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Political Science

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Dec 6, 2023

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Balancing Precedent and Justice: Departures in Canadian Courts for Constitutional Right Harkeerat Mahal (301467048) POL 151: Justice And Law Clare McGovern D110 - Leticia Yeboah (She/Her) November 2, 2023
In the Canadian common law system, the role of precedent is of paramount significance, providing a strong ground for maintaining consistency, predictability, and upholding fundamental principles like fairness, equity, and the rule of law. Throughout Canadian legal history, judges have used adjudicative tools such as analogical reasoning and the doctrine of stare decisis rooted in the common law tradition to decide cases, ensuring stability and protecting expectations (Lamond, 2014). However, at times, clear judicial errors and profound injustices arise, or unique events like the introduction of the Canadian Charter challenge. In such instances, courts may need to depart from established precedents to breathe life into constitutional rights, showcasing the intricate and sophisticated approach of the Canadian legal system in harmonizing the demands of precedent with the pursuit of justice. The Canadian legal system, deeply rooted in the common law tradition, places a strong emphasis on the doctrine of stare decisis, or the principle of following precedent. However, the question arises: should Canadian courts always follow precedent, or are there situations where a departure from established precedents is necessary to ensure justice and uphold constitutional rights? Historically, Canadian courts have heavily relied on precedent to guide their decisions. The concept of precedent involves judges examining past court rulings, determining the ratio decidendi, and deciding whether these precedents should be allowed or not. In a critique of the above-mentioned classical definitions of ratio decidendi, HK Lucke noted: “…such definitions seem to imply that the determination of the ratio decidendi is not an unduly difficult task: first one searches the precedent for a convenient statement of the rule, then one ensures by an appropriate test that this rule was the basis of the decision rather
than mere obiter dictum, and then one applies the rule to the facts of later cases, rather as one would apply a statutory provision.”[ CITATION Chr16 \l 16393 ] This approach ensures certainty, consistency, and flexibility in the common law system, to treat “like cases alike” (Jeremy, 2012) Precedent protects expectations, provides stability, and guides courts within the legal system. It allows judges to plan an approach to a case and look for the best decision depending on the merits of both cases by relying on past decisions. The precedent also fosters consensus among judges and helps ensure impartial decision-making. “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” (Sunstein, 1995). While precedent plays a crucial role in maintaining legal stability, a rigid and formalistic application of precedent can have its drawbacks. In some cases, following precedent is not a path for court to follow, as societal circumstances and knowledge may have evolved, rendering past decisions less valuable as a guide. (Nelson, 2001). The Uber v Heller case serves as an example of the debate surrounding the role of precedent in Canada's legal system. In this case, the Supreme Court of Canada introduced the doctrine of unconscionability to invalidate an arbitration agreement that excluded the application of Canadian law. The majority opinion found the arbitration agreement unconscionable due to a significant inequality of bargaining power, high administrative fees, and a lack of access to justice. However, the dissenting opinions disagreed with the majority's reliance on unconscionability, advocating for the respect of arbitration agreements and alternative
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