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The Supreme Court of Canada is unlike any court of appeal in Canada. Many decades ago, the Court shed the traditional mould of an error-correcting appellate court. The modern Court is a “jurisprudential overseer” and its appeals are occasions for legal innovation. This essay explores whether the distinction between non-binding obiter dicta and binding ratio decidendi has any continued significance for the Court. In this essay, I argue that the modern orthodoxy about the Court’s institutional role obliterates any such distinction. This conclusion runs contrary to the Court’s own jurisprudence on this topic, which attempts to preserve the distinction by remaking it in a modern image. The Court has settled on a spectrum view about its obiter: the weight of obiter decreases as it moves away from dispositive ratio. I show that the obiter-ratio distinction is rooted in a model of adjudication––dispute-resolution–– that the Court no longer adheres to, as is evinced by the muscular role of reference opinions and other doctrinal developments. This descriptive argument is also a normative argument against the modern orthodoxy about the Court’s role as jurisprudential overseer: the fact that the modern orthodoxy obliterates the obiter-ratio distinction is a reductio ad absurdum against that orthodoxy.

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References

  1. JD (2021), University of Toronto Faculty of Law. I wish to thank Jasman Gill, Manish Oza, Jim Phillips, Robert Sharpe, Kees Westland, and Andy Yu for their generous comments on prior drafts of this paper. I am also grateful to the editors of the Osgoode Hall Law Journal for their careful editorial work. All errors were made in obiter.
  2. For more on the traditional view of obiter and its relation to common law precedent more generally, see Rupert Cross, Precedent in English Law, 3rd (Clarendon Press, 1977). There is now a voluminous literature discussing the difference between obiter dicta and ratio decidendi and offering new ways to draw the distinction. See e.g. Sebastien Lewis, “Precedent and the Rule of Law” (2021) 41 Oxford J Leg Stud 873, DOI: ; Andrew C Michaels, “The Holding-Dictum Spectrum” (2017) 70 Ark L Rev 661; Judith M Stinson, “Why Dicta Becomes Holding and Why It Matters” (2010) 76 Brook L Rev 219; Michael Abramowicz & Maxwell Stearns, “Defining Dicta” (2005) 57 Stan L Rev 953; Frederick Schauer, “Precedent” (1987) 39 Stan L Rev 571, DOI: .
  3. R v Evans, 2014 ABCA 339 at paras 16-24.
  4. The number of cases the Court is deciding has trended downwards in recent years, with a historical low of just twenty-four leave applications granted in 2022. See Paul-Erik Veel, “Getting Leave to The Supreme Court of Canada: 2023 by the Numbers” (24 January 2024), online: [perma.cc/ME4M-2VM7]; Cristin Schmitz, “SCC’s Output Fell to 34 Judgments in 2023, renewing questions, concerns within the bar” Law360.com (13 February 2024), online: [perma.cc/L2GV-FY5Q].
  5. 2010 ONCA 423 at para 19 [Prokofiew ONCA].
  6. My focus in this paper is on vertical stare decisis rather than horizontal stare decisis. The Supreme Court distinguished these two types of stare decisis in Canada (Attorney General) v Bedford, as well as R v Sullivan. See 2013 SCC 72 [Bedford]; 2022 SCC 19 at para 65. One may say that the common law system makes litigants, rather than individual judges themselves, the focal point of the obiter dicta versus ratio decidendi debate. Put differently, perhaps the common law system does not explicitly delineate obiter from ratio because it leaves it to future litigants to ascertain the distinction. I do not think this is accurate. Even if parties may make arguments about whether a particular passage is obiter or ratio, the decision is ultimately a court’s to make (even if it is not the decision of the court whose reasons are subsequently being interpreted). In this way, the distinction between what is obiter and ratio is just like any other argument that a court must adjudicate. While litigants raise issues and make arguments, it is ultimately courts who decide them.
  7. See Bryan A Garner, ed, Black’s Law Dictionary, 11th ed (Thomson Reuters, 2019) sub verbo “ratio decidendi” and “dictum.”
  8. See Bora Laskin, “The Role and Functions of Final Appellate Courts: The Supreme Court of Canada” (1975) 53 Can Bar Rev 469 at 475. Laskin observes that: “Now, even more in its supervisory role than in its heretofore more traditional appellate role, the Supreme Court's main function is to oversee the development of the law in the courts of Canada, to give guidance in articulate reasons... This is surely the paramount obligation of an ultimate appellate court with national authority. It is only under this umbrella that it can, in general, be expected to be sensitive to the correctness of the decisions in particular cases.”
  9. Bertha Wilson, “Decision-Making in the Supreme Court” (1986) 36 UTLJ 227 at 228, DOI: .
  10. Ibid at 234.
  11. See Robert J Sharpe, “Do Judges Make Law” in Good Judgment: Making Judicial Decisions (University of Toronto Press, 2018) 77, DOI: .
  12. See David Sugarman, “Legal Theory, the Common Law Mind and the Making of the Textbook Tradition” in William Twining, ed, Legal Theory and Common Law (Blackwell, 1986) 26.
  13. Incorporated Council of Law Reporting for England and Wales v Attorney-General and Commissioners of Inland Revenue [1972] Ch 73 at 92.
  14. Ibid at 101.
  15. There were, of course, important debates in the twentieth century (and which continue today) about the determinacy of legal rules. See generally HLA Hart, The Concept of Law (Clarendon Press, 1961); Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 1977); Allan C Hutchinson & Patrick J Monahan, “Law, Politics and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought” (1984) 36 Stan L Rev 199, DOI: .
  16. William Blackstone, Commentaries on the Laws of England, vol 1 (Clarendon Press, 1765) at 69-71.
  17. Ernest J Weinrib, “Legal Formalism: On the Immanent Rationality of Law” (1988) 97 Yale LJ 949, DOI: .
  18. Ibid at 1006-1007. Richardson v Mellish, (1824) 2 Bing 229, [1824-34] All ER Rep 258 at 266. “Public policy is a very unruly horse, and when you get astride, you never know where it will carry you.”
  19. Chaim Saiman, “The Law Wants to Be Formal” (2021) 96 Notre Dame L Rev 1067.
  20. Sugarman, supra note 12 at 27.
  21. See e.g. Frederick Schauer, Thinking Like a Lawyer: A New Introduction to Legal Reasoning (Harvard University Press, 2009) and Stephen Waddams, Introduction to the Study of Law, 8th ed (Carswell, 2016).
  22. That is not to say that a student who conducts the relevant formal analysis but also adds a policy or critical analysis would do poorly. My point is simply that the formal analysis is still seen as essential and foundational. Critique without doctrine is empty, and doctrine without critique is blind.
  23. David Sugarman, “The Legal Boundaries of Liberty: Dicey, Liberalism and Legal Science” (1983) 46 Mod L Rev 102 at 107.
  24. Quinn v Leathem, [1901] AC 495 at 506 [Quinn].
  25. See The Hon Justice Steven Rares, “The Role of the Intermediate Appellate Court After Farah Constructions” (Speech delivered at the Fourth Appellate Judges Conference of the Australasian Institute of Judicial Administration, 7 November 2008) online (pdf): [perma.cc/9CQL-RJ3Q] at para 6. More importantly, dicta are incidental to the exercise of the judicial power to quell a controversy. Dicta, themselves, do not quell the actual controversy before the Court. And, because they do not quell such a controversy, even if uttered by the High Court, they can never be binding. See also Matthew Harding & Ian Malkin, “The High Court of Australia’s Obiter Dicta and Decision-Making in Lower Courts” (2012) 24 Sydney L Rev 239 at 257. The authority of a court attaches only to reasons that it is necessary for the court to appeal to in the discharge of that court’s institutional function, and the institutional function of any court…is limited to the resolution of disputes in accordance with law. See also Lionel Smith, “The Rationality of Tradition” in Timothy Endicott, Joshua Getzler & Edwin Peel, eds, Properties of Law: Essays in Honour of Jim Harris (Oxford University Press, 2006) at 297, 306.
  26. Rares, supra note 25 at para 8. “It would be a usurpation of the rule of law for dicta, whatever their source, to be elevated any higher than being of persuasive force.”
  27. Greenlaw v United States, 554 US 327 (2008), at 243 (per Justice Ginsburg) [Greenlaw]. See also R v Mian, 2014 SCC 54 at paras 38-39, citing Greenlaw.
  28. Quinn, supra note 24 at 506.
  29. See “Dictum Revisited,” (1952) 4 Stan L Rev 509 at 512, DOI: ; Marc McAllister, “Dicta Redefined” (2011) 47 Willamette L Rev 161 at 165-166.
  30. McAllister, supra note 29 at 162, n 6.
  31. Laskin, supra note 8 at 469.
  32. Ibid.
  33. The touchstone is, of course, Marbury v Madison, 5 US (1 Cranch) 137 (1803).
  34. Supreme Court Act, RSC, 1985, c S-26 [Supreme Court Act]. The most prominent of these exceptions is the right of appeal in criminal cases, where a court of appeal decision features a dissent on a point of law or where the court of appeal has set aside an acquittal. See also Supreme Court of Canada, “Role of the Court” (23 August 2017), online: [perma.cc/M7YD-S4D5]. Tellingly, such decisions are often short and are increasingly issued from the bench. See Alex Bogach, Jeremy Opolsky, & Paul-Erik Veel, “The Supreme Court of Canada’s From-the-Bench Decisions” (2022) 106 SCLR (2d) 251.
  35. Supreme Court Act, supra note 34, s 40.
  36. Ibid [emphasis added]. For an empirical study on the success of leave appeals, see Paul-Erik Veel, “Getting Leave to Appeal to the Supreme Court: Empirical Insights from Tax Cases” (20 January 2021), online: [perma.cc/Y54C-FKT3]; Paul Erik-Veel, “A Quantitative Look at the Supreme Court of Canada” (4 May 2020), online: [perma.cc/2RYV-YCK6]. See also Benjamin RD Alarie & Andrew J Green, “Interventions at the Supreme Court of Canada: Accuracy, Affiliation, and Acceptance” (2010) 48 OHLJ 381, DOI: .
  37. There are, of course, exceptions to this. The Court also decides singular issues that are significant for the entire country, such as whether medically-assisted dying is a constitutional right, or whether the federal government has the authority to impose a nationwide carbon tax. See Carter v Canada, 2015 SCC 5 [Carter]; References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 [References re Greenhouse Gas]. But such cases do not comprise the majority of the Court’s docket. And importantly, even in deciding such cases the Court’s methodology is one of developing the law, not simply deducing the law “as it is.”
  38. A Common Law Theory of Judicial Review: The Living Tree (Cambridge University Press 2006) at 3, DOI: .
  39. Ibid at 117. See also ibid at 74-122; Emmett Macfarlane, Governing from the Bench: The Supreme Court of Canada and the Judicial Role (UBC Press, 2013) at 2, DOI: .
  40. It is, of course, an oversimplification to describe the pre-1974 era of the Court as lacking in judicial innovation entirely. An important counterexample to this is the work of Chief Justice Duff, best known for his jurisprudence on the implied bill of rights. Its most authoritative statement is in Reference re Alberta Statutes, [1938] SCR 100. See further Gerald Le Dain, “Sir Lyman Duff and the Constitution” (1974) 12 OHLJ 261 at 319, DOI: . My point is simply that, as other commentators have observed, the impulse to develop the law in novel ways became the Court’s modus operandi after 1975, even if there were occasional (and sometimes important) flashes of this before 1974. See also Laskin, supra note 8 at 474. Laskin attributes the innovative impulse of the modern Court to the 1974 amendments to the Supreme Court Act.
  41. One might be tempted to think that this innovative instinct is limited to public law cases, whereas the Court functions much more like a traditional, error-correcting court of appeal in private law cases. This, I think, overstates the differences between the two types of cases. See e.g. Bhasin v Hrynew, 2014 SCC 71. In a string of contract law cases beginning with Bhasin, the Court has developed the law of good faith in contracts from first principles, just as it might in the public law context. See further Matthews v Ocean Nutrition Canada, 2020 SCC 26; CM Callow Inc v Zollinger, 2020 SCC 45; Wastech Services Ltd v Greater Vancouver Sewerage and Drainage District, 2021 SCC 7. Similarly, the Court recently revamped the law of takings in Annapolis Group Inc v Halifax Regional Municipality, 2022 SCC 36. I am grateful to an anonymous reviewer for pressing me to clarify this point.
  42. Carissima Mathen, Courts without Cases: The Law and Politics of Advisory Opinions (Hart, 2019) at 108.
  43. Macfarlane, supra note 39 at 1; Donald R Songer, The Transformation of the Supreme Court of Canada: An Empirical Examination (University of Toronto Press, 2008) at 3-8, DOI: (“[F]or much of its history the Supreme Court of Canada toiled in obscurity, well out of the limelight of political controversy.”). See also Patrick J Monahan, “The Supreme Court of Canada in the 21st Century” (2001) 80:1/2 Can Bar Rev 374 at 374-375.
  44. Macfarlane, supra note 39 at 42.
  45. There are certainly judges on the Court today who are comfortable developing the law. However, there are also a number judges who are more readily persuaded by some notion of judicial restraint. These fissures on the modern Court are apparent in recent cases. See e.g. Toronto (City) v Ontario (Attorney General), 2021 SCC 34.
  46. See e.g. Office of the Commissioner for Federal Judicial Affairs Canada, “The Honourable Malcolm Rowe’s questionnaire” (4 July 2017), online: [perma.cc/BUZ4-V2F4] [“Rowe Questionnaire”]. Rowe states: “The Supreme Court is not, primarily, a court of correction. Rather, the role of the Court is to make definitive statements of the law which are then applied by trial judges and courts of appeal. Through the leave to appeal process, the Court chooses areas of the law in which it wishes to make a definitive statement. Thus, the Supreme Court judges ordinarily make law, rather than simply applying it [emphasis added].” See also Office of the Commissioner for Federal Judicial Affairs Canada, “The Honourable Michelle O’Bonsawin’s questionnaire” (19 August 2022), online: www.fja.gc.ca/scc-csc/2022/nominee-candidat-eng.html [perma.cc/3CS4-77MS] (“[T]he Supreme Court of Canada’s decisions must clarify legal questions, set precedents and, at times, shape public policy based on the laws of the country.”); Office of the Commissioner for Federal Judicial Affairs Canada, “The Honourable Mary Moreau’s questionnaire” (26 October 2023), online: [perma.cc/ALT8-FRCF] (“[T]he Supreme Court guides the development of the law while at the same time respecting the need to render justice to the parties to the dispute.”).
  47. Michael S Green, “Legal Realism as Theory of Law” (2005) 46 Wm & Mary L Rev 1915 at 1917, 1921-1939.
  48. For a version of this claim in the context of property rights, see Morris R Cohen, “Property and Sovereignty” (1927) 13 Cornell L Rev 8.
  49. See e.g. Oliver Wendell Holmes, “The Path of the Law” (1897) 10 Harv L Rev 457.
  50. Dan Priel, “The Return of Legal Realism,” in Markus D Dubber & Christopher Tomlins, eds, The Oxford Handbook of Legal History (Oxford University Press, 2018) 457 at 464. See also Brian Leiter, “Rethinking Legal Realism: Toward a Naturalized Jurisprudence” (1997) 76 Tex L Rev 267 at 267-268.
  51. Laskin, supra note 8 at 477.
  52. Brice Dickson, “Apex Courts and the Development of the Common Law” in Paul Daly, ed, Apex Courts & the Common Law (University of Toronto Press, 2019) at 36. “The myth that, in common law countries, judges do not create law, but merely discover it, has been well and truly debunked.”
  53. R v Henry, 2005 SCC 76 at para 53 [Henry].
  54. [1980] 1 SCR 527 [Sellars].
  55. Henry, supra note 53.
  56. 2012 SCC 49 [Prokofiew SCC].
  57. Sellars, supra note 54.
  58. Ibid at 529. English law contains echoes of a similar view. See e.g. WB Anderson & Sons Ltd v Rhodes (Liverpool) Ltd, [1967] 2 All ER 850 (QB) 857. See also Hedley Byrne & Co Ltd v Heller and Partners Ltd, [1964] AC 465 (HL). Where five members of the House of Lords have all said, after close examination of the authorities, that a certain type of tort exists, I think that a judge of first instance should proceed on the basis that it does exist without pausing to embark on an examination of whether what was said was necessary to the ultimate decision. Indeed, commentators have described the Sellars principle as equivalent to the English (and Australian) position. See e.g. JD Heydon, “How Far Can Trial Courts and Intermediate Appellate Courts Develop the Law” (2009) 9 OUCLJ 1 at 32, DOI: < https://doi.org/10.1080/14729342.2009.11421499>. A useful summary of the US position, which is more controversial, is at 33-35.
  59. There has been some suggestion that this interpretation of the Sellars principle is the result of a mistranslation from the original French in which Sellars was authored. See Debra Parkes, “Precedent Unbound” (2006) 32 Man LJ 135 at 138-139.
  60. See e.g. R v Chartrand, 1992 CarswellMan 16 (MB CA) at para 11; Scarff v Wilson, 1988 CarswellBC 449 (BC CA), rev’d [1989] 2 SCR 776, but without comment on the obiter dicta issue.
  61. Supreme Court Act, supra note 34, s 40(1).
  62. Henry, supra note 53.
  63. Canadian Charter of Rights and Freedoms, s 13, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
  64. R v Noël, 2002 SCC 67 [Noël].
  65. Henry, supra note 53 at para 36.
  66. Interestingly, Justice Binnie did not use another possible strategy to deal with Noël that has a long pedigree in the common law tradition: distinguishing the case. Justice Binnie could have decided that Noël was not binding because it was not analogous to the facts of the case in front of him. It is telling that he did not do so. The reluctance to distinguish a Supreme Court decision that speaks to a legal issue is itself a testament to the idea that the Court’s pronouncements do not really decide disputes in narrow factual contexts. The Court’s pronouncements attract horizontal stare decisis effect even if a particular remark was not, strictly speaking, relevant to deciding the appeal in which it was made.
  67. Henry, supra note 53 para 55.
  68. Ibid at para 57.
  69. Ibid at para 56, citing Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 SCR 3 at para 168.
  70. Ibid at para 57.
  71. Ibid at para 53.
  72. Ibid at para 58.
  73. Ibid at para 57. While not the entirety of what the court decides will be ratio, it remains the case that “what the Court decides” is binding. Accordingly, if part of what the Court decides includes obiter, it will thereby be binding. See Prokofiew ONCA, supra note 5 at paras 18-19.
  74. Henry, supra note 53 at para 57 [emphasis added].
  75. The Oakes Test has the distinctive honour of being annually celebrated by the Students Law Society at the University of Toronto Faculty of Law, via “Oakes Day.” Events include “A Pressing & Substantial Breakfast.”
  76. This is only “largely” the case because there were existing precedents concerning the section 1 analysis, such as R v Big M Drug Mart Ltd, [1985] 1 SCR 295. None has taken on the significance of Oakes. Moreover, despite the fact that the (clearly precedential) proportionality test in Oakes was technically obiter, it has been refined and tweaked in subsequent cases. See e.g. R v Edwards Books and Art Ltd, [1986] 2 SCR 713; Egan v Canada, [1995] 2 SCR 513; Sujit Choudhry, “So What is the Real Legacy of Oakes?: Two Decades of Proportionality Analysis under the Canadian Charter’s Section 1” (2006) 34 SCLR 501 at 505, DOI: https://doi.org/10.60082/2563-8505.1107. In Oakes, Dickson C.J. set out the analytical framework governing section 1 interpretation, which, despite two decades of doctrinal elaboration, qualification and modification, still provides the basic framework within which limitations analysis is conducted.
  77. Henry, supra note 53 at para 57.
  78. Se e.g. R v Waterman, 2021 SCC 5. Judgments like Waterman are instances in which the Supreme Court of Canada is functioning akin to an “ordinary” court of appeal rather than a jurisprudential overseer, albeit as the final court of appeal in the country. Accordingly, when the Court affirms a court of appeal judgment that itself contains a mix of obiter and ratio, it may well preserve that distinction even in its own judgment affirming the lower court. The lower courts in Australia, for example, take the view that the obiter of appellate courts do not share in the same special precedential authority as that of the High Court of Australia. See e.g. DPP v Patrick Stevedores Holdings Pty Ltd, [2012] VSCA 300 at para 127. The decisions of intermediate appellate courts do not have the precedential weight of decisions of the High Court. Whatever may be the full implications of Farah, and its injunction that ‘seriously considered dicta uttered by a majority’ of the High Court should be regarded as binding, there is nothing to suggest that this principle applies to such dicta in the judgments of intermediate appellate courts. [citations omitted].
  79. Henry, supra note 53 para 53.
  80. Prokofiew SCC, supra note 56, aff’g Prokofiew ONCA, supra note 5, aff’g 2005 CarswellOnt 3201 (O Sup Ct).
  81. See Prokofiew SCC, supra note 56 at para 49.
  82. Ibid at para 43.
  83. R v Noble, [1997] 1 SCR 874 at para 16 [Noble, cited to SCR].
  84. Ibid at para 53.
  85. The dissent explicitly endorsed Justice Doherty’s view of obiter at paras 71-72. See Prokofiew SCC, supra note 56. The majority did not explicitly discuss the obiter issue, but arrived at the same conclusion on the legal question concerning section 4(6), and summarized its view in paragraph 1 as dismissing the appeal for the reasons of Justice Doherty. The disagreement between the majority and the dissent consisted in whether the legal error was significant enough to warrant a new trial, rather than the obiter issue.
  86. Prokofiew ONCA, supra note 5 at para 19.
  87. Ibid at para 21.
  88. Ibid.
  89. [1996] 1 SCR 1075.
  90. [1971] SCR 650.
  91. [1989] 1 SCR 525.
  92. Ibid at para 27.
  93. Ibid at para 28.
  94. Henry, supra note 53 at para 53, citing Wilson, supra note 9 at 234.
  95. See “Rowe Questionnaire,” supra note 46.
  96. Laskin, supra note 8 at 469.
  97. Prokofiew ONCA, supra note 5 at para 36.
  98. Ibid.
  99. Henry, supra note 53 at para 57.
  100. This shows that the categories established by Justice Binnie in Henry are by no means the single obvious way to classify the nature of “what the court decides.” Charles Tyler has suggested, using the example of National Federation of Independent Business v Sebelius, that a court’s holding could include any proposition that was on the court’s analytical route to its outcome. Charles W Tyler, “The Adjudicative Model of Precedent” (2020) 87 U Chicago L Rev 1551 at 1562-1563; 567 US 519 at 548-58 (per Roberts CJ).
  101. Henry, supra note 53 at para 57.
  102. See Bedford, supra note 6.
  103. See Prokofiew SCC, supra note 56 at paras 1, 55, 71-2.
  104. See Prokofiew ONCA, supra note 5 at para 39.
  105. Ibid.
  106. Ibid at para 18 (“In R. v. Henry, [2005] 3 S.C.R. 609, Justice Binnie, writing for a unanimous court, recognized that stare decisis commands compliance not only with the ratio decidendi, but some of the obiter from the Supreme Court of Canada.”).
  107. A lower court presented with obiter dicta of the Supreme Court must engage in a two-step analysis. First, the court must characterize the obiter in question according to the Henry-Prokofiew spectrum. If the court settles on the view that the remark in question is not even binding at all, the stare decisis question does not even arise. If, however, the remark in question enjoys some stare decisis effect, then the court must apply the Bedford test to determine if this is one of the narrow circumstances in which a lower court may depart from binding precedent of a higher court. The Court has since clarified the Bedford test in Carter (supra note 37) and R v Comeau, 2018 SCC 15. In essence, the test requires a fundamental change in circumstances, significant developments in the law, or fresh Charter issues. This series of cases has been dubbed the “Bedford Trilogy.” See Shannon Hale, “The Bedford Trilogy and the Shifting Foundations of Vertical Stare Decisis: Emancipation from Judicial Restraint?” (2020) Dal J Leg Stud 97.
  108. See HLA Hart, The Concept of Law (Clarendon Press, 1961), at 121-144.
  109. For an example of the Court crafting a new analytical framework, see R v Bradshaw, 2017 SCC 35. The Court in Bradshaw overhauled the test for corroborative evidence in the hearsay analysis.
  110. [2007] HCA 22 at paras 134, 158 [Farah]; Bofinger v Kingsway Group Ltd, [2009] HCA 44 at 86 [Bofinger]. See also Justice Keith Mason, “President Mason’s Farewell Speech” (2008) Austl LJ 768 at 769 (arguing that Farah is “a profound shift in the rules of judicial engagement” and constitutes an “assertion of a High Court monopoly in the essential developmental aspect of the common law” in Australia). The High Court itself, speaking through the medium of other judges, has been subsequently ambivalent about this pronouncement. See The Queen v Keenan, [2009] HCA 1 at para 35 [citations omitted]. Justice Kirby wrote: “In recent years, this Court has repeatedly reminded judges at trial and intermediate courts of their duty to conform to the rulings of this Court in matters submitted to it for its decision. It has instructed them to observe ‘seriously considered dicta uttered by a majority of this Court’. Although, respectfully, I question whether the legal duty of obedience extends beyond obedience to the rationes decidendi of earlier decisions, I certainly agree that, where such decisions exist, the legal principles for which they stand must be applied by judicial officers subject to this Court’s authority as an aspect of the rule of obedience to the doctrine of judicial precedent that applies throughout the Judicature of this country.” For a useful overview of the development of the law after Farah, see James Lee, “Precedent on High: The High Court of Australia and ‘Seriously Considered Dicta’,” Opinions on High (21 August 2013), online: [perma.cc/US85-X72K]. See also Heydon, supra note 58 at 30-39.
  111. Harding & Malkin, supra note 25; Justice Rares, supra note 25 at para 3.
  112. To be clear, the post-Prokofiew doctrine is not entirely idiosyncratic. After a bitter fight, the United States Court of Appeals for the Ninth Circuit has settled on a similar view, holding that “where a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense.” United States v Johnson, 256 F (3d) 895 at 914 (Cir, 2001), en banc. See also John Roemer, “9th Circuit Dukes it Out over Dicta,” Daily Journal (26 Feb 2010), online: [perma.cc/QE2Y-28NK]; Ryan S Killian, “Dicta and the Rule of Law” (2013) 2013 Pepp L Rev 1; Tyler, supra note 100 at 1567-74.
  113. Malcolm Rowe & Leanna Katz, “A Practical Guide to Stare Decisis” (2020) 41 Windsor Rev Legal Soc Issues 1 at 4.
  114. Indeed, one key rationale for stare decisis is that it promotes certainty in the law. See Sharpe, supra note 11 at 168. One might respond that the Sellars principle, too, suffers from an indeterminacy problem, albeit of a different kind. That is, if everything the SCC has said is equally binding, in the likely event that the SCC has said inconsistent things across cases, there is the problem of determining which is binding. This warrants two responses. First, recall that I am not recommending the ultimate endorsement of the Sellars principle but rather arguing that Sellars is the most accurate reflection of the modern understanding of the Court as a jurisprudential overseer. Second, and more directly, I think the Sellars principle does have a more straightforward way of resolving its indeterminacy problem: it is the latest pronouncement that is binding. This is part and parcel of the view that the Court is an innovator of the law, reshaping doctrine as is necessary and updating it in light of present-day demands. Again, I am not arguing that the Court has the institutional competence to do what the modern vision of the Court requires. Relatedly, chronic uncertainty about the content of a legal rule (e.g. with respect to section 15 of the Charter, which has been analyzed inconsistently in a series of cases) can also be threatening to the legitimacy of a court, especially one that styles itself as a jurisprudential shepherd. See e.g. Fraser v Canada, 2020 SCC 28 (in which three judgments were produced). Justices Brown and Rowe, dissenting, found that the challenge should fail at the second stage of the section 15(1) framework. Justice Côté, dissenting, found that the claim should fail at the first stage of the s 15(1) analysis. The majority opinion, authored by Justice Abella, held that there was an unjustifiable infringement of s 15(1). See also R v Sharma, 2022 SCC 39 [Sharma] (featuring a 5-4 split on the section 15 issue). While it is plausible that these recurring analytical disagreements and routine fracturing threaten the Court’s legitimacy, legal subjects are still capable of understanding that the majority rule governs their conduct. A legal subject that is confronted with a majority opinion without knowing if it is precedential at all faces a deeper problem in using that judgment to guide their behaviour.
  115. Henry, supra note 53 at para 57. See also Henry, supra note 53 at para 53 (“In Canada in the 1970s, the challenge became more acute when this Court’s mandate became oriented less to error correction and more to development of the jurisprudence.”). The Supreme Court of the United States has used similar language to describe the binding effect of its obiter. The US Court has held that its constitutional rulings establish binding law even if unnecessary for the ultimate disposition of the case. See Camreta v Greene (2011), 563 US 692 at 704-705 [emphasis added]. The constitutional determinations that prevailing parties ask us to consider in these cases are not mere dicta or “statements in opinions.”…They are rulings that have a significant future effect on the conduct of public officials—both the prevailing parties and their co-workers—and the policies of the government units to which they belong…And more: they are rulings self-consciously designed to produce this effect, by establishing controlling law and preventing invocations of immunity in later cases. And still more: they are rulings designed this way with this Court's permission, to promote clarity—and observance—of constitutional rules. [emphasis added]
  116. Indeed, one may be of the view, as Justice Doherty appeared to be, that the obiter in Noble was so short that it was not intended to have stare decisis effect at all. In my view, this overstates how short the obiter was. It was certainly too long to be classified as a throwaway line. Indeed, it was long enough to justify the Court of Appeal for Ontario’s careful consideration of its stare decisis effect.
  117. One might argue that the venerable practice of distinguishing cases shows that lower courts routinely dodge the stare decisis effects of higher court judgments. However, the process of distinguishing cases has a principled pedigree in the common law tradition that makes it different than a lower court disregarding higher court obiter as, say, inapplicable because it is misguided or simply wrong. For one, there is a clear rhetorical difference. A lower court that distinguishes the opinion of a higher court accepts that the authority is binding but says it is inapplicable. A lower court that uses Prokofiew-like reasons to disregard obiter, by contrast, challenges the inherent “bindingness” of the authority itself. In this vein, Scott Hershovitz has said that distinguishing cases is authentic to stare decisis rather than effacing it. See Scott Hershovitz, “Integrity and Stare Decisis” in Scott Hershovitz, ed, Exploring Law’s Empire: The Jurisprudence of Ronald Dworkin (Oxford University Press, 2008) at 113, DOI: . See also Sharpe, supra note 11 at 150; Rowe & Katz, supra note 113 at 10-11 (noting that overruling a case is a bolder step than distinguishing it). Of course, all of this stands in contrast to more skeptical views about the formalist gloss of stare decisis and precedent. For a useful overview of such views, see Brian Leiter, “Realism about Precedent” in Timothy Endicott, Hafsteinn Dan Kristjansson & Sebastien Lewis, eds, Philosophical Foundations of Precedent (Oxford University Press, 2023), DOI: .
  118. Rowe & Katz, supra note 113 at 10 [emphasis in original]. Notably, Justice Rowe’s view appears to track Australian law quite closely. See Farah, supra note 110; Bofinger, supra note 110; Harding & Malkin, supra note 25; Rares, supra note 25.
  119. Rowe & Katz, supra note 113 at 10.
  120. Ibid at 9-10.
  121. See Tyler, supra note 100.
  122. Ibid.
  123. Ibid at 1566, quoting Schmidt v Prince George’s Hospital (2001), 784 A (2d) 1112 (Md Ct App) at 1121.
  124. There remains, however, the question of whether this is a compelling view of obiter in its own right, even if it fails to comport with the Henry-Prokofiew spectrum, in a way that lower courts can confidently apply to achieve consistent results. I do not believe that the Justice Rowe/Tyler view presents a credible alternative to the Sellars principle. Because the Justice Rowe/Tyler view scrambles the alignment of “binding versus non-binding” with “obiter versus ratio,” it effectively collapses into the Sellars principle. Sellars, remember, stands for the proposition that the Court’s obiter is binding all the same, even if we determine that some remark is indeed obiter. Sellars thus counsels us to forget the classification exercise in the first place, and simply regard the entirety of the Court’s judgments as binding. Sellars is consistent with the view that mere throwaway lines of the Court should be less significant than more considered reasoning, precisely because it evinces the Court speaking more directly to an issue it deems important, but that may not be squarely raised on the facts. For example, Justice Sopinka’s obiter in Noble would be binding on the Sellars view, despite being obiter. A lower court would not be free to depart from it, contra Justice Doherty in Prokofiew. Put simply, if we accept that both obiter and ratio may share in stare decisis effect, as the Justice Rowe/Tyler view does, Sellars is a small step away.
  125. See Supreme Court Act, supra note 34.
  126. The Supreme Court of the United States has held that Article III of the US Constitution prohibits courts from deciding “abstract, hypothetical, or contingent questions.” Alabama State Fed’n of Labor v McAdory (1945), 325 US 450, 461. The Supreme Court of Canada is not entirely idiosyncratic in this regard, however. The Israeli and South African courts also issue reference opinions, but they are limited to constitutional questions.
  127. See Supreme Court Act, supra note 34, s 53. See also Reference Re Secession of Québec, [1998] 2 SCR 217, 161 DLR (4th) 385 [Secession Reference, cited to SCR]. Lower courts in Canada have the power to issue reference opinions, though this is less common. See, for example, the “Polygamy Reference.” Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588.
  128. See Mathen, supra note 42 at 213-21.
  129. Ibid at 201.
  130. Ibid at 233.
  131. Ibid at 46-47.
  132. Macnaughton v Macnaughton’s Trustees, [1953] SC 387 at 392.
  133. See Mathen, supra note 42 at 205.
  134. See Bedford, supra note 6 at para 40 (“[w]hile reference opinions may not be legally binding, in practice they have been followed”).
  135. Reference re Code of Civil Procedure (Que), art 35, 2021 SCC 27 at para 152 [Reference re Code].
  136. Ibid at para 153. See also Reference re Remuneration of Judges of the Provincial Court (PEI), [1997] 3 SCR 3 at para 292; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1998] 1 SCR 3; Re Manitoba Language Rights, [1985] 1 SCR 721. This strange proposition, i.e., purporting to suspend a “declaration” in a reference opinion where no such declaration is made, is, in my view, conceptually confused. See further Amitpal C Singh, “Judicial Review after R v Sullivan” (forthcoming, 2024), 1 SCLR (3d), s VI.1.ii.
  137. See Mathen, supra note 42 at 209.
  138. Ibid at 48.
  139. References re Greenhouse Gas, supra note 37.
  140. Supreme Court Act, supra note 34, s 53(4).
  141. See References re Greenhouse Gas, supra note 37. There, the Court dedicated the first thirty-eight paragraphs of its judgment to the factual context of climate change and the legislative scheme in question. See also Reference re Supreme Court Act, ss 5 and 6, 2014 SCC 21 (where the titular sections of the Supreme Court Act were interpreted in order to decide whether Justice Marc Nadon of the Federal Court of Appeal was eligible to fill one of the Supreme Court seats reserved for a Québec jurist). The judgment is replete with references to Justice Nadon’s specific circumstances.
  142. Mathen, supra note 42 at 182-83.
  143. Ibid at 232.
  144. See the various examples canvassed in Gerald Rubin, “The Nature, Use and Effect of Reference Cases in Canadian Constitutional Law” (1960) 6 McGill LJ 168 at 180-185.
  145. Critics objected to the legitimacy or appropriateness of reference opinions on precisely this basis.
  146. The Court may refuse to provide reference opinions, and has done so, despite appearing to lack explicit statutory authority to do so. Kate Puddister, “A Question They Can’t Refuse? The Canadian Reference Power and Refusing to Answer Reference Questions” (2019) 13 Can Political Science Rev 34 at 36.
  147. Henry, supra note 53 at paras 53, 57.
  148. See also Reference re Code, supra note 135 at para 152. One might contend that a reference opinion, too, can contain elements of obiter and ratio. That is, reference opinions are meant to address specific questions submitted to the court. In line with the traditional obiter-ratio distinction, even though there is no dispute among parties, one might still think that discussion that answers the reference questions is akin to binding ratio, whereas discussion that does not do so is akin to non-binding obiter. Forceful as this objection is, I think it is a mistake to suppose that reference opinions can sustain the obiter-ratio distinction. After all, the distinction is rooted in the dispute resolution model, i.e., a court presiding over a concrete dispute and resolving it by applying a legal rule to the particular facts in the case at bar. There is no concrete, crystallized dispute between adverse parties in a reference opinion. See generally Hershovitz, supra note 117; Sharpe, supra note 11; Rowe & Katz, supra note 113; Leiter, supra note 117.
  149. See e.g. Reference re Same-Sex Marriage, 2004 SCC 79 at paras 7, 72.
  150. Ibid at para 62.
  151. R v Friesen, 2020 SCC 9 [Friesen].
  152. Ibid at para 41. It is unclear why the Court did not deem this case itself to be an appropriate occasion to resolve these issues. The Crown, accused, and a panoply of interveners made arguments on this point. In oral argument, the Crown directly asked the Court to re-affirm the utility of starting points.
  153. Ibid at para 155.
  154. R v Parranto, 2021 SCC 46.
  155. Laskin, supra note 8 at 475.
  156. See Friesen, supra note 151 at para 41.
  157. I am grateful to Kees Westland for this very helpful suggestion.
  158. 2019 SCC 65.
  159. Vavilov v Canada (Citizenship and Immigration), 2017 FCA 132, leave to appeal to SCC granted, [2018] 1 SCR 8 [Vavilov].
  160. See, for example, David W Stratas, “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency” (2016) 42:1 Queen’s LJ 27, DOI: ; Vavilov, supra note 159 at paras 4, 9, and 20.
  161. Mathen, supra note 42 at 226.
  162. Ibid at 235.
  163. Jeremy Waldron, Political Political Theory: Essays on Institutions (Harvard University Press, 2016) at 220.
  164. Ibid at 223-24. See generally Lazar Sarna, The Law of Declaratory Judgments, 4th (Thomson Reuters, 2016) 12:5. Declaratory judgment is now a popular constitutional remedy. See R v Starz, 2015 ONCA 318; Canada (Prime Minister) v Khadr, 2010 SCC 3; and Kent Roach, Constitutional Remedies in Canada, 2nd, (Canada Law Book loose-leaf, 2014), s 12:5.
  165. 2020 SCC 38.
  166. Ibid at para 7-8.
  167. Ibid at para 10.
  168. Ibid at para 67.
  169. Ibid at para 76.
  170. Ibid at para 106.
  171. Ibid at paras 94, 126.
  172. Ibid.
  173. Ibid at para 142.
  174. Ibid at para 186.
  175. Ibid.
  176. Ibid at para 248.
  177. Ibid.
  178. Ibid.
  179. Ibid at paras 223-24 [emphasis added].
  180. Ibid at para 182.
  181. Ibid at paras 214-15 [emphasis added].
  182. 2020 SCC 32.
  183. Ibid at paras 108-117.
  184. Ibid at para 3.
  185. Ibid at paras 20 and 31.
  186. Ibid at para 141.
  187. Ibid at para 47 [emphasis added].
  188. Ibid at para 47.
  189. 2023 SCC 4 [McGregor]. See also Sharma, supra note 114 at para 75.
  190. 2007 SCC 26.
  191. McGregor, supra note 189 at para 23.
  192. Ibid at paras 96-115.
  193. Ibid at paras 111, 114. It is worth noting that some of the judges that formed the majority in McGregor have not shied away, in the past, from accepting the invitation of an intervener to revise a legal framework. See especially Ontario (Attorney General) v G, supra note 165.
  194. McGregor, supra note 189 at para 81.
  195. Ibid at para 82.
  196. Ibid.
  197. Commentators have noted a tension between the Court’s modern, innovative role (especially in the Charter context) and the confines of stare decisis. See e.g. Joel Bakan, Just Words: Constitutional Rights and Social Wrongs (University of Toronto Press, 1997) at 3, DOI: (“The Charter’s potentially radical and liberatory principles of equality, freedom, and democracy are administered by a fundamentally conservative institution — the legal system — and operate in social conditions that routinely undermine their realization.”); Joseph J Arvay, Sheila M Tucker & Alison M Latimer, “Stare Decisis and Constitutional Supremacy: Will Our Charter Past Become an Obstacle to Our Charter Future?” (2012) 58 SCLR 61 at 62, DOI: .

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