Michelle Biddulph and Dwight G. Newman (University of Saskatchewan College of Law and University of Saskatchewan College of Law) have posted Equality Rights, Ratio Identification, and the Un/Predictable Judicial Path Not Taken: Quebec (Attorney General) v. A and R. v. Ibanescu (UBC Law Review 48:1, 2015, Forthcoming) on SSRN. Here is the abstract:
In the first six months of 2013, amongst its other case law, the Supreme Court of Canada issued a verbose 450-paragraph four-opinion judgment presenting its latest take on equality rights as protected in s. 15 of the Canadian Charter and a laconic four-paragraph unanimous judgment in which it incidentally rewrote its approach to stare decisis and identification of the ratio decidendi. In this article, we seek to examine the intersecting dimension of these two cases and, in particular, to consider what ratio comes from the equality rights case on s. 15 (1) for future cases, with the stare decisis case helping to illuminate some of the real struggles inherent in the former question. Our aim is to comment on what rule now properly applies on s. 15(1), but the near-simultaneous decision on ratio decidendi quite frankly complicates what rule one extracts from the equality rights case. Thus, we will not pursue a traditional case comment on either of these cases. Rather, we will use the case speaking to principles on ratio to help illuminate an important question in the equality rights case, with that question of what ratio applies on s. 15(1) obviously mattering immensely to lower courts attempting to apply it and to anyone trying to understand equality rights jurisprudence in Canada. In the process, the paper also speaks back to a number of theories of ratio identification, contributing in the process to the literature on stare decisis and precedent.
And here is the critical passage from R. v. Ibanescu, the case dealing with the ratio decedendi:
In our view, a statement of a legal principle that is accepted by a majority of the Court constitutes the opinion of the Court with respect to that legal principle. This is so even if some of the members of the Court who endorse that legal principle dissent from the majority’s disposition of the appeal.
Very interesting.