LAWS 2301 Lecture Notes - Judicial Discretion
19 Feb 2014
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Document Summary
Some statues are deliberately general (charter of rights and freedoms) because it"s supposed to allow courts to exercise a certain amount of control/supervision over. Judicial discretion is important because the legislature can"t foresee every possibility. They aren"t subject to any forms of democratic accountability. This can raise question of subjectivity/arbitrariness because the application of the law isn"t consistent. Why are we worried about judge discretion more than police or crown discretion: because courts are public. It can also destabilize the rule of law. There are many ways judicial discretion is limited. Judges are limited by precedent (previous decisions: limited by rules of interpretation. One of these is that criminal law should be interpreted narrowly because freedom is at stake. There is less room for discretion: draft legislation precisely. The more clear and precise legislation is, the less room there is for discretional decisions: law of obscenity. The border (customs) may keep things they find obscene.
