THE JUDICIAL PROCESS IN COMMON LAW CANADA

Abstract

The Canadian judicial process, including decision and law making, has been restrained by three influences in particular: 1) the Judicial Committee of the Privy Council; 2) rigid adherence to a stare decisis doctrine including a belief that English precedents are binding; and 3) the prevalence of eighteenth- and nineteenth-century ideas. This article illustrates how each of these concepts has operated to produce a mechanical application of legal rules in the courts rather than a probing analysis of policy and social need. Following the declaration of Canadian independence from the Privy Council, it became unconstitutional for Canadian judges to declare themselves bound by English precedent. The author insists it is imperative for Canadian judges to overcome past habits of avoiding policy advancement, and urges creative decision and law making procedures in the years ahead. It surveys a number of issues not coming within a current statement of the law to illustrate how the courts are proceeding to determine issues without precedent.