View cases - Stewart McKelvey

[138] If a precedent has overruled prior cases, two sets of precedents exist, an originalprecedent and a new precedent, although one has been overruled. In such cases it will be moreimportant to carefully scrutinize the new precedent to determine if it has strayed from soundprior decisions and whether it would be preferable to return to the original, and more sound,decisions. In Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), O’Connor J. confrontedthis type of situation. She stated, at p. 231:2011 SCC 20 (CanLII)Remaining true to an “intrinsically sounder” doctrine established in prior cases betterserves the values of stare decisis than would following a more recently decided caseinconsistent with the decisions that came before it; the latter course would simplycompound the recent error and would likely make the unjustified break frompreviously established doctrine complete.Thus, where there exist earlier precedents from which the precedent at issue itself departed, itmay be justifiable, based on the values underlying stare decisis, for the Court to return to theearlier precedents.[139] The criteria discussed in the above cases and articles may, depending on thecircumstances of each case, be relevant in deciding whether overruling is appropriate. However,these criteria do not represent an exhaustive list of considerations or requirements. Rather, suchcriteria function as “guidelines to assist [the] Court in exercising its discretion”: Chaulk, at p.1353, per Lamer C.J. Fundamentally, the question in every case involves a balancing: Do thereasons in favour of following a precedent — such as certainty, consistency, predictability andinstitutional legitimacy — outweigh the need to overturn a precedent that is sufficiently wrongthat it should not be upheld and perpetuated?