LAP CAN 2019

SYDNEY SNAPE

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TABLE OF CONTENTS
Week 1: Persons Case............................................................................................................................3
WEEK 2: SOURCES OF LAW AND INTRO TO PARLIAMENT.......................................................................3
Indigenous Peoples:...........................................................................................................................3
WEEK 3: INSTITUTIONAL FRAMEWORK: LEGISLATIVE, EXECUTIVE JUDICIAL..........................................7
Parliament of Canada: 3 Components:...............................................................................................8
Legislative..............................................................................................................................................9
Judiciary:..............................................................................................................................................10
Executive: CROWN/CABINET/ADMINISTRATIVE...................................................................................10
WEEK 4: INSTITUTIONAL FRAMEWORK: “THE INSTITUTIONAL FRAMEWORK”.....................................11
Executive Branch: Crown, Cabinet, Administrative...............................................................................12
Kernaghan’s 3 Principles for Civil Servants:........................................................................................................13
JUDICIARY:...........................................................................................................................................14
THE LEGISLATIVE PROCESS...................................................................................................................16
Procedural steps in turning legislation into law:.................................................................................................17
What is Parliamentary Sovereignty?...................................................................................................................17
WEEK 6: THE LEGISTIVE PROCESS: SUBORDINATE LEGISLATION...........................................................18
Subordinate Legislation:...................................................................................................................19
Statutory Instruments Act................................................................................................................19
WEEK 8: PROBLEMS OF MEANING.......................................................................................................20
Theories of Statutory Interpretation:...................................................................................................21
Cross: The Goal of Statutory Interpretation.....................................................................................21
Case: Ontario Mushroom Co Ltd v Learie (On, 1977).........................................................................................23
OCT: DISSECTING A STATUTE................................................................................................................25
NOV 7: STATUTORY INTEPRETATION....................................................................................................30
Federal Interpretation Act....................................................................................................................31
Quick Search of Time Calculation.....................................................................................................32
Quick Search Table of Interpretation Act.........................................................................................33
Case: Rizzo Shoes................................................................................................................................................34
NOV 14: COMPONENTS OF MODERN APPROACH.................................................................................35
Interpretation Rules:........................................................................................................................36
Modern Interpretation: Textual, Contextual, Purposive.......................................................................36
7 Presumptions....................................................................................................................................38
NOV 21: PRESUMPTIONS AND PRINCIPLES...........................................................................................42
Bilingual Legislation.........................................................................................................................43
Shared Meaning Rule..........................................................................................................................................43
Territoriality.........................................................................................................................................................43
The Crown...........................................................................................................................................................44
Mistakes..............................................................................................................................................................44
Gaps.....................................................................................................................................................................44

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 Week 1: Persons Case

Case: Persons Case (Edwards v Canada (AG), 1929

Facts: Famous Five,
Emily Murphy attempted to attend a trial of Alberta women accused of prostition.
SCC of Canada determined that women were not “qualified persons” and therefore were
ineligible to sit in the Senate.

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 Issues: What are “qualified persons”
Act did not expressly refer to qualified persons as men, if it had intended that it would
have expressly done so.
Analysis: The case then went to the Judicial Committee of the Imperial Privy Council who
overturned the Supreme Court’s decision.

WEEK 2: SOURCES OF LAW AND INTRO TO PARLIAMENT

 
Public Law
Ch. 3, pp. 53–54, 60–61, 63
 Discussed: R v Sparrow, [1990] 1 SCR 1075; R v Van der Peet, [1996] 2 SCR 507
Ch. 4, pp. 81–93, 101–11
 Discussed: Cooper v Stuart, (1889) 14 App Cas 286 (PC); Canada Trust Co. v Ontario (Human
Rights Commission), (1990) 69 DLR (4th) 321 (Ont. CA); Halpern v Canada (AG), (2003) 65 OR
(3d) 161 (CA)
Ch. 5, pp. 115–21, 151–58
 Discussed: Re: Resolution to Amend the Constitution, [1981] 1 SCR 753; Reference re Secession
of Quebec, [1998] 2 SCR 217; Babcock v Canada, 2002 SCC 57
Ch. 8, pp. 311–16
 Discussed: Black v Chretien, (2001) 54 OR (3d) 215 (CA)
Case law
 Delivery Drugs Ltd. v Ballem, 2007 BCCA 550 [42–53]

Indigenous Peoples:
  Recognition of Indigenous rights in Canadian Law
o Section 35(1) Constitution Act, 1982
 "The existing aboriginal and treaty rights of the aboriginal peoples of Canada re
herby recognized and affirmed"

Case: R v Sparrow, [1990] 1 SCR 1075

Facts: Sparrow was charged under the Fisheries Act for fishing with a net that was longer than was
permitted with his Indian fishing license. Sparrow admitted the facts but claimed that he had
an existing aboriginal right to fish and thus the Act is inconsistent with 35(1) of CA 1982 and
invalid.
Analysis: Crown recognizes a fiduciary duty to Aboriginals
Conclusion: In order to extinguish an aboriginal right, the crown must make it “clear and plain” that it
intended to do so simply regulating an Aboriginal right does not amount to distinguishing it.
Aboriginal rights are not frozen in time- all rights that were not extinguished before 1982
must be dealt with as they develop in the modern world.
Ratio: Establishes the test for analysis of Aboriginal rights in 35.
Aboriginal rights can only be limited by the government if they have been given appropriate
priority
Crown owes fiduciary duty to Aboriginal peoples in recognition of their special relationship

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Case: R v Van der Peet, [1996] 2 SCR 507
Facts: Van der Preet of Sto lo Nation was charged with selling 10 salmon that her common law
husband had caught. Under Native food license, forbidden from selling.
Analysis: Application of test: (partial)
1. look at perspective of peoples themselves, framed in Canadian legal and constitutional
structure
2. the Precise nature of the claim
3. to be “integral” the custom or tradition must be of a central significance to the society
Refinement of Indigenous rights in Canadian Law
Conclusion: Aboriginal title test; relate to an integral practice, custom or tradition
Ratio: Aboriginal Rights doctrine is the recognition that Aboriginal peoples were living in distinct
cultures prior to European contact.

Case: Mitchel v MNR (SCC 2001)

Facts: Special relationship between Crown and Aboriginal peoples

Case: Delgamuukw v BC (SCC 1997)

Facts: Sets out land title test for aboriginal title , generous form of land ownership

Case: Tsilhqot'in Nation v BC (SCC 2014)

Facts: Recent case that recognized Aboriginal title
The right to exclusively use and occupy land for a variety of purposes, it doesn’t have to be used
exclusively with customs, but it has to be consistent with that groups history to the land

Case: Cooper v Stuart:

Facts: - Rule of conquest and rule of settlement
- Rule of conquest: Prior laws remain in force prior to changes by the crown
- Rule of settlement: British rule is superior

Common Law:
 
 Judge-made law that accumulates through decisions in past cases that are treated as precedent
(stare decisis)
o You need to establish the ratio from the obiter
 Obiter is not binding
o You need to know the court structure and the binding nature of precedent
 Rule of settlement v. rule of conquest
o Courts can reason their way around precedent
 Canada Trust Co (ONCA 1990)
 A trust is when property is held by one person for another person's benefit
o Human Rights Commission (tribunal)
 The HRC has limited powers
 In this case they brought the case to the Commission (human rights issue) and the
courts (trust issue)
Civil Law:
 
 Relies on an exhaustive code of law
 Roman origins
 Applies in Quebec in mattes under provincial jurisdiction

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  Code civil du Quebec
 
Law of Equity:
 
 Judge-made law from the old Court of Chancery
o Eg. Trusts, remedies such as specific performance and injunction, unjust enrichment and
restitution, fiduciary duties
o Used to be separate from the common law, but now works alongside the common law in
the superior courts
 
Legislation:
 
 Statutory law is legally superior to the common law
 In practice, there is a complex mix of legislation, the common law, and the Constitution of
Canada
 Halperin v Canada (AG) (ONCA 2003)

Constitution of Canada:
 
 Section 52 of the Constitution Act, 1982
o Constitution reigns supreme
 
 Constitutional Conventions:
o Fill in gaps, based on past practice, change over time
o Not legally enforceable: Patriation Reference (SCC 1981)
 
 Unwritten constitutional principles
o Flow from the preamble to the Constitution Act, 1867
o Help interpret the Constitution
o May be recognized by courts as part of the Constitution of Canada: Reference re
Secession of Quebec (SCC 1998)
o Selection of the Prime Minister
 
The Royal Prerogative:
 
 Executive powers that do not arise from statute
 Historically extensive, now very narrow due to legislation
o Powers remaining:
 Powers of appointment, foreign affairs, war and peace, passports,
 Legislation takes priority over prerogative powers
o (Delivery Drugs (BCCA 2007))
 
 The Royal Prerogative: Black v Chretien (ONCA 2001)
o Court looks into this: not mentioned by statute, not reviewable.
 
International Law:
 
 Treaties
o Contracts between states

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  Canada is a 'dualist' country, which requires Parliamentary implementation of
treaties signed by the executive to make them part of domestic law
 Customary international law
o Important automatically into the common law

Case: Canada Trust Co. v Ontario (Human Rights Commission), (1990) 69 DLR (4th) 321 (Ont. CA)
Conclusion: Charitable trusts given to people within the realm of the public must not violate public policy
Reading a provision as a harmonious whole.
Ratio: Preventing discrimination is in line with public policy. Public policy does not govern private
family matters in wills.

Case: Halpern v Canada (AG), (2003) 65 OR (3d) 161 (CA)

Facts: Challenged the common law definition of marriage being between one man and one woman.
(Violated s 15 of the Charter)
Ratio: The constitution is the supreme law of the land.

Case: Reference re Secession of Quebec, [1998] 2 SCR 217

Conclusion: Constitutional Supremacy
Ratio: Amendments to the constitution requires substantial degree of provincial consent
Illustration of unwritten constitutional principles.

Case: Babcock v Canada, 2002 SCC 57

Conclusion: Parliamentary sovereignty may not hold true in Canada it is still important in the law
Ratio: Unwritten principles must be balanced with parliamentary supremacy

Case: Black v Chretien, (2001) 54 OR (3d) 215 (CA)

Conclusion: Court looks into this: not mentioned by statute, not reviewable.
Ratio: PM has prerogative power to withhold a foreign honour from a Canadian citizen Prerogative
power is not reviewable by courts.

Case: Delivery Drugs Ltd. v Ballem, 2007 BCCA 550 [42–53]

Conclusion: Legislation takes priority over prerogative powers

WEEK 3: INSTITUTIONAL FRAMEWORK: LEGISLATIVE,

EXECUTIVE JUDICIAL

Topics
Separation of powers under the Constitution
Legislative, executive and judicial
• Legislative The federal legislature: Parliament of Canada Structure and operation, Key actors
The provincial legislature: Legislative Assembly of BC Structure and operation, Key actors • Judicial
Structure and operation o Judicial review of primary legislation Judicial review of subordinate
legislation and executive and administrative action

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Public Law
Ch. 5, pp. 158–62
 Discussed: Reference re Secession of Quebec, [1998] 2 SCR 217; Doucet-Boudrea v Nova
Scotia, 2003 SCC 62
Ch. 6, pp. 177–87, 200–16
 Discussed: O’Donohue v The Queen, (2003) 109 CRR (2d) 1 (Ont. SCJ); McAteer v Canada
(AG), 2014 ONCA 578; Reference re Provincial Electoral Boundaries (Sask), [1991] 2 SCR 158;
Figueroa v Canada, 2003 SCC 37
 Ch. 7, pp. 231–50 (skim 244–49)
 Ch. 9, pp. 359–69

Parliament of Canada: 3 Components:

Monarch - Exercised by GG in Canada
- Section 17 in Con Act 1867 - creates parliament of Canada that consists of
Monarch, HOC and Senate
Senate  Unelected chamber appointed by GG
- Brown v Alberta
 Is the appointment of Senators against democratic principles?
- Samson v AG Canada
o Must the Governor General appoint a senator that was elected
under Albertan law?
- Reference re: Senate Reform
o Can Senators be selected by consultative elections?
House of Commons  Elected in “ridings”
- Reference re Provincial Electoral Boundaries (Sask) 1991
- Does the right to vote require an absolute equality of voting?
- Voting is taking a meaningful part in democracy
 Members are often organized into “parties”
- Figueroa v Canada

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  Does the requirement that a political party must have 50 candidates
to receive certain benefits violate the Charter? – Court says it is not
constitutional! Parties have to play meaningful role in electoral party
– just cuz part cannot become gov’t, they still play a role in
democracy.

Legislative 
o The federal legislature: Parliament of Canada 
- Structure and operation 
o Enacts legislation
o Divided into federal and provincial spheres
 Parliament:
- 42 Parliaments since confederation
- How to dissolve parliament:
 Elections: fixed date legislation (2017)
 Non-confidence motion
 By GG at request of PM

Case: O’Donohue v The Queen, 2003

Facts: Act of Settlement 1701 is discriminatory against Roman Catholics and violates Charter
Analysis: As set out in New Brunswick Broadcasting Co v Nova Scotia it is vital for all parts of the
constitutional scheme to do their part
Charter cannot be used to amend or trump another part of the constitution
 The Rules of Succession are beyond the scope of the proper role of the constitutional
framework
 Preamble of the Con Act states that Canada is a constitutional monarchy but also is
united unto the Crown of the UK
Section 9(23) of Con Act 1867 - if Canada were to declare inoperative certain parts of the rule
of succession then Canada would break symmetry and recognize a different monarch from UK
Ratio: Can’t use the constitution to make an attack against the constitutional. It has to be read as a
whole and as constitutional
Canada is a constitutional Monarch and its union with the UK is a constitutional principle, and
the crown has an essential place in our constitution.

Case: Mcateer v Canada 2014 ONCA

Facts: Permanent residents of Canada over 14 years of age who wish to become citizens are required
to swear an oath or make an affirmation
Issues: Does the queen, as a symbol of hereditary privilege, connote British ethnic dominance?
Conclusion: Queen is personification of our state; figurehead
Ratio: Not taking an oath to the Queen herself, but to the symbol of our form of government

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 Judiciary:
- Interpret and apply sources of law
- Superior and inferior courts
- Judicial review of primary legislation, subordinate legislation and executive and
administrative bodies
- Federal system of courts divided among the federal and provincial governments (CA
1867)
 s92 (14) provinces have power of administering justice
 S 96: federal government has the appointment power for the superior courts
 S 101: federal power for creating new courts for better administration of federal
law and a general court of appeal

Executive: CROWN/CABINET/ADMINISTRATIVE
1. Executive (monarch, PM, Cabinet)
2. The Prime Minister and Cabinet
3. Administrative (civil service)

- “The administrative state”

- Accountable to legislature, powers largely depend on statute
 Exercise power as delegates of legislature
- Boundaries of executive power enforced by courts (administrative law)
- Executive Branch 3 components:
- All ministries of the government, ‘civil servants’, crown corporations, armed forces
- Mirrors the duplicity of federalism

Case: Reference re Provincial Electoral Boundaries (Sask), [1991] 2 SCR 158

Facts: The Representation Act 1989 weights votes according to population – a rural voter’s vote
has more weight than an urban voter’s vote. SCC was asked whether or not this
unevenness violates Section 3 of the Charter: the right to vote
Analysis: Section 3 of the Charter is the right to effective representation
Ratio: The right to vote is the right to effective representation

Case: Figueroa v Canada, 2003 SCC 37

Issues: Does the requirement that a political party must have 50 candidates to receive certain
benefits violate the charter? It would be unconstitutional.
Ratio: Would deny effective representation and the court struck this down.

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 WEEK 4: INSTITUTIONAL FRAMEWORK: “THE
INSTITUTIONAL FRAMEWORK”

Executive
 The ‘administrative state’ Key actors Sources of power Acts taken pursuant to delegated
authority Limits on executive power
 
Public Law
Ch. 8, pp. 297–311, 317–33, 346–57
 Discussed: Re Gray, (1918) 57 SCR 150; Nova Scotia (AG) v Canada (AG), [1951] SCR 31;
Guergis v Novak, 2012 ONSC 4579; Fraser v PSSRB, [1985] 2 SCR 455; Osborne v Canada, [1991] 2
SCR 69; R v Campbell, [1999] 1 SCR 565; Krieger v Law Society, 2002 SCC 65; Shell Canada
Products Ltd. v Vancouver, [1994] 1 SCR 231
Ch. 5, pp. 162–67
 Discussed: Ontario v Criminal Lawyers’ Association of Ontario, 2013 SCC 43; Canada (Prime
Minister) v Khadr, 2010 SCC 3
 
Case law
 Reference re Canada Assistance Plan, [1991] 2 SCR 525 [71]
 New Brunswick Broadcasting Co. v Nova Scotia, [1993] 1 SCR 319 [headnote]

Executive Branch: Crown, Cabinet, Administrative

Executive: Crown
- Section 9 of CA 1867: any action by the legislature is in the name of the Queen (this is symbolic)
- Privy Council:
o Historically gave advice to the Queen
o Not elected = non-democratic
- Cabinet is the modern-day Privy Council

Executive: Prime Minister and Cabinet

- Cabinet ministers are appointed by the PM
- Cabinet formulates government policy
- Administers government departments
- Cabinet secrecy and solidarity
- Cabinet is accountable to the legislature and must maintain confidence of HoC

Executive: Administrative Bodies

- Always appointed by legislation
- Administrative are held accountable to all 3 bodies of government: (see subordinate legislation)
- 1. Legislature
o Can amend or repeal legislation
- 2. Executive
o Monitor/supervise

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 - 3. Judiciary
o Supervise the exercise of executive power and ensure it stays within the limits imposed by the
enabling statute
Public Service
Kernaghan’s 3 Principles for Civil Servants:
1. Ministerial Responsibility: presiding minister = responsible for all matters arising from that
department

2. Political Neutrality: civil servants must refrain from publicly expressing their political views

3. Public Service Anonymity: bureaucrats are held acceptable to their political overseers but are not held
directly accountable to Parliament

Re: Grey:
- Parliament may delegate very broad powers provided it doesn’t amount to a complete
renouncement of power.

Case: Fraser v PSSRB, 1985, 2 SCR 455

Facts:
Conclusion: Helps preserve public confidence when civil service is non-partisan
Ratio: Civil Servants owe a duty of loyalty to the government of the day, not to a political party.
Senior members must refrain from public expressions of opinion towards the government.

Case: Osborne v Canada, 1991

Conclusion: Parliament went and passed the Public Servants Employment Act that is more specific to
the types of jobs that are regulated.
Ratio: The legislation restricting the political involvement of civil servants was overly broad and
in violation of the Charter’s free expression guarantee. The lower the position in
government, the more freedom of expression allowed.

Case: R v Campbell
Facts: Crown attempted to identify the RCMP with the Crown for immunity purposes.
Conclusion: Since this case, police have been given certain immunities ie: drug busts
Ratio: No immunity at common law for police

Case: Krieger v Law Society of Alberta, 2002, SCC 65

Facts: Offence administrative (provincial) or professional misconduct (Law Society)?
Conclusion: Prosecutors have prosecutorial discretion. Court acknowledged the AG’s office
independent from judicial review in the sphere of prosecutorial discretion which is a
strong source and a fundamental principle of the rule of law in our Constitution. AG
elected.
Ratio: No special immunity for prosecutors, must comply with ordinary regulatory standards.
Law Society is restricted to ethical violations.

Case: Guergus v Novak et al, 2012, ONSC

Facts: Plaintiff, former MP, alleges conspiracy and tort claims of defamation, misfeasance in

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 public office, intentional infliction of mental suffering and negligence against the
defendants. On the advice of Novak the PM communicated this to Guergus in an attempt
to have her resign.
Analysis: The conspiracy and other tort claims advanced in the action are neither justiciable nore
subject to judicial process, as such claims relate to the exercise of Crown prerogative or
parliamentary privilege
“Prime Minister holds the keys to the kingdom”
Conclusion: The powers to appoint and dismiss are the prerogative of the crown, exercised by the PM
and is not justiciable at law

Case: AG of Nova Scotia v AG of Canada

Issues: Can either of these leg bodies confer upon the other or can the latter accept and exercise in
such a subsidiary manner leg power vested in the former
Analysis: Feds nor Provs can delegate legislative powers to other inter-delegation would upset
constitutional division of powers constrained in ss 91 and 92
Conclusion: Exercising delegated powers is incompatible with constitutional function with NS is
endowed with AND the interest in the substance of Dominion legislative
Constitutional subordination  subordination implies duty
Two administration bodies cannot delegate to each other because it would undermine
federalism

Case: Shell Products v Vancouver

Ratio: City was able to make good rules, their decision to block Shell went beyond this.
Court has to look at enabling statute for this municipality

JUDICIARY:
Section 92 (14) Provinces have the power of administering justice
Section 96 Federal government has the appointment power of the superior courts
Section 101 Federal government has the power to create new courts for better administration of
federal laws and a general court of appeal (SCC)

Courts have used separation of powers to restrain the judicial role:

1. New Brunswick Broadcasting Co v Nova Scotia (SCC 1993)
2. Doucet-Boudreau v Nova Scotia (SCC 2003)
3. Canada (PM) v Khadr (SCC 2010)

Case: 2013 SCC 43; Canada (Prime Minister) v Khadr, 2010 SCC 3
Facts: Khadr was a Canadian who was detained by American authorities in Guantanamo on
charges that at age 15 he killed a US soldier in Afghanistan
Canadian Gov did breach Khadr’s Section 7 rights to security and liberty of person by
participating in harsh interrogation
Analysis: Courts have no power under the Constitution to do anything in foreign policy
Prerogative power = limited source of non-statutory admin power accorded by the
common law to the Crown.

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 Courts can decide of prerogative power does exist, but is up to the executive to utilize the
power
Ratio: SCC found that Canada’s complicity in the illegal treatment of Khadr meant that his s 7
Charter rights had been violated
Parliament had executive prerogative power with foreign countries. Courts cannot order
executive to use prerogative powers.

Case: Ontario v Criminal Lawyers’ Association of Ontario, 2013

Facts: Do judges have inherent power to order the AG of a province to pay a specified amount to
an amicus curiae (a lawyer appointed by a court to act as a “friend of he court” when
deemed necessary
Analysis: There is a clear limit to the court’s jurisdiction in relation to the payment of an amicus
Allowing superior and statutory court judges to direct an AG to pay with the diff roles,
responsibilities and intuitional capacities
- Leg makes policy choices
- Exec implements and administers policy choices
- Judiciary maintains the rule of law by interpreting and applying laws
Ratio: The right to fix a trial oversteps the responsibilities of the judiciary and blurs the roles and
public accountability of the 3 separate branches of gov

Case: New Brunswick Broadcasting Co. v Nova Scotia, [1993] 1 SCR

Conclusion: Rules governing admissibility to the legislature are not subject to judicial review on
Charter grounds
Form of constitutionally protected privilege
Internal rules are not subject to judicial review

Case: Reference re Canada Assistance Plan, [1991] 2 SCR 525 [71]

Conclusion: Court held that courts have a residual discretion to refuse to answer reference questions
where there is insufficient legal content or where the court would be unable to provide a
complete and accurate answer.
Cabinet is both executive and legislative branches.

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 THE LEGISLATIVE PROCESS

Topics:
 Primary Legislation
 Turning policy into legislation
 Drafting
 Stages in the legislative process
Readings
• Statutes & Regulations pp. 1–11
 • Public Law
 Ch. 7, pp. 250–67, 273–78, 281–95
 Discussed: New Brunswick Broadcasting Co v Nova Scotia, [1993] 1 SCR 319; Canada
(House of Commons) v Vaid, 2005 SCC 30; Bacon v Saskatchewan Crop Insurance Corp.,
(1999) 180 Sask. R. 20 (CA); Turner v Canada, [1992] 3 FC 458 (CA); Wells v
Newfoundland, [1999] 3 SCR 199; Authorson v Canada, 2003 SCC 39
 
• Case
 Mikisew Cree Nation v Canada (Governor General

Procedural steps in turning legislation into law:

(Notice)
1. First Reading
2. Second Reading- vote, debate
3. Reference to Committees
4. Report Stage
5. Third Reading – amendments, debate, vote
6. Royal Assent

What is Parliamentary Sovereignty?

- Principle of constitutional law. The legislative branch has absolute sovereignty when making
laws and guarantees a separation of powers. It ensures legislation can be passed and enacted
without interference from other branches including the judicial and executive branches. The only
limit to Parliamentary Sovereignty is the Constitution.

Case: Bacon v Saskatchewan Crop Insurance Corp, 1999

Facts: Legislation by the Saskatchewan government that changes farmers insurance program
took away farmers rights to sue for breach of contract in these changes
Conclusion: The legislature can legislate itself out of a contract, the remedy is in democracy and
elections
Ratio: Parliament can pass whatever laws they want, so long as they are not offending the
Constitution and Charter. Remedy for bad law is at the ballot box.

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Case: Turner v Canada, 1992
Facts: Legislation was passed while Turner’s court proceedings are going on and the legislation
deprived Turner of his defense
Conclusion: There is no duty of fairness owed, no special procedures owed
Ratio: Parliament can pass whatever laws they want, as long as they are within the constitutional
limits. Retroactive legislation can disrupt current legislation.

Case: Wells v Newfoundland, 1999

Facts: Legislation eliminated tenured positions from government. The legislation did not
explicitly state that it also abolished the employee’s rights to seek compensation for the
loss of their jobs.
Analysis: If they do not explicitly say this, compensation can still be sought
Conclusion: Parliament has the power to determine its own procedure
Ratio: The government can expropriate civil servant positions and not owe compensation if they
explicitly state in the legislation that no compensation will be provided. Must use clear
and explicit language to extinguish rights.

Case: Authorson v Canada, 2003

Facts: Veterans sued the government for interest owed to them after 1990 when the government
passed legislation stating they will no longer pay the interest
Conclusion: When the government explicitly states that they will not provide compensation, then they
can expropriate property without compensation. Remedy is democracy
Ratio: They is no duty of fairness owed.
As long as it constitutional and comply with charter, courts can’t review parliamentary
decisions.

Case: Canada v Vaid, 2005

Facts: Vaid, a personal chauffer to the speaker of HoC was fired from position. Claimed
discrimination for termination
Ratio: Parliamentary privilege is limited to matters of legislating, to matters that are necessary for
the Parliament to carry out their work. Parliamentary Privilege cannot be overly broad.

WEEK 6: THE LEGISTIVE PROCESS: SUBORDINATE

LEGISLATION

Topics
Subordinate legislation
 Process and requirements
 
Readings
• Statutes & Regulations
 pp. 346–53
• Course Pack
 Readings 10–11

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 • Case law
 Re Gray, (1918) 57 SCR 150, 170
• Legislation
 Statutory Instruments Act, RSC 1985, c. S-22, ss. 2(1) “regulation”, “statutory instrument”, 3, 5–
6, 9, 11, 19
 Regulations Act, RSBC, 1996, c. 402, ss. 1 “regulation”, 2–9
 Interpretation Act, RSBC, 1996, c. 238, ss. 1 “regulation”, 41

Subordinate Legislation:
- Parliament delegates lawmaking power to other persons or bodies via primary legislation
o Typically uses the word ‘prescribe’ in the statute to denote the delegation of lawmaking power
o By-laws, ordinance, etc
- Valid federal legislation and provincial regulations have the same legal effect as primary legislation
- Concerns about concentrating power in the hands of the executive (ex. Cabinet)
Legal Constraints: - 1. The Constitution
o Regulations are law within the meaning of s 52 of CA, 1982 and abide by
the Charter
- 2. Authority granted by the enabling statute
o Has to live within the scope of the original body
o Always look to the primary legislation to determine the limits imposed
o Regulations have to be made under the right statutory authority and that
power has to be traced to the primary legislation
- 3. Procedural requirements
Enforcement: - 1. Executive
o Review process as part of drafting regulations
- 2. Legislative
o General supervision with the power to amend or repeal primary legislation
granting authority
o Special parliamentary committee (Federal)
- 3. Judiciary
o Judicial review of the validity of regulations

Statutory Instruments Act

1. Proposal for a regulation is initiated by a department or an agency
2. Advance notice is required
3. Draft the regulations, initial review done by the justice department and the privy council
4. Draft regulations need to be approved for pre-publication by the law-making authority and they say yes or no
to the proposed regulation
5. The regulations are published for the public in the Canada Gazette, along with the “Regulatory Impact Analysis
Statement” - this statement is basically trying to convince the public why these subordinate regulations/legislation
need to be made
6. Public Comments received and amendments may be made
7. Final regulations approved by the law making authority
• This is where the statutory regulation becomes law--------------
• By way of an Order in Council
8. Registration with the Clerk
9. Publication.

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 Case: Re Grey
Facts: In 1914, Parliament passed the War Measures Act, one of the most extreme examples of a
statute delegating legislative authority to Cabinet. This Act empowered the Governor in
Council to proclaim a state of “real or apprehended war, invasion or insurrection” and “to
make from time to time such orders and regulations, as he may by reason of the existence
of real or apprehended war, invasion or insurrection, deem necessary or advisable for the
security, defence, peace, order and welfare of Canada”
Ratio: The Parliament of Canada can validly delegate but cannot abandon its Legislative powers
Valid federal and provincial regulations have the same legal effect as primary legislation

WEEK 8: PROBLEMS OF MEANING

Topics
• Ambiguities and uncertainty
 Communication breakdown
 Intentional uncertainty and constitutional limits on vagueness Conflict in the law – striving for a
‘seamless web’
• The role of the court in resolving interpretive disputes
Readings
 
• Course Pack
 Readings 12–13 (skim)
 Reading 14
 
• Public Law
 Ch. 10, pp. 427–29
 
• Case law (illustrations of interpretive problems)
 Ontario Mushroom Co. Ltd. and Learie, (1977) 15 OR (2d) 639 (HC)
 R v Higgins, [1929] 1 DLR 269 (Ont. SC)
 R v Thomen, [1964] 1 CCC 247 (Ont. Dist. Ct.) [1–25], [28–29], [67–70]
 R v Verrette, [1978] 2 SCR 838 [1], [3–4], [18]
 R v Thame, 2012 BCPC 356
 R v Levkovic, 2013 SCC 25 [1–3], [10–11], [32–35]

Theories of Statutory Interpretation:

Legislative Intent Focus on discovering what the legislature intended and how it would interpret the law
 time machine back to the govt that made the statute
Problem: unrealistic to assume was the intention was
Textualist Static approaches to interpretation
Belief that interpretation should be firmly constrained by the original intent legislators had
in mind at time of enactment (constitution and statute)

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 Focus on giving effect to the plain text as written
- Cross criticizes the approach
Text can only take you so far and there are ambiguities in text
Pragmatic Dynamic approaches to interpretation
Evolutionary and responsive to change
Focus on interpretation that best achieves certain outcomes
Provides for maximum judicial discretion = most controversial approach
** judges always take a pragmatic approach when interpreting the charter
Pluralist * Combination of 3 above theories
Unclear which theory is used most by courts – all are used in a variety of ways

Cross: The Goal of Statutory Interpretation

- Parliament delegates their power to the courts
- Courts = agents of the legislature, it is an agency relationship
- Metaphor: a big corporation, powers are delegated
- Can think of the court as an office of the parliament, carrying out their intentions and
resolving ambiguities
Conclusion:
- Judges cannot allow their personal ideologies to affect their statutory interpretation

Circumstances for communication breakdown:

 Intentional use of uncertainty in legislation: instances where govt does not want to define the
rights of a person in a particular circumstance fully
 Impossibility of anticipating all future circumstances
 Poor legislative drafting, mistakes, errors
 Other issues that require interpretation:
- Conflicting statutes
- Legislative gaps
- Incorporation of other statutes
- Conflict between English and French in bilingual legislation
- Temporal considerations
- Retroactive legislation can be enacted

Questions to consider:

According to Cross, what are the different approaches that judges take in statutory interpretation? In
2 sentences, describe the connection between Cross’ principles of statutory interpretation and the cases of:
Ontario Mushroom, R v Higgins, R v Thomen, R v Verrette, and R v Thame. [5 minutes]
Cross advocates for interpretive pluralism where judges have the flexibility to employ several different
modes of interpretation. Ontario Mushroom demonstrates this since the judge was allowed to consider
context and decide that mushrooms count as vegetables according to common sense. Other four cases also.
According to Ruth Sullivan, “even though legislation is addressed to everyone, historically it has not
been written for everyone.” What group is legislation written for? Does Sullivan see this as a problem?
What is her suggested solution? [5 minutes]
Legislation is written in plain language in order to enhance democracy and the rule of law by making
legislation accessible to the people whose lives it affects. Sullivan believes that the idea of “plain language”
can be problematic as it reveals challenges and assumptions underlying current approaches to statutory
interpretation and to law generally. There are two key assumptions relied on by courts to explain and justify

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 their work in statutory interpretation. One is the assumption that meaning inheres in legislative texts and that
at least some of the time meaning is "plain" -- that is, clear and certain, not susceptible to doubt
Solution: believes legislation should be interpreted from the perspective of its primary audience. Courts
should receive evidence about the audience for which the legislation was written.

Legislature  Enacts the law

 Limited resources to apply the law
 Can “correct” interpretations by enacting ‘declaratory legislation’
Executive  Enacts subordinate legislation
 Enforces the law
 Strong interest in interpreting the law in its favour
Judiciary  Created to resolve legal disputes
 Interpretation is at the core of its role
 Judicial independence creates public confidence in decision-making
Average Person  Face problems “knowing the law”
- Finding legislation/regulations
- Finding the appropriate section
- Making sense of it all

Case: R v Levkovic, 2013 SCC

Facts: Building manage found remains of human baby on balcony. Cause of Death could not be
determined. Mother was charged with concealing a dead body of a child
Issues: Challenged constitutionality of s 243 of criminal code on the grounds that the section
infringes her right to liberty and security under s 7 of Charter
Analysis: Vague language infringes on fundamental justice protected under s 7 of the charter
There can be vagueness, but the essentials need to be there
Citizens must have fair notice and elements of the offence for their liberty to be taken
away
Conclusion: Appeal dismissed.
S 243 does not violate s 7 of Charter. Gives women and men fair notice that they risk
prosecution and conviction if they dispose of remains of viable child with intent to conceal
S 243 limits with sufficient clarity the discretion of those changed with its enforcement
Ratio: Laws that are too vague should be struck down as unconstitutional

Case: Ontario Mushroom Co Ltd v Learie (On, 1977)

Facts: In Ontario Employment Act, there is an exception to the minimum wage and vacation
standards.
People on farms with exceptions to farming types (ex. Vegetable, fruit, sheep etc)
Mushroom not listed. And mushroom growers wanted minimum wage
Issues: Is mushroom a vegetable?
Analysis: Plain meaning approach taken by the majority
 Yes it is a vegetable
 Common meaning determines the definition
Act and Legislation use two different terms for mushroom, one classifies it as a vegetable
and the other doesn’t.
Conclusion: Rejected textualist approach and warned of its dangers.
Took a pragmatic approach

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Ratio: Plain meaning interpretation can be used for clarity in legislation
Don’t need to look at the rest of the legislation if the meaning can be discerned from the
specific provision

Case: R v Higgins (ONSC 1929)

Facts: Had a few swigs from a flask and became intoxicated
Issues: What does it mean to have “care and control”?
Analysis: Police charge him with driving motor vehicle while intoxicated when the Tow truck
operating the car was taking it out of the ditch
Conclusion: Opinion on care on control: - an alternative to driving the car
Trying to get at the intent of Parliament in reasoning. Don’t use an interpretation that
would lead to absurdity.

Case: R v Thomen (On Div Ct 1964)

Facts: Man passed out behind and below car drunk (so he isn’t charge with drunk driving)
Issues: What is a motor vehicle?
Conclusion: Textual/contextual approach
It isn’t a motor vehicle if it isn’t capable of motion.
The accused couldn’t have set the vehicle in motion even if he wanted to and therefore
there is no potential danger
Ratio: Look at text of the act.

Case: R v Verrette, 1978

Facts: Go-go dancer
Issues: What is “nudity” under the Criminal Code?
How do you read section 170(1a) and 170 (2) together?
Analysis: Textualist approach. Deeming provision led to a legal fiction. Most sensible interpretation.
 170(1)a - total nudity without regard to intent
 170(2)- deeming provision

Case: R v Thame, 2012

Facts: Trevor Thame was charge with being intoxicated in a public place under s 41 of Liquor
control and Licensing Act, RSBC 1996
Issues: What constitutes intoxicated within the meaning of section 41?
Analysis:  Act does not define "intoxicated"
 Must look into ordinary meaning of intoxicated
 Webster's definition "affects by or as if by alcohol"
Conclusion: Pluralist Approach:
Court can use different methods and look beyond the test.
Not guilty of being intoxicated in a public space

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 OCT: DISSECTING A STATUTE

Topics:
- Title
o Preamble
o Purpose
o Definitions
o Headings, parts and divisions
o Marginal notes
o Punctuation
o Coming into force
o Schedules
o Regulations
- Legislative amendments
o Annual Statutes
o Consolidation

Interpretation Act, RSC, 1985

Interpretation Act, RSBC, 1996

- Hudon v Haakenson, [1971]

- Chamberlain v Surrey School District No. 36, 2002
- Pembina Institute v Alberta (Environment and Sustainable Resource Development), 2013
- R v Lohnes, [1992]
- Associated Commercial Protectors Ltd and Mason, [1971]

Titles: Main identifier of a piece of legislations

- Long title: sets out the scope of the act -sets out what the act is aiming to achieve
o Can be used for interpretation purposes
o Example: Hudson v Haakenson: [title can be used to give meaning to the statute –
to interpret or limit the scope of the Act]
o (title): “the act to regulate vehicle on operation on highways”
- Short title: Quick reference
o Can also be used in interpretation (less helpful cause they are short)
o They are descriptive but less valuable
o But can be used for interpretation along with other contextual factors
o Courts are increasingly using short titles to help them where there is ambiguity
o BC uses short titles

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 o Ex. R v Thompson, 1990 SCC

Preamble [mischief rule]

- Recites the circumstance which gave rise to the legislation [the story of the legislation
explaining where the legislation came from]
- ‘mischief rule’: what mischief was the law intending to resolve with the creation of this
legislation?
- Can also be used to reveal the purpose/meaning of the statute and economic or social context
for its enactment
o Ex. Chamberlain v Surrey School District [preamble used to change school board
decision]

Purpose Statements:
- What the legislature intends to achieve with the Act (numbered)
- Provides direction on how the rest of the Act should be interpreted
- Limited the power of decision-makers acting under the authority that is delegated by the Act
o Ex. Privacy Act purpose statement = “purpose”
o Judges will resolve ambiguity by looking to the purpose statement
o Ex. Pembina Institute v Alberta (Environmental) [administrative branch of govt
decision is quashed based on the purpose statement of an act

Headings, Parts & Division:

- Helps ascertain meaning: persuasive but not super binding
- Arrangements of headings and sub-headings may qualify a section underneath it (R v Lohnes
(SCC 1992))
- Presumption that things under a particular heading = common
- In BC, not considered part of the act (according to the Interpretation Act), but the courts use
headings for interpretative purposes anyway

Marginal Notes:
- Sometimes called head notes
- Used for quick ease of reference to flip through a piece of legislative
- They are NOT relevant to interpretation
o R v Wigglesworth, 1987
 Courts state that marginal notes are not a part of legislation and should be
given very little weight.
 They are a tool for lawyers and judges to quickly navigate
- Courts are reluctant to give them much weight but in theory they could be used in
interpretation

Punctuation:
- Can be used to assist in interpreting legislation
- This has limited weight in court
o If other factors suggest a different outcome they are likely to prevail
o Associated Commercial Protectors Ltd v Mason, 1970
 Comma matters
 The location of the comma changed the meaning on a contract
Definitions:
- Very important section

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 - The definitions replace any other meaning of the word used from the dictionary or linguistic
intuition
- The definitions may not be intuitive or may set out multiple step legal tests
- Definitions may be exhaustive (means) to non-exhaustive (includes)

Coming into force:

- Tells you when the legislation is supposed to come into force
- Default is that the legislation will come into force on the date that it is given royal assent

Schedules:
- Materials that may or may not be legally binding
- Legally binding: charts, tables, diagrams, materials that are expressly made part of the act
- The binding nature of other materials must be assessed by applying the ordinary rules and
principles of statutory interpretation to the act

Regulations:
- If regulations are validly enacted, then they are binding law
- They are interpreted the same was as an act
- Acts trump regulations
- Regulations are used to interpret an Act
- Regulations operate within the scope of delegated authority and carry out the aims and
objectives of the enabling act

Amending Legislation:
- Annual statues: all piece of legislation in a given year
- Consolidated statutes: Current legislation as amended
- Tracking changes: References in legislation

Case: Hudson v Haaksenson [1971]

Facts: Accident happened in a parking lot, Hudon was a gratuitous passenger in the car of
Haakenson. Haakenson drove into a ditch and Hudon was injured. Accident did not happen
on a public highway
Issues: Trial court judge then followed the title and narrowed the scope of the legislation only to
highways
Analysis
Conclusion (This was later overturned by the court of appeal) but the court of appeal accepted the
legitimacy of using the title
Hudson wins!
Ratio Where there is ambiguity or uncertainty in the language of the act the title may be looked to
in order to ascertain the scope of the statute and to remove ambiguity; but where the
language of the statute is plain, it must be given effect to notwithstanding the fact that it
goes beyond the matters mentioned in the title
Can look at the title of an Act to determine the scope if the language used is unclear

Case: Pembina Institute v Alberta (Environment and Sustainable Resource Development), 2013
Facts: Purpose of act was to promote the enhancement/wise use of environment
Analysis Assists in the interpretation of substantive provisions

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Conclusion  You need to align the purpose of the act (to get the opinion of ALL Albertans, not
just some Albertans)
 Briefing note does not affect the purpose of the act, therefore the decisions did not
align with the purposes of the act
 The purpose statement is the purpose and the briefing note cannot challenge it
Ratio Act can limit the power of decision-makers acting under authority delegated by the Act

Case: R v Lohnes, [1992]

Facts: He went on the veranda on his house and started yelling at his neighbour
Issues: What does disturbance mean?
Anything that involves more than a mere mental or emotional annoyance or disruption
Conclusion: Headings add contextual colour
Heading was used to read down the legislation
Accused by insulting his neighbour
Ratio: Arrangement of headings and sub headings may qualify a section underneath it

Case: Associated Commercial Protectors Ltd and Mason, [1971]

Facts: Company wanted to become collection agent in Manitoba
Conclusion: Sometimes punctuation is a type, and sometimes you read way too much into it
Ratio: The court found that the comma inserted at the specific place made the qualification apply
to everything before it (which would not make sense)
A misplaced comma cannot lead for mistrued reading of the whole clause
Not reliable because there are different practices of punctuation and can relate to taste or
style and mistakes are common.
Commas matter.

Case: Chamberlain v Surrey School District

Facts: Same-sex book controversy. Preamble used to change a school board decision
Conclusion SCC used the preamble in the Schools Act to quash a decision by the school board
Limited the power of decision makes acting under authority delegated by the act
Ratio  Intentions can be found in the preamble
 Preamble limits the scope of discretion
 Mischief rule
 Preamble can be used to reveal purpose
 Preamble limits power of decision-makers acting under authority delegated by the
act

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 NOV 7: STATUTORY INTEPRETATION
Topics
 
• The Interpretation Acts
 Application and scope
 Key rules
• Introduction to the modern approach
 
Readings
 
• Public Law
Ch. 10, pp. 426–27, 433–34, 450–59
 Discussed: Re Rizzo & Rizzo Shoes, [1998] 1 SCR 27
• Statutes & Regulations
 pp. 135–53
• Legislation
 Interpretation Act, RSC, 1985, c. I-21
 Interpretation Act, RSBC, 1996, c. 238

Rules of Statutory Interpretation – COMMON LAW

Priority scheme in search for meaning:

1. The act itself
2. Interpretation Act
3. Common law rules

Federal Interpretation Act

Section 2 Definitions for the Interpretation Act
Section 3 Application:
- Section 3 (1) applies to every enactment, whether it was enacted before or after this
Act —> it applies to everything,
- Section 3(2) even applies to itself
Section 4 Enacting Clause:
- This is the clause that we don’t care about
Section 5 Coming into Force:
- Section 5(2): if your legislation does not have a date of commencement, then it
comes into commencement on the date of assent - when the Governor General
signs it

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 - Section 5(4): allows different bits and pieces of legislation to come into force at
different times
Section 7 Section 7: Regulation Prior to Commencement
• some regulations can come into force before the parent Act comes into force, if
the regulations are aimed at making the enactment effective the moment it is in
commencement

Section 8 Territorial Operation

- Every enactment that is of federal regulation applies to every province / territory of
Canada
Section 8.1 Property and Civil Rights
- sometimes it is necessary to refer to a province’s rules, principles or concepts
forming part of the law of property and civil rights, reference must be made to the
rules of the province that are in force at the time the enactment is being applied
- Section 8.2: common law = all provinces, civil law = Quebec
Section 9 Private Acts
- This relates to private bills
- No provision in a private act will affect the rights of any person unless that person
is specifically referred to in the private act
Section 10 Law Always Speaking
- The law is always speaking to circumstances as they arise – this means that
legislation is never made in vain  every word in the statute needs to be
interpreted and given meaning
Section 11 - shall = imperative, you have to do it
- may = permissive, discretionary
Section 12 Enactments Remedial
- every enactment is designed to solve a problem - should aways interpret the
ambiguousness that best solves the problem
- “every act is deemed remedial, and shall be given such fair, large and liberal
construction and interpretation as best ensures the attainment of its objects”
Section 13 The Preamble
- Should be read as part of the enactment and help to interpret the act’s purpose and
meaning
Section 14 Marginal Notes:
- Are not part of an Act
- ****remember all of these rules in the Interpretaion act are default rules so they
are only used when the specific enactment that you are tiny to intrepid does not say
-
Section 15(b) • if you have an act that is similar to other acts, then you can borrow and define terms
between the two of them
• ****the provincial Interpretation Act does not state this
Section 17 Her Majesty
- federal rovisions are not binding on her majesty (government)
- **In the BC act, they say the opposite - government is bound by the provisions
- the BC Act defines government, whereas the federal act does not define
government
Section 38 Common Names
- you can use the common came of countries, don’t need to use the full name
Section 43 Effect of Repeal
- If you have already accrued rights under an act and then the act is repealed, you

26
 may have those rights still in effect
Section 44 Effect of Repeal and Substitution
Section 46 The Demise of the Crown
- Outlines what happens when the queen passes, this not affect legal stuff

Quick Search of Time Calculation

Federal Provincial

Time Limits & Holidays deadline falls on a holiday: same

[can never end on a holiday - but can start deadline goes over to the next day addition:
on a holiday, have a holiday in the middle] that is not a holiday regular business hours for an
office: if the deadline falls outside
Sundays=holiday of their regular business hours, go
on to the next day
Clear Days reference to a number of ‘clear days’ same
or a ‘at least’ a number of days:
[i.e. judgment given on Monday and you addition:
have “at least 2 days” to file something = the days on which the events happen “not less than”
have until Thursday] are excluded “At least”
“clear days”
General Days exclude the first day and include the same
last day
[i.e. 28 days on March 2nd: start counting
on March 3rd, could 28 days, end on
March 30th]*unless March 30th is a
holiday
Time begins, ends or continues Time begins or ends on the specified
day, includes that day
[i.e. 3 days beginning Wednesday, start
counting on Wednesday]
Time begins after, from, or or excludes the starting day
before . . . exclude that day

[i.e. 2 weeks from Wednesday, start

counting on thursday]
Where something is to be done within a exclude the starting day
time, after, from, of or before a specified
day . . . exclude that day

Quick Search Table of Interpretation Act

Section of Federal IA Section of BC IA
Definitions applying to IA itself 2(1) 1
Application of the Act 3 2
Enacting clauses 4 10
Coming into force 5,6,7 3,4,5
Territorial operation 8 n/a

27
 Property and civil rights 8.1, 8.2 n/a
Private acts 9 6
Law always speaking 10 7
Remedial nature of legislation 12 8
Imperative and permissive 11 29
Preamble 13 9
Marginal notes 14 11
Application of definitions in an enactment 15 12
Words in regulations 16 13
The Crown (immunity) 17 14
Majority and quorum 22 18
Computation of time 26,27,28,29, 37(1), 37(2) 25, 29 “holiday”
“month” “year”
Gender, number, form of words 33 28(2)-28(4)
Forms 32 28(1)
General definitions to be used 35(1) 29
Common names 38 31
Citing legislation 40 32, 43
References to parts of legislation 41 33
Amendment and repeal 43, 44, 45 35, 36, 37
Power to make regulations 31(4) 27(4), 41
Demise of the Crown 46 21

Case: Rizzo Shoes

1998 – MODERN APPROACH
Facts: Employees were let go due to Rizzo going bankrupt
Analysis: Modern Approach
Conclusion: Words of an act to be read in the entire context in their grammatical and ordinary sense
harmoniously
Test, context, purpose
Interpret meaning, look at the whole act
Legislation needs to be read for the benefit of the most vulnerable people
Ratio: The plain meaning interpretation alone is not sufficient interpretation

Everything you say about common law on the exam should be brought back to the modern approach to
interpretation:
• “Today there is only one principle approach, namely, the words of an Act are to be read in their entire context, in their
grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of
parliament” - Rizzo Shoes, citing Driedger

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 NOV 14: COMPONENTS OF MODERN APPROACH

Topics
• Components of the modern approach
 Purpose (and the problem of legislative intent)
• _Presumptions and principles
 Avoiding an absurd or unjust result
 Presumption of legislative knowledge and competence
 Constitutional validity
 Presumption against tautology
 Specific over the general
 Uniformity of expression
 Internal and external coherence
 Lists and classes
§ _Ejusdem generis
§ _Expressio unius
§ _Noscitur a sociis

Readings  
• _Statutes & Regulations
 pp. 155–86, 211–47
• _Case law
 Canada Trustco Mortgage Co. v Canada, 2005 SCC 54 [10]
 Witts v BC (AG), (1982) 138 DLR (3d) 555 (BCSC) [2–6], [23–28]
 Perrier Group of Canada Inc. v Canada, [1996] 1 FC 586 (CA) [4], [19], [31]
 R v Chan, 1999 ABPC 68 [19–20], [24–31]
 Re Medical Centre Apartments Ltd. and City of Winnipeg, (1969) 3 DLR (3d) 525 (Man. CA)
[70], [76] – list expressly layed out several types of buildings that could be hospitals and apartment
was not on that list.
 R v Kelly, [1992] 2 SCR 170 [42–44]
 R v Daoust, 2004 SCC 6 [headnote]
 Peach Hill Management Ltd. v R, [2000] GSTC 45 (FCA) [12]
 National Bank of Greece (Canada) v Katsikonouris, [1990] 2 SCR 1029 [12]

Interpretation Rules:
Hierarchy of determining meaning:
1. Rules in the Specific Act

29
 2. Interpretation Act
3. Common Law -> this is where we are at now

Modern Interpretation: Textual, Contextual, Purposive

Textual:
 plain meaning: Read the text and form an impression ——> What jumps out at you?

• Popular versus Technical meaning:

• Re Witts — horse gender, technical meaning
• when regulations govern a specialized activity, the technical meaning will be favoured over the
popular meaning
• burden of proof is on the defendant: a) must establish the technical meaning and b) prove that
technical meaning was intended in the context
• Perrier v Canada - Perrier doesn't want to pay carbonated beverage tax - popular meaning used
• court says everyone considers Perrier to be a beverage - common sense

• List and classes rules G.U.S.

• Legal Meaning
• when a term of art is used in the law (ex. when the legislation uses the word estoppel)
it does not actually take the legal meaning——> adopts the popular meaning unless it is clear that that is what
the legislation is trying to do
Contextual:

• Other words, scheme of the act, components of the Act [headings, purpose statements, preamble etc.]
• other pieces of legislation on a similar topic
• these all can be important aids in determining the meaning of a piece of legislation

Purposive:

• What did the legislature intend when they enacted the legislation?
• Covert v Nova Scotia:
• legislation must be construed in respect to its object and purpose
• no interpretation of a piece of legislation should defeat its purpose

Mischief Rule:
• Heydon’s Case: - test for determining purpose through mischief view
• 1. What was the law before the Act?
• 2. What was the mischief before the Act?
• 3. What remedy did Parliament Come up with to fix the problem?
• 4. What is the true reason / nature of the remedy?

• Smith v Hughes - Heydon test for purpose through mischief applied

• [ladies of the night banned from dancing on streets through legislation. they started dancing on their
balconies]
• the court looked at the mischief to obtain the purpose [to clean up the streets]

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 • they extended the words in the legislation to give effect to its purpose

Plausible Meaning:
• limit on the mischief rule
• take the mischief rule and go back to textualist ——>text itself must be capable of bearing that meaning
• there needs to be ambiguity for the mischief rule to be applied

Extrinsic Information:
• Hansard evidence, social science evidence —-> shed light on Parliament’s intention

Presumptions of Legislative Intent

• certain types of legislation have certain types of interpretation attached to them
• tax law - strict, specific construction = interpreted narrowly by the courts
• human rights legislation - conferring benefit = interpreted liberally

Original Meaning versus Dynamic Meaning

• original meaning —> what Parliament originally intended
• typically reserved for ordinary legislation i.e. harvard mouse
• Parliament needs to go back and amend legislation if they want a different meaning
• dynamic meaning —> the meaning will change over time along with society
• typically reserved for constitutional type documents i.e. the living tree

7 Presumptions [GKRSUIL – [GUS]]

1 Presumptions against absurdity (The • Legislature does not intend to produce absurd results
Golden Rule) • Avoid manifest absurdity or injustice but must also comply with
legislative intent
• Common law rules ——> legislation trumps common law:
• if the Act says to do something absurd you must abide by it -
clear language and it produces an absurd result = need to
abide by it
Ontario v. Canadian Pacific Limited
• court interpretation avoids absurd results
• [Ontario env. legislation that prohibited pollution that could harm
the env. or any use of it - use was not defined - maj. says it has to
be something more than trivial use, cannot just be any use of the
land it would be absurd to do s]
R v Chan, 1999
 Cat in trunk of car, cat in distress.
 Animal protection act: can the court restrict all animals from
being owned by the person, or just the animal?
2 Presumption of legislative • The legislature is presumed to know anything and know the entire
knowledge and competence body of legislative facts
• Background knowledge, constitutionality, international law
• Presumed to pass constitutionally valid legislation
3 Presumption against • The legislature does not legislative in vain

31
 tautology/redundancy
4 Specific over the General
5 Uniform Expression
6 Internal and External Coherence
7 Lists and Class
32
• No redundancy
• There are no superfluous words in legislation
• every word, every feature of the text is there for a reason and
plays a meaningful role in the legislative scheme
• R. v. Kelly (1992) - corruptly has to mean something - that word
added an element to the offence
• Every word is assumed to add something – presumption against
tautology
• R. v. Dauost - court supplements what the legislative scheme
already provides in the interpretation of the word ‘delivery’ - they
do not legislate in vain
• Specific takes power over the general
• Ex. specific tax exemption for fellowship income while a full-time
student in the Income Tax Act takes priority over the general rule
that all income from a source is taxable
• Also applies between different Acts
• The legislature uses the same words and techniques to express the
same meaning and different words and techniques to express
different meanings
• Unless there is contrary to intention
• Thompson v. Canada - consistency of terms
• Peach Hill Management - government funded and funded by
the government
• All the provisions of a legislative text fit together logically and
work together coherently to achieve the purpose of the legislation
• Words must be read within their section and the Act as a
whole - legislature deemed not to contradict itself
• All provisions, sections and Acts work together in a coherent
scheme
Ejusdem generis (of the same class)
- list followed by a general term, general term is read
down to the most restrictive common feature of the list
- ex: oranges, lemons, grapefruit, or other fruit” – citrus
- National Bank of Greece (Canada) v Katsikonouris
o Uses ejusdem generis
Noscitur a scoiis (associated words)
- meaning of a word is coloured by other nearby words
- eg: “roads, highways, footways, streets, lanes, alleys” – a
footway must be paved
Expressio unius (mention of one excludes the others)
- When a provision sets out certain things and is a
complete list, it excludes things that are not in the list
- Eg: you may bring only pens, pencils, paper, and a
dictionary into the examination room” – no highlighters
permitted
 - Re Medical Centre Apartments Ltd and City of Winnipeg
o When you use an exhaustive list, look for the
word “means”  it indicates that what is left out
is left out on purpose

Case: Canada Trustco Mortgage v Canada

Analysis: Case which shows the Modern Approach
Conclusion: The relative effects of ordinary meaning, context and purpose on the interpretative process
may vary, but in all cases the court must seek to read the provisions of an Act as a
harmonious whole
Ratio: If words have more than one meaning, then they have a lesser role
Courts try to find harmonious meaning
Precise and unequivocal works play a dominant role

Case: Perrier Group of Canada v Canada

Facts: Perrier claimed water was not a beverage to avoid tax.
Conclusion: Absurd. If you ordered Perrier anywhere, people would assume it was a beverage- that is the
popular meaning of the word

Case: re Witts and AG for BC

Facts: When is a horse a horse? Regarding horse sale – the technical meaning was adopted
Conclusion: For subject matter exports, there’s a different b/w a gelding, mare, colt, stallion, etc.
Technical or common language depends on the audience that the legislation is directed
towards.

Case: Smith v Hughes

Ratio: Smith v Hughes - Heydon test for purpose through mischief applied
[ladies of the night banned from dancing on streets through legislation. they started dancing
on their balconies]
the court looked at the mischief to obtain the purpose [to clean up the streets]
they extended the words in the legislation to give effect to its purpose (doesn’t extend to
balconies.

Case: R Sullivan “Plain Meaning Rule and Other Ways to Cheat on Statutory Interpretation

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 -Flaws in both the plain meaning rule and the legislative intent approaches
-Reassuring rhetoric that provides legal certainty
-No such thing as plain meaning
-Should acknowledge the reality of judicial discretion, argues that judges use tricks to justify their
discretion
Common law principles and presumptions
- Presumption against absurdity
o Avoid manifest absurdity or injustice but must also comply w/ legislative intent
o Ontario v Canadian Pacific Ltd
 Comply w/ legislative intent, or else there would be absurdity
o Presumption of legislative knowledge and competence
 Background knowledge, constitutionality, international law

Case: R v Kelly
Ratio: Every word is assumed to add something – presumption against tautology.
Corruptly has to mean something - that word added an element to the offence.
Adopt expansive interpretation and this person is barred from owning an animal forever.
Goes to word choice- parliament is not redundant, words are for a reason.

Case: R v Daoust
Ratio: Parliament does not repeat words. Different words have different meanings.
Bilingual legislation: take meaning that is common b/w them – unless it conflicts with
parliamentary intention
Meaning that is common in one language out to be common w/ the other

Case: Reference Re Supreme Court Act VIP, SCC 2014

Facts: Who may be appointed as a judge?
Analysis: Section 5: - any person may be appointed a judge who is or has been a judge of a superior
court of a province or a barrister or advocate of at least ten years standing at the bar of a
province
3 Judges from Quebec:
- Sec 6: at least 3 judges will be appointed from among the judges of the Court of
Appeal or the Superior Court of the Province of Quebec or from among the
advocates of that province
- Among means current
Expressio unius
- Exclude former members, must be current member of Quebec courts/bar
- Issue is the timing
Conclusion: Change to Supreme Court Act must be made by a unanimous constitutional amendment under
s 41 of CA 1982
Ratio: Uses modern approach

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 NOV 21: PRESUMPTIONS AND PRINCIPLES

Topics
• Presumptions and principles
 Bilingual legislation
 Territoriality
 The Crown
 Mistakes and gaps
 Previous versions-
 Previous interpretations
 Temporal application
 Retroactivity
 Vested rights
 Subordinate legislation
 Importing Charter values
 Particular types of legislation
 Fiscal legislation
 Legislation taking away rights
 Penal legislation
 
Readings
• Statutes & Regulations
 pp. 127–34, 178–200, 287–345, 354–66
• Case law
 R v Clarke, 2014 SCC 28 [1–11]
 Castonguay Blasting Ltd v Ontario, 2013 SCC 52 [1], [3–7], [9]
 Friends of the Oldman River Society v Canada, [1992] 1 SCR 3 [headnote]
 Morishita v Richmond (Township), (1990) 44 BCLR (2d) 390 (CA) [39–55]
 R v Atchison, 2006 ABCA 258
 BC v Imperial Tobacco, 2005 SCC 49 [69], [71]
 R v Klassen, 2008 BCSC 1762 [1–3], [5–6], [54–55], [64], [78–80]

Bilingual Legislation
If the shared meaning is not consistent with parliamentary intention then it can be rejected.
The focus is on the rule intended to be implied:
- Both versions are clear and say the same thing-
o -> adopt the shared meaning
- One version is ambiguous while the other is clear
o -> adopt the clear meaning, provided it is common to the other
- Both versions are ambiguous but there is overlap
o -> adopt the narrowest common meaning if there is one
- Both versions are clear or ambiguous, but they say different things

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 o -> no shared meaning, must look to other interpretive principles

Shared Meaning Rule

- The meaning that is common between them should be adopted unless this conflicts with parliamentary
intention
- “If there is an ambiguity in one version but not the other, the two versions must be reconciled, that is, we
must look for the meaning that is common to both versions. … The common meaning is the version that is
plain and not ambiguous.” – R. v. Daoust (SCC, 2004)

Express inclusions and implied exclusions:

Exprssio unius est exclusion alterius = the express mention of one person or thing is the exclusion
of another

If an act explicitly sets out a certain thing or things within its scope, it has deliberately, through
implication, excluded everything else from its operation.

Territoriality
- Acts presumed to operate only within territorial limits of the legislature (R v Jameson, (QB 1896)
o Exclusive jurisdiction under territorial sovereignty
o International comity – respect territorial sovereignty of others
- Parliament can legislate outside of its territory, but it must use clear language or be necessarily inferred.
Ex. S 7 (3.7) of the Criminal Code
- Constitutional limitations on provincial legislatures
- States are presumed to hold jurisdiction in their own territory
- Can permit the exercise of other laws from other jurisdictions
- R v Klassen

The Crown
- Presumed Crown immunity absent clear words or necessary implication
- Friends of the Oldman River Society v Canada, 1992
- Immunity extends to agents of the Crown

Mistakes
- Presumption that the legislature doesn’t make mistakes, but when a mistake is apparent, it may be
“judicially corrected”
o Provided that it is a drafting error and there is good reason that the text does not reflect
legislative intention
- Morishita v Richmond
Gaps
- Seen as more serious than mistakes, cannot be cured by the courts as it involved policy and making choices
- Distinction between over-inclusive and under-inclusive legislation
o Over-inclusive: legislation read down
o Under-inclusive: correction by way of legislative amendment, not interpretation by courts

Case: R v Clarke 2014

Facts: Accused committed offences before the Act came into force, but he was charged after the Act
came into force.

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 Analysis: In the absence of a constitutional challenge, the presumption can be displaced by a clear
legislative direction that a provision is to apply retroactively.
S 5 of the Act states clearly that the new provisions apply to persons charged after it came
into force. The only triggering event was when the person is charged.
Conclusion: There is a presumption that the legislature doesn’t intend to legislate retroactively
Must be clear words or necessary implication to treat legislation as retroactive
Ratio: New legislation should be presumed not to apply retroactively unless it is explicit that is does
apply retroactively.

Case: Castonguay Blasting ltd v Ontario, 2013

Facts: C was blasting rock when some went astray and caused damage. C didn’t immediately
notify authorities and was charged.
Analysis: EPA requires that the Ministry of Environment be immediately notified when a contaminant
id discharged into the environment.
EPA is principle environmental protection statute. It is remedial legislation entitles it to a
generous interpretation
Conclusion: Interpretative exercise revealed clarity in both legislative purpose and language: the
Ministry must be notified when there has been a discharge of a containment out of the
normal course of events. Should be interrelated liberally and broadly.

Case: Morishita v Richmond (Township), (1990) 44 BCLR (2d) 390 (CA) [39–55]
Facts: Bylaw directed clerk to “proceed as provided…in section 4 of the bylaw”
Analysis: Section 4 dealt with the planning committee, while section 5 dealt with the duties of the
clerk
Conclusion: Court found that the number was a drafting error and interpreted the provision as referring
to section 5.

Case: R v Atchison, 2006 ABCA 258

Issues: Is a person on a skateboard a pedestrian for the purposes of the Traffic Safety Act?
Analysis: Words in the Act are to be read in their entire context and in their grammatical and ordinary
sense harmoniously with the scheme of the Act, object and intention.
Conclusion: Skateboarder is considered a “Pedestrian” because to consider them a vehicle would be
absurd.
Ratio: If two interpretations are possible use the one that avoids legislative gap
Court reads in skateboarding, reads it as a drafting error. But is this going too far?

Retrospective
- Forward acting. Law looks back to certain facts by attached new consequences in the present and going forward
- E.g., amendment to the regulation to impose a cap on fishing licenses due to a depleted stock caused by
overfishing, looks to past events but operates prospectively
Retroactive
- Law is a time machine, legislation changes the law back in time. (reaches back)
- E.g., “a provision of this Act has the retroactive effect necessary to give the provision full effect for all
purposes including allowing an action to be brought … arising from a tobacco related wrong, whenever the
tobacco related wrong occurred.” – s. 10 Tobacco Damages and Health Care Costs Recover Act (BC)

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 - Legislation can enact retroactive laws. (Except Criminal laws)
o Presumed legislation is looking forward
Declaratory Legislation
- Is a special kind of retroactive law, where the legislature clarifies its original intention
- The statute is deemed to have always included
Vested Rights
- Right without any uncertain conditions or contingencies
- Presumption that the legislature does not intend to interfere with vested rights
o Interference must use clear language or be by necessary implication and is typically interpreted narrowly
- Government doesn’t intend to interfere with vested rights. If they do, they must be clear
Subordinate Legislation
- Regulations are presumed to be legally valid: Katz Group v Ontario, 2013
- Regulations are not used to interpret their enabling Acts unless they are intended to complete the statutory scheme
and are ‘closely meshed’ to form an integrated scheme: Monsanto Canada v Ontario, 2004
- Presumption that terms in regulations have the same definition as in the enabling Act
- Presumption that regulations do not have the power to be retroactive or delegate further party unless expressly
granted

Fiscal Legislation
- Read narrowly
Remedial Legislation with a generous/broad interpretation
- Human rights legislation
- Social welfare legislation
- Environmental legislation
International Law:
- Not want to violate international law, can influence

Case: BC v Imperial Tobacco, 2011

Facts: Had a retroactive affect
Issues: How can someone comply with a law that wasn’t enacted at the time of the mistake?
Analysis: There is no legislative prospectively embodied in the rule of law or in any provision of our
Constitution.
Conclusion: Applies legislation retroactively.
It’s unfair so it must be very clear
Ratio: Government can create retroactive legislation as long as it is clear and explicitly stated. There
is a strong presumption that they don’t intend to legislative retroactively.

Case: R v Klassen, 2008

Facts: Klassen, a Canadian citizen, did things that would be illegal (sexual offences in Cambodia
etc) to do inside Canada, outside of Canada
Issues: Do Canadian laws still apply to him? Laws say yes, if you commit these acts anywhere you
can be charged once returning to Canada.
- Klassen argues that it shouldn’t be allowed.
Analysis: - The nuances of extraterritorial jurisdiction:
o It is not uncommon for states to pass legislation with extraterritorial effects or,
in other words, to exercise extraterritorial prescriptive jurisdiction. This is
usually done only where a real and substantial link with the state is evident.
- CA 1867 allows Parliament to legislate extraterritorially.

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 - Power is recognized by s 8(3) of the Interpretation Act, RSC 1985 c 1-23 which
provides for retroactive application of acts intended to have extraterritorial operation
and, of course, by s 7 of the Criminal Code, which sets out provisions excepted from
the operation of s 6(2) which confines the scope of the code to offences committed
within Canada
- Charter allows customary international law to form a basis for the prosecution of war
criminals who have violated general principles of law recognized by the community of
nations regardless of when or where the criminal act or omission took place
Conclusion: S 7(3.7) – makes it illegal for Canadian citizens to commit torture outside Canada
S 8 of federal interpretation act deals with territoriality
Ratio: Parliament can legislate outside of its authority as long as there is clear intention to do so

The Crown:
Case: Oldman River Society v Canada
Facts: Department of Environment Act requires any fed department or agency to screen their
proposal for adverse environmental effects
Alberta govt wanted to construct a dam on Oldman River
Got approval from the Navigable Waters Protection Act, but no environmental screening
Issues: Is the federal act ultra vires?
Conclusion: Crown immunity only applies if it doesn’t go against purpose of an act
Alberta Crown was bound by federal legislation as the statute provided the only means of
authorization to interfere with river navigation
The purpose of the Act would be frustrated if the Alberta Crown was not bound
Immunity extends to agents of the Crown
Ratio: Act was intra vires federal jurisdiction under POGG under national concern. Must comply
with guidelines.
92 (13) 92 (16) and POGG
Crown must be bound by the act because of the purpose of the act.

Case:
Facts:
Issues:
Analysis:
Conclusion:
Ratio:

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