Does this mean that the court can't change direction? Well, the provincial Supremes sort of can't, in that they're (mostly) bound to follow whatever reasoning the Supreme Court of Canada last expounded on the issue. The SCC can change direction - mostly by saying "Oops, our bad, here's what you should do instead" and completely reversing the common law, or even by completely rendering inoperative actual statutes that they find unfair.
The Supremes are not terribly hesitant about reversing common law, since that's just made by judges and they're the Top Dudes when it comes to judging. But they're generally a lot more hesitant about reversing statutes.
Sometimes what they'll do is rule the way that accords with statute, and make a comment like, "Here's what we had to decide, based on the existing laws. Isn't that stupid? Say, why don't you guys in Parliament change this?" Sometimes they'll make a change that goes against statute law and basically say, "OK, here's what makes sense and this is how it should be, but if y'all are bound and determined to keep the old stupid rule, you'll have to explicitly overrule us."
Or, if it can, how does it do so? Is it dependent upon legislative change to rewrite the injustices of the past and to set a new course? Generally, yeah - at least, it's supposed to be. The SCC does have its moments of law-making, but overall it's supposed to concern itself mostly with law-intepreting.
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timeasmymeasure
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Date: 2007-01-16 09:16 pm (UTC)Well, the provincial Supremes sort of can't, in that they're (mostly) bound to follow whatever reasoning the Supreme Court of Canada last expounded on the issue. The SCC can change direction - mostly by saying "Oops, our bad, here's what you should do instead" and completely reversing the common law, or even by completely rendering inoperative actual statutes that they find unfair.
The Supremes are not terribly hesitant about reversing common law, since that's just made by judges and they're the Top Dudes when it comes to judging. But they're generally a lot more hesitant about reversing statutes.
Sometimes what they'll do is rule the way that accords with statute, and make a comment like, "Here's what we had to decide, based on the existing laws. Isn't that stupid? Say, why don't you guys in Parliament change this?" Sometimes they'll make a change that goes against statute law and basically say, "OK, here's what makes sense and this is how it should be, but if y'all are bound and determined to keep the old stupid rule, you'll have to explicitly overrule us."
Or, if it can, how does it do so? Is it dependent upon legislative change to rewrite the injustices of the past and to set a new course?
Generally, yeah - at least, it's supposed to be. The SCC does have its moments of law-making, but overall it's supposed to concern itself mostly with law-intepreting.