Law, Legislation and Policy Professor Tim Richards

Law, Legislation and Policy – Professor Tim Richards Fall 2008

Driedger’s Modern Principle

A. Entire Context

B. Grammatical and Ordinary Sense

C. Harmonious with the

1.Scheme of the act

2.Object of the act

3.Intention of the Parliament

Institutional Framework (Module 1)

Critique on Statutory Interpretation (Module 4)

Ruth Sullivan – The Plain Meaning Rule and Other Ways to Cheat at S.I

Neil Brooks – Appropriate Role of Courts in Interpreting Legislation

Statutory and Common Law Presumptions (Module 5)

Ambiguity

Interpretation Acts

A.Tense

B.Singular/plural

C.Definitions

D.Gender

E.Referential Incorporation

F.Powers

G.Computation of Time Periods

H.Calculating Age

Components of a statute

1.Title

2.Purpose Section

3.Preamble

4.Definitions

5.Heading and Marginal Notes

6.Punctuations

7.Schedules

8.Bilingual Statutes

Previous Interpretations

Common Law Principles and Presumptions

1.Associated Meaning “noscitur socciis”

2.Rule of Effectivity

3.EjusdemGeneris

4.ExpressioUnius

5.Presumption against Retroactivity

6.Interference with Vested Rights

7.Territorial Application

8.Presumption for Particular Areas of Law

Temporal Issues (Module 6)

Coming Into Force

Repeal

1.No “Revival” – BCIA s.35(1)(a)

2.Lawful Acts Not Affected – BCIA s.35(1)(b)

3.Protection For “Accrued or Accruing Rights” – BCIA s.35(1)(c)

4.Offences – BCIA s.35(1)(d)

5.Proceedings – BCIA s.35(1)(e) & s.35(2)

Repeal & Replacement

1.Personnel – BCIA s.36(1)(a)

2.Proceedings – BCIA s.36(1)(b)

3.Procedures – BCIA s.36(1)(c)

4.Mitigated Penalty – BCIA s.36(1)(d)

5.Regulation – BCIA S.36(1)(e)

6.Referential Incorporation – BCIA s.36(1)(f)

Temporal Operation and Application

A.Definitions

B.Methodology

C.Presumptions

D.Policy Considerations

Subordinate Legislation (Module 7)

Instruments of a Legislative Nature

Instruments of an Administrative Nature

Regulations vs. Directives

Constitutional Grounds

Driedger’s Modern Principle

• “…the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”

A. Entire Context

• Economic & social realities (NAV Can.)
• Other statutes, reg. schemes (NAV Can.)

• horizontal coherence - in pari materia statutes
• vertical coherence

a)constitution trumps everything

b)subordinate legislation consistent w/ enabling statute

c)federal over provincial legislation

d)human rights over general legislation

• international law – try to be consistent but little importance (Baker)

• Area specific legal principles (Merk – “up the ladder”; Sharp – child pornography)
• Entire act: purpose, object
• Specific section
• Policy considerations
• Legislative history (Rizzo,Merk)

• transitional provisions
• remedial: Δ in wording = Δ in effect (SFU)

declaratory: Δ in wording ≠ Δ in effect (BCIA s.37(2))

• Parliamentary history (re: Firearms), in descending weight:

1)briefing notes

2)alternative drafts of the statute

3)house committee reports

4)Hansard (Rizzo)  frail

5)Press releases

B. Grammatical and Ordinary Sense

• Ontario Mushroom; Shaklee – “meal test” for definition of food
• Plain meaning approach (McIntosh) a secondary principle

“Where the language of the statute is plain and admits of only one meaning, the task of interpretation does not arise.”

• Dictionaries(McIntosh, dissent; Riddell)  used with caution
• Bilingual versions (NAV Can., Medovarski) narrower meaning; legislative intent

C. Harmonious with the

1.Scheme of the act

• benefit-conferring broad, generous interpretation

ambiguity resolved in favour of claimant

• penal statutestrict construction and application to favour the dft. (McIntosh)
• regulatory statute (Merk), municipal leg. (Rascal)  broad and purposive approach

2.Object of the act

3.Intention of the Parliament

• mischief rule(Heydon)

“suppress the mischief to which the statute was designed to resolve”

• remedial – BCIA s.8 (Rizzo, Merk)

“fair, large and liberal interpretation that best achieves its objects”

• Absurdity

• 4 grounds (Côté in Rizzo)

a)ridiculous or frivolous consequences

b)extremely unreasonable or inequitable

c)illogical or incoherent

d)incompatible with other provisions,

or object of legislature

1

Institutional Framework (Module 1)

Legislative Branch / Executive Branch / Judicial Branch
What it does / Makes law / Administers and implements law / Interprets and applies law
Roles / Monarch
Governor Lieutenant
General General

Parliament
Senate Legislature

HoC
(House of Commons) / Monarch

G.G. L.G

P.M. Premier

Cabinet Cabinet

Bureaucracy / Monarch
S.C.C.

C.A.

Provincial Military Federal
Accountability / Electors / Legislature
(Principle of Responsible Government) / Internal
(Appeal Process)
Power Limited By / Constitution s.91, 92 / Constitution/Delegation / Constitution/Legislature
Principles / Democratic government
Parliamentary Supremacy (less force now; replaced by Constitutional Supre.) / Delegated Authority
- exercises power conferred to it by the legislature
Royal Prerogative
- power from the monarch
- fairly limited / Separation of Power
Judicial Independence

Critique on Statutory Interpretation (Module 4)

Ruth Sullivan – The Plain Meaning Rule and Other Ways to Cheat at S.I

Two assumptions:

1. plain meaning exists in legislative texts
2. legislatures have intentions when they enact legislation

Plain Meaning Rule / Legislative Intent
Advantages /

• certainty – safe to trust law as it is written
• formal equality – plain meaning is the same for everyone
• neutral proxy for strict construction

/

• separation of power – adheres to legislature
• supports positivist view – law is what legislature enacts

Judicial Tricks /

• text selection – choose which text to be interpreted
• Co-Text – can affect meaning of a text or how “plain” it is by shrinking or expanding the co-text
• Shifting Meaning – plain meaning may mean:

­dictionary
­literal or facial
­intended
­audience-based
­applied

• If the judge declares the meaning plain then it must be
• Texts do not contain meaning; meaning must be inferred by readers
• when the apparent meaning of a text produces an unacceptable result, judges are free to abandon the plain meaning rule

/

• presumed that the context in which the law was enacted is the same as the context it now operates in (Brooks)
• original meaning rule is relied on to justify the outcome
• distinguish drafting error from legislative intent
• doctrine of presumed intent – presumes that legislature is reasonable and wants to avoid absurdity and injustice

Brooks:

• legislature may not have read the bill
• conflicting intentions among MPs
• impossible to verify intention
• intention is not voted onillegitimate
• difficult to construct the past w/o present influence

Recommendations: make judicial decisions an additional source of law

Neil Brooks – Appropriate Role of Courts in Interpreting Legislation

SI approaches must be consistent with:

• notions of democracy
• rule of law: accessibility, certainty and predictability
• relative institutional competence of legislatures and courts

Recommendation: consequentialist approach

• judges weigh the consequences of alternative applications of the statute and will use information from the legislative record to assist in analysing the appropriateness of the consequences
• more emphasis on facts and policy than purposive approach
• Sullivan: pragmatic approach

­interpretation must be justified in terms of a) plausibility (compliance with legislative text); b) efficacy (promotion of legislative intent); and c) acceptability (compliance with legal norms – reasonable and justice)

­what is the goal? if policy concerns, then same as consequentialist app.

Statutory and Common Law Presumptions (Module 5)

Ambiguity

- interpretive principles do not apply absent ambiguity (McIntosh; Bell)

- cannot be assumed from mere fact that several courts, or several doctrinal writers differ in interpretation of a provision (Bell)

1)ambiguity must be “real” – reasonably capable of more than one meaning

2)must consider the “entire context”

3)arises only when two or more plausible readings, each equally in accordance with the intention of the statute.

Interpretation Acts

1. Tense(BCIA s.8; IA s.10)

- “always speaking”

- adapt to new circumstances unforeseen at time of enactment

1. Singular/plural interchangeable (BCIA s.28(3); IA s.33(2))

1. Definitions, apply to

- entire statute and all regulations under it (BCIA s. 12,13; IA s.15,16)

- all grammatical forms of a word (BCIA s. 28(4); IA s.33(3))

1. Gender(BCIA s.28(2); IA s.33(1))

- include both gender and corporations

1. Referential Incorporation

- pulling provisions of secondary statute into primary statute

- sec. stat. applies with necessary changes (BCIA s.44)

- repeal & replacement of sec. stat.ambulatory  pri. stat. also changes (BCIA s.36(1)(f))

may argue “contrary intention” to reject application of ambulatory rulekeep original wording

- repeal of sec. stat. old meaning survives

1. Powers

- appointment of public officers (BCIA s.22; IA s.24)

- delegation of powers (BCIA s.23)

1. Computation of Time Periods(BCIA s.25)

- exclude 1st day, include last day

e.g. Sept 1 + 21 days = Sept 22

- “clear, at least, not less than”  exclude both 1st & last day

e.g. = Sept 23

- holidays usually included

may be excluded if appropriate; e.g. contract for road project

- expiration day falls on holiday  moves to next day that is not a holiday

1. Calculating Age

- age is reached at start of anniversary of birth date

Components of a statute

1.Title

- part of a statute, binding

- may indicate object, purpose, or meaning of the statute

- Lane – “suppression” in title implies criminal provision

- Committee for the Commonwealth – title “commercial and other operations” means activities regulated are of commercial nature

2.Purpose Section

- binding statements

- limited use, because

a)over general statements

b)sometimes set out competing principles or policies (R. v. T. – Young Offenders Act)

- limits jurisdiction (Paccar – board exceeded mandate set out in purpose stmt.)

- clearly-written provision out weighs purpose stmt. (Potato Marketing Council)

3.Preamble

- may indicate the mischief or purpose of the legislation

- provide guidelines on stat. interp.

- constitutional purposes (Anti-Inflation Act – preamble asserts crisis conditions)

4.Definitions

- if no definition examine in pari materia statute (no application if legislature diff.)

 another statute enacted by the same legislature

- “means”: exhaustive

“includes”: non-exhaustive

5.Heading and Marginal Notes

- not part of enactment; for reference only

- headings  may be referred if there is doubtful expression (Basaraba)

 not determinative (Lohnes)

influence of headings depend on: (Wigglesworth)

a)degree of ambiguity or obscurity of the section

b)length and complexity of the provision

c)homogeneity of provision under the heading

d)generic terminology in the heading

e)presence of system of headings

f)terminology in the heading v. substance of provision

- marginal notes  not to be relied upon (Basaraba)

6.Punctuations

- should be taken into account

except when it would produce absurd result (Jaagusta; Popoff)

7.Schedules

- part of the statute, binding

- less weight than actual text

8.Bilingual Statutes

- equally authentic, equally authoritative, equally binding

- neither has primacy over the other

Previous Interpretations

1. Judicial Decisions

- provided there was no amendment

- depend on date of case, jurisdiction, and court level

1. Administrative Interpretations – simply policy, non-binding

a)administrative tribunal decisions

 court often defer to its specialized knowledge and experience

b)interpretations by civil servants and ministers

 effective until challenged by court

 consider the effect of rejection: may invalidate previous decisions or cause major reallocation of resources

1. Texts– admissible for guidance

Common Law Principles and Presumptions

1.Associated Meaning “noscitur socciis”

- words linked by “and”, “or” are interpreted by their common feature (McDiarmid Lumber)

- effect: scope of broader term limited to that of the narrower term

2.Rule of Effectivity

- presumption: legislature avoids superfluous or meaningless words (McDiarmid Lumber)

3.EjusdemGeneris

- a general phrasetakes its meaning from the specific words that precede it (Rascal)

- two qualifications:

a)there must be a common denominator among preceding words

without com.d. give ordinary, broader meaning

b)previous terms do not exhaust the general phrase – rule of effectivity (Rascal)

4.ExpressioUnius

- express mention of one thing excludes all others by necessary implication

- three exceptions (Children’s Aid Society – inclusion of rights w/o responsibilities):

a)express mention used to emphasize or out of excessive caution

b)express reference necessary or appropriate in one context but not in another

c)in some context, not excluded = included

5.Presumption against Retroactivity

6.Interference with Vested Rights

7.Territorial Application

- presumed not to have extra-territorial effect

may be overcome by clear language to the contrary

8.Presumption for Particular Areas of Law

1)Legislation affecting individual rights strict construction (Bell)

- personal liberty, security or well-being

- freedom of commerce

- access to courts

-rights of natural justice

2)Property rights

- strictly construed in favour of property owner

- assume: no expropriation without compensation

3)Criminal Law

- strict construction of penal provisions

 subsidiary role to s.12 of IA (remedial) – “even with penal statutes, real intention the legislature must be sought, and the meaning compatible with its goals applied” (Côté in Hasselwander)

 applicable only when neutral interpretation according to s.12 still leave reasonable doubt (Hasselwander)

4)Human Rights

- interpreted as to advance the broad policy considerations underlying it

- interpreted in a manner befitting the special nature of the legislation

- be given such fair, large and liberal interpretation as will best ensure the attainment of their objects

- strict grammatical approach inappropriate

- Jubran: s. 8 of Human Rights Code, discrimination based on sexual orientation  focus on the result or effect of the action complained of, rather than the class of individuals protected

5)Taxation Statutes

- cautious approach to interpretation, due to complexity of policy and principles

- absent clear statutory language, no judicial innovation (Ludco)

- textual interpretation over Driedger/purposive approach (Imperial Oil)

6)Municipal Law

- broad, purposive approach

- municipals be given more flexibility

7)Professional Bodies

- strict construction of statutes creating professional monopolies (Laporte)  permit any activity not clearly prohibited (Infomap)

- construed according to a reasonable and business interpretation

- emphasize policy considerations, what’s better for the public (MacDonald)

- Driedger applies (MacDonald)

Temporal Issues (Module 6)

Coming Into Force

1. By Royal Consent

- applies when the bill is silent (BCIA s.3(2); IA s.5(2))

1. By proclamation of the Governor in Council or Lieutenant-Governor in Council

Once a statute is enacted, it may be referred to for interpretation purposes, even though it has not yet commenced.

commences: beginning of the day of CIF

ceases to have effect: end of the day of repeal

Repeal

1.No “Revival” – BCIA s.35(1)(a)

- presumption: common law rule before Act is not revived

- however, court may still choose to revive it

2.Lawful Acts Not Affected – BCIA s.35(1)(b)

- cannot challenge lawful action taken under the act

3.Protection For “Accrued or Accruing Rights” – BCIA s.35(1)(c)

- does not affect right or obligation acquired, accrued, accruing or incurred under the act

4.Offences – BCIA s.35(1)(d)

- offences committed prior to repeal may still be prosecuted

- however, Crown usually elects not to proceed with the charge

5.Proceedings – BCIA s.35(1)(e) & s.35(2)

- investigation, proceeding or remedy for vested rights or offence under the statute may be initiated, continued, or enforced after its repeal

Repeal & Replacement

1.Personnel – BCIA s.36(1)(a)

- appointments continue under new act

2.Proceedings – BCIA s.36(1)(b)

- continued in conformity with new act

3.Procedures – BCIA s.36(1)(c)

- conform with new act

4.Mitigated Penalty – BCIA s.36(1)(d)

- if punishment varies between time of commission of offence and time of sentencing, the lesser punishment applies (also 11(i) of Charter)

- cannot be found guilty of an offence if not an offence at time of occurrence (11(g) of Charter)

5.Regulation – BCIA S.36(1)(e)

- continue in force under the new act so long as it is consistent with the new provisions

6.Referential Incorporation – BCIA s.36(1)(f)

- reference to former act replaced by reference to new act

- no corresponding provision  former definition continues

Temporal Operation and Application

A.Definitions

CIF Repeal

Temporal Operation

Temporal Application

• Temp. Operation – the period during which the legislation is legally effective.
• Temp. Application – range of facts to which legislation may appropriately be applied.

e.g. “Any person who is convicted of a criminal offence is ineligible to be called to the Bar.” Does the legislation apply to someone who was convicted before the enactment of this law?

• Retroactive Appl. – operates as of a time prior to enactment.

• Retrospective Appl. –attaches future legal effects to a past event.
• Immediate Appl. – attached future legal effects to an ongoing situation, such as a status/condition, or an incomplete series of events.
• Vested Rights – concrete rights (interests or expectations) held by particular persons in particular circumstance

 must be “sufficiently crystallized”

Côté: the legal situation must

1) be tangible and concrete rather than general and abstract; and

2) have been sufficiently construed at the time of new statute’s commencement

necessarily or inevitably; will, rather than may, in time accrue (Scott)

 intention, entitlement, possibility NOT sufficient

B.Methodology

Step 1: Date of Commence

Step 2: Identify relevant facts and conditions

Step 3: Situate those facts in time

Step 4: Complete/ongoing/or not yet commenced?

Step 5: Interference with vested rights?

Step 6: Rebuttal for application

C.Presumptions

Charter of Rights and Freedom

- does not apply retroactively or retrospectively

- no vested right in Charter rights or freedom

- applies to immediately to continuing or ongoing situations

Presumption Against / Strength / Application / Rebuttal
Retroactive Application / Strong /

• ALWAYS presumed against; onus on appellant to prove otherwise (Gustavson)
• Allowed if benefits > harms

e.g. fiscal leg.; declaratory leg. / Legislative intent: express or implied
Retrospective Application / Weak / No presumption against for:
1)procedural law
- does not affect substantive rights; merely modalities
- look at impact of provision
2)beneficial legislation
3)public protection law
- e.g. disqualification due to convictions, bankruptcy
Immediate Application / None /

• Applies to a status or condition
• Does not apply to a single event

Interference with Vested Rights / Weak / Gustavson:only if legislation is

• ambiguous
• reasonably susceptible of two constructions

Most statutes interfere with rights no vested right to continuance of law (Gustavson)
Must crystallize  inevitable / Degree of surprise
Degree of fairness (detrimental reliance)
Can be rebutted w/o express words (Larsen – right to sue taken away)

D.Policy Considerations

1. Rule of Law

- law should be certain, predictable, stable, rational and equal

- retroactivity problematic: have to know the law to obey it

1. Fairness

- retroactive/retrospective appl.  unfair

- immediate appl.  fair: often still possible to adjust and obey the law

- Charter Sect.7: can resist retroactive or retrospective appl. if threatens life, liberty or security of person

1. Protection of Property (including rights of action)
2. Impact of Application

- MacKenzie: not retroactive  would destroy pension fund’s integrity

Subordinate Legislation (Module 7)

• enacted by bodies that have been delegated legislative powers by Parliament or Legislatures
• most common: regulations
• include: by-laws, rules, orders, and proclamations
• have the same force of law

Instruments of a Legislative Nature

1. Regulations
2. Orders – more limited scope; affect small number of persons
3. Decrees – used exclusively in Quebec
4. Rules – procedures in courts or tribunals
5. Tariffs
6. By-laws – made by municipal corporations
7. Letters patent – used to created a corporation and authorize it to engage in certain acitivities

Instruments of an Administrative Nature