Precedent Unbound? Contemporary Approaches to Precedent in Canada

Abstract:     
This paper examines some key aspects of the contemporary treatment of precedent in Canada, including consideration of the vertical convention of precedent (lower courts being bound by decisions of higher courts) and the horizontal convention of precedent (courts being willing and/or able to overrule or depart from decisions of the same court). On the latter topic of horizontal precedent, particular attention will be paid to three recent decisions of the Supreme Court of Canada, Ontario Court of Appeal, and Manitoba Court of Appeal respectively, which take a more functional and pragmatic approach to the issue and demonstrate a greater willingness to overrule decisions now thought to be wrong. Additional issues and controversies, such as the precedential weight of obiter dicta (particularly dicta of the Supreme Court of Canada) will be examined along the way.

Number of Pages in PDF File: 26

Keywords: precedent, stare decisis

Accepted Paper Series