“Your Honour, the Cow Precedent Has Been Reversed by the Cow Precedent Reversal Act!”: The Common Law, Part 3

In the first two installments of this series, we talked about the common law, the way judges create law by requiring future judges to decide similar cases the same way. Judges are far from the only people who make law, though. We also have legislatures, which are full of folks whom we have, for better or for worse, actually elected. Surely they have some role to play in our legal system.

Actually, they have quite an important role, but it’s not the exclusive role that many think. Legislatures can overrule judges, but judges can interpret legislation, leading to a back-and-forth – a conversation – that explains how our laws really evolve and develop.

Open Season on Bovine Thievery

“Parliamentary supremacy” has been a fundamental feature of British-inspired legal systems for centuries. Now that those Parliaments are actually elected (well, the House of Commons is – Parliament also includes the unelected Senate and the Queen, but it’s the elected House where most of the power lies), the rationale is even more compelling. In a democracy, elected officials should generally be able to overrule unelected judges.

Remember the Cow Precedent, the fictional case which says that stealing someone else’s cow is a criminal offence? Let’s say that our elected representatives were not happy with that. Perhaps they are appalled at the concept of private cattle ownership. Perhaps they believe that the criminal system is too harsh to enforce laws about livestock. Or perhaps the Cattle Rustlers’ Association have a strong lobby and it’s an election year.

Whatever the reason, there is nothing stopping Parliament from passing a law which declares that cow-taking is no longer a criminal offence. They are absolutely free to reverse the Cow Precedent and declare open season on bovine thievery. They may even call the new law the Cow Precedent Reversal Act! (If that sounds far-fetched, consider that the Ontario legislature once passed a law called the Amendments Because of the Supreme Court of Canada Decision in M. v. H. Act. Any guesses which Premier oversaw that wording? That’s right, it was Mike Harris, the same one whose government passed the Fairness is a Two-Way Street Act).

But that’s not the end of the story, because guess what will happen the first time someone is charged with theft, and claims innocence because the stolen property was a cow? The case is going to end up in a court, and the Cow Precedent Reversal Act is going to need to be interpreted . . . by a judge.

Taking the Bull by the Horns

Let’s say you stole a bull.

At your trial, your lawyer holds up the Cow Precedent Reversal Act. Is that enough to get you off? It’s not necessarily an easy question.

On the one hand, everybody knows that a bull is different from a cow. The starting point, whenever you’re interpreting a statute, is the plain meaning of the words.

On the other hand, the starting point is not always the ending point. You could certainly argue that when Parliament allowed cows to be stolen, it must have intended to include the male of the same species. After all, the Interpretation Act – yes, there actually is a law which is all about how to interpret other laws – says that words which refer to female persons include male persons, and vice versa. Why couldn’t the same be true of female and male bovines?

For this example, it doesn’t really matter which way the judge decides. Let’s say the judge declares that stealing bulls is still illegal. Guess what that decision is? A precedent! That interpretation of the Cow Precedent Reversal Act must be followed by future judges. And as more and more judges weigh in about what the word “cow” includes (A calf? A side of beef?), an entire series of precedents might start to develop – a common law of how to interpret the legislation.

To make this point in a less silly way, let’s look at one of the statutes that I deal with all the time, the Labour Relations Act, 1995. It’s 168 sections long, and in some places very detailed, but there’s still a lot of room to develop a robust set of precedents, an entire body of labour law.

For example, section 69 of the Act says that if there’s a sale of a business, any union bargaining rights and collective agreements binding on the seller become binding on the purchaser. The purpose is to ensure that unions don’t lose all their rights just because of a technical change in ownership. But what is a sale? The Act helpfully tells us that it “includes leases, transfers and any other manner of disposition,” but that still leaves a lot of room for manoeuvring. And what is a business? The only definition in the Act says that a business includes part of a business, which really doesn’t get us anywhere. What does get us somewhere is the extensive series of Ontario Labour Relations Board decisions that do define these terms, and that show us how they apply (or don’t apply) in different situations.

The fact is, most legislation is extremely general. It has to be, because it has to apply widely. Governments do their best to anticipate different circumstances and address them, but it’s impossible to anticipate every situation where a law might apply. In the common law system, it’s judges who interpret laws in individual cases, and by doing so, build up a system of rules that can be applied to other cases. It’s the judges who – pun intended – put the meat on the bones.

And if Parliament doesn’t like what the judges are doing? They are still elected; they still have Parliamentary supremacy. It’s open to them to say to the judges, “That’s bull!”, and amend the Cow Precedent Reversal Act to say that bulls can be stolen after all. It’s a back-and-forth. As naive as it may sound, it is a conversation.

But Wait, There’s More

Parliamentary supremacy does, of course, have a limit. That limit is the Constitution. As the basic law of the country, the Constitution can never be violated, even by someone who we’ve voted for. How do the common law and legislation fit in here? I’m not committed to writing a Part 4, but if there is interest, that is a place I can explore next.