III Driedger2

IV Grammatical and Ordinary Meaning

  • McIntosh
  • Shaklee
  • Regina v. Riddell
  • Presumptions
  • 3 Maxims of Interpretation
  • Definitions
  • Time

V Scheme of the Act4

  • Components of a statute
  • Coherence
  • Conflict

VI Object of the Act and the Intention of Parliament6

  • Historical context and legislative evolution

VII Intention of Parliament6

  • Common law presumptions of intention of Parliament

VII Life cycle of a statute7

  • Enactment and commencement
  • Revision, consolidation, repeal and replacement
  • Amendment
  • Expiration
  • Replacement
  • Temporal application of legislation

IX Subordinate legislation10

  • Instruments of legislative nature
  • Instruments of administrative nature
  • Enactment of subordinate legislation
  • Judicial interpretation of subordinate legislation
  • Challenging subordinate legislation
  1. Identify the facts of the case(who is being charged? Corporation- state that they are a person- BCIA s.28)
  • State what they are being charged under.
  • Narrow it to the specific interpretation problem(s).
  • State the outcome for the different interpretations.
  • Identify the positions of the parties (who is arguing what- narrow vs. broad interpretation, that would result in ____ under the offense of ____.)
  1. Issue statement (repeat if more than one issue)
  2. The statutory interpretation is:
  3. The parties agree on:
  4. The issue is:
  5. One interpretation would result in X and the other would result in Y
  6. Driedger“Today there is only one principle approach, namely, 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”
  7. Adopted by the SCC in Rizzo, Merk, Mowat
  8. Grammatical and Ordinary Meaning
  9. McIntosh “A statute should be interpreted in a manner consistent with the plain meaning of its terms. Where the language of the statute is plain and admits of only one meaning, the task of interpretation does not arise”
  10. There exist two interpretations of a provision which may affect the overall liberty of the person. When the statute itself is ambiguous, it should then use the favourable interpretation
  11. McLachlin’s dissent: reading in requires 3 items: 1) must be a manifest of absurdity in the text 2) a traceable error 3) obvious correction of this error. If all 3 are met, one can read into the intent of the legislature
  12. Shaklee “As it is presumed that the legislator wishes to be understood by the citizen, the law is deemed to have been drafted in accordance with the rules of language in common use”
  13. Regina v. Riddell et al. (1973, QCCA)“Recourse to dictionaries to discover the normal, everyday meaning of words is an acceptable method of interpretation, but there are certain reservations”
  14. Presumptions
  15. Presumption of Uniformity of Expression-definitions of words remain the same through out an act, unless they don’t.
  16. Presumption Against Tautology (Rule of Effectivity)- Parliament chooses its words carefully and they all have a specific purposeMowat, McDiarmid Lumbercounter-abundance of caution.
  17. 3 Maxims of interpretation – Canons of construction (only aiding, not binding)
  18. noscitur a sociis – words are coloured by their surroundings
  19. McDiarmid Lumber- “When two or more words linked by “and” or “or” serve an analogous grammatical and logical function within a provision, they should be interpreted with a view to their common features”
  20. ejusdem generis(basket clause/common denominators)- choosing to limit a string of words purposefully
  21. Nanaimo (City) v. Rascal Trucking– “To ascribe greater meaning to the phrase “or other matter or thing” was said would run contrary to the intent of listing specific items before is, as well as deprive those words of meaning”
  22. expressio unius est exclusio alteris – purposefully not including something
  23. Canadian National Railway Co v. Canada(Attorney General) (2014)Hansard is the evidence of legislative intent however, this evidence is not helpful where the references themselves are held to be ambiguous.
  24. C.R. et al v. Children’s Aid Society of Hamilton et al.(ONSC, 2004)
  25. “The starting point for this discussion is a presumption that legislative silence is intentional”
  26. “To express one this is to exclude another”
  27. Definitions
  28. Interpretation Acts: BCIA s.29 – list of definitions (subject to contrary intention)
  29. Definitions apply to entire statute:
  30. BCIA s.12: Definitions or interpretation provisions in an enactment, unless the contrary intention appears in the enactment, apply to the whole enactment including the section containing a definition or interpretation provision.
  31. BCIA s.13: An expression used in a regulation has the same meaning as in the enactment authorizing the regulation.
  32. Alternate and grammatical forms: BCIA s.28(4)states that a statutory definition of a word or phrase applies to all of its grammatical forms (unless contrary intention is found)
  33. Tense: BCIA s.7 states that the legislation is always speaking and if something is stated in the present tense, it applies to circumstances as they arise
  34. Plural/singular: BCIA s.28(3) states that the singular may include the plural and vice versa depending on the context.
  35. Gender:BCIA s.28(2) Gender specific terms apply to both genders and include corporations.
  36. Referential Incorporation:
  37. Pulling provisions of one statute into another one.
  38. BCIA s.36(1)(f)a reference in an unrepealed enactment to the former enactment must, for a subsequent transaction, matter or thing, be construed as a reference to the provision of the new enactment relating to the same subject matter, but if there is no provision in the new enactment relating to the same subject matter, the former enactment must be construed as being unrepealed so far as is necessary to give effect to the unrepealed enactment.
  39. BCIA s. 32In an enactment a reference to another enactment of the Province or of Canada is a reference to the other enactment as amended, whether amended before or after the commencement of the enactment in which the reference occurs.
  40. Time
  41. Time related definitions: BCIA s.29
  42. Calculating of Statutory Time Periods: BCIA s.25
  43. General rule: calculation excludes the first day and includes the last day BCIA s.25(5)
  44. Exceptions: BCIA s.25(4)exclusion of both first and last day when triggered my magic words: “clear, at least, no less than”
  45. Holidays: BCIA s.29- defines Holidays as including Sundays. General rule: count all days including holidays.
  46. Expiration date falls on holiday: BCIA s. 25(2) deadline moves to the next day.
  47. Calculating age: BCIA s.25(8)a person reaches a particular age expressed in years at the start of the relevant anniversary of his or her date of birth.
  48. Scheme of the Act
  49. Components of a statute
  50. Title: BCIA s.9“title is part of the enactment and is intended to be used to assist in explaining the meaning and object.”
  51. R. v. Lane, Ex p. Gould– a title may be looked at to resolve any ambiguities
  52. Committee for the Commonwealth of Canada v. Canada – the shortening of a title can indicate the legislature’s intent to limit the scope of the Act.
  53. Preamble:
  54. BCIA s.9 “provides that a preamble of an enactment may be used for interpretation purposes”
  55. Re Anti-Inflation Act(1976)where there is no preamble, this lack could weaken the interpretation of the Act.
  56. Purpose statements
  57. Ruth Sullivan and Driedger on the Construction of Statutes(2002)
  58. Headings, head notes and margin notes
  59. BCIA s.11(1)states that head notes must be considered as separate from the enactment as they are added only editorially for reference and therefore is not part of the enactment.
  60. McIntosh: Dissent McLachlin J: she agrees that they are not part of the enactment however, they hold a gleam of Parliament’s intent in a limited manner.
  61. R v. Lohnes: headings can be used to find the purpose but are not binding.
  62. Punctuation
  63. R. v. Jaagusta(1974)punctuation is often disregarded
  64. Schedules
  65. Waddell v. Governor in Council (1983, BCSC)A schedule can form part of a statute but is not always the case.
  66. Coherence
  67. Internal coherence and the scheme of the Act Sullivan on the Construction of Statutes – presumption of coherence – legislature does not enact something that contradicts itself.
  68. Horizontal coherence – Bell ExpressVu(2002)“words like people, take their colour from their surroundings” – statutes receive their ‘colour’ from other statutes handling the same subject matter
  69. Columbia River & Property Protection Society and East Kootenay Environmental Society v. British Columbia(1996)– it is possible to interpret a statute according to its fellow statutes that handle the same subject matter because it is presumed that similar subject matters enacted are to be written similarly.
  70. Conflict
  71. A younger (recent) statute will prevail over an older one (precedent) only to the extent to avoid conflict
  72. Specific statute will prevail over a general one because it is a better picture of the legislature’s intent on this specific matter.
  73. Earlier, specific statute prevails over a later, general statute (specificity>age) Levis (City) v. Fraternité de Policiers(2007)
  74. Vertical coherence
  75. Constitutional supremacy: Statutes must be consistent with the Canadian constitution and the Canadian Charter of Rights and Freedoms – Constitution Act 1982 s.52
  76. Federal paramountcy: where a federal law and a provincial law conflict, usually the federal law will prevail.
  77. Quasi-constitutional nature of human rights and official languages and legislation: Every jurisdiction has enacted a human rights legislation and any other legislation that is inconsistent with its provisions, will fail. Date and specificity do not prevail in this case. Official languages Acts mirror this.
  78. Subordinate nature of delegated powers: Legislatures delegate powers to make laws. These laws are still subject to the legislature (eg. CRTC)
  79. International law and instruments:
  80. Government’s presume Canada would like to comply with international law (presumption)
  81. Legislature may implement an international law that ratifies a treaty Canada has signed
  82. International conventions and treaties must be interpreted in their ordinary meaning in their context aligned with the purpose of the treaty.
  83. Two courts systems must engage in the interpretation.
  84. Baker v. Canada (1999)“Legislature is presumed to respect the values and principles enshrined in international law, customary and conventional.”
  85. Dissent Iacobucci, J: International law has no effect until it has been incorporated into domestic law.
  1. Object of the Act
  2. BCIA s. 8Every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.
  3. Historical Context and legislative history
  4. Historical context: the factual context that gives rise to the legislation: shed light on the problem that the legislature wishes to address.
  5. Legislative evolution: previous versions: the different versions of the Act can help in ascertaining the the meaning of the current provision.
  6. Re Simon Fraser University and District of Burnaby(1968) “Any change in language is some indication of the change of intention on the part of the legislature”
  7. Presumption of substantive change: The former legislation means X, therefore the new legislation must be something other than X.
  8. BCIA s.37(2)reminds courts that an amendment may be declaratory by nature and not necessarily substantive.
  9. Legislative history: (given little weight)
  10. Hansard evidence
  11. House committee reports
  12. Briefing notes
  13. Alternative draft versions of the statute or proposed amendments
  14. Reference re: Firearms Act2000- “Purpose may be also ascertained by considering the “mischief” of legislation- the problem which Parliament sought to remedy”
  15. Rizzo & Rizzo Shoes(1998)– Outside materials are accepted now by courts and can be used to help ascertain the purpose but should not be given undue weight”
  16. Intention of Parliament
  17. Common Law presumptions of legislative intent
  18. Presumption of crown immunity:
  • BCIA s.14(1): Unless it specifically provides otherwise, an enactment is binding on the government.
  • (2)Despite subsection (1), an enactment that would bind or affect the government in the use or development of land, or in the planning, construction, alteration, servicing, maintenance or use of improvements, as defined in the Assessment Act, does not bind or affect the government
  • Presumption against extra-territoriality:
  • A legislature is presumed to enact a statute only in relation to person, property, things or events that fall within its territorial boundaries.
  • Provinces are restricted. S.92 of the Constitution Act, 1867restricts their jurisdictional reach to ‘in the province’. If it reaches beyond these borders, it’s ultra vires’.
  • Presumptions of legislative intention relating to particular areas of law
  • Sullivan on the Construction Statutes (2008) place more emphasis on liberal constructions of remedial legislation.
  • Bell Express Vu Limited Partnership v. Rex-“The preferred approach recognizes the important role that context must inevitably play when a court construes the written words of a statute.
  • Presumption against interference with rights
  • Legislature does not intend to hurt or affect in a negative way, the rights of subjects. If there are two ways of interpretation, the favourable one infringes the least. Legislation that adversely affects people’s rights are given strict construction.
  • Property rights
  • Legislation interfering with a person’s property rights should be strictly construed
  • Penal Legislation
  • R v. Hasselwander (1993) Where a word is ambiguous and the canons of construction fail to solve, the doubt favours the accused.
  • Human rights statutes
  • Courts have held that human rights statutes have quasi-constitutional status
  • School District No. 44 (North Vancouver) v. Jubran (2005, BCCA) It’s inappropriate to rely solely on the grammatical analysis in cases of constitutional and quasi constitutional nature of human rights legislation however, the words cannot be completely ignored.
  • Taxation statutes
  • Shift towards taking a holistic approach to take in the entire context of the statute to give it enough room to consider the complexities of the policies and principles at work
  • Placer Dome Canada Ltd v. Ontario (Minister of Finance) (2006)If there is no ambiguity in the provision, then there is only applying it.
  • Municipal Law
  • Formally strict interpretation, now a more generous approach
  • United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City) (2004) A broad and purposive approach must be taken to municipal legislation.
  • Use of previous interpretations
  • Once the SCC has selected an interpretation, it is binding to all lower courts of Canada
  1. Life cycle of a statute
  2. Enactment and commencement
  3. Enactment: receives Royal Assent
  4. Commencement: date statute has force of law
  5. BCIA s.3(2) The date of commencement of an Act or of a portion of it for which no other date of commencement is provided in the Act is the date of assent to the Act.
  6. BCIA s.5 If an enactment that is not in force contains provisions conferring power to make regulations, or to do any other thing, to make the enactment effective on its coming into force, the power may be exercised before the enactment comes into force, but the regulation or the thing done has no effect until the enactment comes into force, except in so far as is necessary to make the enactment effective on its coming into force.

(2)If an enactment is to come into force or be repealed on proclamation or by regulation of the Lieutenant Governor in Council,

(a)the proclamation or regulation may apply to the coming into force or repeal of any provision of the enactment, and

(b)proclamations or regulations may be issued at different times for different provisions of the enactment.

  1. BCIA s.4(1) enactment commences at the beginning of the day on which it comes into force
  2. BCIA s.4(3) an enactment will cease to have effect at the end of the day on which it is repealed
  1. Revision, consolidation, and repeal and replacement
  2. Unofficial Consolidations do not have the force of law
  3. Repeal and Replacement
  4. BCRA s.1(b) authorizes the revision of a statute or a portion of it
  5. BCIA s.36(1)If an enactment (the "former enactment") is repealed and another enactment (the "new enactment") is substituted for it,

(a)every person acting under the former enactment must continue to act as if appointed or elected under the new enactment until another is appointed or elected in his or her place,

(b)every proceeding commenced under the former enactment must be continued under and in conformity with the new enactment so far as it may be done consistently with the new enactment,

(c)the procedure established by the new enactment must be followed as far as it can be adapted in the recovery or enforcement of penalties and forfeitures incurred under the former enactment, in the enforcement of rights existing or accruing under the former enactment, and in a proceeding relating to matters that happened before the repeal,

(d)when a penalty, forfeiture or punishment is reduced or mitigated by the new enactment, the penalty, forfeiture or punishment if imposed or adjusted after the repeal must be reduced or mitigated accordingly,

(e)all regulations made under the former enactment remain in force and are deemed to have been made under the new enactment, in so far as they are not inconsistent with the new enactment, until they are repealed or others are made in their place, and

(f)a reference in an unrepealed enactment to the former enactment must, for a subsequent transaction, matter or thing, be construed as a reference to the provision of the new enactment relating to the same subject matter, but if there is no provision in the new enactment relating to the same subject matter, the former enactment must be construed as being unrepealed so far as is necessary to give effect to the unrepealed enactment.

(2)If all or part of an enactment of any other province of Canada or of Canada is repealed and another provision is substituted by way of amendment, revision or consolidation, a reference in an enactment of the Province to the repealed enactment must, for a subsequent transaction, matter or thing, be construed to be a reference to the provision of the substituted enactment relating to the same subject matter.

  1. BCIA s.4(2) A repealed statute ceases to have effect at the time the replacement enactment commences.
  2. There may be provisions that were referentially incorporated in from old enactment
  1. Amendment
  2. BCIA s.37(2)The amendment of an enactment shall not be construed to be or to involve a declaration that the law under the enactment prior to the amendment was or was considered by the Legislature or other body or person who enacted it to have been different from the law under the enactment as amended.
  3. Expiration
  4. Statute may provide its own expiration- sunset clause
  5. Obsolescence- may become obsolete but still retains the force of law eg: no longer applies to any factual situations
  6. Obsolete purpose
  7. Spent
  8. BCIA s.4(4) a statute that has expired or otherwise ceased to have effect is deemed to be repealed
  9. Repeal
  10. A statute or part thereof, ceases to have the force of law when it is expressly repealed by another Act of the legislature
  11. BCIAs.35(1) If all or part of an enactment is repealed, the repeal does not

(a)revive an enactment or thing not in force or existing immediately before the time when the repeal takes effect,