Principles of Our System - The University of Victoria Law ...



Law 104 – LLPFinal Exam OutlineZSDec. 6, 2012Table of Contents TOC \o "1-3" \h \z \u Principles of Our System PAGEREF _Toc288770189 \h 1Approach to Fact Pattern PAGEREF _Toc288770190 \h 4Driedger’s Modern Approach PAGEREF _Toc288770191 \h 5BCIA Summary PAGEREF _Toc288770192 \h 10Problems with Meaning PAGEREF _Toc288770193 \h 11Issues with Driedger’s Approach PAGEREF _Toc288770194 \h 12Ruth Sullivan, “The Plain Meaning Rule and Other Ways to Cheat at Statutory Interpretation” PAGEREF _Toc288770195 \h 12Stephane Beaulac and Pierre-Andre C?té, “Driedger’s ‘Modern Principle’ at the Supreme Court of Canada: Interpretation, Justification, Legitimization” PAGEREF _Toc288770196 \h 15Temporal Issues – Sullivan’s Methodology PAGEREF _Toc288770197 \h 17What are the temporality rules and their underlying values? PAGEREF _Toc288770198 \h 18Vertical Coherence and Charter Values Debates PAGEREF _Toc288770199 \h 19Issues with SL/AI PAGEREF _Toc288770200 \h 20Cases PAGEREF _Toc288770201 \h 21Principles of Our SystemResponsible 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. corresponding obligations of government – provide opportunities for scrutiny, ?account for its action before Parliament; standing orders = codification of these rights & obligations; rules that govern?parliamentary procedureMinisterial Responsibility = obligation of a cabinet minister to explain/defend policies carried out in their nameconstitutional law & parliamentary traditionS. 54, CA, 1867 – gives exclusive right of cabinet to introduce measures re: raising/spending public revenuerequirement that legislation must originate in the elected House of Commons combines strong executive authority & democratic accountabilityMPs (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 lawSeparation 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 ProcessStage 1 - Creation of Legislative PolicyPolicy 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 LegislationDrafting Team – ministry’s instructing officer, ministry solicitor, assigned Legislative CounselInstructing Officers – aka ‘policy analysts’; link between the sponsoring ministry and the legislative drafterMinistry 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 LawTypes of BillsPublic – 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 orderReport 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 Actdate of Royal Assent (Interpretation Act) unless otherwise indictedmay be retroactiveBill 1 – Special CaseAn Act to Ensure the Supremacy of Parliament introduce by 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 PatternIssue – 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 ActsAnalysisConclusion – mini-conclusions and give decisionIt 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 Columbia Interpretation 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 Approachtext of the provisiongrammatical 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 meaningplausible meaningpunctuation – 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 meaningscheme analysis/internal coherence (Rizzo)schedules (Houde v Quebec Catholic School Commission)bilingual/bijural (Medovarski) – 2 step methodologylook for a shared, common meaning the result is often to get to a narrower meaninginvestigate through Driedger approach whether the common, shared meaning accords with legislative intentif it does the meaning is correctif it does not the meaning is whatever does accord with legislative intentthe 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 holdswhat if there is no clear interpretation of one language?where you have a clear meaning in both, go for the shared meaningwhere both are unclear, still go for the shared meaningwhen one is clear and one is ambiguous, go for the clear meaningvertical coherencethe hierarchyconstitutioninternational 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 Rightsfederal actfederal regulation (and other subordinate legislation)provincial human rights code/documentsprovincial actprovincial regulation (and other subordinate legislation)common lawpresumption of interpretation in line with Charter (Sharpe; Bell ExpressVu)horizontal coherence, especially where pari materia (Bell ExpressVu) (Columbia River & Property Protection Society – showed that the presumption can be rebutted)avoiding conflicts between enactmentsexpress indicators – legislature telling us which is to prevailimplied indicators (Fraternite de Policiers)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 rulespecificity – specific preferred over generalspecificity trumps timingpurpose/object (Merk)preambles (Re Anti-Inflation Act) – BCIA s.9but preambles should be given less weight than the actual provisions ( La Forest J. in McVey v United States of America)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.9consequential (Merk)public policyavoid of absurd/anomalous resultscross-jurisdictionalexpert opinion previous cases (majority and dissenting)expert testimonies (Shaklee) – to be given less weighthistory, legislative history (don’t give substantive weight, Reference re: Firearms Act) and legislative evolution (Merk)general history (Canada 3000) counter to general history can be the “always speaking” clause in BCIA s.7Hansard (Rizzo)House Committee Reportsfailed bills (CHRC)alternative drafts of the billheadings and marginal notes (Lohnes; Basaraba; Wigglesworth) – headings more weight, especially since BCIA s.11 expressly says marginal notes are not part of the enactmentlegislative evolution/subsequent amendments or previous versions (Re SFU) – counter to this is BCIA s.37 (not every change is substantive)special conventionspresumption 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 legislationpresumption against extra-territoriality – the right to establish extra-territorial legislation is restricted to Parliament (Statute of Westminster, 1931)presumption relating to special subject areasindividual rightspersonal liberty, security or well-beingfreedom of commerceaccess to the courtsrights 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 heardin criminal law, everyone has a right to procedural fairness – how much of that procedure fairness can be applied elsewhere?property rights (main at issue in land rights cases) – presumption that courts should not read the legislation at taking property rights awaymunicipal zoning bylawsexpropriation – no duty to compensate taking of land at common lawlegislatively, governments have bound themselves to compensatenow, 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”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 presumptionserious consequences of a criminal conviction for liberty of personneed to give all citizens “fair notice” of what is and is not criminalhuman right statutes – not only do human rights legislation trump ordinary statutes, the way we read these statutes must be especially broad (Jubran)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)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)rule of effectivitypresumption against tautology (CHRC; Riddell) – counter against this is “scattergun approach” in basket clause-like provisionspresumption of uniformity of expression (Schwartz)maxims of interpretationprinciple of associated meaning (McDiarmid Lumber)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 opinionsexecutive/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) – see ss.35 & 36 of BCIAtemporal operation = period during which the rules embodied in legislation are legally effectivetemporal application = range of facts to which legislation may appropriately be appliedunderlying valuesfairnessrule of lawprotection of (property) rightssources = Interpretation Acts; home statute’s transitional provisions, if any; common lawpresumption against retroactivity the strongest presumption (MacKenzie)exceptionsbeneficial legislationlegislation designed to protect publiclegislation 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 factorsdegree of unfairnessimportance of the policies implemented by the new legislationimpact that limiting or delaying its application would haveany textual or other evidence of legislature’s intentdates of commencementtransitional 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; declaratorypreference 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 legislationregulations – 2 possible meanings BCIA, s. 36(1)(e) and BCRAin a very wide sense, it includes all the instruments arising out of the exercise of an Administration’s regulation-making powerin 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 personsorders – generally of a more limited scope than a regulation; it usually affects a rather small number of personsdecrees – used exclusively in Quebec, decrees are very specific in nature, in that they are the instrument by which the province defines working conditions applicable to employees and employersrules – typically used in relation to rules of procedure that apply in courts or tribunals and that dictate the procedures that must be followed in law suits, appeals or administrative proceedingstariffs – quantitative and numerical norms used in regulating some field of the country’s economic activityby-laws – rules or norms adopted by corporations to provide a framework for their members or to govern their affairs (most often made by municipal corporations)letters patent – type of legal instrument that can be used by an authority (such as a Minister or the Lieutenant Governor in Council) to create a corporation and authorize it to engage in particular activitiesBCIA SummaryBCIA s. 11 – no marginal notesBCIA ss. 35 & 36 – repeal/replace ruless.35(1) – repeal(a) repeal does not mean for common law to step in – no revival of the common law(b) does not affect the previous operation of the enactment repealed or anything under it(c) have to show that a right was acquired, accrued, accruing, or incurred under the enactment basically if you had a right yesterday, you shouldn’t lose it todayBCIA s.41 – deals with subordinate legislation – has force of lawBCIA s. 44 – referential incorporation*be careful of repeal/replace/amendments – see if definitions survive in the new ActProblems with MeaningAmbiguity: Equivocation: two different meanings, or more – “perhaps the most serious disease of language is ambiguity in the traditional sense of equivocation” Residence can mean two different things, etc.Syntactic ambiguities: Unclear within the context which terms are modified by an included word or phraseContextual ambiguities: Caused not by communication itself but by other factors, for example, the communication may contradict or be incompatible with another communicationSource of ambiguity may be the different cultural practices of sub-communities within the audience – diversity of experienceCommunication breakdown may also occur where the speaker/writer assumes that the audience uses words and phrases in a way that differs from that used by the speaker/writer – co-ordination problemsTemporal gap: may occur between the moment at which the communication is “sent” and the moment at which it is received – between the two moments new circumstances may have arisenElliptical Communications:Speakers/writers make assumptions about their audience and omit mention in their communications of factors that should be taken for granted, assuming that the gap will be filledImproper bivalence:Speakers/writers may assume that the subject matter may be analysed according to bivalent criteria (true/false) while the experience of the audience may be one of gradations on a spectrumOver-inclusiveness:Classification used by a rule-maker may be too broad to achieve his or her aimsUnder-Inclusiveness:Classification used by a rule-maker may be insufficiently general to allow for achievement of his or her aimsVagueness:A rule-maker may use general terms assuming that the audience will use particular criteria to render them more specific – assumption may not be well-groundedMiscommunication: A speaker may misspeak; a writer may unintentionally omit or include a word or phrase; a speaker/writer may misuse a word or phraseIssues with Driedger’s ApproachRuth Sullivan, “The Plain Meaning Rule and Other Ways to Cheat at Statutory Interpretation”Introduction – doctrines of statutory interpretation do not fully or accurately reflect what judges must do to resolve interpretation disputes, but they do generate a reassuring rhetoricBasic Assumptions2 key assumptions – 1) at least some of the time the meaning of the text is “plain” and not susceptible of doubt and 2) legislatures have intentions when they enact legislation and these intentions are knowable by courtsthese assumptions tell us that interpretation is rooted in something definite – the text – and this idea supports the view of rule of law, which is prized in Canada so even though these assumptions are attacked, any attack must proceed with careThe Plain Meaning Rule – if the meaning of a legislative text is plain, the court may not interpret it but simply apply it as written; the court may resort to the rules and technique of interpretation only if the text is ambiguousAdvantages of the Plain Meaning Rule#1 – in theory, it creates a zone of certainty in that the courts will not trick you at the last minute by using some unsuspected implications in the interpretation – the law is certain and gives fair notice to everyone#2 – supports formal equality since the plain meaning is the same for everyone and this ensures that the law will be applied the same way for everyone, to the same effect#3 – it can be used as an apparently neutral proxy for strict construction it is no coincidence that the plain meaning rule is applied most persistently and enthusiastically to fiscal legislation, with penal legislation running a close secondFidelity to Legislative Intentmany judges prefer focusing on the intention of the legislaturelegislative intent is discovered generally through inference – and to draw inference of this sort even competent speakers must rely on a wide range of contextual factorseven if a text has a clear meaning, the intentionalist judge would still be obliged to consider other factors – intentionalism gives top priority to the meaning a statute was intended to have“Intentionalism further assumes that the speaker is aware of the context in which the audience will carry out its interpretation and ensures accurate communication by anticipating the inferences the audience will draw when reading different combinations of words in that context”doctrine of fidelity to legislative intent has 3 more corollary doctrinesoriginal meaning ruledoctrine of presumed intentdistinction between interpretation and amendmentAdvantages of Fidelity to Legislative Intentexplains the role of courts in interpretation without challenging popular conceptions of democracysupports the positivist view of law – law is one thing and not-law is something else entirely and we can easily tell the two apartwhat legislature enacts is lawlegal values, preferred policies, judicial assumptions are not lawThe Promise of Certainty – upon enactment, the law is fixed once and for all even when the meaning is not plains, judges are constrained by the fixed intention of the legislatureThe Realityjudges “cheat” judges “take their own answer…and try to pass it off as someone else’s”this is a form of misrepresentationwhen judges invoke the PMR, they deny responsibility for the outcome by saying the text made them do itwhen judges invoke the doctrine of legislative intent, they transfer responsibility to the legislaturethese doctrines discourage judges from discussing the real basis for outcomes in statutory interpretation disputesthe reason why judges apply these doctrines is for reassuring rhetoric – they provide credible resolutions to interpretation disputes without upsetting anyoneHow to Interpret a Text When Pretending Not ToPMR Trick #1 – artful text selectionthe first step in applying the PMR is to identify the text to be interpreted this sometimes involves choosing between alternative texts which favour different outcomes and when this happens, the outcome of the dispute cannot really be blamed on the meaning of the text since it actually depends (at least in part) on the initial choice of textthis suggests that there may be more to reading a text than proponents of the PMR would acknowledgePMR Trick #2 – elastic co-texthow much co-text one considers affects the outcome of the interpretation, yet there is no rule governing how much co-text to include and it is much at the discretion of judgesthe PMR cannot provide certainty if the co-text is manipulated in this wayPMR Trick #3 – the shifting meaning gamethe courts have many different ways to refer to “meaning” – literal meaning, common meaning, ordinary meaning, dictionary meaning etc.when judges use the expression “plain meaning” they could be referring to any of the abovebecause the same vague terminology of “plain meaning” is applied indiscriminately to all the different possibilities, the choices being made are not apparentPMR Trick #4 – it must be plain to you if it’s plain to methe distinction between plain and ambiguous requires judges to determine whether a text can plausibly bear more than one meaning, but what is “plausible”?sometimes both the majority and dissenting will reach different conclusions based on the PMR, but clearly only one interpretation can be “plain”judges do not try to explain why they think one interpretation is “plausible”PMR Trick #5 – the inherent meaning illusionthe PMR is based on the fundamental proposition that once a text is written, it “contains” a meaning that does not change, but remains stable regardless of the context in which the text is read and regardless of who reads itbut the context cannot be fixedreaders across time will ultimately bring a different contextual background to the text, which means they may ultimately interpret the “plain text” differentlyPMR Trick #6 – abandoning ship PMR requires that judges apply it unless there is ambiguity, but case show that judges sometimes abandon this rule when the interpretive outcome is just not acceptable (although they try to do it discretely)PMR Trick #7 – courts may rely on non-textual evidence to support the plain meaning interpretation, but cannot use it to contradict or vary the plain meaning of the textHow to be Faithful to the Legislature Without Giving Up your FreedomFLI Trick #1 – presume that nothing worth mentioning has changedthe context in which a statute was enacted may bear little resemblance to the context in which it is being interpretedthis problem is avoided in practice by presuming that nothing has changed, and the burden of proving a change falls on the person alleging itthis approach allows the courts to carry out the work of adapting ageing statutes to changing circumstances without having to give up the advantages of a fixed legislative intent – except the presumed absence of change is not trueFLI Trick #2 – more meaning gameson occasion the original meaning rule is expressly invoked and relied onbut sometimes the “original meaning” refers to the original connotation, and sometimes to the original denotation – picking between the two can have consequences to how a statute is interpretedFLI Trick #3 – distinguish sloppy drafting from legislative errorsometimes when there are errors in the statute, the judges can choose to attribute it to the legislature or to the drafterif it is the drafter’s fault, the courts can, in effect, change the wording into what the legislature really intendedbut if it is the legislature’s fault, then FLI requires that the courts do nothingFLI Trick #4 – presume that legislature wants what you wantDriedger’s modern approach – for him, judges do not make or even interpret laws, they construct itbut this implies that the intention of Parliament is deemed to include everything the courts care to impute to Parliament, so long as it does not contradict what Parliament actually saidwhy did Driedger do this? he had no choice sometimes the courts really cannot find legislative intent from evidence or even from non-binding evidence like Hansard – so sometimes the court has no choice but to make something upWhat Should Be Done?we should acknowledge that legislative text and intentions are incomplete sources of law and we should focus on what we can reasonably demand from our interpretersthe democratic illusion – our elected representatives are not the only sources of law, bureaucrats, administrators, technicians, international conventions are all sources of law not coming from our elected representativesdemocracy is better defined as government in accordance with a constitution of which an elected legislature is one of several necessary institutions it is not the only part of democracythe resolution of interpretation is itself highly democratic – the subject is allowed to make arguments and participate directly in the law-making processwe must reject the idea that if courts are not bound by some doctrine then they can do whatever they like – they are still bound by legal values and they need to justify their decisions in a legally acceptable way (legal norms)Stephane Beaulac and Pierre-Andre C?té, “Driedger’s ‘Modern Principle’ at the Supreme Court of Canada: Interpretation, Justification, Legitimization”first use of the modern principle in 1984 in Stubart Investments Ltd. v. The QueenSullivan wrote 3rd edition of Driedger’s book which changed the “modern principle” to the “modern rule”Driedger’s quote is used in all areas of lawBC is the province that by far uses the method most, with Quebec being lastthe “modern principle” has been utilized by the courts to fulfill a rhetorical function – to explain and justify in objective terms the interpretative decisiona secondary and less used function is to provide an outline of methods that guide judges in the construction of statutes (it is argued that Driedger intended the latter but the SCC has given higher importance for the former function)his quote is overwhelmingly used to justify interpretative decisions in an attempt to legitimize the courts role – courts want to appear neutral and merely voice the intent of Parliamentevidence of this intent is seen when courts use Driedger’s wordings in the 2nd edition instead of Sullivan’s in the 3rd, even though Sullivan’s expressed the contemporary methodology in a way which reflects the current practice much better the 2nd edition is favoured by the SCC because it is more convenient in terms of legitimizing judicial decisionsthe court’s conception reflects the traditional view – that the one and only objective of legislative interpretation is to ascertain the legislative willSullivan writes that the interpreter should be mindful of the consequences of the proposed interpretation and suggest that the question of whether or not a given interpretation produces a just and reasonable outcome is as legitimate as asking the collective mind of Parliament1984 marks the beginning of an era of apparent judicial restraint, as if it wanted to downplay the importance of the policy-making role it has to assumesome problems with formwords have been taken out of their context, and this distorts their meaningex. “modern principle” by itself seems to suggest that it corresponds to contemporary notions of interpretation, but it actually only modern in relative to the other rules Driedger refers to, which hare the Mischief Rule, the Literal Rule, and the Golden Ruleex. “there is only one principle or approach” by itself suggests that the “modern principle” says all that needs to be said about the appropriate approach to interpretation, but Driedger only meant that there is one approach instead of 3 approaches (listed above) and it does not follow that this approach encompasses all that needs to be saidthe wording is repetitive and wrongly places the intention of Parliament on the same plane as the meaning of words, the scheme, the object the latter are all means by which such an intent is determinedalso, the criteria listed is do not all have to be met, they are only factors that need to be consideredsome problems with the substancethis formulation places greater emphasis on the idea that the meaning of the act does not result solely from the usual meaning of the words, but it is difficult to reconcile such a statement with those found in other decisions of the SCC which use the PMRthe “modern principle” provides a gross over-simplification of the complex process of interpretation while the central role of this construct is statutory interpretation, fidelity to intent is very far from being the one and only value involved in determining the meaning of statutesa lot of the times, interpretation relies on considerations of fairness, predictability and stability of law, previous decisions, authorities, and policy considerationsprinciples of a “fair, large and liberal construction” or a “strict construction” are ignored in the quotefundamental flaw of the approach is that it is centered on a theory that presumes interpretation is about finding something that is “already there”although this approach is actually outdated, it remains becauseit is a suitable interpretation strategy for the simpler casesbut the theory is much less useful in hard cases ex. where law is ambiguous or vague, under/over-inclusive, where there are circumstances not anticipated (such as in Harvard College – dealing with genetic engineering even when the Patent Act was written in 1869 the real reason for interpretation was for policy, but the judgment made it look as if it was based on legislative intent)allows judges to seem like there are merely mirroring the will of the elected assemblyat most Driedger’s approach is a good starting pointTemporal Issues – Sullivan’s Methodologyidentify CIF dateissue identification – what triggers the law’s application?situate facts on timelineask whether factual elements arecomplete retroactive or retrospectivepresumption will apply unlessrebutted, orif retrospective presumption at issue, law is procedural, benefit-conferring, or designed to protect the publicbenefits-conferring ≠ benefits for everyone, and no burden remember the goal of everything in statutory interpretation is legislative intent, and legislature is free to choose to redistribute wealth/services to benefit one group at the net expense of othersprotect the public is a narrow exceptionif rebutted, vested rights presumption may applyif vested right, is it rebutted?ongoing law is immediate and is unproblematicbut vested rights presumption may applyis there aright at issue?has it vested/accrued or is it accruing? (Drikanian)tangible and concrete?sufficiently constituted?is result inevitable? have all conditions precedent been satisfied? (Scott) – for a right to be accruing, it is a high thresholdconsider degree of surprise and unfairnessif vested right, is it rebutted?not yet started law is immediate and is unproblematicbut vested rights presumption may apply (both statutory and vested rights)if vested right, is it rebutted?degree of fairnessdegree of surprisewhether either unfairness or surprise is necessary for law to achieve its goal? (need to think of competing interests and balance them)remember thatpresumption against retroactivity is strong, but other presumptions are weakrebuttal may be express or impliedstatute may expressly indicate that the law is to have retroactive effect = clear rebuttal to presumption against retroactive effectimplicit presumption – using statutory interpretation methods to discern whether legislature intends to rebut the presumptionnote that vested right presumption, retroactive/retrospective presumption are not mutually exclusive you can try all of themWhat are the temporality rules and their underlying values?introduction: temporality rules refer to rules about immediate, retrospective, retroactive, and prospective application of the lawprospective and immediate application are not sources of controversy because the underlying temporal values of fairness, ruled of law, and protection of rights are not at issueretrospective application somewhat engages these values, and retroactive application is the most controversialthe value of fairnessone reason why retroactive and retrospective application is frowned upon is because it is unfair for people to be responsible for laws they did not know about, or laws that were not in existence at the timenot only is the law unfair for the person for whom it applies to, it might be unfair for others as wellex. McKenzie – court decided that it would be inappropriate for the legislative act at issue to be applied retroactive because it would be unfair for the appellant to reap the benefits of what others contributed in the pensions funddifficult to trust laws that change retrospectively; can’t change behaviour in timerule of law certainty; predictability; reliance; stability; security; rationality; formal equalityanother underlying value of temporal rules is rule of law – the idea that people should know the rules by which they are governedfor ex. – it would not be right for legislature to enact a law today stipulating that all taxpayers who handed in their tax forms in late will receive a $1000 penalty for each month past the due date, applicable from 2005 onwards immediate application would not be an issue because people today would know of the law and would be able to prepare to hand in their forms on time this year, but those who handed in their forms late in 2005 to 2011 would argue that this enactment violates the rule of law because they did not know in 2005-2011 about this law, and that if they had known about it they would have made an effort to hand in their tax forms on timeprotection of rightsthe issue of protection of rights may arise if the application of the law is immediate or prospectiveScott is a good example of why protection of rights issues may come upin that case, the doctor had taken many steps towards getting his name back into the registrar, like filling in the application and depositing money with his lawyer, who kept it in a trust fund while negotiations with the university were occurringthe doctor, in other words, was very close to getting his name back into the registrar, and would have done so if legislature had not enacted a new law 4 days before the application was completed and 15 days before it was submittedit would seem unfair to force the doctor to follow the new law, in which he would have to take steps similar to what a newly graduated medical student would need to take, to get his name back into the registrar – a much more onerous processthe court decided that he had an accruing right and that he should not have to follow the new lawthe Scott case therefore demonstrates that there are some rights that legislature may want to protect from immediate or prospective application of lawsVertical Coherence and Charter Values Debatesthe Charter values debate: when you are interpreting ordinary legislation, vertical coherence tells us we need to align that ordinary legislation to the Charterwhat does that mean methodologically? – 2 optionsevery step of the Driedger analysis must favour Charter values ex. CCC (1991), Sharpe (2001), Tse (2012) applying the Charterat the end of the analysis, if there is still ambiguity, then favour the interpretation most in line with Charter values ex. Bell ExpressVu (2002), Gamboc (2010) consulting the Charterthese methods engage institutional roles very deeplyBell ExpressVu and Gamboc says not to do option 1 because otherwise, courts will be stepping on the institutional roles of legislature/Parliament if we always favour the Charter, we never allow the possibility that the legislature intended to go against the Charter (what would be the point of learning the test for constitutional validity?) – Bell ExpressVulegislature would never be read as violating the Charters.1 of the Charter recognizes that legislature/parliament might want to violate Charter provisions, and under certain circumstances it can do soJustice Iacobucci wants to endorse option 2 (Bell ExpressVu)option 1 upsets the balance of institutional rolesalthough the court favours the growth of the common law with the Charter, the court should not do the same thing with statutory interpretation if it is to respect the legislative branchso holding common law to Charter values at every step is okbut doing the same to statutes is upsetting institutional rolespara. 65 – option 1 never allows an outcome that says government violated the Charter this a problem because the court is not giving legislature the ability to violate the Charter and then justify the violation under s.1 of the Charterconstitutional framework for validity testing is made redundant and legislature’s ability to justify its actions is lostthe counter to this argument is: is this such a severe lost?comes down to a personal preferencepara. 66 – Iacobucci thinks option 1 would pose a severe problemIacobucci also says that if courts go with option 1, it is going to give incentive to legislatures to add wording of why something can be Charter-justified in the act – and then courts will have to interpret the justification this is just too much tedious workapplying non-domestically implemented international law: Baker – applies Convention of Rights of Child to interpret Immigration Actthis is also an institutional problemthe dissent: the Convention of Rights of Child was not implemented in Canadian domestic lawi.e. not domestic lawthe institutional role problem – the judiciary invoking unimplemented international treaty that the Canadian government has chosen not to implementexecutive branch signs treatyParliament implements the treatyhere, the court applied a executive signed but not Parliament-approved treatyJustice L’heureux-Dubé says that the fact that Canada has brought in the Convention on the Rights of the Child – makes the decision that interests of the children must be demonstrated in the reasoning on humanitarian and compassionate grounds for deciding immigration decisionsinstitutional rolessigned treaties must be enshrined into Canadian law after a treaty is signed, it needs to be debated in Parliament if it is to be brought into domestic lawJustice Iacobucci (dissent) is concerned that the judiciary branch is going to an unimplemented law in Canada – proper balance of institutional roles is not being respectedIssues with SL/AIPros of more SLCons of more SLprimary legislation cannot set out everything – too much time – need to work quickly in the interest of public legislators should devote time to principleslegislature and they are not experts – expert opinion needed to know how law will practically workprimary legislation needs to be accessible, practical and manageable – cannot be bombarded with too much detailsometimes do not know how law will play out until it is in effect – leave to SL to work things out later; need for flexibilityParliament/Legislature should only be working out most important stuff – the skeleton of the lawthe diminution of the power of Parliament in an era of strong executive government why are wartime practices becoming the norm?SL do not receive same legislature and media scrutiny – no 3 readings, no debate – where is the democracy?checks against Canadian Bill of Rights and Charter, but checks depend upon commitment from executive to make them work no reason to believe there are any subordinate legislation committees in the ?country with enough profile to draw attention to excesses/misuses re: ?regulations and other instruments not all SL have procedural requirements like regulations do (BCRA only covers regulations) – rule of law concern, how can we be governed by rules we do not know of? G20 and PWPA Act example – i.e. concerns with accessibilityeasy to put SL in place, yet takes long time to challenge it on constitutional grounds unfairwhether or not the subordinate legislation gets published is up to discretion of registrarPros of more AICons of more AIeven SL cannot spell out everythingensures uniformity of application helps rule of lawdirectors need some flexibility to functionParliament/Legislature should not spend time hammering out the tiny functional details of our lawsafter setting out the skeleton of the law, allowing flexibility for directors to make AI allows for local conditions – adaptabilityno procedural requirements at all – no democracydoes not even need enabling clause – if you cannot connect the policy to the law, there is no way to have the policy to go through judicial review – no rule of law (Baker) it is extremely difficult to challenge AIensure the transparency of decision-making practice and policymay have people making decisions that do not fully consider human rights/Charter/fairness issues Baker – junior administrative worker took the case lightly, did not think about the kids etc. – there are policies governing what these junior workersCasesR. v. McIntosh (1995 SCC)Facts: Basile Hudson was stabbed to death by the respondent; the respondent originally approached the deceased with a knife, and thus, ‘provoked’ the altercationIssue: Whether section 34(2) is a defense to those who murdered a person and provoked the altercation?Lamer J:“Golden Rule of literal construction”: PMRS.34(2) is clear, and in isolation, is clearly available to an initial aggressorpenal provisions Marcotte v. Deputy Attorney General for Canada (1976)(SCC): “if real ambiguities are found, or doubts of substance arise, in the construction and application of a statute affecting the liberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced”; where two interpretations of a provision which affects the liberty of a subject are available, one of which is more favourable to an accused, then the court should adopt this favourable interpretation“The fact that a provision gives rise to absurd results is not, in my opinion, sufficient to declare it ambiguous and then embark upon a broad-ranging interpretive analysis” – the “reading in” element is an illegitimate exercise because it is the legislature who is supposed to write the law, and judges merely interpret – judges should not add words that are not present in the statuterule of law approach – Lamer wants certainty, rule of law means laws have to be clear for how can we obey the law if it is not clearMcLachlin J. (La Forest, L’Heureux-Dube, and Gonthier JJ dissenting):“No modern court would consider it appropriate to adopt that meaning, however “plain”, without first going through the work interpretation”absurdity that an accused whose conduct is the more serious has the broader defenceParliament can legislate illogically if it so desire, but the courts must impute a rational intent to Parliamentabsurd result of interpretation would allow a person who wished to kill another and escape punishment to deliberately provoke an attack so that he might respond with a death blowpenal principle –only should be used when there is REAL AMBIGUITY no real ambiguity in this sectionlegislative history shows there was drafting error Re Rizzo & Rizzo Shoes (1998 SCC)Facts: Company was forced into bankruptcy by creditorsIssue: Appeal by the former employees of a now bankrupt employer from an order disallowing their claims for termination payPrincipleDriedger: “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.”S.10 of the Interpretation Act: Every act “shall be deemed to be remedial” and directs that every act shall “receive such fair, large and liberal construction and interpretation as will be ensure the attainment of the object of the Act according to its true intent, meaning and spirit”para. 24-26: looks at other cases to look at purpose of this act purpose is to protect employeespara. 27-29: absurdity – that junior employees will have termination and severance pay and yet senior employees get hit with the bankruptcy problem it is arbitrary, so it is not a good interpretationpara.30-32: legislative history – the transition provision would be meaningless if it did not mean to include bankrupt employers (the transition provision has a 6 month exemption to say that those who went bankrupt 6 months before the act do not have to follow s.40a, so they do not have to pay employees)para. 34-35: Hansard – should not rely heavily, but courts do look at itpara. 36: principle of benefits conferring legislation (related to the object of the legislation) the judge uses scheme analysisSection 17 of the Interpretation Act: “[t]he repeal or amendment of an Act shall be deemed not to be or to involve any declaration as to the previous state of the law”Merk v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771 (2005 SCC) (CJ Mclachlin) (3-38) Facts: Merk inquired internally about another employee who was over-charging the company for expense and was fired as a result of her inquiryIssue: Whether “lawful authority” refers to a private employer (i.e., private authority)Principlepurpose/goal of the act – about loyalty vs. public interest/responsibility to report fraudulent behaviour going up the ladder does not blow the situation out of proportion and thus is staying loyal to the firm, and it also protects public interest because wrongdoing is being addressedgrammatical and ordinary meaning – favours a definition of “lawful authority” that includes private authorityscheme analysis – the act is essentially employee protection legislation (here the court is not clearly delineating the difference between the purpose analysis and scheme analysis this is more appropriate as purpose analysis)public policy considerations (picking the interpretation that leads to good public policy) – cross-jurisdictional comparison looking at other country’s or other province’s acts/statutes to support analysis; type of consequential reasoningavoiding absurd/anomalous results – does not make sense that the person who choose to blow the situation out of proportions and goes to an outside authority gets more protectionlegislative history – everything that was a form of the law is legislative evolution – supports including up the ladder approach remember to distinguish legislative history from legislative evolutionCHRC v. Canada (AG) (2011 SCC)Facts: Mowat filed a human rights complaint and the Tribunal awarded her compensation for suffering and also awarded her legal costIssue: does s.53(2)(c) or (d) in the CHRA give Tribunals the authority to award legal costs?LeBel and Cromwell JJ.::presumption against tautology – repetitions of words is not an accident and serves a purpose “that the person compensate the victim…for any expenses incurred by the victim as a result of the discriminatory practice” appears twice to show specificity as to when the victim is to be compensated and for whattechnical meaning/legal jargon – “costs” is a legal term of artlegislative history – Parliament is aware of the legal meaning of the term “costs” and purposely left it outCommissioner’s opinion/executive’s opinion – history of Commission’s arguments/actions show that they know what the legal meaning of “costs” isparallel jurisdiction – other legislation in other provinces/territories show that the word “costs” is used consistently when the intention is to confer the authority to award legal costs, and so if Parliament wanted to add the power award costs, it would have explicitly done sohuman rights statutes are quasi-constitutional (above the other regular statutes) and should be given a broad interpretation, but this consideration cannot trump everythingR. v. Lane, Ex p. Gould (1937 NBSC App. Div)Facts: argued that the Act invaded the Province of criminal law and that the title was evidence of this intended infringement. Issue: Is the Act unconstitutional? – whether provincial law forbidding the ownership of slot machines is criminal lawPrinciple: titles are part of the actCommittee for the Commonwealth of Canada v. Canada (1991 SCC) Facts: respondents engaging in handling out information in a bid to recruit new members; were asked to stopped by RCMP because political activities were prohibited under ss.7(a) and 7(b) of the Government Airport Concession Operations RegulationsIssue: does ss.7(a) and 7(b) of the Government Airport Concession Operations Regulations prohibit political activities?Principle: both short and long title can be used to discern purpose of statuteRe Anti-Inflation Act (1976 SCC)Facts: SCC decided the question of whether or not the Anti-Inflation Act fell within the Parliament of Canada. Considerable reference to the statute’s preamble was made, among other things. Specifically the court had to determine if the Act governing inflation fell under Parliament’s auspices to legislate matters of “serious national concern” under the “POGG” power of Canada as found in the Constitution Act. Issue: If Act fell under Parliament’s auspices to legislate matters of serious national concern. Principle: The validity of the Act does not fall or stand on the preamble, but it does provide a base for assessing the gravity of the circumstances which called forth the legislation. legitimate source of contextual approach to determine legislative intent: s. 9 of BCIA and s. 13 of federal statute states that preambles should be included in the interpretative approachR v Lohnes (1992 SCR) Facts: Mr. P was given to collecting equipment on his premises and running motors which made loud noises, this bugged L, it disturbed him so much that on two occasions a year apart he went onto the veranda of his house and shouted obscenities at Mr. P. On the second occasion, L concluded his oration with the assertion that he would shoot Mr. P if he had a gun. L convicted that his conduct in itself constituted a disturbance within s. 175(1)(a) of the Code and it was also found that Mr. P was disturbed by the impugned conduct. Issue: what constitutes a public disturbance under s. 175(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46?Principle: headings and preambles may be used in interpreting ambiguous statutesR v Basaraba (1975 Man. QB) Facts: Basaraba charged with compelling people to transfer land and that the people had a lawful right to abstain from doing so; heading preceding s.381 of CC says “Breach of Contract, Intimidation and Discrimination Against Trade Unionists”Issue: does s.381 only apply to trade unionists?Principle: marginal notes cannot be used in interpretation, but headings may be used sometimes and only when there is a doubtful expression in the provisionR v Wigglesworth (1987 SCC) Facts: Kerr brought into the RCMP for a breathalyzer test where he met the appellant. Appellant started questioning Kerr. After 3-4 slaps, Kerr admitted that he was driving. Suffered injuries as a result of the assault. The respondent has admitted that the appellant committed a common assault as defined in the Code. Charged under both the Code and the RCMP Act. Issue: whether the appellant had been “charged with an offence” within the meaning of s.11 (Charter goes against double jeopardy – cannot be charged for same offence twice)? (sub-issue); whether the appellant’s conviction of a “major service offence” under the Royal Canadian Mounted Police Act, R.S.C. 1970, c. R-9, precludes subsequent proceedings under the Criminal Code for the same misconduct (main issue)?Principle: marginal notes are weaker in importance compared to headings (at least in the Charter), but they nonetheless must be considered, keeping in mind that the extent of their influence will depend on the case; headings are above marginal notesR v Jaagusta (1974 BC Prov. Ct.) Facts: A peace officer stopped the vehicle driven by the accused and told the accused he was searching for prohibited drugs under authority of the Narcotics Control Act…After searching the vehicle, he attempted to search the person who reacted by pushing the peace officer away. At trial, officer admitted he had no grounds to believe the accused had any prohibited drugs. Issue: does a peace officer need a reasonable belief that the person possesses drugs to search only in a dwelling-house or in other areas as well?Principle: historically, not much attention was paid to punctuation, and even in the modern day where punctuation may matter, if the result of the reading is absurd/bad policy, then the punctuation-focused reading must be discardedR v Popoff (1985 BC Co. Ct.) Facts: punctuation in the timing of breath samples taking said 2112:50 etc.; Popoff said the punctuation should be 21:12:50 etc.Principle: punctuation is given little attention in statutory interpretationMedovarski v. Canada (2005 SCC) Facts: 2 kinds of stays: automatic stays and actively ordered stays; if the phrase “granted a stay” indicates both kinds of stays, the appellants’ right to appeal is preserved; if it indicates only actively ordered stays, the appellants’ right to appeal is removedIssue: whether s.196, a transitional provision of the Immigration and Refugee Protection Act, SC 2001 removes the right to appeal an order for removal to the Immigration Appeal Division (IAD), in the case of persons deemed inadmissible for serious criminality Principle: steps to bilingual interpretationdetermine whether to not there is a discordance and if so whether there is a common meaning between the two versions; where one version is broader than the other, the common meaning would favour the more restricted meaning the common meaning is the version that is plain and not ambiguous; if neither is ambiguous, or if they both are, the common meaning is normally the narrower versiondetermine if the common meaning is consistent with Parliament’s intentShaklee v. Canada (1995)(FCJ)(4-1) Facts: So any goods that are considered to be “food” are exempt from tax. Issue: Whether certain vitamin, mineral and fiber products marketed and sold by Shaklee are exempt from taxation under the Excise Tax Act being food for consumption? Whether the goods in issue are food?Principle: creation of meal test; dictionaries are of limited usefulness in statutory interpretation judges may consult dictionaries to determine a word’s ordinary meaning, however, a dictionary definition may not be determinativeRegina v. Riddell et al (1973 Que. C.A.)Facts: The accused drove a road grater through a border crossing in broad daylight.. They were acquitted because “it was difficult to conclude that the R tried to escape the attention or the eventual pursuit of the customs officers and that the essential element in support of the charge of smuggling, the dissimulation, the clandestine or secretive nature of the act cannot, according to the evidence, be found to exist. Trial judge was of the opinion that snuggling does not occur when it is not clandestine. Issue: Does smuggling include situations in which it is not clandestine?Principle: rule of effectivity: using dictionaries to discover the normal, everyday meaning of words is an acceptable method of interpretation, but there are certain reservationsMcDiarmid Lumber v. Gold’s Lake First Nation (2006 SCC) Facts: at issue is the scope of ss.89 and 90 of the Indian Act; these provisions, designed to prevent the erosion of property belonging to Indians, confer immunity from seizure for creditorsIssue: are Indians protected by seizure of band funds under the ss.89 and 90? Principle: principle of associated meaning and presumption against tautologyif “agreement” is interpreted broadly to cover all types of agreements, then the word “treaty” has no role to play – so this supports the view that “agreement” in s.90(1)(b) should be read more narrowly as supplementing “treaty”Nanaimo (City) v. Rascal Trucking Ltd (2001 SCC) Facts: Rascal leased a parcel of land located within Nanaimo from Kismet Enterprises Inc.; Nanaimo wanted to remove the soil dumped by Rascal and declared it a nuisance pursuant to s.936, which declares constructed/erected things and watercourses as “nuisances”Issue: does soil count as a nuisance according to s.936 of the Municipal Act? Principle: limited class rulelimited class rule applies so that “or other matter or things” refer to the two classes of nuisance outlined before it – constructed or erected things, and watercoursesif it was meant to include everything, then there would be no point in putting such specific phrases before “or other matter or things”however, soil can be seen as falling within “constructed or erected things” it would be absurd that a building can be seen as a erected thing but the soil used to build it cannotCR et al v. Children’s Aid Society of Hamilton et al (70 R 3d 618) Facts: regarding s.4(7) of the Family Law Rules Issue: Does the fact that subrule 4(7) confers rights of a party on a Children’s Lawyer, but says nothing about responsibilities, mean that the Children's Lawyer is to have no responsibilities under the Family Law Rules?Principle: legislative silence does not always mean the excluded thing is unimportantthe starting point of this discussion is the presumption that legislative is silent for a reasonbut the maxim expression unius est exclusion alterius is a dangerous maxim to follow and much depends on the contextthe reasons for courts not wanting to “read in” are 1) may be unclear whether the legislative silence is deliberate 2) courts have limited powers to correct under-inclusivenessbut silence does not necessarily mean the excluded matters are unimportant, it could alternatively meanlegislature may have wished to emphasize the importance of the matters mentioned or, out of excessive caution to ensure that the mentioned matters are not overlooked the mention of some matters does not mean that others should be excludedexpress reference may be necessary or appropriate in one context, but not in anothersometimes, it is more accurate to say that because something was not specifically excluded, it may be deemed to be includedRe Simon Fraser University and District of Burnaby (1968 BCCA)Facts: SFU leasing out land. Few Acts referred to in the case say property vested in a University is exempt from tax under certain acts and says that this property is the kind that is disposed of by lease to an affiliated college.The leases in this case aren’t affiliated colleges. Burnaby argues that that by referring to affiliated colleges the Legislature intended to exclude any other properties leased to others. Issue: are the leased businesses exempt from paying taxes under s.40 of the Universities Act?Principle: legislative evolution – changes in legislative language imply change in legislative intentReference re: Firearms Act (2000 SCC)Facts: in 1995, Parliament enacted the Firearms Act, to require that holders of all firearms obtain licenses and register their guns. In 1996, province of Alberta challenged Parliament’s power to pass the gun control reference. Federal government assets that the gun control law falls under its criminal law power s. 91(27), and under its general power to legislate for POGG. Alberta says that the law falls under its power over property and civil rights. Issue: Whether or not Parliament has the constitutional authority to enact the law?Principle: legislative history may be used as long as it is not given undue weight Columbia River and Property Protection Society and East Kootenay Environmental Society v. British Columbia (Ministry of Environment, Lands and Parks) (1996 BCEA – administrative tribunal)Facts: Lake Windemere Resorts received approval to make changes in and about a stream i.e. to fill in a swamp on its property. The specific issue was whether either society had standing to appeal the issuance of the approval. So Board considered two provisions. LW says neither society fits within the classes of people allowed to object to an appeal nor thus neither society has standing to appeal the issuance of the approval as confirmed by the Deputy Comptroller. Maintains that the statute must be interpreted in a manner that is consistent with the statutory scheme and maintains that the statutory scheme under the Water Act is one which only confers a right to object on particular classes of persons, namely those referenced in s. 9 of the Act and s. 3 of the Regulation. Issue: is the right to appeal extended to anyone?Principle: horizontal coherence may not be used as an argument when legislature purposely makes the wording in one act different from another – if the words are different, it must be presumed that legislature intended the words to have different meanings/effectsinternal coherence argument: the categories listed should be read into the word “approval” vs. if no qualifying words in “approval” then it should be read broadlyto interpret the Water Act in a manner that allows a boarder class of persons to object to approvals seems inconsistentabsurdity argument – absurd that anyone would be allowed for approvals when the licensing is more restrictive (and license is the more formal type of permit)difference in wording between statutes are presumed to reflect differences in the intended meaning/effectso that s.38 and s.7 do not employ the broad languages seen in other statutes (Waste Management Act and Pesticides Act) because legislature did not intend for a broad class of individuals to have standing to appeal under the Water Act R. v. Ulybel Enterprises Ltd. (2002 SCC)Principle: important to apply the principles for harmonizing different statutes in each case; the law in one will inevitably exert and influence on the law in the otherBell ExpressVu Limited Partnership v. Rex (2002 SCC)Principle: the important role that context must inevitably play in statutory interpretation supports the need for harmony across statutes dealing with the same matterGeneral Commentary: One problematic issue regarding horizontal coherence concerns references to enactments of a different legislature. While the rationale of a “single speaker” is not applicable, there may be nonetheless be compelling arguments in favour of consistent interpretation of legislation from different jurisdiction.Levis (City) v. Fraternite de Policiers (2007 SCC)Facts: criminal conduct by municipal police officers in QB and whether those conduct should be sanctioned by the law governing police or by municipal law; Belleau is facing the situation where one statute would allow him to maintain his employment with the appellant municipality if he can show specific circumstances while the other would notIssue: are the PA and the CTA in conflict? which one should prevail?Principle: enactments that come after and that are special/specific take precedent over earlier and general enactmentsCommittee for Commonwealth of Canada v Canada (1991 SCC) Principle: courts will not interpret legislation that makes it open to more than one interpretation so as to make it inconsistent with the Charter; the courts will prefer the interpretation which confirms that the provision is constitutional at the time of its applicationR. v. Sharpe (2001 SCC)Principle: If a legislative provision can be read both in a way that is constitutional and in a way that is not, the former reading should be adopted (Slaight Communications). As well that this approach is the presumption that Parliament intended to enact legislation in conformity with the Charter.Bell ExpressVu (2002 SCC)Principle: the Charter values principle should be only used where there is genuine ambiguity; a blanket presumption of Charter consistency could sometimes frustrate true legislative intent; moreover, if statutory meanings are made congruent with the Charter even in the absence of ambiguity, then it would never be possible to apply, rather than simply consult, the values of the Charter the more powerful purpose of the Charter is testing constitutional validityR. v. Gamboc (2010 SCC)Facts: relevant issue was whether “customer information” under the Electric Utilities Act, which granted legislative authority for the disclosure of customer information to investigative authorities, included information relating to patterns of electrical consumption; the accused argued that the Act, read in accordance with Charter values, would prevent Enmax, the electrical provider, from collecting such information to assist a police investigationPrinciple: Gamboc, Rodgers, Bell Express Vu, Sharpe all emphasize that Charter values should only be adverted to where the legislation is still open to multiple interpretations after having applied the entire modern contextual approachBaker v. Canada (Minister of Citizenship and Immigration) (1992 SCC)Facts: Regulations made pursuant to s. 114(2) of the Immigration Act, empower the Minister to facilitate the admission to Canada of a person where the Minister is satisfied, owing to humanitarian and compassionate considerations, that admission should be facilitated or an exemption from the regulations made under the Act granted. Appellant ordered deported in 1992, after it was determined that she had worked illegally in Canada and had overstayed her visitor’s visa. Applied for permanent residence in Canada upon humanitarian and compassionate grounds. Decision came back as insufficient humanitarian and compassionate grounds to warrant processing of her application. Letter had no reasons for the decision. See Immigration Act s. 114(2) and regulations 2.1. See also international treaties on interests of children. Issue: should the act be read in accordance with values stipulated in the Convention on the Rights of Children?Principle: vertical coherence when subject matter is HR – interpret values underlying Acts in accordance with international conventions, but international conventions are not binding Reasons – L’heureux-Dubé J:the objectives of the Act is consistent with a large and liberal interpretation that places a high value on keeping citizens and permanent residents together with their close relatives who are already in CanadaConvention on the Rights of the Child – support the need to value in the interest of the childReasons – Iacobucci J (dissent):international conventions not binding and to abide by them would be undermining the Canadian systeminternational conventions are of no force or effect within Canada until such time as its provision have been incorporated into domestic law by way of implementing legislationR. v. Hasselwander (1993 SCC)Facts: Mini-Uzi submachine gun and prohibited weapon Issue: does the submachine gun count as a “prohibited weapon” under the CC? is a submachine gun “capable of firing bullets in rapid succession during one pressure of trigger”?Principle: penal presumption has subsidiary roleNorth Vancouver School District No. 44 v. Jubran (2005 BCCA)Facts: high school student was being bullied and discriminated Issue: must a person who complains of discriminatory harassment on the basis of sexual orientation actually be homosexual or perceived by his harassers to be a homosexual under the Human Rights Code? Principle: Human Rights Legislation has quasi-constitutional status and should be given a very broad, purposive reading. it is inappropriate to rely solely on the strictly grammatical analysis, particularly where legislation of quasi-constitutional nature is involvedSCC has also said that the scope of human rights legislation is not unlimited and the words of the statute cannot be ignoredpurposes of the Code are “to promote and foster human dignity and equality, to prevent discrimination prohibited by the Code, and to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by the Code. One of its purposes is also to provide a means of redress for those persons who are discriminated against contrary to the Code” (para. 36)Gustavson Drilling (1964) Ltd. v. M.N.R. (1977 SCC)Principle: presumption against interference with vested rights only apply in some cases, because in most there is obviously an intention to interfere with rights, such as in tax lawMacKenzie v British Columbia (Commissioner of Teacher’s Pensions) (1992 BCCA) Facts: Guy picked single life guaranteed pension plan, this left his wife without any entitlement to his pension benefits once he had lived for more than 10 years beyond the date on which he made the decision. She sought application for 60% of husband’s superannuation allowance and arrears accumulated since his death. Appellant says when the provision 38 is read together with s. 34 of the Interpretation Act, which requires an amendment to be construed as part of the enactment it amends, it is clear that the legislature intended the amendment to have retroactive application. Issue: Whether a 1988 amendment to the Pension Act, should be given retroactive, retrospective or prospective application. Principle: cannot read too much into retroactive language when it is clear that it is a transitional provision s.38 of the Act requires retroactivity only to the extent necessary to give effect to its provisions, and if the amendment were to be given retroactive effect it would render the Act dysfunctional rather than enhance the effectiveness of its provisionsit would be wrong to read into s. 38 of the Pension (Teachers) Act more than its legislative antecedent would justifyargument of appellant rejected because it sought to read too much into the retroactive language of what was obviously a transitional provision in a new statute, and because, if applied in the manner suggested, s. 34 of the Interpretation Act would have the effect of repealing the rule which presumes against the retroactive application of statutory amendmentsit would not be fair for appellant to reap benefits of what others contribute to in the fundScott v. College of Physicians and Surgeons of Saskatchewan (1992 Sask CA)Facts: not responsive to college of physicians and surgeons and didn’t pay his fee so his name was struck from the register (s. 24 of the Medical Act). September 11 gives unsworn application, Sep 29 he deposits money with lawyer (trust account) – active step of intending to do something with that, lawyer and college lawyers negotiate. Oct 10 – application is submitted to registrar office meanwhile the amendment came into force on Sep 25th – 4 days before the application was completed and 15 days before it was submitted.Issue: has Dr. rights accrued or accruing? Principle: there is a high threshold for s.35(1)(c) – to show that the individual has an acquired/accrued right test for accruing/acquiring right – was the outcome inevitable so that the individual deserves the right? did the individual do everything in his ability to reach the outcome?Re Friends of the Oldman River Society and the Queen in right of Alberta et al (1992 SCC) Facts: s. 6 of the Department of the Environment Act RSBC, empowered by the Minister for the purposes of carrying out his duties relating to environmental quality, by order, with the approval of the Governor in Council, to establish guidelines for use by federal departments, agencies and regulatory bodies in carrying out their duties, functions and powers. Pursuant to this provision the Environmental Assessment and Review Process Guidelines Order was established. Issue: is the Guidelines Order authorized by s.6 of the Department of the Environment Act? does “guidelines” in s.6 empower the enactment of subordinate legislation, or only administrative directives? Principle: enabling clauses must be interpreted by looking to the whole of the statute, and not purely in isolationBetween Josephine Soliven De Guzman, appellant, and The Minister of Citizenship and Immigration, respondent (2005 FCJ)Facts: Came to Canada and said the only dependent she has is her daughter. 8 years later, she applied to sponsor the admission to Canada of her two sons as members of the family class. They were refused visas under a paragraph in the Immigration and Refugee Protection Regulations on the ground that they were not members of the family class because they had not been examined for immigration purposes when G applied to come to Canada. She says that the paragraph is invalid on three grounds: 1) not authorized by relevant enabling statute of the Immigration and Refugee Protection Act 2) violating parents’ rights under s. 7 of the Charter 3) regulation is inconsistent with international human rights instruments to which Canada is a signatory, and which protect the right of families to live together and the best interests of children. There was an amendment that would have been beneficial for her but it was not applied retroactively Issue: Is the paragraph invalid?Principle: if something is characterized as “framework legislation,” then it is a signal that legislature intended broad powers to fill in the details, and therefore it is difficult to argue the subordinate legislation is invalidFederated Anti-Poverty Groups of BC v. BC (Minister of Social Services) (1996 BCSC)Facts: Regulation imposed by Order in Council that established a 90 day residency qualification for any person seeking income assistance under the Act. Petitioner says regulation is void and of no effect on grounds such as 1) void b/c it is ultra vires the Act which it purports to be from 2) void b/c contrary to charter sections. 3) Beyond the powers of the Lieutenant Governor delegated by GAIN 4) inconsistent with statutory purposes of GAIN 5) discriminatory and unauthorized by GAIN 6) repugnant to the provisions of earlier Provincial legislation, namely the Human Rights Act. Issue: Is the regulation valid?Principle: must read enabling clause within context of whole primary legislation, so what appears to confer broad delegated powers may in fact have more limitations; province/feds can legislate against Charter if they wish to do so, but not through subordinate legislationThe purpose of GAIN, while they include the relief of poverty, neglect or suffering, also include the execution of that purpose within the budgetary allowance to be provided by the legislature from time to time and the establishment of the Minister’s discretionary powers to achieve it. But even subject to this, all people resident within the province who suffers from poverty in the same defined degree are to receive its benefit. Exceptions are created by the legislature; nothing in the Act suggests that residents of the Province who qualify for income assistance are to be dealt with differently as between members of the same income or asset class.On its face – the regulation says – prescribing rules for eligibility of individuals or classes of individuals for income assistance or social service (on its face it doesn’t say anything about waiting 90 days) At first glance it might look that regulation meets what the enabling clause means but reading the whole act in context nothing in the context of the ACT enables eligibility to be accorded in any of those ways (reading down S. 26(2)(d).Waddell v. Governor in Council (1983 BCSC)Issue: whether or not parliament can validly delegate power to amend the provisions of the parent statute to a subordinate agency? Whether courts could adopt a different approach to Henry VII clause in peacetime? Principle: the institutional debate is one thing – but doctrinally Parliament can make Henry VIII clauses Parliament can do this, but whether or not Parliament should is another question ................
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