From: Jason W
Neyers <jneyers@uwo.ca>
Sent: Wednesday
2 October 2024 21:10
To: obligations
Subject: ODG:The
Nadir of Common Law?
Dear
Colleagues,
The
Chief Justice of Canada has recently been reported as saying, in the context of
refusing to translate pre-1970 judgments into both official languages,
that the legal value of old Supreme Court decisions is minute" and
that no one today [would] refer to a precedent from 1892 to support their
case.
I
guess I better rethink how I teach and approach the common law!
As
one commentator responded:
"These
statements are astonishing. In a common law system such as ours, judicial
decisions are legally authoritative unless explicitly overturned. In accordance
with the rule of precedent (stare decisis), courts must apply the rules of law
established in previous decisions when similar situations arise. The rule of
precedent lends stability to the law, allowing individuals to plan their
activities so that they stay within the applicable rules.
As
such, unless they have been explicitly set aside, decisions of the highest
court from before 1970 still have precedential value. They are part of Canada s
normative landscape. Lower courts are required to apply the rules of law
established by the Supreme Court, including those handed down prior to 1970.
Similarly, the Supreme Court must follow its own precedents, unless it
determines there is a compelling reason to depart from them.
In
fact, many Supreme Court decisions of that era are still taught in Canadian law
schools. Moreover, lawyers still refer to pre-1970 precedents in their daily
practice to support their legal pleadings. The Supreme Court itself regularly
cites its old decisions."
Happy
Reading,
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