October 4, 1949 (21st Parliament, 1st Session)


Donald Methuen Fleming

Progressive Conservative

Mr. Fleming:

The hon. member for Temis-couata has just finished pronouncing the judgment of extinction on one legal light of this house, as he describes him. I am afraid at the same time he cut a very wide swath because he nearly pronounced judgment of extinction on one other very distinguished legal light in this chamber who sits on the other side. I refer to the Prime Minister. If my hon. friend will refer to Hansard for September 23, at page 197, the second column, he will find the Prime Minister has expressed himself as being fully in support of the application to the Supreme Court of Canada of the principle of stare decisis. He made specific reference to that particular branch of the resolution passed by the Canadian Bar Association at its meeting last summer, as follows:
(g) that the rule-
And the Prime Minister is quoting it at this point-
-of stare decisis ought to continue to be applied with respect to past decisions of the court-
That is, the supreme court-
-as well as-*

Supreme Court Act
And I ask my hon. friend and other hon. members to note this well-
-with respect to past decisions of the judicial committee.
That is the resolution passed by the Canadian Bar Association. The Prime Minister's comment immediately upon it is-
That is something with which I entirely agree.
We have now the opportunity with respect to this principle of making a choice between the view expressed by the hon. member for Temiscouata and that expressed by the Prime Minister. For my part, I begin with an acceptance of the principle laid down by the Prime Minister which, if I may speak with respect, I conceive to be perfectly sound. That is to say, if we are going to have an orderly system of jurisprudence, if litigants, whether they be provinces or individuals, are to know what the law is, and that the law as declared by the courts is to be binding until overruled by parliament or by a legislature, this principle of stare decisis must have recognition.
The Prime Minister has said that he shares the view expressed by the bar association, that the principle of stare decisis applies to decisions of the privy council up to this date.
I should like to direct my observations for a moment, if I may, to those members of the house who are not lawyers, because there is always a very great danger in discussion of a measure of this kind that many members, especially when they hear a few Latin expressions hurled around, such as stare decisis and ratio decidendi, will say, "Oh well, this is all a fog; what does it all mean?". I should like briefly to deal with the meaning of stare decisis.
When we are talking about the principle of stare decisis we are simply talking about the recognition of precedent-that is to say, past decisions in matters germane to the subject under discussion before the court. For instance, where the privy council at any time past has made a decision, we will say on an appeal from a provincial court-let us say the Supreme Court of Ontario-or it may be from the Supreme Court of Canada, the decision of the privy council on that matter is the law. It is the law until that law is changed by the competent legislature which, in some cases, might be the parliament of Canada and in other cases might be the legislature of a province concerned. Until the competent legislature or parliament intervenes to say that the law shall be otherwise than as declared in the highest court, that law as declared in the highest court is final. The courts must follow that decision. It is precedent; it is binding. That decision must be followed whenever it is applicable.
{Mr. Fleming.]
That is to say, so long as the principle involved in the case is the same principle that is at issue in the case at bar, and so long as the facts in the case at bar bring it within the scope of the decision or, as we say, within the four corners of the decision in that highest court, it is accepted as a precedent.

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