Fall

08
Fall
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LLP-Deckha Final Outline

Katie

[Type the company address]

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Table of Contents
GRAMMATICAL AND ORDINARY SENSE 3
PURPOSE (OBJECT) OF ACT WITHIN ACT!!! 4
SCHEME OF ACT 5
LEGISLATIVE HISTORY: 7
COHERENCE 7
LEGISLATIVE EVOLUTION 8
TEMPORAL ISSUES 9
SUBORDINATE LEGISLATION 10
OTHER CONTEXTUAL TOOLS 11
PRINCIPLES OF CANADA’S SYSTEM OF PARLIAMENTARY DEMOCRACY 11
THEORIES OF STATUTORY INTERPRETATION 14
SULLIVAN 14
RUTH SULLIVAN’S TRICKS 15
INDEX OF CASES 17

IRAC

Issue
-State the central issue
-Quickly, but methodically, go through the parts of the provision stating which elements are
contested and which are not. Do not assume audience knows! Briefly explain how the other
elements are to be interpreted.
-What will this issue turn on? (“about,” or “waste”)

Rule and Principle

This analysis will adhere to both the common law interpretation principle as well as the legislated
interpretation principle. The modern common law principle of statutory interpretation is Driedger’s
Modern Approach, which is that: “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” (Rizzo, para 21). The British Columbia Interpretation Act
(BCIA) is also applicable since the Act is a piece of BC legislation and no intention to ignore the
BCIA appears within the Act (BCIA s. 2). The legislated interpretation principle is: “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” (BCIA s. 8).

Analysis
-Argue both sides
-Cite precedent
-Make mini-conclusions after each of the sections
-Use subtitles! Paragraph topics to be very clear
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Conclusion
-Reasoned approach
-Must choose side
-Summarize mini conclusions for all four sections

Grammatical and Ordinary Sense

First check if definition is in statute or in Interpretation Act if not then move on to other
sources, possible dictionaries but also other tools like rule of effectivity or judicial reasoning. The
ordinary sense is the meaning that would be construed by a reasonable person (Shaklee).

Bilingual Equal Authenticity Rule Official English and Official French versions of legislation
are equally authoritative

Bilingual Shared Meaning Rule 1) Identify shared meaning (the narrower of the two meanings
and that therefore is shared by both versions) 2) Determine if this meaning is compatible with
legislative intent (contextual approach) Medovarski

Bijural Constitutional requirement to respect both common and Civil law traditions
When interpreting property and civil rights reference must be made to the rules and concepts in
force in the province at the time (FIA s.8.1)

When an enactment contains both civil and common law terminology, the civil law terminology or
meaning is used in Quebec and the common law terminology or meaning is adopted in the rest of
Canada ( FIA s.8.2) Definitions BCIA s.12 Definitions of words in an enactment apply to the entire
statute unless a contrary intention appears

Alternate Grammatical Forms s. 28(4) BCIA A definition applies to all of a word’s

grammatical forms (definition of “pollution” also applies to “pollute”)

“Dictionaries may be referred to although they are limited in use (Riddell). In Shaklee: Ordinary
meaning did not come from the dictionary because dictionary definitions are very broad. Instead,
judicial reasoning determined “meal test” to determine what ordinary, reasonable person would
define as food

Gender s.28(2) gender specific terms refer to all genders as well as corporations

Lists “means”= exhaustive list “includes” = non-exhaustive list

Ordinary Meaning Rule It is usually presumed that the legislature intended the ordinary
grammatical sense that a reasonable person would determine Shaklee
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Plausible Meaning Rule Used in place of ordinary meaning if it better fits the context. In
specialized area it is the meaning a reasonable specialist would assume NAV

Shared Meaning Rule Use the meaning shared in both official languages of legislation NAV

Singular/Plural BCIA s. 28(3) Singular may include the plural and vice versa

Tense S. 7: Words are intended to be interpreted according to the meaning prevailing at the time
of reading (always speaking)

Workable Approach: Sharpe reasonable observer standard because it is too hard to determine
subjective definition of the word “depicted”

Purpose (Object) of Act WITHIN ACT!!!

An exercise in statutory interpretation must not stop at a plain meaning reading and must
consider the purpose of the legislation (Rizzo)

Absurdity Principle: If there is a choice between interpretations the non-absurd interpretation

should be followed. Rizzo, McLachlin (dissenting) in McIntosh: The court can redraft a provision
when there is 1-Manifest absurdity, 2-Traceable error 3- An obvious correct

Avoidance of Anomalous Results Merk

Human Rights Statutes Should be given broad interpretation (Jubran)

Purpose Statements Can be used to inform judicial understanding, although sometimes they
don’t establish a unified philosophy. Weight given to them depends on how specific they are and
the directions given to legislature as to their use (Sullivan, “Sullivan and Driedger on the
Construction of Statutes”) When there is a conflict between the purpose statement and later
substantive provisions the substantive provision will usually prevail (National Farmers Union)

Pre Amble A general statement of purpose that may be used for interpretation,considered part of
the enactment (s. 9 BCIA) Pre-Amble is not definitive but is sometimes given substantial weight in
determining what the legislature’s intent was (Re Anti Inflation Act) Sometimes overly broadly

Penal Principle: If the statue is ambiguous interpretation should favour defendant if liberty is at
stake (McIntosh Majority, Lamar)

Law Now: If the intent of Parliament can be established than there is no need to interpret in
favour of accused (Merk) This provision of limited use for regulatory provisions

Taxing Statutes Now interpreted using the modern principle, deemed to be remedial (s. 8 BCIA)
However, cautious approach, greater reluctance to “read in” (Ludco). Because of their complex
nature emphasis on stricter construction so people can rely on them (Imperial Oil)
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Territorial Application Presumption that statues apply throughout a territory and stop at its
borders. Federal legislation can sometimes apply outside Canada if there is a real and substantial
link between the offence and Canada (Libman).

Title Titles are considered part of the statute and therefore can be considered in the
determination of the purpose when interpreting statutes (s. 9 BCIA, Lane, CommonWealth). Titles
are not determinative, sometimes they are given little weight (Lane), other times they are weighed
more heavily (CommonWealth)

Property Rights Historical presumption to favour individual property rights (Corry). Less
important now but still holds great weight in cases involving compensation for expropriation

Scheme of Act
A contextual interpretation also includes an analysis of the scheme of the Act (Merk)

Alternate Grammatical Forms s. 28(4) BCIA A definition applies to all of a word’s grammatical
forms (definition of “pollution” also applies to “pollute”)

Associated Meaning Rule The meaning of a term can be determined by its associates. Applied
to words linked together by conjunctions like “and” or “or”. When “and or “or” are used the words
they are in conjunction with should be interpreted with view to their common meaning: “treaty or
agreement” if treaty did not narrow agreement the word “treaty” would be ineffectual (McDiarmid)
the common meaning will often narrow broad term (Goulis).

Counter Argument: Sometimes drafters include a “shopping list” of words out of an abundance of
caution and overlap in meaning is to be ignored Find CITATION

Basket Clause Principle The scope of a general term will take its meaning in the context of the
specific words (must be a common denominator among the preceding words) that precede it. The
effect will be that a broad word is narrowed Nanaimo (soil erection)

Benefits Conferring legislation should be given a broad interpretation (Merk, Rizzo employment
context)

Calculation of Time General rule is that the 1st day is excluded and the last day is included.
Exception: Both the first and last day are excluded if the words “clear”, “at least” or “not less than”
are used in conjunction. Holidays (including Sundays) The general rule is that holidays are
included. If the expiration date falls on a holiday then the deadline moves to the next non-holiday
day. BCIA s. 25.

Calculation of Age a person reaches a particular age at the start of the anniversary of their date
of birth BCIA s. 25(8)
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Definitions Definitions apply throughout a statute (BCIA s. 12, FIA s. 15). An expression used in
a regulation has the same meaning as it does in the enactment authorizing the regulation (BCIA
s. 13, FIA s. 16)

Interpretation Act Definitions BCIA s. 29 CHECK Acquire, affidavit, bank, barrister or solicitor,
BC land surveyor, Cascade Mountains, Commencement, commercial paper, consolidated
revenue, corporation, correctional centre, county, Court of Appeal, credit union, Criminal Code,
deliver, Deputy Provincial Secretary, dispose, electoral district, executive council, Gazette,
government, government agent, herein, holiday, insurance company, justice, land, lawyer,
legislature, mail, may, minister, minor, month, municipality, must, newspaper, now, obligation,
peace officer, person, personal representative, prescribed, proclamation, property, province,
record, right, rules of court, rural area, shall, words, writing, written, year,

Delegation of Powers Non law making powers of a minister can be delegated to deputy-minister
of associate deputy minister. If the deputy minister is absent the powers can be delegated to the
assistant deputy minister or another official authorized by the minister. Powers of a public officer
include a person acting for or appointed to act in the office BCIA s. 20

Effectivity Rule Every word in a statute is there for a specific reason and is therefore important
Riddell. One should not adopt an interpretation of a provision that renders any of the words
redundant (McDiarmid) In Riddell: The word “or” is evidence that the legislature intended to
cover two different situations

Gender s.28(2) gender specific terms refer to all genders as well as corporations

Headnotes and Marginal notes Are not considered part of the enactment should only be
considered as being for reference only s. 11 BCIA, S. 14 FIA. It is possible to consider them but
they are to be given very little weight (Wigglesworth)

Headings May be considered in statutory interpretation but they are to be given little weight.
They are however, stronger tools that headnotes or marginal notes (Basaraba, Lohnes)

Implied Exclusion Rule The express mention of one thing implicitly excludes all others and that
courts should be hesitant to “read” in words (Children’s Aid Society) However: Should only be
used with great caution (Children’s Aid Society: responsibilities are implicit in rights)

Lists “means”= exhaustive list “includes” = non-exhaustive list NAV

Public Officers defined as a person in the public service of British Columbia BCIA s.1

Punctuation Punctuation is of little, if any, importance (Popoff, Jaagusta) if the ordinary

grammatical meaning of the punctuation would contradict well established common law principles
(Jaagusta) Little attention, if any, should be paid to punctuation

Referential Incorporation s.44 BCIA When an act refers to definitions in another act the
secondary statue will apply to the primary statue with any necessary changes
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ss. 36 and 32 BCIA

If the secondary statue definitions change:

- If the definition in the secondary statute is replaced by a new one the new one applies
(considered ambulatory)

- If the definition is repealed but not replaced than the old definition still applies

- If the definition is changed through an amendment process the amendment applies (considered
ambulatory)

Schedules Are considered part of the enactment and are therefore relevant in statutory
interpretation. They are not given as much weight though as the main text if there is a conflict
between them (Houde)

Singular/Plural s. 28(3) BCIA Singular may include the plural and vice versa

Tense Words are intended to be interpreted according to the meaning prevailing at the time of
reading (always speaking) (BCIA s. 7)

Uniform expression Principle There should be harmony within an Act (NAV). There is the
presumption that words are to have the same meaning throughout an enactment unless the
legislature appears to have a contrary intention (Shwartz). Counter Argument: in Sharpe:
Favours reading that is constitutional. principle of uniform interpretation within a statute is
overrode here by principle that interpretation should align with purpose, (possibly specific to
Charter case though)

Legislative History:
When determining the legislature’s intent, it is acceptable to consider the problem the legislature
was attempting to address (Firearms Reference)

Definitions Generally definitions from another statute in the same jurisdiction can be considered
part of the contextual analysis. More weight is given to them if they involve the same subject
matter

Hansard Evidence: Weak but still relevant (Rizzo, Merk NAV, Firearms Reference)

Ordinal Principle Cannot look at subsequent legislation because citizens have to able to rely on
the law, it can’t change after the fact Rizzo.

Coherence
Horizontal Coherence Presumption of consistency of a Legislature’s enactments, especially in
regards to “pari materia” (Ulybel) Alternative argument This principle is a presumption only, may
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be superseded by other principles, as it was by the absurdity principle in Columbia River

(Environmental Appeal Board though)

Conflicts in Horizontal Coherence Courts are under obligation to avoid findings of

inconsistency if possible. If not possible there is the presumption that: 1) A more recent
enactment will prevail over an earlier one, 2) A specific enactment will prevail over a general one.
3) An earlier, specific enactment will prevail over a later general enactment (Levis)

Vertical Coherence Paramountcy rule that Federal legislation is paramount over provincial
legislation. Constitution is supreme above all.

Human rights legislation is paramount over other legislation (even if it goes against Horizontal
coherency rules) codified in the BC Human Rights Act

Charter Coherence Two approaches, unsettled area of law

• Straightforward Approach Goes through the normal principles of statutory interpretation first
and then evaluates the presumption that the legislation was intended to conform to the
Charter - Adv.: possibility of important public calling of the government to account. (Bell Express
Vu)

• Integrated Charter Values Approach Go through the normal principles of statutory

interpretation with the presumption of Charter conformity (Sharpe, Committee for the
Commonwealth)- Adv. more likely to end up with constitutional legislation -Didv. loses moment
that judicial branch speaks to legislative branch, conflates independent branches. It is a fiction
that legislature is always intending to conform to the Charter, never gets to s. 1 analysis: (is
violation justified?)

•International Instruments There is the presumption that the legislature intended to respect the
values and principles of international law. International treaties and conventions are not part of
Canadian law unless they have been implemented through legislation, BUT even if they have not
been incorporated into Canadian law they can still inform statutory interpretation (Baker) Other
jurisdictions Principle of harmony with other jurisdictions (Merk). NAV: Uses examples of
international law

Legislative Evolution
The evolution of the piece of legislation may inform a contextual analysis of legislature’s
intent(SFU)

An amendment is considered part of the enactment that it amends (BCIA s. 34)

Substantive Changes (refers to previous versions of the particular piece of legislation)

Presumption that any change of language in the statute is presumed to be for a substantive
reason (SFU)
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Declaratory Changes Change in statute may be considered implicitly declaratory if 1) there is

some ambiguity or uncertainty as to the meaning of the initial enactment and 2) The Courts could
have arrived at the the meaning on their own before the amendment (SFU)

It should not be construed that a substantive change was necessarily intended by the
amendment of an enactment (BCIA s. 37(2)) The words “is and has always been” suggests the
amendment is declaratory

Temporal Issues
Coming into Force If Act is silent on this, it is assumed the statute comes into law on the date of
Royal Assent (BCIA s. 3(2)) Once a statute is enacted it may be referred to for interpretation
purposes even if it has not yet come into force

Timing of Commencement of Repeal Enactment comes into force at the beginning of the
specified day (BCIA s. 4(1) An enactment ceases to have an effect at the end of the specified day
(BCIA s. 4(3)). Repeal and replacement happens at the same time at the beginning of the
specified day (BCIA s.4(2)(

Expiration A statute is considered to be expired when it no longer has any practical significance,
usually because of the passage of time (BCIA s. 4(4))

Remedial Presumption All statutes are considered to be remedial (BCIA s. 8), generally given
more weight than s. 37(2)

No Revival of common law principle or prior legislation not in force is assumed by the repealing
of legislation (BCIA s. 35(1)(a))

Accrued or Accruing Rights A repeal does not affect these rights (protected by statutes)
incurred under the repealed enactment (BCIA s. 35(1)(c))

Repealed Offences If an offence section is repealed so the conduct is no longer prohibited the
conduct can still be prosecuted BCIA s. 35(1)(d)

Repeal and Replacement Personnel continue to serve (s. 36(1)(a)). Proceedings and
procedures continue to the extent they can be adapted (s. 36(10(b) and (c)). If new Act reduces a
penalty the new provisions apply (s. 36(1)(d)). Regulations continue to be in force as long as they
are consistent with the new statute (s. 36(1)(e))

Referential Incorporation If statute a referentially incorporates a definition from statute B and

then statute B is replaced with statute C for which the particular definition does not exist, the
definition in B lives on for the purposes of statute A s. 36(10(f)
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Identify Temporal application issue, -can it be rebutted? then bring in contextual approach
(can refer back to other parts of the analysis), will it violate the values of the rule of law? Argue
for/against with reference to underlying values

Vested Rights (Rights under common law) An interest or expectation that is recognized and
protected by law. The courts decide which personal interests are important enough to be labeled
rights and whether they are, in the circumstances, vested (accrued). Weak presumption against.
IF retrospectivity/activity don’t apply, vested rights can still apply. This presumption can be
rebutted though express or implied intent.

Entitlement and intention to act is not sufficient. There must be entitlement, intention, inevitability
and positive steps taken, to qualify as an accruing right (Scott)

No one has a vested right to a past law. (Gustavson Drilling)

Retroactivity Strong presumption against (Gustavson Drilling, Mackenzie). Why:

Consequentialist reasoning Relates to rule of law: certainty, predictability and stability.

Retrospectivity Weak presumption against. Looking back, not acting back. Relates to future
consequences, not prohibiting past actions. New consequences for past actions. Exceptions:
When it is beneficial to the people involved, protective and procedural legislation. More tolerance
for it than retroactivity: relates to future consequences, not prohibiting past actions

Subordinate Legislation
First interpret ambiguity in primary legislation, then in subordinate legislation. Then: is regulation
authorized? If so, is there contradiction?. Use contextual approach, relate to purposes,
consequences, and most importantly, scheme

BC interpretation act applies to all subordinate legislation unless a contrary intention appears
(s.2) Trend: Courts are generally deferential to regulations De Guzman.

Force of law A regulation authorized by an enactment has the force of law (s.41(2))

Enabling Authority A regulation must be validly authorized through an enabling clause. s. 41(1)
is a global enabling clause to make regulations necessary, advisable and not inconsistent with
the statute if the clause was not made explicitly. A broad enabling clause fortifies courts’
deference to regulations De Guzman. Look to contextual approach to determine intention of
enabling clause

Guidelines Recognition that these types of documents are valid and implicitly given legislative
authority Oldman River. Legislative nature of regulations make them judicially reviewable, the
administrative nature of guidelines makes them not judicially reviewable. If guidelines are
sufficiently formalized that they cross into the realm of regulations they can be judicially reviewed
and must follow requirements for regulations. Refer to context (scheme especially) to determine
this Oldman River
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• Guidelines cannot fetter: there must be at least the appearance that there is not a blanket
policy (Mullan, Administrative law)

Framework Legislation Intends broad delegation of legislative power through regulations (De
Guzman)

Purpose The regulation must align with the purpose of the Act Federal Anti-Poverty: looked to
scheme of the act, nothing in the Act provided a reason to believe that the legislature’s intent was
to discriminate based on broad classes of people (in this case residency). The purpose of the Act
was to provide benefits not exclude certain types of needy people

Henry VIII Clause If the intention is clearly expressed, an Act can enable a regulation to alter the
Act, even in peacetime (Waddell)

Division of Powers Regulations must be intra vires legislature’s jurisdiction

Charter/Aboriginal Rights Subordinate legislation must conform to both unless justified under
s.1 of Charter

Other Contextual tools

Consequential Analysis Consider the consequences of proposed interpretation. NAV

Absurdity Principle

Avoidance of Anomalous Results

General History:

- Rizzo Uses previous cases to support purpose of Act.

- Merk general history used to see s. 74 of The Labour Standards Act as part of broader
legislative reform

- NAV Tied back to purpose

Policy considerations: Consider the institutional policy environment: Merk (labor policy), NAV
(aviation policy)

Principles of Canada’s system of Parliamentary democracy

• Responsible Government

• The executive branch is accountable to the public through its responsibility to maintain the
confidence of the legislature.

• Manifests itself through the rights of the legislature: Right to examine, debate and vote on the
policies proposed
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• And through the obligations of the government : obligation to provide opportunities for the
legislature to exercise it’s rights and scrutinize the government’s policies

Issues

• The practice of delegating a large amount of legislated power to subordinate legislation has
historically been used in emergency situations like war time. Since the Second World War
however more and more of law-making is done by the executive and bureaucracy through
subordinate legislation

• This is more efficient and it is still democratic as the legislature has enabled the executive to
pass regulations though Orders in Council or ministerial order

• Procedural requirements for regulations (applies to subordinate legislation narrowly defined as

regulations in Regulations Act):

- Examined by a person designed by the minister to check for drafting errors and that the
legislation is intra vires

- Deposited with the registar of regulations

- Publication in the Gazette, unless it is exempted by publication, then there must be notice of
where it can be found

• However, it has been part of a continuing trend of more power being placed in the hand of the
executive and less in the legislature (Mullan, Administrative Law)

• This upsets the principle of responsible government and the separation and balance between
the three branches of government

• Rights of the Legislature: There are some legislative instruments that allow the legislature to
scrutinize regulations, such as committees to examine regulations. However their effectiveness
depends largely on the committees themselves, whether they have the funding required and if
they are sufficiently separated from the ruling party to provide effective criticism (Mullan,
Administrative Law)

• Ontario requires a committee must be set up to review regulations. However, its role is restricted
to critiquing the form rather than the wisdom of the regulations (Mullan)

• Mullan suggests that there is unlikely any subordinate legislature review committees in the
country that are sufficiently detached from the executive to provide effective review and criticism
of subordinate legislation passed by orders in council

• There has been an increase in opportunities for the public to review proposed regulations
through what is called notice and comment procedure (Mullan) However, it is likely that in
Canada’s political climate, where there is a definite statist culture, these procedures primarily
benefit lobby groups and those that can afford to employ them. Rather than bringing more law-
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making power back to the public through their elected members of the legislature, these policies
likely further isolate a vast amount of law-making power in the executive, civil servants and
special interest groups.

• Ministerial Responsibility

• Part of the accountability of the government to the legislature is the principle of ministerial
responsibility

• This refers to the requirement of cabinet ministers to be accountable for the actions and policies
carried out in their name

• Combines the principles of strong executive authority and democratic accountability

• In reality many guidelines become de-facto law. However they are not judicially reviewable. This
is justified by a requirement that guidelines cannot be a blanket policy and there must be the
appearance of discretion. However, in reality, this makes it very difficult for an affected citizen to
challenge a “guideline” that is de facto law.

• Friends of Oldman River Most citizens do not have the funds to bring that kind of challenge to
court

• In Baker the appellant made an appeal that a decision made by someone in the Minister’s office
did not conform to the Immigration Act and the regulation made under it. However most people
do not have the funds to challenge decisions made in the minister’s name through this avenue.
Creates dead end.

Issues

• This principle has come under pressure in recent years because of the huge increase in the
number policy decisions that are made in the minister’s name without the minister. In practice
ministers are not able to be well informed of all the policy decisions of their offices and therefore
many of the government’s power is exercised by unelected civil servants. If elected (usually)
ministers do not remain accountable for major policy decisions than the chain of accountability
that links the executive to the people is threatened

• Directives and guidelines are a useful way to create uniform decision making policies in a
minister’s office

• Disadvantage: they are not law so are generally not judicially reviewable. This undermines a
widespread belief that our society is governed by a system of responsible government.

• Parliamentary Sovereignty vs Constitutional Supremacy

• Since the Constitution Act of 1982 Canada has had a system of constitutional supremacy
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• This has placed more decision making power in the courts. Proponents of parliamentary
supremacy would argue that this has made our system less democratic since the will of elected
officials is subject to decisions made unelected judges

• Parliamentary supremacy remains through s.33 of the Charter, the notwithstanding clause. It
also remains an important part of the legal system in situations where Charter protected rights
are not invoked

• Judicial Independence and the Separation of roles

• Fundamental constitutional principle is that judges remain independent from the other branches
of the government

• Separation of Powers: the judiciary’s role is to interpret what the law is. Although this separation
is not completely rigid

• The judiciary’s role is not to create policy, they are ill-equipped to do this since judges are
unelected and this undermines the principles of responsible government and democracy

• Integrated Charter-values approach conflates the separation between the judiciary and the
legislative branches. It inhibits the role of the judiciary to speak back to the legislature.

• The process of declaring an amendment implicitly declaratory, whereby a provision can be

determined to be declaratory if there was ambiguity in the initial enactment and the courts could
have arrived at the declared change without the amendment is a circular argument that
obstructs the division of roles

• Rule of Law

• No person or government is above the law

• Values: Certainty, predictably, stability all goes back to fairness

• Presumptions against vested rights, retroactivity and retrospectivity are underlined by these
values

Communication Breakdowns

- Ambiguity in language, the source of much of it diversity in experience of many people

- Elliptical Communications: Speakers often make assumptions and mistakenly assume their
audience is aware how to fill in the gaps

- Over-inclusiveness: When classifications in a law are overly inclusive than necessary to achieve
its purpose than it is unclear if the rule should still apply in cases where the purpose will not be
furthered
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- Vagueness: Sometimes a rule maker assumes the audience will read a general provision in a
particular more specific way and is incorrect

- Miscommunication: People sometime misspeak or mistakenly omit a word when writing

Other Theories of Statutory Interpretation

• Historically there was a strong presumption against interference with liberty or property. There
was a false dichotomy created between penal and remedial statutes since laws that restrict
some individuals might be remedial for others. Since restrictions on an individual’s freedoms are
easier to see than more general benefits for the public, a doctrine of strict construction
developed (Corry)

• Golden Rule: Plain Language Interpretation McIntosh. Lamar, C.J. : While the plain language
interpretation of s. 34(2) does lead to illogical possibilities, the accused cannot be expected to
have known that and have to read words into the law. “The fact that a provision leads to absurd
results is not, my opinion, sufficient to declare it ambiguous and then embark upon a broad
ranging interpretive analysis”

Sullivan
• The Plain Meaning Rule

• If a competent reader decides after a first reading that there is only one meaning than
there is no need to bring in other statutory interpretation principles

• Advantages: Creates an area where there is supposed certainty.

• Supposes to create formal equality, a zone where the meaning is clear and can be
relied on.

• The problem with this is that is that even in the first reading the reader will be using
interpretation methods (Ruth Sullivan, the inherent meaning illusion)

• Who is this competent reader? Generally it will be based on the judges own first
impression on the text and therefore the judge’s own biases and life experiences will
inform this “plain meaning” analysis. This is not acknowledged. (Sullivan: it must be
plain to you if its plain to me)

• The Contextual Approach (Fidelity to Legislative Intent) Sullivan’s Critique:

• It maintains the popular perception that judges do not make law, that law is made by the
legislature and judges only interpret the legislature’s intent
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• It promises certainty by maintaining that there is a a fixed legislative intent that is clear and
discernible to all. Perhaps this means bringing in value judgements that are not declared
as such

• It allows judges to deny their role in law-making and maintain the fallacy that their values
do not enter into their interpretation

• Presumptions (such as the exceptions against retrospectively) that involve deciding what is
benefits conferring or for protection of the public

Ruth Sullivan’s Tricks

Plain Meaning Rule

- Artful Text Selection: Which words get selected to be interpreted, based on judges’ discretion

- Elastic Co-Text: Which words of the scheme are used to inform the meaning of the word can
vary from the immediate few words or a much larger variation

- The Shifting Meaning Game: The fact that “plain meaning” sometimes refers to the dictionary
meaning, the literal meaning, the meaning of the text the audience would assume. These
meanings can all be different and courts aren’t acknowledging that there are judgment calls
involved here

- It must be plain to you if its plain to me: What is the “plain meaning” can vary widely depending
on a person’s life experiences

- The Inherent Meaning Illusion: All reading involves interpretation

- Abandoning Ship: Judges create a test if the other tools fail to

- Once the court decides a meaning is plain they will support it through extrinsic evidence but do
not contradict it with opposing evidence

Fidelity to Legislative Intent

- Presume That Nothing Worth Mentioning Has Changed: the presumption that the intent of the
legislature is fixed and coherent

- More Meaning Games:

- Distinguish Sloppy Drafting From Legislative Error

- Presume that the Legislature Wants What You Want

- Horizontal coherence and specificity, from whose’s perspective is it more specific? (Levis)
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- Which principles are given the most weight? The discretion and differences are not
acknowledged,

- Hansard is repeatedly acknowledged to carry little weight, but it is used repeatedly (Firearms
Reference, Rizzo, Merk, NAV)

- In Children’s Aid Society the court starts with the assertion that great caution should be taken
when potentially “reading-in”. Then the court goes on to read in “obligations” as implicit in
“rights” by considering a variety of different possible reasons for the omission. No where does
the court state that its own discretion was involved.

- In Sharpe the principle of uniform interpretation is superceded by a Charter-Values approach.

This approach is not followed in another SCC decision from the following year, Bell Express Vu,
in this case the court followed what is referred to as the straightforward approach and didn’t
presume an adherence to Charter values until the end of the statutory exercise.

- Horizantal coherence: The presumption that a legislature speaks with one voice is a fallacy.
Horizontal coherence used in Ulybel

- “Benefits-conferring” to whom? (Rizzo)

- Absurdity principle (Rizzo) does not acknowledge that there are value judgments being made

- Doctrine of strict-construction still more relevant in certain types (tax) legislation than others >
part of judicial discretion.

- Merk public policy arguments go to other jurisdictions including New Zealand and Great Britain,
likely other jurisdictions where there is not the same desire for an employee to first make an “up
the ladder” complaint first

- Are courts equipped to determine the meaning that the people that the legislation affects would
presume? Shaklee

INDEX OF CASES
McIntosh

• Is self-defence available to an initial aggressor?

• Plain meaning approach

• Should not add words to the law if if parliament is absurd

Sharp

• Are child pornography laws constitutional?

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• Favours Charter-Values approach to principle of uniform interpretation

Rizzo

• For the purpose of termination pay, is termination because of bankruptcy included in “termination
by employer”

• Driedger,

• Acknowledged Hansard evidence

• To not include employees whose employment was ended by bankruptcy claim would be absurd

• Benefits conferring legislation

Merk

• Whistleblower legislation

• Grammatical and ordinary sense

• The scheme of the Act

• The object of the Act

• Public Policy debate

• Avoidance of Anomalous Results: (Sullivan: should avoid interpretations that result in better
outcomes for worse offences)

• Legislative History

• Reads down penal provision for regulatory provisions and when it is outweighed by other tools

NAV

• Analysis of the word owner in airline case

• Consequentialist reasoning

Shaklee

• Are vitamins and minerals food?

• Dictionaries are of limited use, rejects dictionary definitions

• Reasonable person meal test

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Riddell
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