A Practical Guide to Stare Decisis

The doctrine of stare decisis asks judges to look back to cases that have been
decided as a guide to judging the case before them. The term comes from the
Latin phrase stare decisis et non quieta movere, which means “to stand by
decisions, and not to disturb settled points.” Stare decisis is often described as
incorporating a tension between certainty—on the one hand—and achieving a
just result on the other. The idea of certainty and the correction of error (to
achieve a just result) as competing forces was captured by the Supreme Court
of Canada in 2012 in Canada v Craig: “The Court must ask whether it is
preferable to adhere to an incorrect precedent to maintain certainty, or to correct the error.” Legal scholar Wolfgang Friedmann characterized the “basic
problem of any civilized legal system”:

"All laws oscillate between the demands of certainty−which require firm and reliable guidance by authority−and the demands of justice, which require that the solution of an individual case should be equitable and conform to current social ideals and conceptions of justice. Every legal system must compromise between these two pulls; it must balance rigidity with flexibility."

In what follows, we offer a guide to the Canadian approach to stare decisis.4 We first explain its elements and then provide practical guidance on its application. We suggest that the competing demands of certainty and correctness yield a productive tension that helps to answer the questions: When does a precedent decide the case before a judge? And when should a judge distinguish or overturn precedent? The principles of stare decisis direct when to stay the course and when to set out, at least in part, in a new direction.