LLP Outline Fall 2013

LLP Outline Fall 2013

LLP Outline – Fall 2013

  1. BRANCHES OF GOVERNMENT
  2. THREE BRANCHES OF GOVERNMENT
  3. Executive Branch
  4. Headed by the Prime Minister (or Premier)
  5. Includes the bureaucracy that administers and implements legislation
  6. Also does drafting of statutes
  7. Also creates subordinate legislation and administrative instruments
  8. Legislative Branch
  9. Elected representative of the people
  10. Debates, amends, and votes on bills
  11. Judicial Branch
  12. Independent
  13. Adjudicates legal disputes
  1. LEGISLATIVE PROCESS
  2. GOVERNMENT BILLS AND LEGISLATIVE PROCESS

Government Bills are intended to implement policy that has been approved by Cabinet

  1. LEGISLATIVE PROCESS
  2. First Reading
  3. A Government Bill will be presented to the Legislative Assembly (usually by a minister)
  4. The Standing Orders of the Legislative Assembly require advance notice of First Reading
  5. Bill requires a Royal Message in any case if it contains public revenue, tax or impost
  6. The Bill is not actually read, the minister makes a brief general statement of intent regarding the Bill
  7. Second Reading
  8. “debate in principle”
  9. Members speak for and against the general intent, but not specific sections
  10. Committee Stage
  11. Each bill is debated on a section by section basis
  12. Each section is subject to a different debate and a different vote
  13. Courts sometimes use House debates in statutory interpretation
  14. Report Bill
  15. A report bill shows the accepted amendments using a revision marking convention
  16. Third Reading
  17. The bill is reported as “complete with amendment” or “complete without amendment”
  18. Little discussion at this point
  19. If third reading passes the bill becomes an Act, but it is not a statute until given Royal Assent
  20. Royal Assent
  21. When the Bill becomes a law
  22. Commencement
  23. Number of ways in which the Act comes into force
  24. The Act says when it comes into force
  25. On the happening of a specific event
  26. Date set by governor general
  27. If it says nothing it comes into force upon royal assent
  1. MEANING
  2. AMBIGUITY
  3. Equivocation

A word is unclear unless particular context resolves the doubt

  1. Syntactic ambiguities

Unclear within the context which terms are modified by an included word or phrase

  1. Contextual ambiguities

Communication may contradict or be incompatible with another communication

  1. Diversity in experience

Diversity in experience may be reflected in language and cause ambiguities

  1. Co-ordination problems

When the writer/speaker assumes that the audience uses words and phrases in a different way and uses the meaning of the audience

  1. New circumstances

Temporal gap may occur between the moment the communication is sent and the moment it is received

  1. ELLIPTICAL COMMUNICATIONS
  2. Speakers/writers make assumptions about their audience and omit mention in their communications of factors that should be taken for granted, assuming the gap will be filled
  3. IMPROPER BIVALENCE
  4. Speaker/writer assumes the subject matter will be analysed as true/false, while the experience of the audience may be one of gradations on a spectrum
  5. OVER-INCLUSIVENESS
  6. A classification used by a rule-maker may be too broad to achieve his or her aims
  7. UNDER-INCLUSIVENESS
  8. Classification is insufficiently general
  9. VAGUENESS
  10. A rule-maker may use general terms assuming that the audience will use particular criteria to render them more specific
  11. MISCOMMUNICATION
  12. Speakers/writers may misspeak or unintentionally omit or include a word or phrase
  1. STATUTORY INTERPRETATION
  2. THE DRIEDGER APPROACH

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 objective of the Act, and intentions of Parliament

  1. GRAMMATICAL AND ORDINARY SENSE

Words in legislation are presumed to be used in their usual or ordinary sense, absent clear intention to the contrary

  • What would the reasonable person of average intelligence and understanding take to be the usual meaning of the word(s)?
  • Can be shifted if a particular statute can be portrayed as addressing a specific group
  • Shaklee: definition of food”meal test”
  • PLAIN MEANING APPROACH

When there is no ambiguity you give the words plain meaning, and there is no contextual approach necessary since the words are so clear

  • McIntosh majority: a statute should be interpreted in a manner consistent with the plain meaning of its terms
  • McIntosh dissent: secondary approach, but important if it is clear and the intention of Parliament is clear

Exception: plain meaning of the word is not always sensible

  • Shaklee: plain meaning of the word food
  • DICTIONARIES
  • May be referred to as an aid in the absence of a statutory definition of the word
  • Issues:
  • Does not take into account context
  • Different dictionaries give varying definitions
  • McIntosh dissent, Shaklee, Riddell: dictionaries must be used with caution
  • Committee for the Commonwealth of Canada: dictionaries can be useful at times
  • Mowat: meaning of words must be looked at in the context of surrounding words
  • Mowat: dictionary definitions cannot be applied to get beneficial outcomes
  • LEGAL TERMS OF ART

Legal words should retain their legal technical meaning

  • Mowat: some words have a different meaning in a legal sense
  • SCHEME OF THE ACT

The meaning of the Act should be looked at in the context of the Act as a whole

  1. OBJECTIVE OF THE ACT/INTENTION OF PARLIAMENT
  1. Purpose Statement
  2. Title
  3. Marginal Notes
  • Added, not part of the legislation
  • Not conclusive, but they can be of some use (McIntosh dissent)
  1. Historical Roots (Heydon’s case)
  1. What was the common law before making the Act?
  2. What was the mischief and defect for which the common law did not provide?
  3. What remedy the Parliament hath resolved and appointed to cute the disease of the Commonwealth?
  4. The true reason of the remedy
  1. Intention of Parliament
  • Remedial: benefit conferring
  • Broad generous interpretation should be applied (Rizzo)
  • Ambiguities should be resolved in favour of the claimant (Rizzo, Merk)
  • Penal
  • Rule of construction: Interpretation should favour the accused (McIntosh majority)
  • Rule of construction only applies when real ambiguities are found (McIntosh dissent)
  • Regulatory
  • Interpretation should have a broad purposive approach (Merk)
  • ABSURDITY
  • If the language is clear and unambiguous, the plain meaning should be adopted no matter how harsh or absurd the result; Parliament has the right to legislate illogically (McIntosh majority)
  • Common sense must be used (Riddell)
  • Legislature does not intend to produce absurd results (Rizzo)
  • Ridiculous or frivolous consequences
  • Extremely unreasonable or inequitable
  • Illogical or incoherent
  • Incompatible with other legislature, or with object of legislature
  • AMENDMENTS TO THE LAW (READING IN)
  • Driedger says that minor amendments to the law are allowed to be read in when there is a drafting error that occurred
  • 3 drafting error types
  1. Manifests absurdity (McIntosh dissent)
  2. A traceable error
  • Suggested through history
  1. An obvious correction
  • Wording with provocation
  1. STATUTORY AND COMMON LAW RULES, PRINCIPLES AND PRESUMPTIONS
  2. INTERPRETATION ACTS
  3. Tense
  • BCIA s. 7
  • Legislation is to be read as “always speaking”
  • Legislative words are to be interpreted according to the meaning prevailing at the time of reading
  • Singular/Plural
  • BCIA s. 28
  • Singular may include the plural and vice versa
  • Definitions
  • BCIA s. 12 and 13
  • Definitions apply to the entire statute all to all regulations made under the authority of that statute, unless a contrary intention appears
  • Referential Incorporation
  • Pulling the provisions from one statute into another
  • If the provision in the secondary statute is repealed and replaced, then the change is ambulatory: the new replacement definition in the secondary statute moves over into the primary statute
  • If the provision in the secondary statute is simply repealed, then the old definition would survive for the purposes of the primary statute
  • Computation of Time Periods
  • General Rule
  • BCIA s. 25
  • The first day is excluded and the last day is included
  • Exception
  • Exclusion of both the first day and the last day
  • Triggered with the words “clear”, “at least”, or “not less than”
  • Holidays
  • Sunday is a holiday
  • Count all days including holidays, unless expressly stated in the legislation
  • If deadline or expiration falls on a holiday then the deadline moves to the next day
  1. COMPONENTS OF A STATUTE
  2. Title
  3. BCIA s. 9
  4. Title is considered to be a part of the statute
  5. Lane: title different from the object of the Act
  6. Committee of the Commonwealth of Canada:title supported object of the Act
  7. Preamble
  8. BCIA s. 9
  9. General statement of the object or purpose of a statute
  10. May be used for interpretation purposes, but not a part of the Act
  11. Anti-Inflation Act: preamble supported legislation
  12. Roach: preamble should be used with caution
  13. Purpose Statement
  14. Provision set out in the body of legislation that declares the principles or policies that legislation is meant to implement or the objectives it is meant to achieve
  15. Are part of what is enacted into law
  16. Signals legislative intent, and should be read as binding, broad and part of the statute (Young Offenders Act, National Farmers Union v. Potato Marking Council)
  17. Definitions
  18. Exhaustive?
  • Means: results in a statutory definition that’s exhaustive
  • Includes: results in a non-exhaustive definition
  • Headings and Marginal Notes
  • Headnotes and marginal notes are not a part of the enactment and must be considered to be added editorially for convenience
  • Schedules
  • Located at the end of a document
  • Clearly part of a statute and may be used for interpretation purposes, but they are given less weight than the text itself
  1. PRESUMPTIONS
  2. Uniformity of Expression
  3. Words used by Parliament are deemed to have the same meaning throughout the statute
  4. When different words are used in a statute they will be deemed presumptively to have different meanings
  5. Rule of Effectivity (The Presumption Against Tautology)
  6. All words in an enactment are put there for a specific purpose and one should not adopt an interpretation of a provision that renders any of the words redundant
  7. Mowat: Parliament must have meant something by using redundant phrases
  8. Riddell: legislature does not waste words, different words must be interpreted as having different meanings
  9. Rule of Construction
  10. A liberal or equitable construction permits a term to be reasonably and fairly evaluated so as to implement the object and purpose for which the document is designed
  11. McIntosh majority: courts should find in favour of the accused
  12. McIntosh dissent:should only be applied when real ambiguities are found
  13. MAXIMS OF INTERPRETATION
  14. The Principle of Associated Meaning (Noscitur A Sociis)
  15. Words take their meaning from the surrounding words
  16. McDiarmid Lumber: enables courts to understand the immediate context of the statutory words whose meaning is in dispute
  17. The Limited Class Rule (Ejusdem Generis)
  18. A general phrase will take its meaning from the list of the specific words that precede it
  19. The words must have some commonality and cannot exhaust the class
  20. Nanaimo City: assigning greater meaning to a phrase that has a list of specific items before it would run contrary to intent
  21. The Implied Exclusion Rule (ExpressioUniusEstExclusioAlterius)
  22. If the legislature had meant to include a particular thing within its legislation, it would have referred to that thing expressly. The legislature’s failure to mention the thing becomes grounds for inferring that it was deliberately excluded, exclusion is implied
  23. CR et al: tried to argue that what legislation said in the statute must have been all they meant; argument failed
  24. INTERNAL COHERENCE
  25. Scheme of the Act
  26. Read the words of the Act harmoniously with the scheme and object of the Act
  27. Horizontal Coherence
  28. The principles of interpretation that presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter (Bell Express Vu)
  29. Columbia River: differences in wording between statutes are presumed to reflect differences in the intended meaning or effect
  30. Mowat: cross-jurisdictional comparisons of statutes dealing with the same subject matter may be instructive
  31. Vertical Coherence
  32. The legal requirement that the provisions of an enactment must conform to higher level enactments
  33. If there is a conflict the higher level enactment prevails, and the provisions of the lower level enactment that are inconsistent are inoperative
  34. Applications
  • All legislation must be consistent with the Constitution and the Charter
  • Committee for the Commonwealth of Canada: Courts will prefer the interpretation which confirms that the provision is constitutional at the time of its application
  • R v. Sharpe: Presumption that Parliament intended to enact legislation in conformity with the Charter
  • Bell Express Vu, R v. Gomboc:should only promote Charter principles when there is an ambiguity
  • Federal laws prevail over Provincial laws
  • Human rights legislation is considered “quasi-constitutional” and is paramount if there is a conflict
  • Subordinate legislation must be consistent with their enabling statute
  • HISTORICAL CONTEXT, LEGISLATIVE EVOLUTION, AND LEGISLATIVE HISTORY
  • Historical Context
  • Facts existing at the time a statute was passed may be utilized
  • Legislative Evolution
  • Reference to previous versions of the same statute can assist in interpretation (McIntosh dissent)
  • Proposed and un-enacted provisions might aid in interpretation (Mowat)
  • BCIA s. 8: every enactment shall be construed as remedial
  • Exceptions
  • Declaratory amendments: simply declare or confirm what the law is
  • Housekeeping amendments
  • BCIA s. 37: tells the court not to presume that an amendment has necessarily effected a substantive change in the law
  • Legislative History
  • Can be useful in determining the statute’s purpose and scope (Reference Re: Firearms Act)
  • Materials that can be consulted as part of the legislative history
  • Hansard debates
  • House Committee Reports
  • Briefing notes
  • Alternative draft versions of the statute or proposed amendments
  • ADDITIONAL COMMON LAW PRESUMPTIONS
  • Crown Immunity
  • Statute enacted by government does not apply to government unless it clearly states that it does
  • BCIA s. 14: enactments ARE binding on government, unless it says otherwise
  • Presumption Against Extra-Territoriality
  • A legislature is presumed to enact a statute only in relation to persons, property, things or events that fall within the territorial boundaries of its legislative jurisdiction
  • If you travel out of Canada the laws of Canada do not follow you; same for Provincial laws
  • Presumptions of Legislative Intention
  • The court will adopt either a narrower (strict) or a broad (liberal) approach to interpretation depending on the subject matter
  • Property Rights
  • Legislation which interferes with a person’s property rights should be strictly construed in favour of the property owner
  • Whenever land is expropriated compensation should be paid
  • Criminal Law
  • Penal enactments should be strictly construed so that any uncertainty as to the meaning of the scope of the law should be resolved in favour of the accused (R v. Hasselwander)
  • Taxation Statutes
  • Strictly construed
  • Municipal Law
  • Strictly construed
  1. TEMPORAL ISSUES
  2. ENACTMENT/COMMENCEMENT
  • Enactment refers to the completion of the formal legislative process (Royal Assent)
  • Commencement refers to the date that the statute has the force of law
  • Once a statute is enacted, it may be referred to for interpretation purposes, even though it hasn’t commenced
  • There is a time lag between enactment and commencement in order for the government to lay the necessary groundwork
  • BCIA s.5 contains provisions to immunize against challenges that because the law had not commenced, it wasn’t valid
  • TIMING OF COMMENCEMENT/REPEAL
  • BCIA contains provisions relating to the specific time of day at which legislation will take effect on the commencement date or cease to have effect on the date of repeal
  • S.4(1): an enactment commences at the beginning of the day on which it comes into force
  • S.25: beginning of day is 12:01am
  • S.4(3): statute will cease to have effect at the end of the day on which it is repealed, 11:59pm (exception when it is repealed and replaced)
  • SUBSEQUENT CHANGES/TRANSITIONAL RULES
  • Expiration/deemed repealed

A statute is said to have expired when it no longer has any practical significance

  • S.4(4): a statute that has lapsed or ceased to have effect is deemed to be repealed
  • BCIA s. 35
  • Legislation dies
  • Amendment

May take the form of modifying existing language or adding new text

  • Common sense would suggest that the Legislature intended to make a change in the meaning of the statutesupport found in remedial sentence of s.8
  • BUT, BCIA s. 37(2) says that the amended law does not need to be substantively different
  • Alternatively, amendments can be:
  • Housekeeping
  • Declaratory
  • Substantive
  • Repeal

A statute or part of a statute ceases to have the force of law

  1. No Revival: BCIA s. 35(1)(a)
  • What is dead is dead
  • Does not revive the previous legislation or the common law
  • Courts should treat it as a new issue they have never seen before
  1. Lawful Acts Not Affected: BCIA s. 35(1)(b)
  • Acts that were done under repealed legislation continue to be legal
  1. Protection for Accrued/Accruing Rights: BCIA s. 35(1)(c)
  • A repeal does not affect a right or obligation acquired, accrued, or accruing under the repealed legislation
  • Despite repeal the right can survive
  • 4 things must occur
  1. Repeal
  2. Right or obligation
  3. Acquired or accrued
  4. Must have occurred under legislation that was repealed
  1. Offences: BCIA s. 35(1)(d)
  • Particular offences under a repealed legislation can still be considered an offence
  1. Proceedings: BCIA s. 35(1)(e)
  • If procedure has been started before legislation was repealed, it can continue under the dead legislation
  1. References: BCIA s. 35(1)(f)
  2. A reference in an un-repealed enactment to a repealed piece of legislation is read as a reference to the new form of the legislation (“the new enactment relating to the same subject matter”, if one exists)
  3. If there is no new form, such references are read as thought the legislation had not been repealed, “so far as is necessary to give effect to the un-repealed enactment”
  4. Repeal and Replacement

Where an enactment or a portion of it is modified by repealing it and replacing it with new provisions (triggers s.35 and s.36)

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