Brooke Haberstock LLP FINAL EXAM OUTLINE~

TABLE OF CONTENTS:SAMPLE MODERN APPROACH ANSWER:........................................................................................2

SUBORDINATE LEGISLATION:..........................................................................................................6

Steps for Interpreting Subordinate Legislation:...................................................................................7

COMPONENTS OF A STATUTE:.........................................................................................................8

CONFLICT BETWEEN 2 STATUTES:...............................................................................................10

TEMPORAL ISSUES:.........................................................................................................................11

Types of (TEMPORAL) Modifications:...........................................................................................11

Temporal Activation:.......................................................................................................................12

Steps for Dealing with Temporal Issues: (As per Sullivan)............................................................13

CALCULATING TIME (BCIA)............................................................................................................15

STATUTORY INTERPRETATION TOOLS:........................................................................................15

COMMON LAW PRESUMPTIONS:....................................................................................................17

CASE BRIEFS:...................................................................................................................................21

PASSING A BILL................................................................................................................................26

BCIA PROVISIONS............................................................................................................................27

INTERPRETATION ACT, R.S.B.C. 1996, c. 238.................................................................................27

TERMS DEFINED IN BCIA S.29:.......................................................................................................32

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SAMPLE MODERN APPROACH ANSWER: 

1) Issue/Statement of Issue: o Identify the facts of the case (Who is being charged?)o State what they are being charged under. [make this happen briefly]o Narrow down to specific interpretation problem(s)

If temporal see p. Xo Identify the positions of the parties (who is arguing what- narrow vs. broad

interpretation, what would the result be? Do the parties agree on anything?)o One interpretation would result in X and the other would result in Y.o If more than one issue, do this twice.

**Note if both are necessary (Think of Juicy Drinkz)2) General Rules & Principles of Statutory Interpretation

o Modern Approach/Driedger Method: [Insert description here]

Application of the Law: 

3) Literary Context (Textual Analysis)

The first phase of my analysis will explore the literary and textual factors relevant to the interpretation of the term x/of the issues at hand.The act has provided definitions for the terms X and X.

o Stipulated definitions: Provided in the statute. Does the stipulated definition require further analysis? **Stipulated definitions are ENACTED aka PART OF THE ACT therefore :

legislative intent BCIA s.12 & 13 state that definitions laid out apply to the entire statute,

unless a contrary intention is stated.The BCIA provides the definition for the term X/This act uses the word X defined in s.29 as X.

o (CP 4-3) must turn to ordinary meaning. “However, since most words are not defined in statutes, and even if they are, their definitions will require interpretation, you must also pay attention to the usual meaning of the words that were chosen by the legislature to express it’s intention”

o Do any of the definitions provided need further attention? Are they exhaustive (this is what it means) or non-exhaustive ("includes")

o No stipulated defs? Or BCIA defs? Ordinary meaning (BOTH SIDES) {'golden rule' as per Lamer in McIntosh case}

(CP 4-3) must turn to ordinary meanings. “However, since most words are not defined in statutes, and even if they are, their definitions will require interpretation, you must also pay attention to the usual meaning of the words that were chosen by the legislature to express it’s intention”

Do any of the definitions provided need further attention? Are they exhaustive (this is what it means) or non-exhaustive ("includes")

Shaklee test: What would come to mind for a "reasonable person” Dictionary definitions???

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As seen in R v. Riddell, dictionary definitions can be used, but R v. Shaklee tells us that they are of “limited usefulness”.

* Stipulated definitions>Interpretation Act definitions>Ordinary Meaning (Reasonable Person)>Dictionary

o Stipulated definition>Act dealing with same S.M definitiono Legal Dictionary>Regular Dictionary

o “May”/”Or” “May”: BCIA s. 29 “to be construed as permissive and empowering” “Or”: R v.Riddell “If the legislature has chosen to use expressions which are

joined or more precisely separated, by the conjunction “or,” it must be assumed that it wished to cover two situations. One cannot presume that it would have used two synonymous expressions without reason and with no purpose” (tautology)

o Presumptions?--> Against tautology? Uniformity of Expression? o Canons?

4) The Scheme of the Act (Legal) (Purposive Analysis)(“The means”) In this section, I will employ a purposive analysis in looking at the scheme and object of the X act. The structure and content of the scheme is vital to the analysis, as it is extremely important that a provision have internal coherence within the rest of the statute. In this segment, I will employ various secondary tools of interpretation, such as presumptions and maxims.

o What type of legislation is it? (What does this tell us about purpose?) Note: If you determine legislation to be penal, you can use the penal

presumption here if ambiguous results at the end. (Majority decision in Bell ExpressVu)

o Is there consistency? Internal coherence ? Do other parts of the statute give any clues as to the

issue? Terms/phrases must be interpreted in a way that fits into the scheme of the statute and avoids inconsistencies. (CP 4-66)

If a multi statute scheme—horizontal coherence Is the statute/law vertically coherent?

o Constitution > allo Fed > Prov o Human Rights Codes > Other provincial statute o Statute> Regulation

o Presumptions of legislative intent Canons of Construction Presumptions?-> Against tautology? Uniformity of Expression?

5) The Object of the Act (Legal) (Purposive Analysis)(“The end”) Object of the act and it's purpose:

The object of the act is used to guide our interpretation of the issue in question and is identified as a tool of statutory interpretation by Justice Iacobucci in Rizzo w/ the analysis of the object of the Employment Standards Act

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Look for: 1) Ridiculous consequences (As Justice Iacobucci claims in Rizzo, “the legislature does not intend to produce absurd consequences.”)2) Inequitable results 3) Incompatibility

Components of a statute—ie. Title.X has X weight because of X.

Historical Context : Look at the facts that existed at the time the law was debated and passed.

o “the conditions of things existent at the time of the enactment” (Grand Trunk Railway Co of Canada v. Hepworth)

Conclusion: “The interpretation that favors X is more compelling”o **What other information would you have liked to have had in the legal context

for the purpose of analysis? Was this a multi-statute scheme? What components of the statute are missing?--> Would these components

have been given more weight and would this have affected your analysis?

6) Legislative History and Evolution (External) (Consequential Analysis)

In the final phase of my analysis, I will employ a consequential lens in looking at extrinsic factors, with the goal of determining legislative intent.

o Legislative Evolution: o Legislative History: o Un-enacted provisions:

Unenacted provisions can shed light on legislative purpose, as seen in R v. McIntosh, but as is acknowledged in Mowat,“great care must be taken in deciding how much, if any weight can be given to this sort of material.”

7) Public Policy and Legislative Intent (Consequential Analysis) o Information about societal context?o Hansard?

“Hansard evidence is admitted as relevant to the background and purpose of the legislation, courts must remain mindful of the limited reliability and weight of such evidence” (CNR v. Canada)

o Would particular interpretation breach the purpose of the act?o **Is there any other information that could benefit your analysis? (that you don’t

have) Are there other statutes enacted by the same legislature that defines the

phrase/word in question that can be turned to for guidance, especially if the statute is in pari materia (same subject matter). (WOULD REPEAT THIS FOR EACH ISSUE)

8) Conclusion o Lay out both interpretations and the result from each.

"The interpretation that favors X is more compelling”

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In conclusion and for the above reasons, I conclude that the expression/word/phrase X in s.X is best interpreted (narrowly/broadly) and the likely outcome is on the side of X."The interpretation that should be favored is X, because of the strengths in the arguments regarding X"

o Note: The interpretive framework applied by the courts in determining the meaning of legislative language is broad and flexible, typically affording judges considerable latitude to choose from a range of possible and plausible interpretations.

SUBORDINATE LEGISLATION:

2 classes of subordinate legislation as per Dussault and Borgeat: (1) legislative stands on same footing as statutory enactment

(all are set out under a ‘parent statute’) Binding.a. regulation- wide authority b. order- specific purpose c. rule- rules of procedure for tribunals etcd. tariff- designates quantitative normse. bylaw- rules/norms adopted by corporations f. letters patent –used to create a corporation and authorize it to engage in

particular activities.(2) administrative refers to ‘directives’ for guiding gov’t officials in exercising statutory

authority and are generally not expressly provided in legislation. NOT binding.(Note: administrators frequently spend a lot of time working with legislation and therefore an argument can be made for some gleaning/weight) Not directed at the public at large. Not law. Ensures uniformity of activities common to employees. Ensures uniformity, consistency, predictability of interpretations and applications of

law and regulations by civil servants.

STEPS FOR INTERPRETING SUBORDINATE LEGISLATION:

1) Characterization of the instrument: Is it law or procedure? (policy is not binding but can play a roll in the application of the law.)

a. Policy: Will appear as more of a guide than a law and is based on implicit (rather than explicit) authority.

b. Law(SI): generally it will be clear that the instrument is a regulation: BCIA s. 41(2): declares that a regulation made under the authority of an

enactment has the force of law. BCIA s. 36(1): Provides for the survival of regulations following the

repeal/replacement of the enabling act. BCIA: s.13: “An expression used in a regulation has the same meaning as in

the enactment authorizing the regulation” 2) If you have subordinate legislation, identify the source of authority: enabling Act and

provisionsa. Identify the enabling provision in the Act

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b. Any limitations/specifications? Ie. How and ny whom can regulations be made? If these requirements are included, have they been observed?

3) Does the regulation comply with the BCRA? see A-47 of CP!4) Does the enabling act authorize the subordinate legislation that has been made? Are there

grounds on which to challenge the validity of the subordinate legislation? a. Must be authorized: (as per parent statute’s enabling clause)

Consistency: Is it consistent with the enabling statute? (Can look to the enabling clause or the purpose clause here, as stated in Broadcasting Reference, but conflict with the statute itself will always be taken more seriously than a conflict with a purpose statement. Policy statements such as purpose clauses will actually limit the meaning.)

b. Is there vertical coherence between the parent act and the subordinate legislation? Is the subordinate legislation beyond the objects/purpose of the enabling statute?

c. Use statutory interpretation tools to interpret the meaning of the enabling provision/enabling act.

d. Does the regulation demonstrate horizontal coherence? Is it consistent with other related legislation?

e. If the regulation goes beyond the scope of what is authorized or is inconsistent/in conflict with the enabling legislation – it is invalid and has no effect. Ultra Vires. (Note: If regulation is found to be intra vires, does it’s parent statute conflict with other statute? If yes, see p.10)

COMPONENTS OF A STATUTE:

How useful is the component? o How has it been used? (case law)o How much weight is it likely to be given and WHY o What are the pros and cons of using this component?

Title   (CP 4-40) Indicates the purpose and scope of the act Comes before enacting clause Titles are treated as part of the Act: (s.9 of BCIA)

o "intended to assist in explaining its meaning and object" Under parliamentary procedures, long title is supposed to cover everything contained in

a bill; if some provisions exceed the long title, either the long title must be amended or the excessive provisions are dropped.

Weight: Titles are given some weight in aiding with determining intent. (Similar to preamble)

Ie. Hudon v. United States Borax & Chemical Corp: Case determining whether the limitation placed on the right of a passenger in a vehicle to claim damages for injuries apply to an accident in a private parking lot refers to long title which emphasizes only “Highways”

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Ie. Committee for the Commonwealth of Canada v. Canada: political activism in the airport-full title of act in question contains the word “Operations” which they take to imply a commercial connotation, making political activism exempt from the act.

Preamble (CP 4-44) "Whereas" clauses that precede the statute's provisions. Recite the circumstances and

considerations that gave rise to the statute. Typically contain facts and goals. Preambles are treated as part of the Act (s.9 of BCIA, s.13 of fed) Weight : Professional uses:

o Explains impetus for the enactment: ie. Law implementing an international agreement or responding to a court decision.

o Lay groundwork for interpretation (Roach article) Symbolic uses:

o Persuade citizens about the value of the law.o Roach argues that this "aspirational" usage is primary use.o Have to consider: Is it purely symbolic or professional?

ie. Anti-Inflation Act –preamble used to bolster the government’s argument for the constitutionality of the law—implies “matter of serious national concern”

Purpose Clauses: (CP 4-52) An express statement of principles and policies that the legislature wants to achieve. Can include a number of competing policies or principles. Purpose clause>Preamble (b/c they have the 'force of law') Set out the context of legislation Weight:

o How specific and coherent are the principles/policies? o Are there other indicators of legislative purpose, or are you only reliant on these

clauses?o Substantive provisions>Purpose clauses>Preambleso Ie. National Farmers Union v. Potato Marketing Council : MCQUAID J determines

that in conflict between a substantive provision and a purpose clause, substantive provision always wins. **Sullivan specifies exception: Might be a drafting error in the provision.

Definitions (CP 4-37)

Complicated statutes may have a definition section for each parto “words of the utmost importance are defined by interpretation acts” CP 4-32

Definitions within the statute itself always take precedence over plain meaning and dictionary definitions. Statutory definitions>Plain Meaning>Dictionary (Legal>Regular)

a. Read the intro section as well as the section for the relevant part.b.Then consider the definitions section in Interpretation Act

Is the word used in other places in the statute? o Coherent meaning search! (rarely used two different ways in one statute)

Is the definition exhaustive or non-exhaustive (inclusive)?

Headings (CP 4-56)

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Serve as brief pointers to the subject matters dealt within the relevant provisions. Provide an overall structure to the statute. (intrinsic aid) Weight:

o Ie. R v. Lohnes—headings support the intention of parliament

Marginal Notes/Head Notes (CP 4-56)

Weight: o Cites R v. Wigglesworth WILSON J

BCIA s. 14 claims that they are “added editorially for convenience of reference only” (same goes federally)

Marginal notes are made by drafters and carry less weight than headings which are made by parliament.

Sullivan claims that they are physically separate from the rest of the statute and therefore intended as a “finders aid”.

*In BC we only use head notes—not marginal notes.  

Punctuation (CP 4-60)

Will affect the meaning of a word or phrase in a text. Oxford comma. R v. Jaagusta

 Schedules (CP 4-62)

Located in a statute at the end of the provisions – schedules or appendixes contain materials that would not fit in the provisions themselves because of length/formatting etc. (Could come in the form of maps, lists etc)

Weight: Ie. Nishga’a Final Agreement: “as set out in the Schedule” Ie. Houde v. Quebec Catholic School Commission—provisions of the statute overrule

the schedule because not referenced in the provision itself.

CONFLICT BETWEEN 2 STATUTES:

Rules: (1) new>old (2) specific>general (3) specificity>newness (ie. Older specific statute>newer general statute)

TEMPORAL ISSUES:

o Commencement date that statute has force of law. If silent on date of commencement, becomes date of assent as per s.3(2).

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(Note that even if a statute has not yet received royal assent, it is still permitted for regulations to be created under it, which suggests that although commencement has not yet occurred, the legislative intent is apparent.

o BCIA s.4(1) enactment commences at the beginning of the day it comes into force.o BCIA s.4(3) enactment ceases to have effect at the end of the day on which it is

repealed.Sources: BCIA s.5, Ritchie, J: Reference Re: Criminal Law Amendment Act

o Revisions: o Statute Revision Act: s.8(3)revision to a statute may involve substantive

amendments o More commonly, just housekeeping.

o Transitions: o BCIA s.36 provides that if the new Act reduces a penalty or punishment, the new

provisions will apply in relation to any penalty or punishment imposed or adjusted after the repeal and replacement.

o s.11(i) of Charter If variation in punishment between commission and sentencing, benefit of less severe punishment.

oo BCIA s.36(1)(f): “referential incorporation” If no provision in a new enactment

relates to the same subject matter, a former “repealed” enactment must be construed to be “unrepealed” so far as is necessary to give effect to the referential incorporation.

TYPES OF (TEMPORAL) MODIFICATIONS:

(1) Amendments: most of the time are substantive:o BCIA S. 34 “An amending enactment must be construed as part of the enactment that it amends.”

2 Categories:

(1) Temporal Situation: Law changes—which law applies? In these cases, one party generally want the old law to apply, one wants new law. (BCIA S. 35(1)(a): “If all or part of an enactment is repealed, the repeal does not affect a right or obligation acquired, accrued, accruing or incurred under the enactment so repealed.”(2) Law Changes Pre or Post Facts: What inference can we draw from this change in law and how does this help us to limit the meaning of the issue or word in question? But:o BCIA S. 37(2) amendment not indicative of substantive change in law.

(2) Expiration: o “sunset clause” provides that statute ceases to be law on a specific dayo obsolescence: (1) no longer factually relevant (2) obsolete purpose (3) ‘spent’ (ie.

Tax law grace period)(3) Repeal:

o ‘implied’ repeal: BCIA s.4(4) statute that has “expired or otherwise ceased to have effect” interpreted to be implied repeal

o express repeal by another statute: BCIA s. 35: principles about repeal to ensure smooth transition.

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o BCIA s.36 deals with repeal & replacement.

o Protecting “accrued or accruing rights”: o S.35(1)c): repeal does not “affect a right or obligation acquired, accrued,

accruing or incurred,” under the repealed enactment BCIA 35(1)(e) & 35(2)“accrued” or “accruing”: a proceeding or

remedy in relation to either of these may be initiated, continued or enforced after its repeal.

TEMPORAL ACTIVATION:

o Immediate and prospective effect: o New law applies on its date of commencement (immediate) and in the future

(prospective)o Retroactivity:

o Changes the legal character of actions that have already been completedo There is a particularly strong presumption against retroactivity as it offends Rule of

Law values of certainty, predictability etc.o Exception: Tax laws are generally applied retroactively in the interest of equity.o Charter: (deals w/ criminal law and retroactivity)

o S 11(g): person cannot be found guilty of an offence for an act or omission hat was not an offence at the time of commission.

o S 11(i): If penalty changes between commission and sentencing, person found guilty of an offence is entitled to the benefit of the lesser punishment.

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o Retrospectivity:o Introduces a new procedure/reaction to something that has already been done.

Does not actually change legal character.o Example: Changes in sentencing laws or Charter s.11 –lesser punishment if

punishment varied b/w commission and time of sentencing. o Strong presumption against.o Substantive Rights: defenses, right to appeal, constitutional rights, evidentiary

changes that require the collection of different evidence. o Procedural Rights: affects the process of a given set of circumstances. (On rare

occasions a procedural change can affect substantive rights)o Retrospectivity exceptions:

-beneficial legislation no risk of ‘reliance’ or unfairness-laws that protect the publicif new law produces more onerous consequences–laws that affect proceduresa change in the process likely does not impinge on any substantive rights. Dineley: “Normally rules of procedure do not affect the content or existence of an action or defense, but only the manner of its enforcement or use.”

STEPS FOR DEALING WITH TEMPORAL ISSUES: (AS PER SULLIVAN)

1) Establish the coming into force date of the provision to be applied.

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2) Identify the facts/conditions comprising the “situation” (What facts must be established in order to trigger the legal effect?”

3) Establish what happened and situated those facts in time. Were these relevant facts: complete, ongoing, had not yet commencedWHEN THE PROVISION COMES INTO FORCE: If relevant facts were completelegislation can be retroactive or retrospectiveIf facts are ongoing Application is immediate

4) Does this change interfere with a substantive or procedural right?:

o Inteferes with substantive right:o Does not interfere with substantive right:

“accrued or accruing rights”: o BCIA S.35(1)c): repeal does not “affect a right or obligation acquired, accrued,

accruing or incurred,” under the repealed enactmento BCIA 35(1)(e) & 35(2)“accrued” or “accruing”: a proceeding or remedy in relation

to either of these may be initiated, continued or enforced after its repeal.o Alternatively: S.36(1)(b)-- every proceeding commenced under former enactment

is continued under and in conformity with new enactment. [procedural rights only] (aka—applies retrospectively)

CALCULATING TIME (BCIA)

Calculation of time or age

25 (1) This section applies to an enactment and to a deed, conveyance or other legal instrument unless specifically provided otherwise in the deed, conveyance or other legal instrument.(2) If the time for doing an act falls or expires on a holiday, the time is extended to the next day that is not a holiday.(3) If the time for doing an act in a business office falls or expires on a day when the office is not open during regular business hours, the time is extended to the next day that the office is open.(4) In the calculation of time expressed as clear days, weeks, months or years, or as "at least" or "not less than" a number of days, weeks, months or years, the first and last days must be excluded.(5) In the calculation of time not referred to in subsection (4), the first day must be excluded and the last day included.(6) If, under this section, the calculation of time ends on a day in a month that has no date corresponding to the first day of the period of time, the time ends on the last day of that month.(7) A specified time of day is a reference to Pacific Standard time, or 8 hours behind Greenwich mean time, unless Daylight Saving time is being used or observed on that day.(8) A person reaches a particular age expressed in years at the start of the relevant anniversary of his or her date of birth.

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STATUTORY INTERPRETATION TOOLS: 

The Principle of Associated Meaning:Noscitur a sociis

  A word acquires its meaning from surrounding words. A word is 'known by associates' Concepts linked by "and" or "or" can be used to clarify the meaning of other words McDiarmid Lumber v. God's Lake First Nations

o 'Treaty' and 'agreement'- basic rules of interpretation require that the terms "treaty" and "agreement" be linked together so as to limit the extend of the word agreement to an 'ancillary agreement'

Pizza, hamburger, hotdog, and chips -- are they wood chips? No.  

The Principle of Limited Class : Ejusdem generis

  A general term takes its meaning from the list of specific words that precede it Identifiable common denominator --Basket clause There must be a 'something else' to which the general term can apply Nanaimo v. Rascal Trucking

o "or any matter or thing" does not mean anything. Oranges, lemons, limes, tangelos and other fruits.

o Grapes? No. Pomelos? Yes

The Principle of Implied Exclusion:Expressio unius est exclusio alteris

  The mention of one thing by necessary implication excludes another thing. There is reason to believe that if the legislature had meant to include one thing within

its legislation, it would have referred to that thing expressly. "legislative exclusion can be implied when an express reference is expected but absent" CR et al v. Children's Aid Society of Hamilton

o Lawyer claims rights but no responsibility-- decision: responsibility is expected to go along with rights.

I die and leave you my car and my truck and the tires for my car. Silent on truck tires, but not car tires, therefore implied exclusion. It is important to take caution when employing this principle, as it may not be clear if the legislature intended to exclude something or not. Inclusion does not always imply intentional exclusion elsewhere.

Stipulated definitions:

Such as the use of the stipulated definition of the word “broadcasting” relied upon by Iacobucci in Bell ExpressVu 

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Uniformity of Expression:  

o Enactments are intended to be consistent, and words used are meant to keep their meaning for the entirety of the enactment.

 Internal Coherence:

 o Speaks to the scheme of the act -- considers the wider context and the whole of the

statute. o Your interpretation should not create inconsistencies

 Hansard:

o Transcripts of parliamentary debates -- can be a clue to legislative intent o Weight and reliability limited, but can be used to give legislative intent

Rizzo case-- Hansard is accepted because it was the actual minister who introduced the bill.

 

Un-enacted legislationo Can aid in determining the purpose of the legislation but has limited weight

(Mowat)o **If legislation has been un-enacted, it must be approached with caution.. But can

still be used as evidence of legislative intent. 

The Plain Meaning Rule:o Rarely used, but once considered "golden rule" of statutory interpretation o 'Obvious meaning' interpretation wherein the interpretation of the statute is

founded on the wording of the legislation alone. (McIntosh)  

The Presumption Against Absurdity:o The legislature does not intend to produce absurd results. o Rizzo: (Sullivan quote) "A label of absurdity can be attached to interpretation

which defeats the purpose of a statute or renders some aspect of it pointless or futile"

 The Presumption Against Tautology:(Effectivity)

o Legislature does not use 'superfluous' words..does not repeat itself pointlessly o Every word in a statute has a role to play in advancing legislative purpose o Interpretations that render sections or words meaningless are typically not

favoured

The Presumption Against General Mistakes:o Presumption that the drafter is an accomplished user of language. (Jaagusta)

COMMON LAW PRESUMPTIONS:

Presumption Against Retroactivity: Changes the legal character of actions that have already been completed

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There is a particularly strong presumption against retroactivity as it offends Rule of Law values of certainty, predictability.

Presumption of Crown Immunity: Presumption that legislation does not apply to the Crown/gov’t. This has been reversed in BC: BCIA s.14(1): “unless it specifically provides otherwise, an

enactment is binding on the government” BCIA s.14(2) is an exception for use/development of land or improvements.

Presumption Against Extra- Territoriality: Presumption that laws only apply within the territory of the state that enacts them. *Canada can pass laws with extraterritorial effect by express declaration, and usually these

laws support the idea of international comity (good neighbor), but the province cannot pass these laws as not a sovereign state.

Presumptions of Legislative Intention Relating to Particular Areas of the Law: Presumptions are responses to the controversies of their time and the values seen as

important by the judiciary in that time. Overriding goal is to give effect to the goals and purposes of the legislature, but they should

be considered as ‘common law values’ and weighted as such. Presumptions can be construed strictly or liberally : As per Ruth Sullivan in Statutory

Interpretation (2nd ed) :o Strict construction:

Applied as narrowly as possible Intention to limit the scope and impact of the law. Court may ‘read down’ more general terms Penal legislation, regulatory legislation, taxation, zoning, bylaws

o Liberal construction: Remedial legislation Promotion of social goals, advancement of religion, promotion of public

welfare Presumption Against Interference with Rights

o Presumption that the legislature does not intend to adversely affect or take away the rights of subjects and as such, the interpretation that does the least harm to individual rights should be selected.

Property Rights Presumption o Right of individuals to enjoy privacy and personal security within their homes.o Attempt to hinder expropriation: Gov’t taking private property for public purposes

without consent.

Presumptions RE: Penal Legislationo The longstanding presumption that penal legislations should be strictly construed in

favor of accused persons. 2 Reasons for this: (as per Lamer in McIntosh dissent) 1) Potentially serious consequences of a criminal conviction for the liberty of

a person. 2) All persons are entitled to fair notice of what is prohibited conduct so that

they can plan their affairs accordingly. In McIntosh, Lamer discourages McLachlin from “reading in” as it would be

information that the accused had not been privy to themselves.

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Presumptions of Human Rights Statuteso Human rights legislation has quasi-constitutional status and as such, should be

interpreted in a broad, purposive manner so to achieve remedial objectives.

Benefits-conferring statutes: (aka remedial) o Must be given a broad interpretation and if uncertain or ambiguous, people who it is

meant to help should be favored. (This is seen in Merk(para 33), Rizzo Iacobucci: “a mechanism for providing minimum benefits and standards to protect the interests of employees, it can be characterized as benefits-conferring legislation” (Rizzo))

 Presumptions Related to Taxation Statutes

o A strict construction approach is generally taken with regard to tax laws.o A textual analysis is often favored, rather than looking into the broader purposes of

tax statutes, as these are often obvious (ie. Revenue).Presumptions Related to Municipal Statutes

o Municipal statutes are generally worded very broadly and a generous approach to interpretation is usually taken to statutes that bestow governmental powers on municipalities.

Presumption that governments intend to comply with international lawo Legislation can relate to the implementation of international treatieso Often statutory interpretation requires the interpretation of international

conventions and treaties as well. Stare Decisis

o SCC cases are binding o BCCA cases are binding in BC o Cases from appellate court in neighboring jurisdictions are persuasive. o Some statutes involve regulatory agencies with oversight (ie. Admin tribunals)

In these cases, consider the expertise of the official in question.

“accrued or accruing rights”: o S.35(1)c): repeal does not “affect a right or obligation acquired, accrued, accruing or

incurred,” under the repealed enactmento BCIA 35(1)(e) & 35(2)“accrued” or “accruing”: a proceeding or remedy in relation

to either of these may be initiated, continued or enforced after its repeal.

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MAGIC CHARTWhat is it? Case Authorities

Presumption Against Absurdity

Legislature does not intend to produce absurd results.

Rizzo v. Rizzo ShoesR v. McIntosh(McLachlin’s dissent)

Associated Meaning A word acquires it’s meaning from the words around it.

McDiarmid Lumber v. God's Lake First Nations

Dictionary Definitions Have less weight than stipulated definitions, but can be used to gain ‘plain meaning’

Shaklee Canada Inc v. Canada (1995)(“food”)

Hansard Transcripts of parliamentary debate surrounding a particular piece of legislation. “Hansard evidence is admitted as relevant to the background and

Rizzo v. Rizzo Shoes(Minister of Labour)Canadian National Railroad v.

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purpose of the legislation, courts must remain mindful of the limited reliability and weight of such evidence” (CNR v. Canada para 47[SCC 2014])

Canada

Implied Exclusion The mention of one thing effectively excludes another thing.

CR et al v. Children's Aid Society of Hamilton

Limited Class A general term takes it’s meaning from the words that precede it.

Nanaimo v. Rascal Trucking

Multi-Statute Scheme Iacobucci quoting Sullivan: “…must be seen as operating together as part of a single regulatory scheme. The provisions of each statute must accordingly be read in the context of the other and consideration must be given to each statute’s roll in the overall scheme.”

Bell ExpressVu

Plain Meaning Rule Former “golden rule” of statutory interpretation.In theory, creates ‘interpretation-free’ zone, and equality. In practice it is too narrow.

R v. McIntosh (Lamer)

Presumption Against Tautology

Legislature does not use “superfluous” words. “The principle is often invoked by courts to resolve ambiguity or to determine the scope of general words.”“These presumptions reflect the conventions that legislative drafters use ” (CP-4-08) and are therefore a useful tool of statutory interpretation.

McDiarmid Lumber v. God’s Lake FN (2006)*”If the word agreement is used, then the word treaty has no role to play.”

Stipulated Defintions Have highest weight—“Only if the contentious word or phrase is not defined, either by the statute or by the interpretation act do you begin with ordinary meaning” -CP

Bell ExpressVu (Iacobucci)(relies heavily on stipulated defintions)

Uniformity of Expression Words are intended to keep the same meaning throughout the statute.

Canada (Canadian Human Rights Commission) v. Canada (Attorney General) (Mowat

CASE BRIEFS: 

R. v. McIntosh ~ Facts: McIntosh is aggressor …defendant comes at him with a chair and then is ultimately stabbed.

1. McIntosh came onto the lawn and started yelling and swearing--was waving a knife 'threatening behaviour'

2. Deceased pushes him 3. Deceased hits McIntosh over the head with the dolly 4. McIntosh stabbed man

 

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Issue: Is self defense as defined in section 34(2) of the Criminal Code available to accused persons who are initial aggressors?

LAMER J

Plain meaning approach Did consider the intention of parliament a bit-- legislative history (1892 criminal

code) but only through expressed words. Against absurd results: 34(2) might have absurd results --but the legislature is

allowed to be absurd. No benchmark for absurdity. Against “reading in” by McLachlin: "How can a citizen possibly know the law if the

court "reads in" words?" MCLACHLIN: (dissenting)

Suggests more contextual approach in looking at history, scheme and text in unison. (Driedger)

Argues that plain meaning of the words, even when clear, is not of primary importance, but a mere tool to discover the intent of parliament.

Does not agree that penal provisions should be broadly construed as a last resort of interpretation. The words don't tell you parliament's intent--therefore necessary to look further at history, practical problems and absurdities which may result from interpreting the section one way or another. *Uses marginal notes-- not part of legislative act, may be of some limited use in gleaning the intention of the enactment *****

Basically says that this would have been a big departure from the traditionally understood common law-- absurdity argument. McLachlin's conclusion-- there is a drafting error in 34(2) 3 factors as per Driedger:

1. Manifest absurdity 2. Traceable error (Traces through legislative history) 3. Obvious correction is available

 Policy considerations by McLachlin: Absurdity between 35 and 34(2) [the worse crime receives better protection {34(2) gets better protection}Broader contextual approach is now endorsed. Lamer's judgement would nowadays be regarded as too narrow.

 Re: Rizzo & Rizzo Shoes Ltd:{Foundational Statutory Interpretation Case}  

Issue: Are employees who are terminated because of employer's bankruptcy entitled to termination and severance pay as per the Employment Standards Act? (Termination "by the employer" as per of act) Does bankruptcy qualify as 'termination' under the Employment Standards Act ? 

IACOBUCCI:

1.Rejects plain meaning approach on the basis of: 'incomplete analysis' Inconsistent with Interpretation Act

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"Every Act shall be deemed to be remedial.."2.Accepts "The Driedger Approach" (The Modern Principle)

"Today there is only one principle or 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" --Driedger, 2nd ed.

Intention of parliament is overarching goal --what did they want to do? What purpose did they seek to achieve?

3.Looks at the object of the act as a whole and then object of provisions related to termination and severance. Multi Statute Scheme

4.What are the consequences of the plain meaning approach of the Court of Appeal? Absurdity (if fired day before, would be entitled to severance pay, senior

employees) Note: This is a step that could be found to go beyond Driedger's analysis--

consequences of not overturning the Court of Appeal's judgment. 5.Legislative History & Hansard (minister of labour)6.Looks at the inconsistency with the scheme of the legislation - if you said that it

didn't apply, it would be inconsistent with 'benefits conferring' legislation

 Bell ExpressVu Limited Partnership v. Rex 

 Issue: Is watching decoded American TV in Canada, without paying Bell, an offence as per the Radiocommunication Act? Good example of how ‘every word counts’ —“or elsewhere”

 IACOBUCCI:

Looks at a multi-statute scheme —3 statutes work in tandem to affect public policy Presents a good example of the presumption against tautology-- aka "every word counts"

o Cites s.10 of Federal Interpretation Act---"law is always speaking" o Cites issue with a stipulated definition: Ambiguity: “or elsewhere”

Other principles of interpretation, such as the penal statute presumption --ONLY when you have genuine ambiguity--in this case, did full contextual analysis and avoided this ambiguity all together: "After considering the entire context of s.9(1)c), and after reading its words in their grammatical and ordinary sense in harmony with the legislative framework in which the provision is found, I find no ambiguity."--therefore no need to use subsidiary strict construction principles.

 Merk v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers  Facts: ‘Whistle-blower’ legislation—s.74 of Labour Standards Act--Merk claims that she was fired because she "blew the whistle" on financial abuses committed by her supervisors.  Issue: Does Merk's conduct fall under "blowing the whistle" to a "lawful authority" as defined by s. 74 of the Labour Standards Act? (aka what is included under the definition of 'lawful authority') 

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BINNIE J:  

Grammatical and ordinary sense --nothing that would narrow it to just include a public authority

Scheme of the Act --Overall goal.. Determines that it is protection legislation (benefits conferring)

Object of the Act- To encourage employees to be whistle blowers but to go to their own bosses first (up the ladder approach) --Remedial intent Interpretation Act

Public Policy Considerations & Larger legal context-- how do we protect whistle blowers-- how to protect them from employer retaliation.

Avoidance of anomalous results -- general principles of labor relations ('up the ladder').. Legislative history --cites McIntosh -- broad legislative reform Discusses penal provisions but finds this approach to be of limited value because purpose of

legislation>impact on accused. Majority opinion: Cites McIntosh judgment: 'plain meaning' of "lawful authority" does not

include a union (must be member of a police force etc.). This is also a penal provision so we are going to strictly construe it and interpret it narrowly.

Canada (Canadian Human Rights Commission) v. Canada (Attorney General) (Mowat) 

Example of modern approach to statutory interpretation Facts: Complaint of discrimination. Human Rights Tribunal gives an award of 'costs'…which

could cover some of the legal fees of bringing the case forward. Tribunal gives plaintiff $4000 for hurt feelings…Total order $47,000. Tribunal is not allowed to award costs. Tribunal says that they can because it could fit in with term "expenses incurred" ..want to promote access to justice. SCC says no that these words do NOT allow an order for costs.  LEBEL & CROMWELL

Textual arguments: S.53 (Of the Canadian Human Rights Act): "expenses incurred" does show up twice, but can't

just take these in isolation. Presumption against tautology—court does not include superfluous words Implied exclusion: If parliament had intended for tribunal to be able to award

costs, they would have said so. Specific limit for amount that can be awarded (not exceeding $5000)--why would

they do this and then give the power to make unlimited award for cost. Anomalous.

o Legislative History: Look at un-enacted provisions --which HAD included an award for costs, which

was pulled. 

Shaklee Canada Inc v. Canada (1995) 

LINDEN, J

THE case for 'plain meaning' prevailing "food and drink for human consumption"

 

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Issue: Whether vitamin, mineral and fiber products are considered "food", and are thus exempt from tax (Excise Tax Act)?

Determine ordinary meaning: **In this case, plain meaning overruled dictionary definition No. Ordinary person would not understand "food" to include these products. (too

technical and broad) Ordinary meaning can be used because legislation was made for an ordinary person.

o Imagines the subject matter in a very ordinary situation.o Would not accept a plate of vitamins if you asked someone to bring you food.o 'Dosage' rather than 'serving' , 'prescribed'

Shaklee argued common understanding of food has changed. (in other words, 'first blush' meaning should not be automatically accepted.)

Court: "…some first impressions are lasting impressions." Judge rejects dictionaries here as well ("nourish"-- so is junk food not food?)--limited

usefulness is stat interp. **Within the constraints of other competing contextual factors (aka NOT just a reversion

back to the plain meaning approach!) (looking at plain meaning rule to GET to parliament's intent)

 R v. Riddell (1973)what is the meaning of the word "smuggle"? “Smuggle” or “clandestinely introduces”

 Facts: Purchaser of machine drives it back across the Canadian boarder without stopping and is charged for smuggling it.

 GAGNON, J.A 

1. Look at everyday definition of "smuggle" because not defined in the act. --"Clandestine introduction or by secret routes" (ordinary dictionary)

2. Judge cites legal dictionary: broader legal meaning …"the offence of importing or exporting prohibited goods, or of importing or exporting goods without paying duties imposed on them"  

Gives more weight to legal dictionary, but still can't come to definite conclusion. 

3. Turns to the beginning of the statute in question: 190(3) "Everyone who smuggles OR clandestinely introduces into Canada any goods subject to duty--"o Use of 'or' indicates that the legislature intended 2 situations. WOULD NOT

INCLUDE EXTRA WORDS (presumption against tautology)  

In the end: they are charged and they do fall under the definition of "smuggling"

R v. Lohnes

Facts: The court is deciding what constitutes a disturbance under s.175(1)a in the Criminal Code

In reaching decision, the courts use headings to decide.. MCLACHLIN: “headings may be used as intrinsic aids in interpreting ambiguous statutes”

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Headings do not have determinative status. Context of disturbance in the particular provision-- suggests that parliament did not

intend to protect society from mere emotional disturbance. "Causing a disturbance in or near a public place" <-- connotes that particular forms of

objectionable conduct are singled out. Expressio Unius: Parliament COULD have protected against emotional disturbance but they did NOT -- therefore signifies that objective is protection for the public from disorder and not from emotional harm.

Presumption Against Tautology: Every word has meaning, therefore intended this to apply to public, not emotional state.

Interpretive aids: interpretive intrinsic aids (within the statute itself***)suggest the particular meaning.

o Headings NOT determinative but useful to look at. Heading under which this section appears supports the view that parliament

had in mind not the emotional upset but rather disorder and agitation that interfere with the use of a place.

R v. Jaagusta

Council makes argument based on the placement of a comma Ultimately—can’t just rely on punctuation alone to put forward a far reaching

interpretation. In this case: interpretation goes against traditional rights of privacy (says that a police

officer can enter someone’s home based solely on the placement of a comma in the Narcotic Control Act)

o This is absurd—as these consequences would overturn centuries of common law development.

o Punctuation can have some weight but largely dependent on situation.

Houde v. Quebec Catholic School Commission: Case where schedule is shown to be only included for convenience (aka—has little weight

because it does not have the force of law as a schedule that was a pre-existing text would)

PASSING A BILLBills: a proposed law that is introduced in either the House of Commons or the Senate. Most bills are introduced in the House of Commons. Bills can amend or repeal existing law or can contain completely new law.

Bill One: Purpose of bill is to perpetuate the established right of Parliament, through it's elected reps, to sit and act without leave from the Crown. Ceremonial bill. Proclaims the right of parliament to meet without the queen. [first asserted in 1603] Done at the start of every session in BC.

Government Bills/Public bills: a public or private bill prepared, introduced, and sponsored in the legislature by a member of the government..*greatest number of bills passed this way.  

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o Message Bills --Money bill ..any bill that requires taxation of any kind or the spending of any money.[must originate in the House of Commons-- comes from message from the GG] (people should not have their money spent w/out representation)--don't need any notice

o Notice Bills-- typically needs '2 days notice'

Member's Bills: introduced into a legislature by a legislator who is not acting on behalf of the executive branch.(ie. A backbencher or a member of the opposition)

Private Bills: Typically introduced by the gov't but can also be introduced by a member… a proposal for a law that would apply to a particular individual or group of individuals, or corporate entity. This is unlike public bills which apply to everyone within their jurisdiction. (ie. "City of Vancouver" act)

First Reading: the first presentation of a bill to Parliament, to permit its introduction. (First time the house gets to see it)

Second Reading: Main principle and purpose of the bill is debated. If passed, the bill is then referred to a committee for further study. (First time they actually get up to say anything)

Committee Stage: Following the second reading, committee members study the bill clause by clause and can amend bill.--gets a full and detailed reading (More senior civil servants usually present for this)

Report Stage: The committee presents its report, which may recommend that the bill be accepted in its 1st reading state, or with amendments, or that it not be proceeded with further. During report stage debate, members can propose further amendments to the bill.

Third Reading: The House reviews the bill in its final form and then orders the printing of the 3rd reading bill. The 3rd reading copy includes any amendments made to the bill thus far. Typically no debate-- just straight yes or no vote. If it passes-- Act of Legislature …Not a law yet

Royal Assent: Bills may be given Royal Assent in two ways: by the Governor General or her deputy in a formal ceremony that takes place in the Senate before an assembly of both houses, or by written declaration.

BCIA PROVISIONS

INTERPRETATION ACT, R.S.B.C. 1996, c. 238

Definitions

1 In this Act, or in an enactment:

"Act" means an Act of the Legislature, whether referred to as a statute, code or by any other name, and, when referring to past legislation, includes an ordinance or proclamation made before 1871, that has the force of law;

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"enact" includes to issue, make, establish or prescribe;

"enactment" means an Act or a regulation or a portion of an Act or regulation;

"public officer" includes a person in the public service of British Columbia;

"regulation" means a regulation, order, rule, form, tariff of costs or fees, proclamation, letters patent, commission, warrant, bylaw or other instrument enacted

(a) in execution of a power conferred under an Act, or

(b) by or under the authority of the Lieutenant Governor in Council,

but does not include an order of a court made in the course of an action or an order made by a public officer or administrative tribunal in a dispute between 2 or more persons;

"repeal" includes to revoke, cancel or rescind.

Application

2 (1) Every provision of this Act applies to every enactment, whether enacted before or after the commencement of this Act, unless a contrary intention appears in this Act or in the enactment.

(2) The provisions of this Act apply to this Act.

(3) Nothing in this Act excludes the application to an enactment of a rule of construction applicable to it and not inconsistent with this Act.

Enactment remedial

8 Every 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.

Enactment always speaking

7  (1) Every enactment must be construed as always speaking.

(2) If a provision in an enactment is expressed in the present tense, the provision applies to the circumstances as they arise.

Title and preamble

9 The title and preamble of an enactment are part of it and are intended to assist in explaining its meaning and object.

. . .

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Reference aids and clarifications

11 (1) In an enactment, a head note to a provision or a reference after the end of a section or other division

(a) is not part of the enactment, and(b) must be considered to have been added editorially for convenience of reference only.

. . .

Definitions and interpretation provisions

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.

Application of expressions in enactments to regulations

13 An expression used in a regulation has the same meaning as in the enactment authorizing the regulation.

. . .

Use of forms and words

28 (2) Gender specific terms include both genders and include corporations.

(3) In an enactment words in the singular include the plural, and words in the plural include

the singular.

(4) If a word or expression is defined in an enactment, other parts of speech and grammatical forms of the same word or expression have corresponding meanings.

BCIA PROVISIONS RELEVANT TO THE CALCULATION OF TIME PERIODS

Calculation of time or age

25 (1) This section applies to an enactment and to a deed, conveyance or other legal instrument unless specifically provided otherwise in the deed, conveyance or other legal instrument.(2) If the time for doing an act falls or expires on a holiday, the time is extended to the next day that is not a holiday.(3) If the time for doing an act in a business office falls or expires on a day when the office is not open during regular business hours, the time is extended to the next day that the office is open.(4) In the calculation of time expressed as clear days, weeks, months or years, or as "at least" or "not less than" a number of days, weeks, months or years, the first and last days must be excluded.

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(5) In the calculation of time not referred to in subsection (4), the first day must be excluded and the last day included.(6) If, under this section, the calculation of time ends on a day in a month that has no date corresponding to the first day of the period of time, the time ends on the last day of that month.(7) A specified time of day is a reference to Pacific Standard time, or 8 hours behind Greenwich mean time, unless Daylight Saving time is being used or observed on that day.(8) A person reaches a particular age expressed in years at the start of the relevant anniversary of his or her date of birth.

s.29 In an enactment …

"holiday" includes(a) Sunday, Christmas Day, Good Friday and Easter Monday,(b) Canada Day, Victoria Day, British Columbia Day, Labour Day, Remembrance Day, Family Day and New Year's Day,(c) December 26, and(d) a day set by the Parliament of Canada or by the Legislature, or appointed by proclamation of the Governor General or the Lieutenant Governor, to be observed as a day of general prayer or mourning, a day of public rejoicing or thanksgiving, a day for celebrating the birthday of the reigning Sovereign, or as a public holiday.

"month" means a period calculated from a day in one month to a day numerically corresponding to that day in the following month, less one day;

"year" means any period of 12 consecutive months; but a reference to a "calendar year" means a period of 12 consecutive months beginning on January 1, and a reference by number to a dominical year means a period of 12 consecutive months beginning on January 1 of that dominical year;

BCIA PROVISIONS RELEVANT TO “REFERENTIAL INCORPORATION”

32 In 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.

36 (1) If an enactment (the "former enactment") is repealed and another enactment (the "new enactment") is substituted for it,

(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.

Mutatis mutandis

44  If an enactment provides that another enactment applies, it applies with the necessary changes and so far as it is applicable.

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[AND ANOTHER THING TO NOTE EARLY ON … ]

Subdivisions of Act

42  (1) A section is divided into subdivisions known in descending order as subsections, paragraphs, subparagraphs and clauses.

TERMS DEFINED IN BCIA S.29:

Affidavit/oathBank/chartered bankBarrister/SolicitorBC land surveyorCascade MountainsCommencementCommercial paper Consolidated revenue fund etc.

CorporationCorrectional CentreCounty Court of Appeal Credit unionCriminal CodeDeliverDeputy’s Provincial Secretary

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DisposeElectoral districtExecutive Council GazetteGovernment/Gov’t of BCGovernment Agent Government of CanadaGovernor Governor in Council Great Seal HereinHer Majesty Holiday Insurance Company Judicial District JusticeLand Land title legislation Lawyer Legislative assembly Legislature Lieutenant governor Lieutenant governor in council Mail May Medical practitioner Mentally disordered personMinisterMinorMonthMunicipalityMustNewspaper NowNurse practitionerObligationPeace officer PersonPersonal representativePrescribed

ProclamationProfessional engineerPropertyProvinceprovince provincial court provincial treasurerrailway beltrecordregional districtregistered mailregistrarregistrar of companiesregistrar of titlesrightRules of the Court Rural areaSavings institutionSchool district SecurityShallSupreme CourtSuretiesSurveyor general Trust company Will WordsWriting, writtenYearCalendar yearYouth custody centre29.1: (First Nations)final agreement Settlement legislationTax treatment agreementTreaty first nationTreaty first nation child Treaty first nation constituentTreaty first nation member Treaty lands

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