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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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approaches to addressing arbitration costs and public policy concerns. In their analysis of the
Supreme Court of Canada's treatment of unconscionability in Uber v. Heller, Justices Abella
and Rowe referred to three relevant cases, Hodgkinson v. Simms, Norberg v. Wynrib: This
case introduced the concept of "power dependency" in the context of a doctor-patient
relationship and drug dependency to establish unconscionability in a tort context, though it
faced criticism for this approach. Hunter Engineering v. Syncrude: In Hunter, the SCC ruled
that a contract specifically excluded the Ontario statutory regime in its warranty clause,
which is noteworthy considering the context of the Uber v. Heller case. (Timothy St. J. Ellam,
2020). The majority's position underscores the importance of precedent in maintaining
order and predictability, while the dissent argues for a more flexible approach that allows for
adaptation in light of changing circumstances.
In the United States, precedent is deeply rooted in the interpretation of the U.S.
Constitution. Iconic cases such as “Brown v. Board of Education (1954)”, which struck down
racial segregation in public schools “(Brown v. Board of Education of Topeka, 347 U.S. 483,
1954)”, and “(Roe v. Wade)” (1973), which affirmed a woman's right to choose abortion,
have left indelible marks on American society (The Supreme Court’s overruling of
constitutional precedent, 2018). Notably, the principle of stare decisis is particularly rigid in
the U.S. legal system, especially concerning constitutional matters, with the concept of
"stare decisis" (Sellers, 2006).
In contrast to the U.S., the Canadian Charter is characterized by a dynamic approach to
interpretation. The SCC often struggles with cases where different Charter rights may
intersect or come into conflict. The Court's decisions aim to maintain a balance between
these rights, taking into account specific facts and the context of each case. A prominent
departure from the U.S. system is the SCC's greater willingness to overrule its precedents,
especially in the realm of constitutional rights. This adaptability allows the Court to respond
to shifting societal norms and to correct past errors in the interpretation of constitutional
rights. As a result, the Charter of Rights and Freedoms has become a foundational document
in Canadian constitutional law, influencing not only civil rights and liberties but also various
legal domains, including criminal law, family law, and equality rights.
As indicated in the introduction, the role of precedent still holds an essence debate in the
common law system, and the debate over whether courts in Canada's common law system
should always follow precedent is a neutral one, but precisely it is followed.
Canadian courts
must maintain a balance between the doctrine of precedent need for departures from
precedents. To ensure justice and uphold constitutional rights.
While precedent is crucial for
legal stability, the Uber v Heller case clearly shows how precedent gave a way for the
judiciary to follow a clear path. Striking the right to ensure that the legal system remains
both principled and responsive to the challenges.
Works Cited
Brown v. Board of Education of Topeka, 347 U.S. 483
. (1954). Retrieved from Justia US Supreme Court
Center: https://supreme.justia.com/cases/federal/us/347/483/
Hayes, C. (2016, April).
Extending Graham's Interpretive Theory into Common Law: A Multiple-Case
Study.
Retrieved from Master of Studies in Law Research Papers Repository:
https://ir.lib.uwo.ca/cgi/viewcontent.cgi?article=1000&context=mslp
Jeremy, W. (2012). Stare Decisis and the Rule of Law: A layered Approach.
Michigan Law Review
, 1-
31(31).
Lamond, G. (2014). Analogical Reasoning in the Common Law.
Oxford Journal of Legal Studies
, 567-
588.
Lucke, H. (1989).
Ratio Decidendi: Adjudicative Rational
. Retrieved from Bond Law Review.
Nelson, C. (2001). Stare Decisis and Demonstrably Erroneous Precedents.
Virginia Law Review
, 1-84.
Sellers, M. N. (2006). The Doctrine of Precedent in the United States of America . 1-23.
Sunstein, C. R. (1995). Incompletely Theorized Agreements.
Harvard Law Review
, 1733-1772(40
pages).
The Supreme Court’s overruling of constitutional precedent
. (2018, 9). Retrieved from Every CRS
Report: https://www.everycrsreport.com/reports/R45319.html#_Toc525567241
Timothy St. J. Ellam, K. A. (2020, 08 12).
A New Ground to Challenge the Enforceability of Arbitration
Agreements – An Analysis of the Supreme Court of Canada’s Decision in Uber Technologies
Inc. v. Heller
. Retrieved from McCarthy Tetrault: A New Ground to Challenge the
Enforceability of Arbitration Agreements – An Analysis of the Supreme Court of Canada’s
Decision in Uber Technologies Inc. v. Heller
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