Lap Can Fall 2019
Lap Can Fall 2019
SYDNEY SNAPE
1L’s- good luck! If you have any questions feel free to reach out to me
on facebook or via email. YOU CAN DO THIS!
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TABLE OF CONTENTS
Week 1: Persons Case............................................................................................................................3
WEEK 2: SOURCES OF LAW AND INTRO TO PARLIAMENT.......................................................................3
Indigenous Peoples:...........................................................................................................................3
WEEK 3: INSTITUTIONAL FRAMEWORK: LEGISLATIVE, EXECUTIVE JUDICIAL..........................................7
Parliament of Canada: 3 Components:...............................................................................................8
Legislative..............................................................................................................................................9
Judiciary:..............................................................................................................................................10
Executive: CROWN/CABINET/ADMINISTRATIVE...................................................................................10
WEEK 4: INSTITUTIONAL FRAMEWORK: “THE INSTITUTIONAL FRAMEWORK”.....................................11
Executive Branch: Crown, Cabinet, Administrative...............................................................................12
Kernaghan’s 3 Principles for Civil Servants:........................................................................................................13
JUDICIARY:...........................................................................................................................................14
THE LEGISLATIVE PROCESS...................................................................................................................16
Procedural steps in turning legislation into law:.................................................................................................17
What is Parliamentary Sovereignty?...................................................................................................................17
WEEK 6: THE LEGISTIVE PROCESS: SUBORDINATE LEGISLATION...........................................................18
Subordinate Legislation:...................................................................................................................19
Statutory Instruments Act................................................................................................................19
WEEK 8: PROBLEMS OF MEANING.......................................................................................................20
Theories of Statutory Interpretation:...................................................................................................21
Cross: The Goal of Statutory Interpretation.....................................................................................21
Case: Ontario Mushroom Co Ltd v Learie (On, 1977).........................................................................................23
OCT: DISSECTING A STATUTE................................................................................................................25
NOV 7: STATUTORY INTEPRETATION....................................................................................................30
Federal Interpretation Act....................................................................................................................31
Quick Search of Time Calculation.....................................................................................................32
Quick Search Table of Interpretation Act.........................................................................................33
Case: Rizzo Shoes................................................................................................................................................34
NOV 14: COMPONENTS OF MODERN APPROACH.................................................................................35
Interpretation Rules:........................................................................................................................36
Modern Interpretation: Textual, Contextual, Purposive.......................................................................36
7 Presumptions....................................................................................................................................38
NOV 21: PRESUMPTIONS AND PRINCIPLES...........................................................................................42
Bilingual Legislation.........................................................................................................................43
Shared Meaning Rule..........................................................................................................................................43
Territoriality.........................................................................................................................................................43
The Crown...........................................................................................................................................................44
Mistakes..............................................................................................................................................................44
Gaps.....................................................................................................................................................................44
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Week 1: Persons Case
2
Issues: What are “qualified persons”
Act did not expressly refer to qualified persons as men, if it had intended that it would
have expressly done so.
Analysis: The case then went to the Judicial Committee of the Imperial Privy Council who
overturned the Supreme Court’s decision.
Indigenous Peoples:
Recognition of Indigenous rights in Canadian Law
o Section 35(1) Constitution Act, 1982
"The existing aboriginal and treaty rights of the aboriginal peoples of Canada re
herby recognized and affirmed"
3
Case: R v Van der Peet, [1996] 2 SCR 507
Facts: Van der Preet of Sto lo Nation was charged with selling 10 salmon that her common law
husband had caught. Under Native food license, forbidden from selling.
Analysis: Application of test: (partial)
1. look at perspective of peoples themselves, framed in Canadian legal and constitutional
structure
2. the Precise nature of the claim
3. to be “integral” the custom or tradition must be of a central significance to the society
Refinement of Indigenous rights in Canadian Law
Conclusion: Aboriginal title test; relate to an integral practice, custom or tradition
Ratio: Aboriginal Rights doctrine is the recognition that Aboriginal peoples were living in distinct
cultures prior to European contact.
Common Law:
Judge-made law that accumulates through decisions in past cases that are treated as precedent
(stare decisis)
o You need to establish the ratio from the obiter
Obiter is not binding
o You need to know the court structure and the binding nature of precedent
Rule of settlement v. rule of conquest
o Courts can reason their way around precedent
Canada Trust Co (ONCA 1990)
A trust is when property is held by one person for another person's benefit
o Human Rights Commission (tribunal)
The HRC has limited powers
In this case they brought the case to the Commission (human rights issue) and the
courts (trust issue)
Civil Law:
Relies on an exhaustive code of law
Roman origins
Applies in Quebec in mattes under provincial jurisdiction
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Code civil du Quebec
Law of Equity:
Judge-made law from the old Court of Chancery
o Eg. Trusts, remedies such as specific performance and injunction, unjust enrichment and
restitution, fiduciary duties
o Used to be separate from the common law, but now works alongside the common law in
the superior courts
Legislation:
Statutory law is legally superior to the common law
In practice, there is a complex mix of legislation, the common law, and the Constitution of
Canada
Halperin v Canada (AG) (ONCA 2003)
Constitution of Canada:
Section 52 of the Constitution Act, 1982
o Constitution reigns supreme
Constitutional Conventions:
o Fill in gaps, based on past practice, change over time
o Not legally enforceable: Patriation Reference (SCC 1981)
Unwritten constitutional principles
o Flow from the preamble to the Constitution Act, 1867
o Help interpret the Constitution
o May be recognized by courts as part of the Constitution of Canada: Reference re
Secession of Quebec (SCC 1998)
o Selection of the Prime Minister
The Royal Prerogative:
Executive powers that do not arise from statute
Historically extensive, now very narrow due to legislation
o Powers remaining:
Powers of appointment, foreign affairs, war and peace, passports,
Legislation takes priority over prerogative powers
o (Delivery Drugs (BCCA 2007))
The Royal Prerogative: Black v Chretien (ONCA 2001)
o Court looks into this: not mentioned by statute, not reviewable.
International Law:
Treaties
o Contracts between states
5
Canada is a 'dualist' country, which requires Parliamentary implementation of
treaties signed by the executive to make them part of domestic law
Customary international law
o Important automatically into the common law
Case: Canada Trust Co. v Ontario (Human Rights Commission), (1990) 69 DLR (4th) 321 (Ont. CA)
Conclusion: Charitable trusts given to people within the realm of the public must not violate public policy
Reading a provision as a harmonious whole.
Ratio: Preventing discrimination is in line with public policy. Public policy does not govern private
family matters in wills.
Topics
Separation of powers under the Constitution
Legislative, executive and judicial
• Legislative The federal legislature: Parliament of Canada Structure and operation, Key actors
The provincial legislature: Legislative Assembly of BC Structure and operation, Key actors • Judicial
Structure and operation o Judicial review of primary legislation Judicial review of subordinate
legislation and executive and administrative action
6
Public Law
Ch. 5, pp. 158–62
Discussed: Reference re Secession of Quebec, [1998] 2 SCR 217; Doucet-Boudrea v Nova
Scotia, 2003 SCC 62
Ch. 6, pp. 177–87, 200–16
Discussed: O’Donohue v The Queen, (2003) 109 CRR (2d) 1 (Ont. SCJ); McAteer v Canada
(AG), 2014 ONCA 578; Reference re Provincial Electoral Boundaries (Sask), [1991] 2 SCR 158;
Figueroa v Canada, 2003 SCC 37
Ch. 7, pp. 231–50 (skim 244–49)
Ch. 9, pp. 359–69
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Does the requirement that a political party must have 50 candidates
to receive certain benefits violate the Charter? – Court says it is not
constitutional! Parties have to play meaningful role in electoral party
– just cuz part cannot become gov’t, they still play a role in
democracy.
Legislative
o The federal legislature: Parliament of Canada
- Structure and operation
o Enacts legislation
o Divided into federal and provincial spheres
Parliament:
- 42 Parliaments since confederation
- How to dissolve parliament:
Elections: fixed date legislation (2017)
Non-confidence motion
By GG at request of PM
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Judiciary:
- Interpret and apply sources of law
- Superior and inferior courts
- Judicial review of primary legislation, subordinate legislation and executive and
administrative bodies
- Federal system of courts divided among the federal and provincial governments (CA
1867)
s92 (14) provinces have power of administering justice
S 96: federal government has the appointment power for the superior courts
S 101: federal power for creating new courts for better administration of federal
law and a general court of appeal
Executive: CROWN/CABINET/ADMINISTRATIVE
1. Executive (monarch, PM, Cabinet)
2. The Prime Minister and Cabinet
3. Administrative (civil service)
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WEEK 4: INSTITUTIONAL FRAMEWORK: “THE
INSTITUTIONAL FRAMEWORK”
Executive
The ‘administrative state’ Key actors Sources of power Acts taken pursuant to delegated
authority Limits on executive power
Public Law
Ch. 8, pp. 297–311, 317–33, 346–57
Discussed: Re Gray, (1918) 57 SCR 150; Nova Scotia (AG) v Canada (AG), [1951] SCR 31;
Guergis v Novak, 2012 ONSC 4579; Fraser v PSSRB, [1985] 2 SCR 455; Osborne v Canada, [1991] 2
SCR 69; R v Campbell, [1999] 1 SCR 565; Krieger v Law Society, 2002 SCC 65; Shell Canada
Products Ltd. v Vancouver, [1994] 1 SCR 231
Ch. 5, pp. 162–67
Discussed: Ontario v Criminal Lawyers’ Association of Ontario, 2013 SCC 43; Canada (Prime
Minister) v Khadr, 2010 SCC 3
Case law
Reference re Canada Assistance Plan, [1991] 2 SCR 525 [71]
New Brunswick Broadcasting Co. v Nova Scotia, [1993] 1 SCR 319 [headnote]
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- 3. Judiciary
o Supervise the exercise of executive power and ensure it stays within the limits imposed by the
enabling statute
Public Service
Kernaghan’s 3 Principles for Civil Servants:
1. Ministerial Responsibility: presiding minister = responsible for all matters arising from that
department
2. Political Neutrality: civil servants must refrain from publicly expressing their political views
3. Public Service Anonymity: bureaucrats are held acceptable to their political overseers but are not held
directly accountable to Parliament
Re: Grey:
- Parliament may delegate very broad powers provided it doesn’t amount to a complete
renouncement of power.
Case: R v Campbell
Facts: Crown attempted to identify the RCMP with the Crown for immunity purposes.
Conclusion: Since this case, police have been given certain immunities ie: drug busts
Ratio: No immunity at common law for police
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public office, intentional infliction of mental suffering and negligence against the
defendants. On the advice of Novak the PM communicated this to Guergus in an attempt
to have her resign.
Analysis: The conspiracy and other tort claims advanced in the action are neither justiciable nore
subject to judicial process, as such claims relate to the exercise of Crown prerogative or
parliamentary privilege
“Prime Minister holds the keys to the kingdom”
Conclusion: The powers to appoint and dismiss are the prerogative of the crown, exercised by the PM
and is not justiciable at law
JUDICIARY:
Section 92 (14) Provinces have the power of administering justice
Section 96 Federal government has the appointment power of the superior courts
Section 101 Federal government has the power to create new courts for better administration of
federal laws and a general court of appeal (SCC)
Case: 2013 SCC 43; Canada (Prime Minister) v Khadr, 2010 SCC 3
Facts: Khadr was a Canadian who was detained by American authorities in Guantanamo on
charges that at age 15 he killed a US soldier in Afghanistan
Canadian Gov did breach Khadr’s Section 7 rights to security and liberty of person by
participating in harsh interrogation
Analysis: Courts have no power under the Constitution to do anything in foreign policy
Prerogative power = limited source of non-statutory admin power accorded by the
common law to the Crown.
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Courts can decide of prerogative power does exist, but is up to the executive to utilize the
power
Ratio: SCC found that Canada’s complicity in the illegal treatment of Khadr meant that his s 7
Charter rights had been violated
Parliament had executive prerogative power with foreign countries. Courts cannot order
executive to use prerogative powers.
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THE LEGISLATIVE PROCESS
Topics:
Primary Legislation
Turning policy into legislation
Drafting
Stages in the legislative process
Readings
• Statutes & Regulations pp. 1–11
• Public Law
Ch. 7, pp. 250–67, 273–78, 281–95
Discussed: New Brunswick Broadcasting Co v Nova Scotia, [1993] 1 SCR 319; Canada
(House of Commons) v Vaid, 2005 SCC 30; Bacon v Saskatchewan Crop Insurance Corp.,
(1999) 180 Sask. R. 20 (CA); Turner v Canada, [1992] 3 FC 458 (CA); Wells v
Newfoundland, [1999] 3 SCR 199; Authorson v Canada, 2003 SCC 39
• Case
Mikisew Cree Nation v Canada (Governor General
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Case: Turner v Canada, 1992
Facts: Legislation was passed while Turner’s court proceedings are going on and the legislation
deprived Turner of his defense
Conclusion: There is no duty of fairness owed, no special procedures owed
Ratio: Parliament can pass whatever laws they want, as long as they are within the constitutional
limits. Retroactive legislation can disrupt current legislation.
Topics
Subordinate legislation
Process and requirements
Readings
• Statutes & Regulations
pp. 346–53
• Course Pack
Readings 10–11
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• Case law
Re Gray, (1918) 57 SCR 150, 170
• Legislation
Statutory Instruments Act, RSC 1985, c. S-22, ss. 2(1) “regulation”, “statutory instrument”, 3, 5–
6, 9, 11, 19
Regulations Act, RSBC, 1996, c. 402, ss. 1 “regulation”, 2–9
Interpretation Act, RSBC, 1996, c. 238, ss. 1 “regulation”, 41
Subordinate Legislation:
- Parliament delegates lawmaking power to other persons or bodies via primary legislation
o Typically uses the word ‘prescribe’ in the statute to denote the delegation of lawmaking power
o By-laws, ordinance, etc
- Valid federal legislation and provincial regulations have the same legal effect as primary legislation
- Concerns about concentrating power in the hands of the executive (ex. Cabinet)
Legal Constraints: - 1. The Constitution
o Regulations are law within the meaning of s 52 of CA, 1982 and abide by
the Charter
- 2. Authority granted by the enabling statute
o Has to live within the scope of the original body
o Always look to the primary legislation to determine the limits imposed
o Regulations have to be made under the right statutory authority and that
power has to be traced to the primary legislation
- 3. Procedural requirements
Enforcement: - 1. Executive
o Review process as part of drafting regulations
- 2. Legislative
o General supervision with the power to amend or repeal primary legislation
granting authority
o Special parliamentary committee (Federal)
- 3. Judiciary
o Judicial review of the validity of regulations
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Case: Re Grey
Facts: In 1914, Parliament passed the War Measures Act, one of the most extreme examples of a
statute delegating legislative authority to Cabinet. This Act empowered the Governor in
Council to proclaim a state of “real or apprehended war, invasion or insurrection” and “to
make from time to time such orders and regulations, as he may by reason of the existence
of real or apprehended war, invasion or insurrection, deem necessary or advisable for the
security, defence, peace, order and welfare of Canada”
Ratio: The Parliament of Canada can validly delegate but cannot abandon its Legislative powers
Valid federal and provincial regulations have the same legal effect as primary legislation
Topics
• Ambiguities and uncertainty
Communication breakdown
Intentional uncertainty and constitutional limits on vagueness Conflict in the law – striving for a
‘seamless web’
• The role of the court in resolving interpretive disputes
Readings
• Course Pack
Readings 12–13 (skim)
Reading 14
• Public Law
Ch. 10, pp. 427–29
• Case law (illustrations of interpretive problems)
Ontario Mushroom Co. Ltd. and Learie, (1977) 15 OR (2d) 639 (HC)
R v Higgins, [1929] 1 DLR 269 (Ont. SC)
R v Thomen, [1964] 1 CCC 247 (Ont. Dist. Ct.) [1–25], [28–29], [67–70]
R v Verrette, [1978] 2 SCR 838 [1], [3–4], [18]
R v Thame, 2012 BCPC 356
R v Levkovic, 2013 SCC 25 [1–3], [10–11], [32–35]
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Focus on giving effect to the plain text as written
- Cross criticizes the approach
Text can only take you so far and there are ambiguities in text
Pragmatic Dynamic approaches to interpretation
Evolutionary and responsive to change
Focus on interpretation that best achieves certain outcomes
Provides for maximum judicial discretion = most controversial approach
** judges always take a pragmatic approach when interpreting the charter
Pluralist * Combination of 3 above theories
Unclear which theory is used most by courts – all are used in a variety of ways
Intentional use of uncertainty in legislation: instances where govt does not want to define the
rights of a person in a particular circumstance fully
Impossibility of anticipating all future circumstances
Poor legislative drafting, mistakes, errors
Other issues that require interpretation:
- Conflicting statutes
- Legislative gaps
- Incorporation of other statutes
- Conflict between English and French in bilingual legislation
- Temporal considerations
- Retroactive legislation can be enacted
Questions to consider:
According to Cross, what are the different approaches that judges take in statutory interpretation? In
2 sentences, describe the connection between Cross’ principles of statutory interpretation and the cases of:
Ontario Mushroom, R v Higgins, R v Thomen, R v Verrette, and R v Thame. [5 minutes]
Cross advocates for interpretive pluralism where judges have the flexibility to employ several different
modes of interpretation. Ontario Mushroom demonstrates this since the judge was allowed to consider
context and decide that mushrooms count as vegetables according to common sense. Other four cases also.
According to Ruth Sullivan, “even though legislation is addressed to everyone, historically it has not
been written for everyone.” What group is legislation written for? Does Sullivan see this as a problem?
What is her suggested solution? [5 minutes]
Legislation is written in plain language in order to enhance democracy and the rule of law by making
legislation accessible to the people whose lives it affects. Sullivan believes that the idea of “plain language”
can be problematic as it reveals challenges and assumptions underlying current approaches to statutory
interpretation and to law generally. There are two key assumptions relied on by courts to explain and justify
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their work in statutory interpretation. One is the assumption that meaning inheres in legislative texts and that
at least some of the time meaning is "plain" -- that is, clear and certain, not susceptible to doubt
Solution: believes legislation should be interpreted from the perspective of its primary audience. Courts
should receive evidence about the audience for which the legislation was written.
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Ratio: Plain meaning interpretation can be used for clarity in legislation
Don’t need to look at the rest of the legislation if the meaning can be discerned from the
specific provision
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OCT: DISSECTING A STATUTE
Topics:
- Title
o Preamble
o Purpose
o Definitions
o Headings, parts and divisions
o Marginal notes
o Punctuation
o Coming into force
o Schedules
o Regulations
- Legislative amendments
o Annual Statutes
o Consolidation
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o Ex. R v Thompson, 1990 SCC
Purpose Statements:
- What the legislature intends to achieve with the Act (numbered)
- Provides direction on how the rest of the Act should be interpreted
- Limited the power of decision-makers acting under the authority that is delegated by the Act
o Ex. Privacy Act purpose statement = “purpose”
o Judges will resolve ambiguity by looking to the purpose statement
o Ex. Pembina Institute v Alberta (Environmental) [administrative branch of govt
decision is quashed based on the purpose statement of an act
Marginal Notes:
- Sometimes called head notes
- Used for quick ease of reference to flip through a piece of legislative
- They are NOT relevant to interpretation
o R v Wigglesworth, 1987
Courts state that marginal notes are not a part of legislation and should be
given very little weight.
They are a tool for lawyers and judges to quickly navigate
- Courts are reluctant to give them much weight but in theory they could be used in
interpretation
Punctuation:
- Can be used to assist in interpreting legislation
- This has limited weight in court
o If other factors suggest a different outcome they are likely to prevail
o Associated Commercial Protectors Ltd v Mason, 1970
Comma matters
The location of the comma changed the meaning on a contract
Definitions:
- Very important section
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- The definitions replace any other meaning of the word used from the dictionary or linguistic
intuition
- The definitions may not be intuitive or may set out multiple step legal tests
- Definitions may be exhaustive (means) to non-exhaustive (includes)
Schedules:
- Materials that may or may not be legally binding
- Legally binding: charts, tables, diagrams, materials that are expressly made part of the act
- The binding nature of other materials must be assessed by applying the ordinary rules and
principles of statutory interpretation to the act
Regulations:
- If regulations are validly enacted, then they are binding law
- They are interpreted the same was as an act
- Acts trump regulations
- Regulations are used to interpret an Act
- Regulations operate within the scope of delegated authority and carry out the aims and
objectives of the enabling act
Amending Legislation:
- Annual statues: all piece of legislation in a given year
- Consolidated statutes: Current legislation as amended
- Tracking changes: References in legislation
Case: Pembina Institute v Alberta (Environment and Sustainable Resource Development), 2013
Facts: Purpose of act was to promote the enhancement/wise use of environment
Analysis Assists in the interpretation of substantive provisions
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Conclusion You need to align the purpose of the act (to get the opinion of ALL Albertans, not
just some Albertans)
Briefing note does not affect the purpose of the act, therefore the decisions did not
align with the purposes of the act
The purpose statement is the purpose and the briefing note cannot challenge it
Ratio Act can limit the power of decision-makers acting under authority delegated by the Act
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NOV 7: STATUTORY INTEPRETATION
Topics
• The Interpretation Acts
Application and scope
Key rules
• Introduction to the modern approach
Readings
• Public Law
Ch. 10, pp. 426–27, 433–34, 450–59
Discussed: Re Rizzo & Rizzo Shoes, [1998] 1 SCR 27
• Statutes & Regulations
pp. 135–53
• Legislation
Interpretation Act, RSC, 1985, c. I-21
Interpretation Act, RSBC, 1996, c. 238
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- Section 5(4): allows different bits and pieces of legislation to come into force at
different times
Section 7 Section 7: Regulation Prior to Commencement
• some regulations can come into force before the parent Act comes into force, if
the regulations are aimed at making the enactment effective the moment it is in
commencement
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may have those rights still in effect
Section 44 Effect of Repeal and Substitution
Section 46 The Demise of the Crown
- Outlines what happens when the queen passes, this not affect legal stuff
[can never end on a holiday - but can start deadline goes over to the next day addition:
on a holiday, have a holiday in the middle] that is not a holiday regular business hours for an
office: if the deadline falls outside
Sundays=holiday of their regular business hours, go
on to the next day
Clear Days reference to a number of ‘clear days’ same
or a ‘at least’ a number of days:
[i.e. judgment given on Monday and you addition:
have “at least 2 days” to file something = the days on which the events happen “not less than”
have until Thursday] are excluded “At least”
“clear days”
General Days exclude the first day and include the same
last day
[i.e. 28 days on March 2nd: start counting
on March 3rd, could 28 days, end on
March 30th]*unless March 30th is a
holiday
Time begins, ends or continues Time begins or ends on the specified
day, includes that day
[i.e. 3 days beginning Wednesday, start
counting on Wednesday]
Time begins after, from, or or excludes the starting day
before . . . exclude that day
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Property and civil rights 8.1, 8.2 n/a
Private acts 9 6
Law always speaking 10 7
Remedial nature of legislation 12 8
Imperative and permissive 11 29
Preamble 13 9
Marginal notes 14 11
Application of definitions in an enactment 15 12
Words in regulations 16 13
The Crown (immunity) 17 14
Majority and quorum 22 18
Computation of time 26,27,28,29, 37(1), 37(2) 25, 29 “holiday”
“month” “year”
Gender, number, form of words 33 28(2)-28(4)
Forms 32 28(1)
General definitions to be used 35(1) 29
Common names 38 31
Citing legislation 40 32, 43
References to parts of legislation 41 33
Amendment and repeal 43, 44, 45 35, 36, 37
Power to make regulations 31(4) 27(4), 41
Demise of the Crown 46 21
Everything you say about common law on the exam should be brought back to the modern approach to
interpretation:
• “Today there is only one principle approach, namely, the words of an Act are to be read in their entire context, in their
grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of
parliament” - Rizzo Shoes, citing Driedger
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NOV 14: COMPONENTS OF MODERN APPROACH
Topics
• Components of the modern approach
Purpose (and the problem of legislative intent)
• _Presumptions and principles
Avoiding an absurd or unjust result
Presumption of legislative knowledge and competence
Constitutional validity
Presumption against tautology
Specific over the general
Uniformity of expression
Internal and external coherence
Lists and classes
§ _Ejusdem generis
§ _Expressio unius
§ _Noscitur a sociis
Readings
• _Statutes & Regulations
pp. 155–86, 211–47
• _Case law
Canada Trustco Mortgage Co. v Canada, 2005 SCC 54 [10]
Witts v BC (AG), (1982) 138 DLR (3d) 555 (BCSC) [2–6], [23–28]
Perrier Group of Canada Inc. v Canada, [1996] 1 FC 586 (CA) [4], [19], [31]
R v Chan, 1999 ABPC 68 [19–20], [24–31]
Re Medical Centre Apartments Ltd. and City of Winnipeg, (1969) 3 DLR (3d) 525 (Man. CA)
[70], [76] – list expressly layed out several types of buildings that could be hospitals and apartment
was not on that list.
R v Kelly, [1992] 2 SCR 170 [42–44]
R v Daoust, 2004 SCC 6 [headnote]
Peach Hill Management Ltd. v R, [2000] GSTC 45 (FCA) [12]
National Bank of Greece (Canada) v Katsikonouris, [1990] 2 SCR 1029 [12]
Interpretation Rules:
Hierarchy of determining meaning:
1. Rules in the Specific Act
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2. Interpretation Act
3. Common Law -> this is where we are at now
• Legal Meaning
• when a term of art is used in the law (ex. when the legislation uses the word estoppel)
it does not actually take the legal meaning——> adopts the popular meaning unless it is clear that that is what
the legislation is trying to do
Contextual:
• Other words, scheme of the act, components of the Act [headings, purpose statements, preamble etc.]
• other pieces of legislation on a similar topic
• these all can be important aids in determining the meaning of a piece of legislation
Purposive:
• What did the legislature intend when they enacted the legislation?
• Covert v Nova Scotia:
• legislation must be construed in respect to its object and purpose
• no interpretation of a piece of legislation should defeat its purpose
Mischief Rule:
• Heydon’s Case: - test for determining purpose through mischief view
• 1. What was the law before the Act?
• 2. What was the mischief before the Act?
• 3. What remedy did Parliament Come up with to fix the problem?
• 4. What is the true reason / nature of the remedy?
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• they extended the words in the legislation to give effect to its purpose
Plausible Meaning:
• limit on the mischief rule
• take the mischief rule and go back to textualist ——>text itself must be capable of bearing that meaning
• there needs to be ambiguity for the mischief rule to be applied
Extrinsic Information:
• Hansard evidence, social science evidence —-> shed light on Parliament’s intention
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tautology/redundancy • No redundancy
• There are no superfluous words in legislation
• every word, every feature of the text is there for a reason and
plays a meaningful role in the legislative scheme
• R. v. Kelly (1992) - corruptly has to mean something - that word
added an element to the offence
• Every word is assumed to add something – presumption against
tautology
• R. v. Dauost - court supplements what the legislative scheme
already provides in the interpretation of the word ‘delivery’ - they
do not legislate in vain
4 Specific over the General • Specific takes power over the general
• Ex. specific tax exemption for fellowship income while a full-time
student in the Income Tax Act takes priority over the general rule
that all income from a source is taxable
• Also applies between different Acts
5 Uniform Expression • The legislature uses the same words and techniques to express the
same meaning and different words and techniques to express
different meanings
• Unless there is contrary to intention
• Thompson v. Canada - consistency of terms
• Peach Hill Management - government funded and funded by
the government
6 Internal and External Coherence • All the provisions of a legislative text fit together logically and
work together coherently to achieve the purpose of the legislation
• Words must be read within their section and the Act as a
whole - legislature deemed not to contradict itself
• All provisions, sections and Acts work together in a coherent
scheme
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- Re Medical Centre Apartments Ltd and City of Winnipeg
o When you use an exhaustive list, look for the
word “means” it indicates that what is left out
is left out on purpose
Case: R Sullivan “Plain Meaning Rule and Other Ways to Cheat on Statutory Interpretation
33
-Flaws in both the plain meaning rule and the legislative intent approaches
-Reassuring rhetoric that provides legal certainty
-No such thing as plain meaning
-Should acknowledge the reality of judicial discretion, argues that judges use tricks to justify their
discretion
Common law principles and presumptions
- Presumption against absurdity
o Avoid manifest absurdity or injustice but must also comply w/ legislative intent
o Ontario v Canadian Pacific Ltd
Comply w/ legislative intent, or else there would be absurdity
o Presumption of legislative knowledge and competence
Background knowledge, constitutionality, international law
Case: R v Kelly
Ratio: Every word is assumed to add something – presumption against tautology.
Corruptly has to mean something - that word added an element to the offence.
Adopt expansive interpretation and this person is barred from owning an animal forever.
Goes to word choice- parliament is not redundant, words are for a reason.
Case: R v Daoust
Ratio: Parliament does not repeat words. Different words have different meanings.
Bilingual legislation: take meaning that is common b/w them – unless it conflicts with
parliamentary intention
Meaning that is common in one language out to be common w/ the other
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NOV 21: PRESUMPTIONS AND PRINCIPLES
Topics
• Presumptions and principles
Bilingual legislation
Territoriality
The Crown
Mistakes and gaps
Previous versions-
Previous interpretations
Temporal application
Retroactivity
Vested rights
Subordinate legislation
Importing Charter values
Particular types of legislation
Fiscal legislation
Legislation taking away rights
Penal legislation
Readings
• Statutes & Regulations
pp. 127–34, 178–200, 287–345, 354–66
• Case law
R v Clarke, 2014 SCC 28 [1–11]
Castonguay Blasting Ltd v Ontario, 2013 SCC 52 [1], [3–7], [9]
Friends of the Oldman River Society v Canada, [1992] 1 SCR 3 [headnote]
Morishita v Richmond (Township), (1990) 44 BCLR (2d) 390 (CA) [39–55]
R v Atchison, 2006 ABCA 258
BC v Imperial Tobacco, 2005 SCC 49 [69], [71]
R v Klassen, 2008 BCSC 1762 [1–3], [5–6], [54–55], [64], [78–80]
Bilingual Legislation
If the shared meaning is not consistent with parliamentary intention then it can be rejected.
The focus is on the rule intended to be implied:
- Both versions are clear and say the same thing-
o -> adopt the shared meaning
- One version is ambiguous while the other is clear
o -> adopt the clear meaning, provided it is common to the other
- Both versions are ambiguous but there is overlap
o -> adopt the narrowest common meaning if there is one
- Both versions are clear or ambiguous, but they say different things
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o -> no shared meaning, must look to other interpretive principles
If an act explicitly sets out a certain thing or things within its scope, it has deliberately, through
implication, excluded everything else from its operation.
Territoriality
- Acts presumed to operate only within territorial limits of the legislature (R v Jameson, (QB 1896)
o Exclusive jurisdiction under territorial sovereignty
o International comity – respect territorial sovereignty of others
- Parliament can legislate outside of its territory, but it must use clear language or be necessarily inferred.
Ex. S 7 (3.7) of the Criminal Code
- Constitutional limitations on provincial legislatures
- States are presumed to hold jurisdiction in their own territory
- Can permit the exercise of other laws from other jurisdictions
- R v Klassen
The Crown
- Presumed Crown immunity absent clear words or necessary implication
- Friends of the Oldman River Society v Canada, 1992
- Immunity extends to agents of the Crown
Mistakes
- Presumption that the legislature doesn’t make mistakes, but when a mistake is apparent, it may be
“judicially corrected”
o Provided that it is a drafting error and there is good reason that the text does not reflect
legislative intention
- Morishita v Richmond
Gaps
- Seen as more serious than mistakes, cannot be cured by the courts as it involved policy and making choices
- Distinction between over-inclusive and under-inclusive legislation
o Over-inclusive: legislation read down
o Under-inclusive: correction by way of legislative amendment, not interpretation by courts
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Analysis: In the absence of a constitutional challenge, the presumption can be displaced by a clear
legislative direction that a provision is to apply retroactively.
S 5 of the Act states clearly that the new provisions apply to persons charged after it came
into force. The only triggering event was when the person is charged.
Conclusion: There is a presumption that the legislature doesn’t intend to legislate retroactively
Must be clear words or necessary implication to treat legislation as retroactive
Ratio: New legislation should be presumed not to apply retroactively unless it is explicit that is does
apply retroactively.
Case: Morishita v Richmond (Township), (1990) 44 BCLR (2d) 390 (CA) [39–55]
Facts: Bylaw directed clerk to “proceed as provided…in section 4 of the bylaw”
Analysis: Section 4 dealt with the planning committee, while section 5 dealt with the duties of the
clerk
Conclusion: Court found that the number was a drafting error and interpreted the provision as referring
to section 5.
Retrospective
- Forward acting. Law looks back to certain facts by attached new consequences in the present and going forward
- E.g., amendment to the regulation to impose a cap on fishing licenses due to a depleted stock caused by
overfishing, looks to past events but operates prospectively
Retroactive
- Law is a time machine, legislation changes the law back in time. (reaches back)
- E.g., “a provision of this Act has the retroactive effect necessary to give the provision full effect for all
purposes including allowing an action to be brought … arising from a tobacco related wrong, whenever the
tobacco related wrong occurred.” – s. 10 Tobacco Damages and Health Care Costs Recover Act (BC)
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- Legislation can enact retroactive laws. (Except Criminal laws)
o Presumed legislation is looking forward
Declaratory Legislation
- Is a special kind of retroactive law, where the legislature clarifies its original intention
- The statute is deemed to have always included
Vested Rights
- Right without any uncertain conditions or contingencies
- Presumption that the legislature does not intend to interfere with vested rights
o Interference must use clear language or be by necessary implication and is typically interpreted narrowly
- Government doesn’t intend to interfere with vested rights. If they do, they must be clear
Subordinate Legislation
- Regulations are presumed to be legally valid: Katz Group v Ontario, 2013
- Regulations are not used to interpret their enabling Acts unless they are intended to complete the statutory scheme
and are ‘closely meshed’ to form an integrated scheme: Monsanto Canada v Ontario, 2004
- Presumption that terms in regulations have the same definition as in the enabling Act
- Presumption that regulations do not have the power to be retroactive or delegate further party unless expressly
granted
Fiscal Legislation
- Read narrowly
Remedial Legislation with a generous/broad interpretation
- Human rights legislation
- Social welfare legislation
- Environmental legislation
International Law:
- Not want to violate international law, can influence
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- Power is recognized by s 8(3) of the Interpretation Act, RSC 1985 c 1-23 which
provides for retroactive application of acts intended to have extraterritorial operation
and, of course, by s 7 of the Criminal Code, which sets out provisions excepted from
the operation of s 6(2) which confines the scope of the code to offences committed
within Canada
- Charter allows customary international law to form a basis for the prosecution of war
criminals who have violated general principles of law recognized by the community of
nations regardless of when or where the criminal act or omission took place
Conclusion: S 7(3.7) – makes it illegal for Canadian citizens to commit torture outside Canada
S 8 of federal interpretation act deals with territoriality
Ratio: Parliament can legislate outside of its authority as long as there is clear intention to do so
The Crown:
Case: Oldman River Society v Canada
Facts: Department of Environment Act requires any fed department or agency to screen their
proposal for adverse environmental effects
Alberta govt wanted to construct a dam on Oldman River
Got approval from the Navigable Waters Protection Act, but no environmental screening
Issues: Is the federal act ultra vires?
Conclusion: Crown immunity only applies if it doesn’t go against purpose of an act
Alberta Crown was bound by federal legislation as the statute provided the only means of
authorization to interfere with river navigation
The purpose of the Act would be frustrated if the Alberta Crown was not bound
Immunity extends to agents of the Crown
Ratio: Act was intra vires federal jurisdiction under POGG under national concern. Must comply
with guidelines.
92 (13) 92 (16) and POGG
Crown must be bound by the act because of the purpose of the act.
Case:
Facts:
Issues:
Analysis:
Conclusion:
Ratio:
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