Law of PrecedentOne of the major considerations on how someone is tried in a court oflaw depends upon the previous convictions of similar cases. This law ofprecedent (stare decisis) was founded hundreds of years ago as part of ourcommon law. The literal translation of stare decisis is “that like cases bedecided alike.”Precedents in law play a fundamental role in the judicialprocesses of Canada. From stealing a loaf of bread ranging to murder in thefirst degree, there are precedents for any type of case that has ever occurredin Canada, and even many cases from Britain (prior to 1949 and the abolishmentof the JCPC).
Unfortunately, the law of precedent does have its downfalls. Despite the fall backs of stare decisis, the law of precedent still holdstrue and important in our modern society. Some of the shortcomings of staredecisis are the following: As time changes, precedents need to change in orderto accommodate society’s new values and laws. Furthermore, the introduction of”social facts” in court cases has clouded over many existing precedents withmany new facts and ideas that render the basics of stare decisis much morecomplicated.
One of the more common drawbacks to the law of precedent is that overtime, a law may be found as no longer applicable, or on the other hand, a newdecision may be found in a trial which can also be undesirable.Keep in mindthat the courts are not supposed to create new policies to deal with newproblems, that is the role of the legislature.This drawback is prevalent intwo forms: The first is the ruling of a court case, and the second is thesentencing or judicial decision of a case. In order to examine the first form an example is given. A long time ago,sexual harassment at the work place was virtually unheard of or it was ignoredaltogether. The case probably would not even make it to court. Nowadays if aboss (traditionally a man) simply inquires about an employee’s sexual status(traditionally the woman) is considered sexual harassment, and the boss would befound guilty of the charge.
This is a classic example of the changing views ofsociety. Sixty plus years ago, women seemingly meant nothing to the world. Theywere considered tools, possessions, and frequently were not referred to at allby the law. However, with the long battle for the realization of woman’s rights,females have become respected by our society and our laws. Unfortunately, sexualharassment at the workplace is going too far. It used to be a threat of one’sjob in return for sexual favors to qualify as quid pro quo harassment. Yet intoday’s context, simply inquiring about an employee’s sexual status is de emedas sexual harassment.
There are problems with old laws and precedents that may need to berectified. Previous decisions by judges do not necessarily embody the law. Hereis where a judge’s duty is to apply the law, not another justice’s determinationof it.”The law and the opinion of the judge may not always be one and thesame.”For judges, it is important to correct any precedent that is now viewedas a mistake. Making sure that precedents are kept “in check” is a vital role ofthe courts.
The second case of changing precedent is that of court sentencing anddecision making. This part of stare decisis troubles many people along withmyself for a good reason, court cases are getting out of hand! Here offered isanother example. Fifty years ago, a convicted serial killer would have been hungby the laws of capital punishment. Yet nowadays, the taking of a convictedkiller’s life is deemed as cruel and unusual punishment, even if he murdered thePrime Minister on national television. If that example is too drastic, here isanother, more reasonable example. In the United States, court rulings dealingwith personal injury or damages are becoming out of this world.
.. are acouple of examples: A lady gets 8 million dollars for spilling hot coffee fromMcDonalds’ on herself; O.J. Simpson is out a total of 33 million dollars for thewrongful deaths of Nicole Brown-Simpson and Ronald Goldman.
These rulings areludicrous! If one chooses to say that is the States and not Canada, how aboutthe Br ian Mulroney’s attempt to sue Canada for 55 million dollars due toslanderous remarks that were allegedly made by his fellow politicians andCanadian citizens? How much