Wednesday, August 7, 2013

Is Supreme Court obiter binding?

R. v. Puddicombe, 2013 ONCA 506 deals with obiter from the Supreme Court of Canada:

[67]       R. v. Henry instructs that some obiter from the Supreme Court of Canada must be regarded as authoritative and other obiter will be persuasive only:

All obiter do not have, and are not intended to have, the same weight.  The weight decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative.  Beyond that, there will be commentary, examples or exposition that are intended to be helpful and may be found to be persuasive, but are certainly not "binding"…

[68]       In R. v. Prokofiew, 2010 ONCA 423, 100 O.R. (3d) 401, aff'd without reference to this point, [2012] S.C.J. No. 49, this court, relying on Henry, distinguished between obiter that was integral to the analysis underlying the ratiodecidendi of the judgment and obiter that was incidental or collateral to that analysis.  The former kind of obiter, but not the latter, is binding on this court.  In characterizing obiter from the Supreme Court of Canada, lower courts should begin from the premise that the obiter was binding. 

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