class 10: making law 2, part 2

what are the 2 ways judges “make law”

interpretation (informal): interpreting statues and the constitution

creating and changing common law rules (formal)

distinction between common law and civil code

common law: judges have the power to change or create rules unless there is already legislation that deals with the issue

civil law: judges have no power to change or create rules

what is the relationship between common law and legislation

common law cannot replace legislation, legislation can replace common law rules

why do we need rules for interpreting legislation

legislation has to apply to a wide variety of unpredictable circumstances, so purposely uses broad language, judges must clarify broad language

sources of rules for interpreting statues

common law rules of interpretation (created by judges)

legislation

common law rules

literal rule: use the “plain and ordinary meaning of the words”

golden rule: void absurdity

mischief rule: focus on the “mischief” to be avoideds

statutory rules (legislation)

definitions/interpretation provisions

interpretation statues

modern principle

words of an act are to be read in their entire context, in their grammatical and ordinary sense, with the scheme of the act, the object of the act, and the intention of parliament in mind

case example: Rizzo and Rizzo shoes

general principles to interpret the constitution

broad and purposive approach

rights must be interpreted in context of other irghts

case example: persons case

relationship between courts and legislatures when interpreting the constitution

interpret legislation to comply with the constitution

dialogue between courts and legislatures

case example: r v mills

stare decisis

“stand by the decided case”

decide like cases alike

3 questions that guide rule of precedent

who is bound by the precedent?

what are they bound by in the precedent?

when are they bound by the precedent?

who is bound by the precent?

Ontario and BC court of appeal

superior court of justice and BC supreme court

ontario court of justice and provincial court of BC

what are they bound by in the precent?

ratio decidendi (binding): reasons leading to decision, governing legal principle

obiter dicta (not binding): reasons not necessary to decide case

when are they bound by the precedent?

when the precedent is sufficiently similar to the case to be decided

the legal art of “distinguishing” cases can be used to argue either for or against a precedent being binding