Junior lawyers and articling students are often asked to look up case law for use in court. Sometimes they go to court and persuade judges or masters with such case law. If you generate or consume such research, what aspects should you be looking for?
In today’s blog, the Honourable J.E. Côté shares his thoughts, answering this question and more.
First, precedents should be about law. A previous case, which merely has similar facts to yours, is usually not very good. In theory it may be of little use because its ratio decidendi does not correspond. And case law holds that factual precedent is of little value. Even though buckets of such cases are often futilely cited in sentencing and personal injury damages cases. True, case on a similar fact situation is not always totally useless: some judges are comforted by seeing it – but some are not. So a case with the same facts is never never enough.
Second, law schools do not emphasize the vital difference between binding and persuasive precedent. But courts do. Harvard does not teach the law of Massachusetts, and may teach the law of nowhere. But Alberta courts find and administer the law of Alberta. And in Alberta what binds is the Supreme Court of Canada (though rarely an old Privy Council case is on point and binds). And if the Supreme Court is silent or equivocal, then what binds is the Alberta Court of Appeal. Binding means not optional. If the ratio decidendi is on point, the judge or master today must follow the higher court’s ratio. Even if it is old or sounds old-fashioned or unsympathetic. Counsel can demand that the new court follow that precedent (phrasing the demand in as tactful terms as counsel can muster). It is reversible error not to follow it.
Dissents are not precedent. That sounds easy, except when the Supreme Court of Canada issues a decision where several judges write separate reasons. How to decide which judge is dissenting and which judge is part of the majority, can get tricky.
The ratios of all Alberta Court of Appeal decisions are binding except for sentencing memoranda of decision.
What Persuasive Precedent Really Persuades?
We all know that often there is no binding precedent. All there is, is a heap of persuasive precedent. Like fishing line, it is usually snarled and knotted. Which cases should one rely upon?
There is no absolute answer to that, because judges differ, both in their approach to case law in general, and in their life experiences and philosophy. For example, some judges think that the latest decision is the best, one 10 years old has a long white beard, and one 40 years old is a collectible antique, not law at all. Some may want to stick to Alberta (or Calgary) law. Others may be enamoured of certain courts or judges, and conversely have coolness toward certain other courts or judges. Counsel cannot know all those things (or in any event would have to know who their judge will be and then do a lot of peculiar computer research beforehand). So where all the case law is persuasive, it’s better to have 3 or 4 good cases, not just one.
Some provinces’ judges pay attention to precedent from other provinces. But judges in some provinces tend to ignore it.
Barring judges’ individual predilections, what other criteria should you use to sift persuasive precedent?
First, does the case really persuade? Does it review the countervailing arguments? Does it give convincing reasons to adopt one view and to reject the opposite one? Does the supposedly persuasive precedent contain any flaws in reasoning? If it is flawless and convincing, then the Court of Appeal of South Australia 30 years ago is a much better bet than a terse and superficial recent decision of a B.C. chambers judge.
Second, how thorough is the decision, and does the author of it seem to have looked up enough authority and thought about the matter? Did the author simply rely on authority binding on him or her, but not binding in Alberta?
Third, can that authority be distinguished (in a meaningful way, not a technical one)? Or does the author of that decision say the result could have been different if a certain fact differed? Or decline to decide a certain important issue (e.g. on procedural grounds)? Indeed does that case decide anything general, or just hold that the standard of appellate review is not met so deference is owed to a chambers judge below?
Fourth, are there any factors in Alberta which make law from that other place unsuitable? For example, is that decision founded on a different system of recording title to land? Or a different matrimonial property regime?
Fifth, has the other court issuing that precedent given any indications that its decision has smaller weight as precedent? For example, a brief “Endorsement” by the Ontario Court of Appeal? Or a sentencing memorandum from the Alberta Court of Appeal?
Never forget the delicate question of how far counsel must go to satisfy ethical requirements. You must cite any authority contrary to your position, to the court. The penalty is professional discipline or personal costs. Obviously you must cite all binding authority. Debatable or questionable grounds to distinguish do not remove that duty. Dicta of the Supreme Court of Canada should be disclosed. Whether Court of Appeal dicta should be disclosed is less clear. Some persuasive authority should be disclosed, especially if there is little or no binding authority. Not to disclose a unanimous line of persuasive Alberta decisions would be unthinkable. Conversely, a trial-level decision from Alabama in 1912 need neither be found nor disclosed. Nor a brief nisi prius decision from England in the 1840s. Where in between those extremes one draws the line is less clear.
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