Latin: an observation by a judge on a matter not specifically before the court or not necessary in forming the ratio decidendi - determining the issue before the court; a side opinion which does not form part of the judgment for the purposes of stare decisis.
In Bergel & Edson, Justice Spiegel adopts these words:
"Words of an opinion entirely unnecessary for the decision of a case.... A remark made, or opinion expressed, by a judge, in his decision upon a cause, by the way, that is, incidentally or collaterally, and not directly upon the question before him, or upon a point not necessarily involved in the determination of the cause, or introduced by way of illustration, or analogy or argument. Such are not binding as precedent."
In R v Wise, Judge Perry adopted these words to define obiter dictum:
"Obiter dictum ... an expression of opinion on a matter of law, given by a judge in court, but not essential to his decision, and therefore not of binding authority."
In the 2nd edition of Precedent in English Law, jurist Rupert Cross notes the essential distinction to be made between "ratio decidendi and obiter dictum" and adds:
"... obiter dictum means a statement by the way, and the probabilities are that such a statement has received less serious consideration than that devoted to a proposition of law put forward as a reason for the decision."
May also be referred to as dicta or dictum.
REFERENCES:
- Bergel & Edson v. Wolf 50 OR 3d 777; also at 49 CPC 4th 131
- Cross, R., Precedent in English Law, 2nd Edition (Oxford: Oxford University Press, 1968) p. 37
- Duhaime, Lloyd, Latin Law Dictionary
- Duhaime, Lloyd, Legal Definition of Dicta
- Duhaime, Lloyd, Legal Definition of Ratio Decidendi
- Duhaime, Lloyd, Legal Definition of Stare Decisis
- R v Wise (1982) 4 WWR 658, 67 CCC 2d 231, 1982 BCWLD 1219, and 1982 CarswellBC 648