The Highest Suggestion in the Land: Obiter Dicta and the Modern Supreme Court of Canada

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.