View cases - Stewart McKelvey

well by Gibbs J. of the High Court of Australia in Queensland v. Commonwealth (1977), 139C.L.R. 585, at p. 599:No Justice is entitled to ignore the decisions and reasoning of his predecessors, andto arrive at his own judgment as though the pages of the law reports were blank, oras though the authority of a decision did not survive beyond the rising of the Court.A Justice, unlike a legislator, cannot introduce a programme of reform which sets atnought decisions formerly made and principles formerly established. It is only afterthe most careful and respectful consideration of the earlier decision, and after givingdue weight to all the circumstances, that a Justice may give effect to his ownopinions in preference to an earlier decision of the Court.2011 SCC 20 (CanLII)[133] What the courts are doing when deciding whether to overrule a precedent is abalancing exercise between two important values: correctness and certainty. A court must askwhether it is preferable to adhere to an incorrect precedent to maintain certainty or to correct theerror. Indeed, because judicial discretion is being exercised, the courts have set down, andacademics have suggested, a plethora of criteria for courts to consider in deciding betweenupholding precedent and correcting error.[134] In Bernard, Dickson C.J. in dissent, identified four reasons for overruling an earlierprecedent, at pp. 850-61:1. Decisions that predate the Charter and fail to reflect Charter values;2. Subsequent developments in the law that undermine the validity of the precedent;