Principles and process.

A fundamental principle of English common law that seeks to make the law fair and accessible to all is known as the rule of law. It is a concept that implies that everyone should be able to know what the law requires and that the law should apply equally to everyone. The rule of law expresses our belief that no one is above the law, and that those who make and enforce the law must do so in a way that is fair to everyone. The importance of the rule of law is recognized in the Constitution Act of 1982, which contains the Canadian Charter of Rights and Freedoms. The Charter opens with a statement that "Canada is founded upon principles that recognize the supremacy of God and the rule of law."

Because the common law develops through judges' decisions, it is sometimes called judge-made law. In theory, however, judges do not make law when they decide cases; they merely apply the law that has been applied in previous, similar cases. These previously-decided cases are called precedents. The doctrine that judges must follow precedent in that they must decide like cases alike -- is called stare decisis, a Latin phrase meaning "Let the decision stand." The advantage of following precedents is that people are better able to predict the legal consequences of their actions, and act accordingly.

But the 20th century has brought some changes in judges' understanding of the doctrine of precedent. Gradually there came to be disagreement about what previous cases are similar and therefore relevant. As the number of decisions grew, so did the number of conflicting views. In some cases, judges had to choose which interpretations should prevail. Also, as social and commercial relations became more complex, judges were presented with situations for which they could find no ready similarity or precedent in existing cases. So, most jltdges accepted that they did have some freedom to stretch existing law to cover new situations, and to refuse to follow precedents that no longer fit everyday notions of fairness or the public good. Thus, determining what is lawful and just is a never-ending process as new decisions affect the principles upon which future cases will be decided.

If the decision of a court is not acceptable, it can be appealed. Each province or territory has appeal courts that may affirm or reverse the trial judge after hearing arguments from lawyers. Trial judges have to follow decisions made by appeal court judges in the same province or territory. Since 1949, the final court of appeal in Canada has been the Supreme Court of Canada, which sits in Ottawa. The power of ultimate interpretation of the Canadian Constitution, including the Charter of Rights and Freedoms, rests with this court.