NOTE ON PRECEDENT AT THE TRIAL COURT LEVEL
Alvin Esau 1993
1. Vertical
As to the vertical convention, we may say that the Manitoba Queen's Bench, for example, is strictly bound by:
l. All pre-1949 Privy Council cases on appeal from Canada until such time as they are overruled by the Supreme Court, explicitly or by implication.
2. All Supreme Court of Canada cases, until overruled by the Supreme Court, either explicitly or by implication.
3. All Manitoba Court of Appeal cases, until overruled by the Court of Appeal, or the Supreme Court, explicitly or by implication.
As to the Manitoba Provincial Court, we would add:
4. All Manitoba Q.B. decisions, until overruled by the Court of Appeal, or the Supreme Court, explicitly or by implication.
All other cases, regardless of how "high" within their own jurisdictions are merely relevant or persuasive - ie. House of Lords, U.S. Supreme Court, Alberta Court of Appeal, etc.
There are situations where a trial court judge rebels against the binding precedent and on appeal is criticized for doing so. The case of Hummel (1987) 60 O.R. 2d 545; and Crazybull (1993) 141 A.R. 69 are examples.
When you talk about trial courts, you find that there are "persistent errors" that judges make about the conventions of precedent in the sense that they say things about precedent without citing the authorities that point to a different conclusion. If they did cite the authorities and still gave a different opinion then we could at least say that the judge is trying to get agreement for a new convention. Conventions of precedent are after all judicially created. However, "top of the head" opinions cannot be blessed with such status. One such persistent error is the idea that a lower trial court is bound by a Court of Appeal from another province. R. v. Constable Transport (1967) 60 D.L.R. (2d) 577 (Ont. Co. Ct.) and R. v. Simpson (1968) 67 D.L.R. (2d) 585 (B.C.S.Ct.) are two examples of this mistake. The more sensible approach, and following logically from what the Supreme Court of Canada said in Wolf (1974) 45 D.L.R. (3d) 74lk, is illustrated in R. v. Guertin (197l) 3 C.C.C. (2d) 135, where an Ontario District Court judge chose not to follow a B.C. Court of Appeal case. The judge said at 140:
After considering the R. v. Jones case with all the care and respect which I could command, I have come to the conclusion that I ought not to follow it. The "futility of divergence" from a judgment of a Court of higher jurisdiction merited additional consideration, but on that point I found great enlightenment in the discussion of stare decisis by Matheson, Co. Ct. J., in R. v. Beaney, [1969] 2 O.R. 71, [1970] l C.C.C. 48, 4 D.L.R. (3d) 369, where the learned County Court Judge found himself unable to agree with a judgment of the Court of Appeal of Manitoba and was therefore faced with the practical problem of determining whether it would be futile to disagree; at p.77 O.R., pp. 53-4 C.C.C., the learned Judge stated:
The Court of Appeal of Manitoba stands outside the hierarchy of Courts of this Province and, while there are many compelling reasons why a Judge of first instance in this Province ought to try to conform with the decisions of other provincial appellate Courts, in my respectful submission he is not bound by them. The point at issue here is underscored by the undoubted consequence that if, in the opinion of the Court of Appeal of Ontario, I should be correct in the substantive point of law in question, that Court surely would not reverse my judgment simply because I failed to follow an extra provincial appellate decision with which it, too (ex hypothesi), disagreed.
I adopt the conclusion of Matheson, Co. Ct. J., that I am not bound by the decision of the British Columbia Court of Appeal and therefore, for reasons earlier mentioned, the appeal will be allowed and the charge dismissed. No costs.
To the same effect see R. v. Connolly [1970] 2C.C.C. 144 (P.E.I.S.Ct.); R. v. Davis (1975) 21 C.C.C. (2d) 507 (B.C.S.Ct.); and Reid v. Sigurdson (1979) 32 C.B.R. (N.S.) 170 (B.C.S.Ct.).
One of the difficulties involving precedent in trial courts is that historically there was, and in some jurisdictions continues to be, a complex judicial trial court hierarchy with various jurisdictional overlaps and various appeal processes depending on the nature of the case. For example, we used to have the Queen's Bench, and below it the County Court, and below it the Provincial Court. We have now amalgamated the QB and the County Court. However, the confusion arises from the fact of concurrent jurisdiction.
For example, there may be cases that could be brought either in the QB or the County Court. More importantly, there may be some matters that are appealed to the QB from the Provincial Court and other matters that go directly to appeal from the PC to the CA. Other matters might be appealed to the QB. The reason for the confusion is that a County Court judge or a Provincial Court judge may have argued that a precedent from the QB was not really binding vertically, but rather, given concurrent jurisdiction, was really a horizontal precedent, equal to a decision of his or her own court.
The argument would be that you are not bound vertically by decisions of a court unless it is a court that the litigant can appeal to in the matter at issue. If the litigant cannot appeal to it, even though the court is higher on the judicial hierarchy, the decision in question is not a vertical precedent. The weight to be given the decision depends on what the horizontal conventions of precedent at the trial level are.
The alternative approach, however, is to argue that you should simply follow the hierarchy of courts in terms of being bound vertically by the courts above you in the jurisdiction, whether you can appeal to that higher trial court or not.
2. Horizontal
When it comes to the question of the horizontal effect, that is whether one trial judge is bound by the decision of another judge in his or her own court, or by a court of concurrent jurisdiction, there is a considerable amount of confusion, in addition to the confusion caused by various different courts of concurrent jurisdiction. You may recall in our discussion of intermediate courts of appeal that there is some concern about whether a three judge panel can overrule another three judge panel. This type of concern is even more apparent at the trial court level.
Does one trial judge have the authority to overrule an earlier decision of another trial judge, or does the judge simply have the power to disagree? Disagreement will create uncertainty until a higher court deals with the issue.
Suppose for example that one trial judge upholds some interpretation of a criminal offence as not violating the Charter and then in another case a different judge says it violates the Charter. Perhaps the second judge actually purports to strike the legislation down as a violation of the Charter. The police and the Crown, however, may continue to charge people with the offence claiming that until a higher court rules on the issue, the trial court decision is just one lower court opinion disagreeing with an earlier one.
In both Ontario and Manitoba there is authority for the proposition that one trial court judge is bound by the previous decisions of his or her own court. This approach means that the horizontal convention of precedent gets more restrictive as you move down the court levels. One version of this scenario might go as follows. At the highest level, the Supreme Court can overrule itself when it is thought right to do so. At the intermediate appeal level, the court can only overrule itself when certain fairly well defined criteria are present, like the Young formula. At the trial court level, once a decision is made it is binding until overruled by a higher court.
The point is, however, that the very opposite approach could make sense as well. The horizontal approach might be viewed as being the most restrictive at the top and progressively less restrictive as you go down the judicial hierarchy.
In Canada, we have had and perhaps still have, three approaches to the horizontal convention in trial courts. It is the second of the three approaches that appears to have the greatest weight of authority behind it.
l. Previous decisions of your own court (e.g. Man. Q.B., Man. Prov. Ct.) are binding on you.
In Sedziak v. Polish Workers Assn. [1937] 3 W.W.R. 527 a Manitoba King's Bench judge said that a judgment of a Judge of the Manitoba King's Bench is binding on that court and the officers thereof until altered by the Court of Appeal. Similarly, in Re Oldfield [1949] l W.W.R. 540, another Manitoba King's Bench judge said that judges of the first instance should not disregard a series of decisions by other judges of first instance, none of which has been appealed or has been otherwise interfered with.
Then we have the case of Kingscott v. Megaritis (1972) 27 D.L.R. (3d) 310 where Hughes J. of the Ontario High Court said at 320:
However, in Masse et al. v. Dietrich, [1971] 3 O.R. 359, Cudney, Co. Ct. J. in the County Court of the County of Middlesex, preferred a line of cases decided in various County Courts in which the opposite view had been taken in cases of insurance under collective agreements, going so far as to say that he was not bound to follow the decision of Moorhouse, J. in the Rados case. He held that he had co-ordinate jurisdiction with a Judge of the Supreme Court sitting in the High Court of Justice, and that "The rule as to stare decisis is, as I see it, a principle or a judicial attitude which follows the practice that a Court must follow only the decisions of those Courts that can reverse its judgments either immediately or ultimately."
... If indeed Cudney, Co. Ct. J., was justified in saying that he had co-ordinate jurisdiction with a Judge of this Court, presumably within the confines of the jurisdiction and territorial boundaries of the County of Middlesex in the case which he had to consider, he had evidently not had drawn to his attention the words of Lord Haldane, L.C., in Kreglinger v. New Patagonia Meat & Cold Storage Co. Ltd., [1914] A.C. 25, in which he said at p. 40:
To follow previous authorities, so far as they lay down principles, is essential if the law is to be preserved from becoming unsettled and vague. In this respect the previous decisions of a Court of coordinate jurisdiction are more binding in a system of jurisprudence such as ours than in systems where the paramount authority is that of a code.
These words were quoted with approval in Cairney v. Queen Charlotte Airlines Ltd. and MacQueen (No.2) (1954), 12 W.W.R. (N.S.) 459, by Wilson J., when refusing to give judgment in direct conflict with that of a Judge of his own Court in British Columbia. To these authoritative pronouncements of what is due to the judgment of judges of co-ordinate jurisdiction I respectfully add words in which the duties of Judges in this respect have been prescribed for centuries: jusdicere sed non jus dare.
In R. v. Kartna (1978) 2 M.V.R. 259 an Ontario High Court Judge was faced with two conflicting decisions. In R. v. Lemieux (1978), l M.V.R. 27 (Ont. Dist. Ct.), the judge said that the abbreviation HTA (instead of "Highway Traffic Act") was sufficient on a speeding ticket. In R. v. Vaughon (1978) l M.V.R.32 (Ont. Dist. Ct.), another judge disagreed with Lemieux. Hughes J. said at 267:
I pause here to say, with deference but emphatically, that in my view it is unfortunate that such a disagreement with a Judge of coordinate jurisdiction was indulged in by Foreget D.C.J. in the case of Vaughan. I will go further and say that the proper procedure, and one without the recognition of which the administration of justice would fall into disrepute and disarray, is for a Judge in his position to consider himself bound by what has been decided before in his own Court. Such is the rule of stare decisis. He may, of course, express his disagreement as trenchantly as he likes, but should leave the question which vexes him to the Court of Appeal for such decision as may be appropriate. In default of observing this time-honoured procedure and in the absence of appeal (as I am advised by Crown counsel is the case here) one accused is convicted and the other is precisely the same circumstances is acquitted of the same charge with concomitant uncertainty and potential scandal.
Recently in Manitoba, in Paul (1990) 66 Man. R. 2d 59, Morse at the QB level refused to overrule a previous decision of the court, even though a subsequent Man.C.A. case on a related issue had cast doubt on the continued validity of the previous decision. Once he had established that the CA had not impliedly overruled the previous case, was it open for Morse to overrule the earlier decision of Scollin? Because the earlier case had struck down a particular provincial law as contrary to the Charter, Morse stated:
In my judgment, however, I do not have the right or authority to declare valid legislation which another judge of this court has declared to be of no force or effect or invalid by reason of inconsistency with the Charter. If this is to be done, it must, in my opinion, as I have indicated, be done by the Court of Appeal.
Thus, we do see some authority for a strict horizontal approach to precedent at the trial court level. This is, however, a minority position. The more usual approach follows.
2. Previous decisions of your own court are not strictly binding, but they must be followed except for limited exceptions as a matter of judicial comity.
There is a whole line of cases which have suggested that you must follow the earlier decision, except in carefully defined exceptional circumstances. This approach might be seen as built on the English Court of Appeal Bristol Airplane approach. Not strictly binding, but not free to simply disagree either.
The leading case is In re Hansard Spruce Mills Limited (l954) l3 W.W.R. 285 of the B.C. Supreme Court. Instead of arguing for a looser view of precedent at the lower level in comparison to the appellate levels, Wilson J. argues the opposite. At 286 he says:
But, as I said in the Cairney case, I think the power, or rather the proper discretionary duty of a trial judge is more limited. The Court of Appeal, by overriding itself in Bell v. Klein, has settled the law. But I have no power to override a brother judge, I can only differ from him, and the effect of my doing so is not to settle but rather to unsettle the law, because, following such a difference of pinion, the unhappy litigant is confronted with conflicting opinions emanating from the same court and therefore of the same legal weight. This is a state of affairs which cannot develop in the Court of Appeal.
Therefore, to epitomize what I have already written in the Cairney case, I say this:
I will only go against a judgment of another judge of this court if:
(a) Subsequent decisions have affected the validity of the impugned judgment;
(b) It is demonstrated that some binding authority in case law or some relevant statute was not considered;
(c) The judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial judges, where the experiences of the trial require an immediate decision without opportunity to fully consult authority.
If none of these situations exists I think a trial judge should follow the decisions of his brother judges.
The Hansard case is cited and applied in:
R. v. Congrete Column Clamps (l97l), 4 C.C.C. (2d) 442 (Ont. Prov. Ct.)
R. v. M. (l97l), 3 C.C.C. (2d) 76 (B.C.S.Ct.)
Ex Parte Guenette (l975), 27 C.C.C. (2d) 279 (B.C.S.Ct.)
Wallace v. Wallace (l976), 70D.L.R. (3d) 375 (Sask. Q.B.)
Meurer v. McKenzie (l977), 2 C.P.C. l09 (B.C.S.Ct.)
Conder v. North Star Const. Co. (l979), l7 B.C.L.R. l86 (B.C.S.Ct.)
Re. A.G.B.C.; Re Bieholt, [l980] 3 W.W.R. l93 (B.C.S. Ct.)
Re Saanich Inlet Preservation Society (l98l) l30 D.L.R. (3d) 7l6
and many subsequent cases.
The effect of Hansard, is to make the horizontal effect at the trial court level quite strong, since the exceptions are very narrow. Another formulation of a kind of second position similar to Hansard is that of McRuer J. in R. v. Northern Electric Co. [1955] 3 D.L.R. 449 at 466:
"Having regard to all the rights of appeal that now exist in Ontario, I think Hogg J. stated the right common law principle to be applied in his judgment in R. ex rel McWilliam v. Morris [1942] O.W.N. 447 where he said: 'The doctrine of stare decisis is one long recognized as a principle of our law'. Sir Frederick Pollock says, in his First Book of Jurisprudence, 6th ed. p. 321: 'The decisions of an ordinary superior court are binding on all courts of inferior rank within the same jurisdiction, and, though not absolutely binding on courts of co-ordinate authority nor on that court itself, will be followed in the absence of strong reason to the contrary.'
I think that 'strong reason to the contrary' does not mean a strong argumentative reason appealing to the particular Judge, but something that may indicate that the prior decision was given without consideration of a statute or some authority that ought to have been followed. I do not think 'strong reason to the contrary' is to be construed according to the flexibility of the mind of the particular judge."
This second approach of not being strictly bound, but restricting "not following" horizontally to narrowly defined circumstances is the leading approach. There are many cases from numerous jurisdictions that quote the Hansard case.
3. Previous decisions of your own court are not binding. If they are considered wrong they need not be followed.
There seems to be something counter-intuitive about trial courts giving so much precedential weight to past trial court cases. It is at the higher levels that courts should be more concerned precisely because their past precedents have so much weight in terms of making law and the reliance of the public on that law.
In England, the horizontal situation is summed up in the following passage in Lord Goddard's judgment in Police Authority for Huddersfield v. Watson [l947] K.B. 842:
I think the modern practice and the modern view of the subject is that a judge of first instance, unless he is convinced that the judgment is wrong, would follow it as a matter of judicial comity. He certainly is not bound to follow the decision of a judge of equal jurisdiction. He is only bound to follow the decisions of the Court of Appeal, the House of Lords and divisional courts.
Thus, in England we have the idea that the upper horizontal effect is more important to maintain than the lower horizontal one.
In Noris v. Hamilton, [1943] O.W.N. 566 (Ont.Co.Ct.) Kinner Co.Ct. J. at 566:
"there appears to be no statute or common law rule by which one court is bound by the decision of another court of coordinate jurisdiction. Higher courts so act on grounds of judicial comity. With regard to judges of first instance, the rule might be stated as follows: the second judge ought always to treat former decisions with attention and respect but may decline to follow a previous decision if he thinks the principle of the decision insufficient or inapplicable or wrong in any other way.
To similar effect:
Noble and Wolf, [1948] 4 D.L.R. l23 (Ont. High Ct.)
Masse v. Dietrich, [1971] 3 D.L.R. 359 (Ont. Co.Ct.)
R. v. Kruger and Manuel (l974), l9 C.C.C. (2d) l62 (B.C.Co.Ct.)
R. v. Groves (l977), 39 L.R.N.S. 366 (Ont. High Ct.)
R. v. Ostridge (l979), 22 N & P.E.I.R. l23 (P.E.I.S.Ct.)
The uncertainty in regard to the horizontal convention at the trial court level is simply unsatisfactory!
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When these ghosts of the past stand in the path of justice clanking their medieval chains the proper course for the Judge is to pass through them undeterred.
-Lord Atkin in United Australia v. Barclays Bank (1941) A.C. 1
Alvin Esau 1993
1. Vertical
As to the vertical convention, we may say that the Manitoba Queen's Bench, for example, is strictly bound by:
l. All pre-1949 Privy Council cases on appeal from Canada until such time as they are overruled by the Supreme Court, explicitly or by implication.
2. All Supreme Court of Canada cases, until overruled by the Supreme Court, either explicitly or by implication.
3. All Manitoba Court of Appeal cases, until overruled by the Court of Appeal, or the Supreme Court, explicitly or by implication.
As to the Manitoba Provincial Court, we would add:
4. All Manitoba Q.B. decisions, until overruled by the Court of Appeal, or the Supreme Court, explicitly or by implication.
All other cases, regardless of how "high" within their own jurisdictions are merely relevant or persuasive - ie. House of Lords, U.S. Supreme Court, Alberta Court of Appeal, etc.
There are situations where a trial court judge rebels against the binding precedent and on appeal is criticized for doing so. The case of Hummel (1987) 60 O.R. 2d 545; and Crazybull (1993) 141 A.R. 69 are examples.
When you talk about trial courts, you find that there are "persistent errors" that judges make about the conventions of precedent in the sense that they say things about precedent without citing the authorities that point to a different conclusion. If they did cite the authorities and still gave a different opinion then we could at least say that the judge is trying to get agreement for a new convention. Conventions of precedent are after all judicially created. However, "top of the head" opinions cannot be blessed with such status. One such persistent error is the idea that a lower trial court is bound by a Court of Appeal from another province. R. v. Constable Transport (1967) 60 D.L.R. (2d) 577 (Ont. Co. Ct.) and R. v. Simpson (1968) 67 D.L.R. (2d) 585 (B.C.S.Ct.) are two examples of this mistake. The more sensible approach, and following logically from what the Supreme Court of Canada said in Wolf (1974) 45 D.L.R. (3d) 74lk, is illustrated in R. v. Guertin (197l) 3 C.C.C. (2d) 135, where an Ontario District Court judge chose not to follow a B.C. Court of Appeal case. The judge said at 140:
After considering the R. v. Jones case with all the care and respect which I could command, I have come to the conclusion that I ought not to follow it. The "futility of divergence" from a judgment of a Court of higher jurisdiction merited additional consideration, but on that point I found great enlightenment in the discussion of stare decisis by Matheson, Co. Ct. J., in R. v. Beaney, [1969] 2 O.R. 71, [1970] l C.C.C. 48, 4 D.L.R. (3d) 369, where the learned County Court Judge found himself unable to agree with a judgment of the Court of Appeal of Manitoba and was therefore faced with the practical problem of determining whether it would be futile to disagree; at p.77 O.R., pp. 53-4 C.C.C., the learned Judge stated:
The Court of Appeal of Manitoba stands outside the hierarchy of Courts of this Province and, while there are many compelling reasons why a Judge of first instance in this Province ought to try to conform with the decisions of other provincial appellate Courts, in my respectful submission he is not bound by them. The point at issue here is underscored by the undoubted consequence that if, in the opinion of the Court of Appeal of Ontario, I should be correct in the substantive point of law in question, that Court surely would not reverse my judgment simply because I failed to follow an extra provincial appellate decision with which it, too (ex hypothesi), disagreed.
I adopt the conclusion of Matheson, Co. Ct. J., that I am not bound by the decision of the British Columbia Court of Appeal and therefore, for reasons earlier mentioned, the appeal will be allowed and the charge dismissed. No costs.
To the same effect see R. v. Connolly [1970] 2C.C.C. 144 (P.E.I.S.Ct.); R. v. Davis (1975) 21 C.C.C. (2d) 507 (B.C.S.Ct.); and Reid v. Sigurdson (1979) 32 C.B.R. (N.S.) 170 (B.C.S.Ct.).
One of the difficulties involving precedent in trial courts is that historically there was, and in some jurisdictions continues to be, a complex judicial trial court hierarchy with various jurisdictional overlaps and various appeal processes depending on the nature of the case. For example, we used to have the Queen's Bench, and below it the County Court, and below it the Provincial Court. We have now amalgamated the QB and the County Court. However, the confusion arises from the fact of concurrent jurisdiction.
For example, there may be cases that could be brought either in the QB or the County Court. More importantly, there may be some matters that are appealed to the QB from the Provincial Court and other matters that go directly to appeal from the PC to the CA. Other matters might be appealed to the QB. The reason for the confusion is that a County Court judge or a Provincial Court judge may have argued that a precedent from the QB was not really binding vertically, but rather, given concurrent jurisdiction, was really a horizontal precedent, equal to a decision of his or her own court.
The argument would be that you are not bound vertically by decisions of a court unless it is a court that the litigant can appeal to in the matter at issue. If the litigant cannot appeal to it, even though the court is higher on the judicial hierarchy, the decision in question is not a vertical precedent. The weight to be given the decision depends on what the horizontal conventions of precedent at the trial level are.
The alternative approach, however, is to argue that you should simply follow the hierarchy of courts in terms of being bound vertically by the courts above you in the jurisdiction, whether you can appeal to that higher trial court or not.
2. Horizontal
When it comes to the question of the horizontal effect, that is whether one trial judge is bound by the decision of another judge in his or her own court, or by a court of concurrent jurisdiction, there is a considerable amount of confusion, in addition to the confusion caused by various different courts of concurrent jurisdiction. You may recall in our discussion of intermediate courts of appeal that there is some concern about whether a three judge panel can overrule another three judge panel. This type of concern is even more apparent at the trial court level.
Does one trial judge have the authority to overrule an earlier decision of another trial judge, or does the judge simply have the power to disagree? Disagreement will create uncertainty until a higher court deals with the issue.
Suppose for example that one trial judge upholds some interpretation of a criminal offence as not violating the Charter and then in another case a different judge says it violates the Charter. Perhaps the second judge actually purports to strike the legislation down as a violation of the Charter. The police and the Crown, however, may continue to charge people with the offence claiming that until a higher court rules on the issue, the trial court decision is just one lower court opinion disagreeing with an earlier one.
In both Ontario and Manitoba there is authority for the proposition that one trial court judge is bound by the previous decisions of his or her own court. This approach means that the horizontal convention of precedent gets more restrictive as you move down the court levels. One version of this scenario might go as follows. At the highest level, the Supreme Court can overrule itself when it is thought right to do so. At the intermediate appeal level, the court can only overrule itself when certain fairly well defined criteria are present, like the Young formula. At the trial court level, once a decision is made it is binding until overruled by a higher court.
The point is, however, that the very opposite approach could make sense as well. The horizontal approach might be viewed as being the most restrictive at the top and progressively less restrictive as you go down the judicial hierarchy.
In Canada, we have had and perhaps still have, three approaches to the horizontal convention in trial courts. It is the second of the three approaches that appears to have the greatest weight of authority behind it.
l. Previous decisions of your own court (e.g. Man. Q.B., Man. Prov. Ct.) are binding on you.
In Sedziak v. Polish Workers Assn. [1937] 3 W.W.R. 527 a Manitoba King's Bench judge said that a judgment of a Judge of the Manitoba King's Bench is binding on that court and the officers thereof until altered by the Court of Appeal. Similarly, in Re Oldfield [1949] l W.W.R. 540, another Manitoba King's Bench judge said that judges of the first instance should not disregard a series of decisions by other judges of first instance, none of which has been appealed or has been otherwise interfered with.
Then we have the case of Kingscott v. Megaritis (1972) 27 D.L.R. (3d) 310 where Hughes J. of the Ontario High Court said at 320:
However, in Masse et al. v. Dietrich, [1971] 3 O.R. 359, Cudney, Co. Ct. J. in the County Court of the County of Middlesex, preferred a line of cases decided in various County Courts in which the opposite view had been taken in cases of insurance under collective agreements, going so far as to say that he was not bound to follow the decision of Moorhouse, J. in the Rados case. He held that he had co-ordinate jurisdiction with a Judge of the Supreme Court sitting in the High Court of Justice, and that "The rule as to stare decisis is, as I see it, a principle or a judicial attitude which follows the practice that a Court must follow only the decisions of those Courts that can reverse its judgments either immediately or ultimately."
... If indeed Cudney, Co. Ct. J., was justified in saying that he had co-ordinate jurisdiction with a Judge of this Court, presumably within the confines of the jurisdiction and territorial boundaries of the County of Middlesex in the case which he had to consider, he had evidently not had drawn to his attention the words of Lord Haldane, L.C., in Kreglinger v. New Patagonia Meat & Cold Storage Co. Ltd., [1914] A.C. 25, in which he said at p. 40:
To follow previous authorities, so far as they lay down principles, is essential if the law is to be preserved from becoming unsettled and vague. In this respect the previous decisions of a Court of coordinate jurisdiction are more binding in a system of jurisprudence such as ours than in systems where the paramount authority is that of a code.
These words were quoted with approval in Cairney v. Queen Charlotte Airlines Ltd. and MacQueen (No.2) (1954), 12 W.W.R. (N.S.) 459, by Wilson J., when refusing to give judgment in direct conflict with that of a Judge of his own Court in British Columbia. To these authoritative pronouncements of what is due to the judgment of judges of co-ordinate jurisdiction I respectfully add words in which the duties of Judges in this respect have been prescribed for centuries: jusdicere sed non jus dare.
In R. v. Kartna (1978) 2 M.V.R. 259 an Ontario High Court Judge was faced with two conflicting decisions. In R. v. Lemieux (1978), l M.V.R. 27 (Ont. Dist. Ct.), the judge said that the abbreviation HTA (instead of "Highway Traffic Act") was sufficient on a speeding ticket. In R. v. Vaughon (1978) l M.V.R.32 (Ont. Dist. Ct.), another judge disagreed with Lemieux. Hughes J. said at 267:
I pause here to say, with deference but emphatically, that in my view it is unfortunate that such a disagreement with a Judge of coordinate jurisdiction was indulged in by Foreget D.C.J. in the case of Vaughan. I will go further and say that the proper procedure, and one without the recognition of which the administration of justice would fall into disrepute and disarray, is for a Judge in his position to consider himself bound by what has been decided before in his own Court. Such is the rule of stare decisis. He may, of course, express his disagreement as trenchantly as he likes, but should leave the question which vexes him to the Court of Appeal for such decision as may be appropriate. In default of observing this time-honoured procedure and in the absence of appeal (as I am advised by Crown counsel is the case here) one accused is convicted and the other is precisely the same circumstances is acquitted of the same charge with concomitant uncertainty and potential scandal.
Recently in Manitoba, in Paul (1990) 66 Man. R. 2d 59, Morse at the QB level refused to overrule a previous decision of the court, even though a subsequent Man.C.A. case on a related issue had cast doubt on the continued validity of the previous decision. Once he had established that the CA had not impliedly overruled the previous case, was it open for Morse to overrule the earlier decision of Scollin? Because the earlier case had struck down a particular provincial law as contrary to the Charter, Morse stated:
In my judgment, however, I do not have the right or authority to declare valid legislation which another judge of this court has declared to be of no force or effect or invalid by reason of inconsistency with the Charter. If this is to be done, it must, in my opinion, as I have indicated, be done by the Court of Appeal.
Thus, we do see some authority for a strict horizontal approach to precedent at the trial court level. This is, however, a minority position. The more usual approach follows.
2. Previous decisions of your own court are not strictly binding, but they must be followed except for limited exceptions as a matter of judicial comity.
There is a whole line of cases which have suggested that you must follow the earlier decision, except in carefully defined exceptional circumstances. This approach might be seen as built on the English Court of Appeal Bristol Airplane approach. Not strictly binding, but not free to simply disagree either.
The leading case is In re Hansard Spruce Mills Limited (l954) l3 W.W.R. 285 of the B.C. Supreme Court. Instead of arguing for a looser view of precedent at the lower level in comparison to the appellate levels, Wilson J. argues the opposite. At 286 he says:
But, as I said in the Cairney case, I think the power, or rather the proper discretionary duty of a trial judge is more limited. The Court of Appeal, by overriding itself in Bell v. Klein, has settled the law. But I have no power to override a brother judge, I can only differ from him, and the effect of my doing so is not to settle but rather to unsettle the law, because, following such a difference of pinion, the unhappy litigant is confronted with conflicting opinions emanating from the same court and therefore of the same legal weight. This is a state of affairs which cannot develop in the Court of Appeal.
Therefore, to epitomize what I have already written in the Cairney case, I say this:
I will only go against a judgment of another judge of this court if:
(a) Subsequent decisions have affected the validity of the impugned judgment;
(b) It is demonstrated that some binding authority in case law or some relevant statute was not considered;
(c) The judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial judges, where the experiences of the trial require an immediate decision without opportunity to fully consult authority.
If none of these situations exists I think a trial judge should follow the decisions of his brother judges.
The Hansard case is cited and applied in:
R. v. Congrete Column Clamps (l97l), 4 C.C.C. (2d) 442 (Ont. Prov. Ct.)
R. v. M. (l97l), 3 C.C.C. (2d) 76 (B.C.S.Ct.)
Ex Parte Guenette (l975), 27 C.C.C. (2d) 279 (B.C.S.Ct.)
Wallace v. Wallace (l976), 70D.L.R. (3d) 375 (Sask. Q.B.)
Meurer v. McKenzie (l977), 2 C.P.C. l09 (B.C.S.Ct.)
Conder v. North Star Const. Co. (l979), l7 B.C.L.R. l86 (B.C.S.Ct.)
Re. A.G.B.C.; Re Bieholt, [l980] 3 W.W.R. l93 (B.C.S. Ct.)
Re Saanich Inlet Preservation Society (l98l) l30 D.L.R. (3d) 7l6
and many subsequent cases.
The effect of Hansard, is to make the horizontal effect at the trial court level quite strong, since the exceptions are very narrow. Another formulation of a kind of second position similar to Hansard is that of McRuer J. in R. v. Northern Electric Co. [1955] 3 D.L.R. 449 at 466:
"Having regard to all the rights of appeal that now exist in Ontario, I think Hogg J. stated the right common law principle to be applied in his judgment in R. ex rel McWilliam v. Morris [1942] O.W.N. 447 where he said: 'The doctrine of stare decisis is one long recognized as a principle of our law'. Sir Frederick Pollock says, in his First Book of Jurisprudence, 6th ed. p. 321: 'The decisions of an ordinary superior court are binding on all courts of inferior rank within the same jurisdiction, and, though not absolutely binding on courts of co-ordinate authority nor on that court itself, will be followed in the absence of strong reason to the contrary.'
I think that 'strong reason to the contrary' does not mean a strong argumentative reason appealing to the particular Judge, but something that may indicate that the prior decision was given without consideration of a statute or some authority that ought to have been followed. I do not think 'strong reason to the contrary' is to be construed according to the flexibility of the mind of the particular judge."
This second approach of not being strictly bound, but restricting "not following" horizontally to narrowly defined circumstances is the leading approach. There are many cases from numerous jurisdictions that quote the Hansard case.
3. Previous decisions of your own court are not binding. If they are considered wrong they need not be followed.
There seems to be something counter-intuitive about trial courts giving so much precedential weight to past trial court cases. It is at the higher levels that courts should be more concerned precisely because their past precedents have so much weight in terms of making law and the reliance of the public on that law.
In England, the horizontal situation is summed up in the following passage in Lord Goddard's judgment in Police Authority for Huddersfield v. Watson [l947] K.B. 842:
I think the modern practice and the modern view of the subject is that a judge of first instance, unless he is convinced that the judgment is wrong, would follow it as a matter of judicial comity. He certainly is not bound to follow the decision of a judge of equal jurisdiction. He is only bound to follow the decisions of the Court of Appeal, the House of Lords and divisional courts.
Thus, in England we have the idea that the upper horizontal effect is more important to maintain than the lower horizontal one.
In Noris v. Hamilton, [1943] O.W.N. 566 (Ont.Co.Ct.) Kinner Co.Ct. J. at 566:
"there appears to be no statute or common law rule by which one court is bound by the decision of another court of coordinate jurisdiction. Higher courts so act on grounds of judicial comity. With regard to judges of first instance, the rule might be stated as follows: the second judge ought always to treat former decisions with attention and respect but may decline to follow a previous decision if he thinks the principle of the decision insufficient or inapplicable or wrong in any other way.
To similar effect:
Noble and Wolf, [1948] 4 D.L.R. l23 (Ont. High Ct.)
Masse v. Dietrich, [1971] 3 D.L.R. 359 (Ont. Co.Ct.)
R. v. Kruger and Manuel (l974), l9 C.C.C. (2d) l62 (B.C.Co.Ct.)
R. v. Groves (l977), 39 L.R.N.S. 366 (Ont. High Ct.)
R. v. Ostridge (l979), 22 N & P.E.I.R. l23 (P.E.I.S.Ct.)
The uncertainty in regard to the horizontal convention at the trial court level is simply unsatisfactory!
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When these ghosts of the past stand in the path of justice clanking their medieval chains the proper course for the Judge is to pass through them undeterred.
-Lord Atkin in United Australia v. Barclays Bank (1941) A.C. 1
