Anglo-Catholic Ninjas

Obiter Dicta March 12, 2007

Obiter dicta, Latin for ‘things said in passing’, is that portion of a judicial decision that is not considered binding on lower courts and, generally, equal courts in the same jurisdiction. It amounts to ‘additional comment’ in a judgment.

Not everything in a legal ruling constrains courts adjudicating in succeeding cases. Consider a situation in which a thief sells something to a good-faith buyer. B steals A‘s watch, sells it to C (who, as a good-faith buyer, is unaware that the watch is stolen property), and then flees the country. A later comes across C wearing the watch and demands the return of the item. C refuses to relinquish the watch and A sues C in return. Suppose the judge finds in favor of A, on the grounds that “a thief takes no title and can pass none to a purchaser.” He suggests that the result “would be the same if B did not steal the watch but found it lying about”. Now the first part is considered binding on lower and equal courts dealing with similar cases of ‘stolen and sold’. This part of the decision is the ratio decidendi, Latin for ‘reason of deciding’. It is, formally speaking, the so-called precedent, although the entire case is often called the precedent.

By contrast, the remark about who should retain title to lost goods is considered obiter dictum (dictum is singular for dicta), because the property at issue in this case was stolen, not misplaced. Consider as another example a situation in which C finds A’s lost watch on a sidewalk and takes it. As in the previous scenario, A later comes accross C wearing the watch and, when C rejects his claim on the item, A sues in response. Yet a court dealing with this case of ‘found and sold’ is not bound by any precedent established by the previous court at this point. As such, the judge in the new case may or may not find in favor of A, the careless owner – the result of the litigation could go either way. Note, however, that courts customarily give due preference to the obiter dictum expressed by higher and equal courts in the same jurisdiction. Of course, courts also accord proper weight to the obiter dictum of their previous rulings.

The Crown March 12, 2007

Source: Politics in Canada: Culture, Institutions, Behaviour and Public Policy, 5th ed., Robert J. Jackson and Doreen Jackson (Toronto: Prentice Hall, 2001)

Following British tradition, the supreme authority of the Canadian state resides in the sovereign. Government functions are carried out in the name of The Crown. In Britain, the Crown has been defined as “the sum total of governmental powers synonymous with the Executive.” In Canada, the term ‘Crown’ refers to the composite symbol of the institutions of the state. The Crown may be involved in court proceedings. It also assumes a variety of other duties and responsibilities – for example, government property may be held in name of the Crown.

The Crown retains some rights from the feudal period, but most of its present authority comes from constitutional and statute law. The few “prerogative powers” can be traced to the period of authoritarian rule in Great Britain when the Crown possessed wide discretionary authority. With the rise of Parliament and the gradual movement toward popular sovereignty, the authority of the Crown eroded to a very few reserve powers. Although Parliament and the political executive still govern in the name of the Crown, there is little question that the monarch is severely limited. Even the ability of the monarch to say on the throne is no longer a right. In the cases of both James II and Edward VII in Britain, it was clear that they could not retain their crowns unless the ministers and Parliament were prepared to accept them.

The reigning monarch, current Queen Elizabeth II, is the personal embodiment of the Crown. The contemporary functions of the monarch are largely ceremonial and non-partisan. The monarch reigns, but does not govern. As British constitutionalist Walter Bagehot put it, the monarch’s functions are mainly of the “dignified”, not the “efficient”, type. By this Bagehot meant that the monarch does not actually govern the country, but rather carries out a myriad of ceremonial responsibilities that generate mass support for the government, while the ministers carry out the “efficient” procedures that operate the machinery of government.
 

The Canadian Constitution February 28, 2007

The Canadian Constitution has three main components: the formal, the informal and the conventional.

Formal

The formal part of the constitution is officially titled the “Constitution of Canada”. It includes several documents, the most important of which are the Constitution Act, 1982, the Canada Act, 1982, and the Constitution Act, 1867 (formerly called the British North America Act, 1867). The latter established the federal union of the three founding provinces (Upper and Lower Canada, New Brunswick and Nova Scotia) as one Dominion. Sections 91 and 92 of this Act empower the federal government and provincial governments, respectively. The Canada Act, 1982 is the parent statute of the Constitution Act, 1982, which contains the Canadian Charter of Rights and Freedoms, the rights of Aboriginal peoples and the regional equalization provisions, and the constitutional amending formulas. Of course, the Charter is the statute that enshrines the basic civil and political liberties of Canadians (e.g. freedom of expression, right to vote, etc.).

Other statues included in the formal part of the Constitution are the Statute of Westminster, 1931, which terminated British paramountcy over Canadian statutory law (except with respect to the Constitution Act, 1867) and the orders in council and statutes admitting the other provinces to Confederation after 1867.

The Supreme Court of Canada has also declared that certain (unwritten) principles are part of the formal constitution. Among the most important of these are the principles of federalism, democracy, the rule of law and constitutionalism (the notion that the constitution is the supreme law), protection of minority rights, independence of the judiciary, parliamentary privilege, full faith and credit (a common law rule requiring courts in one jurisdiction to acknowledge the priority of equivalent and higher level court decisions in other jurisdictions), federal paramountcy (a common law rule requiring courts to give precedence to federal statutes when federal and provincial laws conflict), and general protection of political speech.

Informal

The informal part of the constitution is a collection of statutes and rules that lie outside the “Constitution of Canada”, so described by section 52(2) of the Constitution Act, 1982. It includes, among other items, the Senate and House of Commons Act, the Supreme Court Act, the royal prerogative instruments (powers of the Crown (the head of state) that are not statutory in origin, such as the right to declare war and make treaties), and the common law rules for interpreting constitutional documents and defining royal prerogative powers. Although all of these statutes, instruments and rules have legal force, most of them do not prevail over the formal constitution.

Conventional

Like the informal component, the conventional part is also external to the formal constitution. The conventional component, however, is not enforceable in law. It consists of long-standing and widely-accepted customs called ‘conventions’ , as well as the principles attached to these conventions. These reinforce fundamental political ideals, such as the standard of responsible government and the standard of representative government. For instance, the authority of the Prime Minister and Cabinet is derived from constitutional convention. The Constitution Act, 1867 does not mention ‘Prime Minister’ or ‘Cabinet’ at any point. Canadian’s acceptance of the Prime Minister as head of government is actually a matter of convention, not a matter of positive law. Hence, constitutional conventions are enforceable “politically, not legally”.

Bibliography: Introduction to Public Law, Sourcebook, 5th ed., by David W. Elliot (North York: Captus Press, 2000)