailing principles. (11) Yet over time, one factor within a balancing test may become determinative, such that the test ossifies into a rigid rule. (12) Balancing tests may also lead to greater complexity, inefficiency, judicial subjectivism, and financial costs. (13)

   The third adjudicative tool that judges rely upon to resolve disputes is presumptions. Presumptions resemble rebuttable rules that provide predetermined outcomes to disputes, such that judges favour some legal principles over others by default. (14) Scholars note that presumptions are valuable because they promote efficiency, further social policies, and coordinate decision making. (15)

   This article provides a novel account of the relationship between precedent, principles, and presumptions. It argues that these three adjudicative tools are not mutually exclusive. Rather, they overlap and continually interact with one another in an organic process that shapes the laws evolution. Presumptions become enmeshed in jurisprudence through stare decisis. When courts create legal frameworks or multi-factor balancing tests that attempt to reconcile competing principles, these frameworks and tests become incorporated within precedent. Principles and presumptions, in turn, allow courts to free themselves from the path-dependency of precedent. This article shows how judges employ precedent, principles, and presumptions to correct each adjudicative tools respective deficiencies.

   This article also argues that one particular adjudicative tool--presumptions--fulfils various functions that scholars traditionally overlook. It shows how presumptions foster principled asymmetries, correct legal frameworks and multi-factor balancing tests that misfire, promote access to justice, and shape choice architecture in legal decision making. It draws on the past several decades of Supreme Court of Canada public law jurisprudence--especially in the area of criminal law--to highlight the value of judicially created presumptions in adjudication.

   The structure of this article is as follows. Section II provides an overview of precedential reasoning, describes the drawbacks of precedential formalism in Canadian law, and shows how legal principles corrected these drawbacks. Section III discusses the roles and values of legal principles in adjudication. It shows how judges develop frameworks and multi-factor tests to balance competing legal principles and elucidates the advantages and disadvantages of these frameworks and balancing tests. Section IV analyzes prevailing theories about the value of presumptions in adjudication. Section V concludes this article by offering a novel account of the role of presumptions in Canadian law. Ultimately, it demonstrates why the Supreme Court of Canada is increasingly employing presumptions in its jurisprudence.

2. PRECEDENT

   1. AN OVERVIEW OF PRECEDENT

      Historically, Canadian courts decided cases based principally on precedent. The notion of precedent is rooted in the common law concept of stare decisis, by which prior judicial decisions establish rules that apply to future cases. (16) Although the concept of precedent can have different meanings, (17) it generally implies that judges treat "like cases alike". (18) Precedential reasoning requires judges to examine prior judicial decisions, examine the ratio decidendi, and determine whether they must be followed, distinguished, or overruled. (19) Frederick Schauer observes that precedent constitutes both a form of argument and a justification in legal reasoning. (20) Judges rely on the historical pedigree of a past decision to resolve the case before them. (21) Schauer observes that precedential reasoning is logical and intuitive because past decisions tend to provide an intrinsic reason for acting similarly in the future. (22) Precedential reasoning has a rich history in the common law, as courts rely on cases and doctrine that date back centuries. (23)

      Scholars highlight various benefits of precedential reasoning. First, precedent protects expectations and provides stability in the legal system. (24) Prior decisions set out the foundational jurisprudential rules that guide all actors in the legal system and help them resolve disputes. (25) As Hillel Levin notes, parties cite prior case law to bring legal claims, and judges motivate their decisions based on that same shared body of norms. (26) Precedent also allows individuals to plan their lives and avoid litigation by relying upon past decisions that are similar to current controversies. (27) This type of consistency-promoting practice fosters greater economic, political, and social stability. (28)

      Second, precedent maximizes efficiency. (29) It is essentially a heuristic that resolves legal disputes in a manner that lowers transaction costs for all parties. (30) It promotes efficiency because judges rely on previous cases to resolve a dispute rather than develop new rules and principles in each case. (31) Precedent also plays a fundamental role in appellate courts. Cass Sunstein notes that stare decisis fosters consensus by allowing judges to accept certain rules and principles as established even where they disagree on other crucial issues. (32) This is particularly important on multi-member appellate panels where judges have divergent ideological preferences and understand first principles differendy. (33) Appellate judges might not agree on much. Yet they can at least accept certain prior decisions as controlling. (34) Precedent also improves efficiency by helping judges resolve cases without having to resort to high-level theorization and abstraction. (35)

      Third, precedent decreases error costs and mitigates judicial hubris. (36) Since judges employ analogical reasoning in order to compare a current case to a prior decision, they are exposed to the pros and cons of various adjudicative paths, previous judicial mistakes, and the risks of overbroad decision making. (37) Prior decisions can expose flaws in a judge s point of view and serves as a constant reminder that their wisdom is limited. (38)

      Lastly, precedent furthers basic rule of law values, such as fairness, impartial decision making, and equality. (39) It helps ensure that judges decide cases on the basis of shared and general norms, rather than on the basis of personal predilection or intuition. (40) Precedent also constrains judicial power by circumscribing how judges can decide cases and narrowing down the questions that they can adjudicate. (41) Fidelity to case law also promotes the separation of powers by restricting courts' abilities to craft new legal rules that may be best left to a more democratic legislative process. (42) Precedent can further adjudicative integrity by portraying judicial decisions as part of a coherent institutional narrative. (43) Michael Moore posits that precedent maximizes certain rule of law values such as fairness and equality because judges treat defendants with similar factual circumstances similarly. (44)

   2. SOME DRAWBACKS TO PRECEDENT

      There are, however, some notable drawbacks to precedent, especially when it is applied rigidly or formalistically. Strict adherence to stare decisis can stunt societal evolution, such that courts do not respond to social change adequately. (45) Roscoe Pound famously alluded to this dilemma when describing the phenomenon of "mechanical jurisprudence": where judges robotically apply precedent with no regard to the law s purpose or its ability to regulate modern life. (46) Such adjudicative approaches can also deepen inequality, stunt social change, and increase inefficiencies. (47)

      In other contexts, it may be illogical to rely on precedent. The underlying assumptions and knowledge that justified a prior decision may have changed over time, which devalues its importance as precedent. (48) In...