University of Windsor Scholarship at UWindsor Electronic Theses and Dissertations Theses, Dissertations, and Major Papers 2005 Taking precedents seriously: The influence of stare decisis on judicial decision-making. Mark Chalmers University of Windsor Follow this and additional works at: https://scholar.uwindsor.ca/etd Recommended Citation Chalmers, Mark, "Taking precedents seriously: The influence of stare decisis on judicial decision-making." (2005). Electronic Theses and Dissertations. 3718. https://scholar.uwindsor.ca/etd/3718 This online database contains the full-text of PhD dissertations and Masters’ theses of University of Windsor students from 1954 forward. These documents are made available for personal study and research purposes only, in accordance with the Canadian Copyright Act and the Creative Commons license—CC BY-NC-ND (Attribution, Non-Commercial, No Derivative Works). 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Further reproduction prohibited without permission. /£> 3e5 iii ABSTRACT The author examines the influence of precedent on Supreme Court decision-making in Canada. Despite its importance, very little is actually known about the factors that affect judicial decision-making. The thesis begins by defining the doctrine of precedent, discusses the virtues of adhering to a policy of precedent, and provides a brief historical overview of the history of precedent in Canadian law. The author then reviews the three leading paradigms in judicial behavioural research as they relate to the influence of precedent. The legal model expects precedent to be among the most important factors that judges consider when making decisions. In contrast, the attitudinal model believes that judicial decisions are conditioned by the attitudes and preferences of the judges. The strategic model expects precedent to have some influence on judicial decision-making, in addition to other considerations. Based on the findings of previous research and the Court’s jurisprudence, the author hypothesizes that, although judges frequently cite precedents to justify their decisions, it rarely influences how they decide cases. To test this, three separate studies are conducted. The first is a content analysis of the Court’s judgments from 2004; the second study, which is based on the work of Brenner and Spaeth, examines of the influence of precedent in decisions that alter precedent; the third study applies the methodology developed by Segal and Spaeth to assess the influence of precedent in all cases decided since 1950. The results show, inter alia, that the majority of Justices on the Supreme Court of Canada decide cases based on attitudinal factors, and that precedent has a minimal influence on their decision-making. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. DEDICATION This work is dedicated to my family and friends. Their constant support and encouragement made the writing of this paper possible. It is also dedicated to all the legal scholars and social scientists that have devoted their efforts to the study of judicial behaviour. Without their work, this analysis could not have been possible. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. ACKNOWLEDGMENTS Special thanks to Dr. Heather Maclvor for her invaluable assistance throughout the writing of this paper, and for constantly challenging me to be a better student. I am also grateful to Dr. Lydia Miljan for her advice during the initial stages of the research. Furthermore, I would like to thank Professor Howard Pawley, Dean Bruce Elman, and Dr. John Sutcliffe for taking time out of their busy schedules to offer their advice and comments. Finally, I am indebted to the Department of Political Science for giving me the opportunity to pursue my research interests, and for all of their support along the way. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. vi TABLE OF CONTENTS ABSTRACT iii DEDICATION iv ACKNOWLEDGEMENTS v LIST OF TABLES vii LIST OF FIGURES viii CHAPTER I. INTRODUCTION 1 1. Precedent: Definition and Operationalization 4 2. The Virtues of Stare Decisis 7 3. The History of Stare Decisis in Canada 10 II. REVIEW OF THE LITERATURE 23 1. The Legal Model 23 2. The Strategic (Moderate) Model 35 3. The Attitudinal Model 43 4. Hypotheses 54 III. METHODOLOGY 55 1. The Content Analysis 55 2 .1 The Characteristics of Precedent Altering Decisions 57 2.2 The Influence of Stare Decisis in Precedent Altering Decisions 62 3. The Influence of Precedent in all Cases since 1950 63 IV. RESULTS AND DISCUSSION 67 V. CONCLUSION 107 APPENDIX A: Cases included in the Content Analysis 110 APPENDIX B: Altering and Altered Decisions 114 APPENDIX C: List of Precedent and Progeny Cases 118 BIBLIOGRAPHY 131 CASES CITED 140 VITA AUCTORIS 144 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. vii LIST OF TABLES TABLE 4.1 PARAGRAPH AUTHOR FREQUENCY 68 4 2 FREQUENCY OF MODE OF ARGUMENT 69 4.3 CROSS TABULATION OF LEVEL OF ARGEEMENT AND AGE OF ALTERING DECISIONS 75 4.4 BASIS FOR ALTERING PRECEDENT 77 4.5 SUPPORT FOR INSTITUTIONAL AND PERSONAL STARE DECISIS 81 4.6 FREQUENCY OF JUSTICES’ VOTES IN ALTERED AND ALTERING DECISIONS 84 4.7 VOTES IN PRECEDENT AND PROGENY CASES 88 4 8 PREFERENTIAL AND PRECEDENTIAL VOTES BY JUSTICE 98 4.9 PREFERENTIAL AND PRECEDENTIAL VOTES BY JUSTICE 99 4.10 PREFERENTIAL AND PRECEDENTIAL VOTES BY JUSTICE 100 4.11 PREFERENTIAL AND PRECEDENTIAL VOTES BY JUSTICE 102 4.12 PREFERENTIAL AND PRECEDENTIAL VOTES BY JUSTICE 104 4.13 COMBINED LIST OF PREFERENTIAL AND PRECEDENTIAL VOTES BY JUSTICE 105 Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. LIST OF FIGURES FIGURE 2. A HYPOTHETICAL CASES AND JUDGES IN IDEOLOGICAL SPACE 4. A COMPARISON OF COMBINED LEGAL AND ATTITUDINAL VARIABLES Reproduced with permission of the copyright owner. Further reproduction prohibited without permission. 1 CHAPTER 1 Introduction For the past decade Canadian legal scholars and political scientists have engaged in an intense debate over the extent to which Supreme Court decisions and Justices are “activist.” The term “judicial activism” is difficult to define with precision; however, it is usually used to describe judgments wherein the Court invalidates laws passed by democratically elected representatives, or when the Justices are perceived to be deciding cases according to their personal preferences.1 Although the “activism” debate is not new in Canada, it re-emerged in the mid-1980s in large part because the introduction