Final Exam Outline

Law 104 – LLP

Final Exam Outline

Dec. 6, 2012

Table of Contents

Principles of Our System

Approach to Fact Pattern

Driedger’s Modern Approach

BCIA Summary

Problems with Meaning

Issues with Driedger’s Approach

Ruth Sullivan, “The Plain Meaning Rule and Other Ways to Cheat at Statutory Interpretation”

Stephane Beaulac and Pierre-Andre Côté, “Driedger’s ‘Modern Principle’ at the Supreme Court of Canada: Interpretation, Justification, Legitimization”

Temporal Issues – Sullivan’s Methodology

What are the temporality rules and their underlying values?

Vertical Coherence and Charter Values Debates

Issues with SL/AI

Cases

Principles of Our System

Responsible Government – P.M. & Cabinet require the confidence of the House of Commons; part of the “living constitution”

defeat on important legislation (i.e. budget, government spending) or a motion of no confidence (by opposition party) = less of right to govern
party discipline – MPs of a party generally vote as a block
rights of the legislature– scrutinize, debate, vote on proposed polices, question the government, demand explanations, etc.
correspondingobligations of government– provide opportunities for scrutiny, account for its action before Parliament; standing orders= codification of these rights & obligations; rules that govern parliamentary procedure

Ministerial Responsibility = obligation of a cabinet minister to explain/defend policies carried out in their name

constitutional law & parliamentary tradition
S. 54, CA, 1867 – gives exclusive right of cabinet to introduce measures re: raising/spending public revenue
requirement that legislation must originate in the elected House of Commons
combines strong executive authority & democratic accountability
MPs (particularly Ministers) must remain directly accountable for policy & major decisions (power of which is often passed to unelected officials)

Parliamentary Supremacy– Parliament’s authority is superior to that of all other institutions of government

courts will not second guess Parliament’s right to pass any law – they are the embodiment of “popular will”
federal and provincial governments are supreme as long as they act within the spheres of constitutional authority (federalism)

Constitutional Supremacy– has replaced Parliamentary Supremacy (unless no Charter or other constitutionally protected right is at issue and division of powers is respected)

Charter – applies to both federal & provincial governments and all matters under their authority
S. 52(1) CA 1982 - “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”

Judicial Independence– judges are to be free from any and all interference in their decision making

role of the judiciary is largely based on constitutional convention and statute law

Separation of Powers– guarantees the special role of the judiciary to interpret the law and the meaning of the Constitution when disputes arise

relies on cultural norms, statute law & constitutional conventions (more than constitutional law)
S. 24 (C.A. 1982) – enforcement of the Charter shall be through the courts (check on the powers of Parliament/legislatures)

Legislative Process

Stage 1 - Creation of Legislative Policy

Policy Development – usually by ministry responsible for administration • information gathering/assessment • planning context – budgets, strategic plans, ministry service plans
Request for Legislation (RFL) – formal cabinet submission • established by the Cabinet Operations Office • analyzes the problem; proposes solution/potential impacts
Policy Review Document (Three Column Document) – high-level policy overview of the proposal (primary audience - Cabinet committees) • describes current legislative situation • describes proposed change • provide’s reasons for the change
Drafting Instructions – details of the scheme
Treasury Board Staff & Legislative Counsel Comments – attached to RFL when submitted to Cabinet • anticipated financial impact • drafting considerations
Ministry Solicitor – RFL prepared in consultation with appropriate ministry solicitor • knowledgable of ministry business & legal issues • advise re: legal process, legal analysis, policy intentions
RFL Approval Process – signed by Deputy Minister; submitted to Cabinet for review & approval; review by Cabinet operations; meeting between Minister & House Leader; meeting between House Leader & Cabinet – determine how to proceed/ prioritization of drafting process
Government Caucus Committee (GCC) Review – either ‘Natural Resources & Economy’ or ‘Social Development’ • make policy recommendations; may require modifications

Stage 2 – Drafting the Legislation

Drafting Team– ministry’s instructing officer, ministry solicitor, assigned Legislative Counsel
Instructing Officers– aka ‘policy analysts’; link between the sponsoring ministry and the legislative drafter
Ministry Solicitor– brings significant expertise (see above)
Legislative Counsel– assigned drafter transforms policy into legislative form; must balance government’s goals with need to maintain coherent/consistent legislation; applies the technical skills of statutory interpretation to help ensure that if the legislation goes to adjudication the interpretation will reflect the desired policy; assisted by legislative editors, publications staff (Office of Legislative Counsel)
Final Policy Review– may return to GCC to review new policy issues, etc.
Final Review of Draft Legislation – Certificate of Readiness signed by sponsoring minister/delegate; Legislative Counsel provides draft to Cabinet Operations; sponsoring minister provides briefing note & section notes to Cabinet Operations ;draft is reviewed by Legislative Review Committee (Cabinet ministers & MLAs)
Bill Preparation– Office of Legislative Counsel prepares final Bill form; signed by Premier & L.G.; printed by Queen’s Printer; coordination of First Reading by Government House Leader in consultation with Premier’s Office & sponsoring minister
Special Budget Legislation Process–for proposals to be introduced with annual Budget • initiated by Minister of Finance • reviewed & finalized by Treasury Board Staff • provide drafting instructions to Legislative Counsel with no RFL • draft is reviewed by ministry staff, Cabinet Operations, Legislative Counsel

Stage 3 - Enactment of a Law

Types of Bills
Public– propose changes to the general law of the Province
Government Bills– implement government policy; drafted by Legislative Counsel (Bill 2-200)
Member’s Bills– prepared by/for individual MLA (usually Opposition); no assistance from Legislative Counsel; constitutional restrictions (Bill M 201-400)
Private– limited in their application to particular individuals or organizations; provide additional power/benefits or relieve them from application of the general law • come to Legislative Assembly through a petition process under Standing Orders; proceed through special committee process (Bill Pr 401...)
Government Bills & Legislative Process
First Reading– minister makes very brief general statement of intent; presentation only
Second Reading – debate of the general intent (not specifics of sections)
Committee Stage– “Committee of the Whole” (full Assembly without Speaker); section-by-section debate; concludes with vote on Bill’s title
each section is subject to separate debate & vote
House Amendments can be proposed; certain amendments may be rules out of order
Report Bill– legislative “track changes”; shows accepted amendments using revision marking conventions
Third Reading– vote resulting in recommittal (returned to Committee stage) or Royal Assent
Royal Assent– when a Bill becomes part of law; given by the LG/GG  Third Reading form becomes the statute
Commencement– legal effect begins when the Act “comes into force”; specified in last section of an Act
date of Royal Assent (Interpretation Act) unless otherwise indicted
may be retroactive
Bill 1– Special Case
An Act to Ensure the Supremacy of Parliament
introduceby the AG at the start of each Legislative Assembly
does not proceed past First Reading
purpose: to perpetuate the established right of Parliament, through its elected representatives, to sit and act without leave from the Crown (p. 1-42)

Approach to Fact Pattern

Issue – address ancillary issues too and why they are ancillary (give both long and short forms of the relevant act; also explain why something is the issue, and why other provisions are not at issue)

Rules – prewritten Driedger Approach and Interpretation Acts

Analysis

Conclusion – mini-conclusions and give decision

It has been established in case law that the preferred approach in statutory interpretation today is Driedger’s modern approach, which calls for a liberal interpretation of wordings where the text, context, and a number of other factors are considered and balanced in deciphering legislative intent (Rizzo; Merk). Specifically, the Driedger approach states that,

(Rizzo, ¶21)

The modern approach is supplementary to the British ColumbiaInterpretation Act (BCIA). Importantly, s.8 of the BCIA stipulates that all acts are to be read in a remedial way and s.2 stipulates that the BCIA applies to all BC acts unless a contrary intention is present. Accordingly, this analysis will use Driedger’s approach to interpret the statute at hand.

Driedger’s Modern Approach

text of the provision
grammatical and ordinary meaning – reasonable person test (Shaklee) + BCIA s.7 “always speaking”
dictionary meaning (Shaklee – rejected dictionary in favour of reasonable person; Riddell)
technical meaning (CHRC)
shared meaning
plausible meaning
punctuation – weak, not to be given much weight (Jaagusta; Popoff)
BCIA s.1 or 29 defs.statute def. (BCIA s.12 – apply to whole Act) dictionary def.  ordinary meaning
scheme analysis/internal coherence (Rizzo)
schedules (Houde v Quebec Catholic School Commission)
bilingual/bijural (Medovarski) – 2 step methodology

1)look for a shared, common meaning  the result is often to get to a narrower meaning

2)investigate through Driedger approach whether the common, shared meaning accords with legislative intent

if it does  the meaning is correct
if it does not  the meaning is whatever does accord with legislative intent
the problem is that presumably to get to the shared meaning, you have to apply Driedger, and then apply Driedger again to confirm whether the meaning holds
what if there is no clear interpretation of one language?
where you have a clear meaning in both, go for the shared meaning
where both are unclear, still go for the shared meaning
when one is clear and one is ambiguous, go for the clear meaning

vertical coherence
the hierarchy
constitution
international treaty* (Baker – in this case the international treaty was not implemented into domestic law, and the dissent had an issue with this)
federal human rights code/Bill of Rights
federal act
federal regulation (and other subordinate legislation)
provincial human rights code/documents
provincial act
provincial regulation (and other subordinate legislation)
common law
presumption of interpretation in line with Charter(Sharpe; BellExpressVu)
horizontal coherence, especially where pari materia(Bell ExpressVu) (Columbia River & Property Protection Society – showed that the presumption can be rebutted)
avoiding conflicts between enactments
express indicators – legislature telling us which is to prevail
implied indicators (Fraternite de Policiers)

1)timing – later enactment is preferred over earlier; look for the timing of the specific provision, not the entire act; general reconsolidation/revision of statute is not going to count for this rule

2)specificity – specific preferred over general

specificity trumps timing

purpose/object[1] (Merk)
preambles (ReAnti-Inflation Act) – BCIA s.9
but preambles should be given less weight than the actual provisions ( La Forest J. in McVey v UnitedStates ofAmerica)
purpose statements (LeBlanc)
weight given to a purpose statement depends on a number of considerations: how specific and coherent it is, what directives are given by the legislature respecting their use, whether there are other indicators of legislative purpose (R v T (V))
purpose statements are likely to carry less weight than substantive provisions (National Farmers Union)
titles, both long and short (Lane, Ex p Gould; Committee for the Commonwealth of Canada) – BCIA s.9
consequential (Merk)
public policy
avoid of absurd/anomalous results
cross-jurisdictional[2]
expert opinion[3]
previous cases (majority and dissenting)
expert testimonies (Shaklee) – to be given less weight
history, legislative history (don’t give substantive weight, Reference re: Firearms Act) and legislative evolution[4] (Merk)
general history (Canada 3000) counter to general history can be the “always speaking” clause in BCIA s.7
Hansard (Rizzo)
House Committee Reports
failed bills (CHRC)
alternative drafts of the bill
headings and marginal notes (Lohnes; Basaraba;Wigglesworth) – headings more weight, especially sinceBCIA s.11 expressly says marginal notes are not part of the enactment
legislative evolution/subsequent amendments or previous versions (Re SFU)[5] – counter to this is BCIA s.37 (not every change is substantive)
special conventions
presumption of Crown immunity – at common law, the Crown was presumed to be immune from the scope of its own legislation, and now most interpretation acts have codified the common law BCIA actually makes the Crown subject to its own legislation
presumption against extra-territoriality – the right to establish extra-territorial legislation is restricted to Parliament (Statute of Westminster, 1931)
presumption relating to special subject areas

1)individual rights

personal liberty, security or well-being
freedom of commerce
access to the courts
rights of natural justice (procedural fairness)
everyone should be treated fairly at a procedural level before a government decision is taken against you – right to be heard
in criminal law, everyone has a right to procedural fairness – how much of that procedure fairness can be applied elsewhere?

2)property rights (main at issue in land rights cases) – presumption that courts should not read the legislation at taking property rights away

municipal zoning bylaws
expropriation – no duty to compensate taking of land at common law
legislatively, governments have bound themselves to compensate
now, government is not just interested in taking land for development, but regulating what’s underneath the land for resources – there are those that argue we should get compensated for that “taking”

3)criminal law – even in the criminal law, penal presumption is very low level (and should not be used in non-criminal contexts) (McLachlin in McIntosh; Hasselwander); 2 reasons for this presumption

serious consequences of a criminal conviction for liberty of person
need to give all citizens “fair notice” of what is and is not criminal

4)human right statutes – not only do human rights legislation trump ordinary statutes, the way we read these statutes must be especially broad (Jubran)

5)taxation statutes – in recent years, there is more judicial emphasis on the textual elements of the statute (grammatical and ordinary meaning) – again somewhat favouring taxpayers (Imperial Oil Ltd)

6)municipal law – giving municipalities flexibility in their legislation  given a broad interpretation (United Taxi Drivers’ Fellowship of Southern Alberta)

penal provisions/presumption in favour of the accused (McIntosh – Lamer J.; Merk[6])
rule of effectivity
presumption against tautology (CHRC; Riddell) – counter against this is “scattergun approach” in basket clause-like provisions
presumption of uniformity of expression (Schwartz)
maxims of interpretation
principle of associated meaning (McDiarmidLumber)
limited class rule (basket clause rule) – be wary with applying this rule as there is a threshold to be met before this rule can be used; must have lowest common denominator (Rascal Trucking)
implied exclusion rule – note that the implied exclusion rule is probably the weakest of the 3 maxims because sometimes things are added “out of excessive caution)(Children’s Aid)

specialist opinions
executive/administrator’s opinions (CHRC)
academic texts like Sullivan and Coté (Merk)
importance of quasi-constitutional acts, like human rights acts (CHRC; Jubran)
temporal operation and application (immediate, retrospective, retroactive, and prospective)[7] – see ss.35 & 36 of BCIA
temporal operation = period during which the rules embodied in legislation are legally effective
temporal application = range of facts to which legislation may appropriately be applied

underlying values
fairness
rule of law
protection of (property) rights
sources = Interpretation Acts; home statute’s transitional provisions, if any; common law
presumption against retroactivity  the strongest presumption (MacKenzie)
exceptions
beneficial legislation
legislation designed to protect public
legislation that is purely procedural (does not affect substantive rights in any way)
immediate application (important to distinguish between completed fact and facts in progress)
presumption against restrospectivity (presumption against retrospectivity is weak – no one has the right to the status quo law today because the law changes – MacKenzie)
presumption against interference with vested rights (Scott)
to determine whether presumption is rebutted, courts balance several factors

1)degree of unfairness

2)importance of the policies implemented by the new legislation

3)impact that limiting or delaying its application would have

4)any textual or other evidence of legislature’s intent

dates of commencement
transitional rules (expiration [BCIA, s.4(4) statute has lapsed/no longer has any practical significance], amendment, replacement, repeal [BCIA ss. 35 & 36])
types of changes: substantive changes  s.37(2) of IA must thus be read as saying don’t assume that every change is a substantive change; house-keeping; declaratory
preference of interpretation to be in harmony with the common law  if legislature wanted to change decades-long common law principle, it would have been clear on it (this is why the rebuttal to the presumptions needs to be clear, whether express or implied)

subordinate legislation – ability to delegate powers (Hodge) (different from administrative instrument, which is implicitly authorized – Maple Lodge Farms)
enabling clauses must be there (De Guzman)
must read enabling clause within context of parent Act, not just the clause itself (Federated Anti-Poverty)
types of subordinate legislation

1)regulations – 2 possible meaningsBCIA, s. 36(1)(e) and BCRA

in a very wide sense, it includes all the instruments arising out of the exercise of an Administration’s regulation-making power
in its narrow sense, the word “regulation” means a particular type of instrument, the scope of which is usually very wide, and which affects a very large number of persons

2)orders – generally of a more limited scope than a regulation; it usually affects a rather small number of persons