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Table of Contents
- Reminders…………………………………………………………………………………………
- Modern Principle………………………………………………………………………………….
- Intention of Parliament……………………………………………………………………………
- Sources of Interpretation…………………………………………………………………………..
- Issues arising from Statutory Interpretation……………………………………………………….
- Interpretation Act………………………………………………………………………………….
- Common Law Presumptions to determine Legislative Intent…………………………………….
- Extrinsic Aids to Statutory Interpretation…………………………………………………………
- Rules about Meaning in Statutory Interpretation………………………………………………….
- Presumptions about Legislative Drafting in Statutory Interpretation……………………………
- Rizzo v Rizzo Shoes……………………………………………………………………………..
- Reference Re Supreme Court Act………………………………………………………………..
Reminders:
1. Issue
2. Analysis
• Modern Principle (state):
• Answer according to: Text
- State the Rule
- Does it fit under s12 (remedial) or penal? (Liberal vs. Strict, Dynamic vs. Static)
- Definitions in section/statutes
- Go through “Meaning” Rules (pg 8)
- Presumptions about Legislative Drafting (pg 10)
- Over-inclusive? Under-inclusive? Contradictory? Overlapping? (pg 3)
• What does rule look like after these transformations?
• Answer according to: Text + Context
- Look at Rest of text (not at issue) for meaning of words/to explain issue (preced-
ing/proceeding words, provisions)
- Look at other relevant statutes
- Evolving context
- Coherence (Regs, Common Law, Interpretation Acts)
- Expert Opinion
• What does rule look like after these transformations?
• Answer according to: Text + Context + Purpose
- Object of Act/Intention of Parliament
- Extrinsic Aids (pg 8)
- Purpose provision
- Historical context
- Legislative Purpose (pg 6)
- Legislative Scheme (pg 6)
• What does rule look like after these transformations?
• “Presumptions Against”/Absurdity arguments (pg 8)
• Considerations (pg 12)
4. Conclusion
Over-Inclusive Text Non-application Interpreter identifies a reason not to apply a provision to the facts, even though it would otherwise apply (given its ordinary meaning) ⇨ A provision may be “read down” to (1) promote legislative purposes, (2) avoid absurdity, or (3) comply with the presumptions of legislative in- tent. Under-inclusive Text Incorrigible gap in leg- islative Scheme (Sup- plementation with Common Law Rule or Remedy)
- Interpreter claims that the legislation as drafted cannot apply to the facts even though, given the legislation’s purpose, it probably should apply. o Whether this omission was deliberate or not, the court has no jurisdiction to fill a gap in a legislative scheme by “read- ing in” or otherwise enlarge the scope of legislation. o Courts can intervene if the flaw can be characterized as a minor “drafting error”
- Supplementation of a Corrigible Gap o The interpreter concedes that the legis- lation as drafted does not apply, but claims that the common law does ap- ply so as to supplement the under-in- clusive legislation. o Supplementation arguments are general- ly successful when the court relies on its parens patriae jurisdiction (the common law power to protect people, like chil- dren, who cannot care for themselves), or its inherent jurisdiction to control its own process. Contradictory or Incoherent Text Corrigible Mistake The interpreter claims that the provision contains a drafting mistake , which must be corrected before de- termining whether the provision applies to the facts. ⇨ Interpreter must establish (1) what the legisla- ture clearly intended and (2) what the text w ould have said had it been properly drafted. ⇨ This is a common problem in bilingual interpre- tation when the two versions say different things.
Every Province’s Interpretation Act includes a provision that directs interpreters to give every enactment “such fair, large, and liberal construction and interpretation that best ensures the attainment of its objects” (s.12 of the Federal Interpretation Act ) o (^) Require a preference for an interpretation that promotes the purpose of legislation over one that uses strict construction. ⇨ Historically: o (^) Penal: Legislation that interferes with individual rights/freedoms! attracts a strict con- struction. o (^) Remedial: legislation that cures mischief of confers benefits! attracts a liberal construc- tion. ▪ When liberally construed, the focus is on^ achieving the benevolent purpose of the legislation: general principles are applied as fully as their wording permits, while exceptions and qualifications are strictly interpreted.
- (^) If any doubts or ambiguities arise, they are resolved in favour of the per- son seeking the benefit of the statute. ⇨ S.12 of the^ Federal Interpretation Act^ deems all legislation to be remedial (enacted to eliminate the distinction between penal and remedial legislation) Overlapping Provisions No Conflict: Overlap v. Exhaustive Code Conflict: Paramountcy Rule Overlap! In the absence of conflict, if two or more provisions apply to the same facts, each is to be applied as written. ⇨ The courts work with a^ presumption of overlap o (^) Any law (common law/legislation) that could apply is presumed to apply, unless there is contrary evidence. Exhaustive Code! Interpreter concedes that the over- lap between legislation (or between legislation and common law) does not create a conflict, but claims that a particular act or provision was meant to apply exhaus- tively, to the exclusion of the other (statutory or com- mon) law. Interpreter claims that there is a conflict between the two laws, and that one law takes precedence over the other on the basis of some principled reason (legislation
common law; specific > general)
Coherence in Statutory Scheme General Compliance with Constitutional Law and Values to Maximize their Reach
- Presumption that legislatures intend to enact constitutionally valid law (particularly with respect to any limitations on their jurisdiction set out in the Constitution Acts.) a. This presumption is not to defeat any clear legislative intentions. The possibility that legislatures sometimes do intend to restrict a Charter right/freedom for another important goal (which they are entitled to do under s.1) cannot be taken away by interpretation. Compliance with Related Legislation to Provide Coherence
- Statutes that deal with the same subject matter are to be read together with a presumption that they offer a coherent and consistent treatment of the subject. a. Sometimes, they create a single, integrated scheme ; sometimes they create distinct but overlapping schemes. b. Interpretation provisions in one are presumed to apply to all related statutes.
- Referral to the statute book to ensure consistency: Even if statutes don’t relate to the same subject, comparing provisions in different enactments that deal with a particular matter can be useful.
- Drafters are presumed to be consistent in their use of language and tech- niques, so the similarities and differences among the provisions can form the basis for inferring legislative intent. Compliance with Regulations to Provide Coherence
- Regulations, enabling provision, and enabling legislation are presumed to constitute an integrated scheme , and are to be read as a whole.
- Interpretation provisions (definitions and application) in the enabling legis- lation are presumed to apply to regulations (and other instruments) Compliance with Common Law to Ensure Consistency
- Incorporation: legislation sometimes incorporates common law terms or concepts. If so, using common law sources is appropriate to determine the meaning of a certain term or concept.
- Codification and Displacement: Legislation can also codify common law rules/principles (give statutory form to pre-existing common law). In these cases, looking to common law sources is appropriate.
- Sometimes, the purpose of legislation is to modify or displace common law. a. Complete Code: Legislation to displace common law, or preclude further resort to the common law. (ex. Criminal law offences, but not defenses.) Compliance with International Law to Comply with Obligations in that Legal Sphere.
- Presumption that legislature intends to comply with international law , customary and conventional. (Presumption strongest in implementing legis- lation- legislation that makes international agreement domestic law) a. This presumption receives less weight if not implementing legis- lation. Compliance with the Rule of Law as an Overarching Requirement
- Unwritten principle has full normative force but is often used as an inter- pretive aid. Can’t be used alone to strike down otherwise valid legislation; it must be anchored to a principle in the written text of the Constitution.
Extrinsic Aids to Statutory Interpretation General Pre- sumptions Against:
- Extraterritorial application of legislation
- Retroactive application of of legislation
- Interfering with vested rights (both common law and statutory)
- Applying legislation to the Crown and its Agents Specific Pre- sumption against Absurdity It is presumed that the legislature does not intent its legislation to produce ab- surd consequences. The clearer and more precise the text is, the greater the absur- dity required to depart from its ordinary meaning. ⇨ The greater the absurdity that flows from a particular provision, the more justified an interpreter is in rejecting in. Examples of Absurdity:
- Irrational distinctions: Treating like thing differently and different things alike.
- Irrational, contradictory, or anomalous effects
- Defeating the purpose of legislation.
- Undermining the efficient application of the legislation
- Violating important Norms of justice or fairness. Aid Description Legislative Source Agreements that the legislation was intended to implement; or legisla- tion (either domestic or foreign) on which the legislation has been modelled in whole or part Legislative History Material brought to the attention of legislature during the legislative process (ministerial statements, committee reports, debates) Legislative Evolution Amendments and re-enactments of a provision from time of enactment to application (NOT after) Expert Opinion Precedent, administrative opinion, scholarly publications, testimony (anything relevant that won’t surprise other party)
Presumptions about Legislative Drafting in SI Plausible Meaning If the ordinary meaning is reject- ing in order to give effect to leg- islature’s actual or presumed intention, the adopted meaning must be one that the text can bear. Sometimes ordinary meaning is breached and plausible meaning accepted in order to adapt to circumstances/legislative in- tentions Presumption Description Related Maxim Straightforward Expres- sion The legislature chooses the clearest, simplest, and most direct way of stating its mean- ing. Uniform Expression The legislature uses the same words and techniques to ex- press the same meaning and different words and techniques to express different meanings.
- Implied Exclusion : expressio unius est exclusion alterius. ( The express mention of one thing excludes all others )! If something is not mentioned in circum- stances where would would expect it to be mentioned, it is impliedly excluded.
- Associated Words : Noscitur a sociis (it is known from its associates)! the mean- ing of a word or p hrase is affected by the other words with which it is linked. No superfluous words Every word, every feature of the text is there for a reason and has a meaningful role to play in the legislative scheme.
- The legislature does not legislate in vain : no tautology or redundancy in legis- lation
- Limited Clas s or ejusdem generis (of the same kind, class, or nature).! When a list of things that all belong to an identi- fiable class is followed by a more general term, the general term may be read down to include only other things within the identifiable class. (Ice skating) Internal Coherence All provisions in a legislative text fit together logically and work together coherently to achieve the purposes of the leg- islation. “The legislature would have said X” Pointing out that if the legislature had in- tended the proposed interpretation, it would have framed the legislation in a different way, as it did elsewhere in the Act (or regulation or statute book), is a legitimate basis for rejecting a proposed interpretation.
Extras: Rizzo v Rizzo Shoes (Iacobucci, SCC)
- S10 of Ontario Interpretation Act: remedial, best ensure benefit intended by act
- Plain meaning not enough, must look as scheme of Act (object, intention of legislature, context of words)
- Leg does not intend to produce absurd consequences
- Legislative history to determine intention entirely appropriate Reference Re Supreme Court Act (SCC)
- Plain meaning has remained consistent since enactment
- Interpretation gives effect to important differences (uniform meaning rule: diff words for diff meanings)
- Purpose of legislation (Quebec representation, familiarity with Quebec civil law, culture)
- Consistent with broader scheme of Supreme Court Act
- Shared meaning rule of bilingual interpretation (when one ambiguous, look to other)
- Surrounding statutory context
- S5 requirements apply, s6 requirements are more specific and also apply for Quebec seats Context : Words within Provision Scheme : Act as a whole
C. What do earlier judicial precedent or previous interpretations say?
a. Unless an amendment intervenes
b. Pay attention to case date, jurisdiction, and court level.
D. Are there any relevant interpretations made by administrative decision-makers?
a. Courts may defer to the specialized knowledge and expertise of administrative
decision-makers.
i. They may also defer because overturning them could invalidate previous
decisions or lead to a serious re-allocation of resources across the board.
E. Are there any policy considerations particular to the subject-matter?
F. What do the Interpretation Acts say?
G. What does international law say?
“Grammatical and Ordinary Sense”
A. Is the text plausibly unclear or ambiguous? If yes, Courts will depart from the ordinary
sense of the text
B. Often, Judges will look to the dictionary as an aid here.
C. If the statute is bilingual, which version provides a narrower meaning?
a. That is the one the courts will prefer.
“Harmoniously with…”
A. “The Scheme of the Act”
a. Is the act benefit conferring or quasi-constitutional (Human rights legislation)?
i. If yes, it requires a broad and generous approach, and ambiguities are to
be resolved in favour of the claimant.
b. Is the act penal?
i. If yes, it requires a strict construction, and application in favour of the de-
fendant.
c. Is it a regulatory statute or municipal law?
i. If yes, it requires a broad and purposive approach
d. What do the X say? These things all help understand the intended mischief to be
remedied and the scope of the meaning.
i. Long title,
ii. preamble or purpose section,
iii. definitions
iv. headings and marginal notes for interpretive assistance
v. bilingual statutes, and
vi. schedules
e. Consider the subject matter of the statute.
i. Do the words bear a particular meaning in relation to that subject matter?
1. Should a technical meaning be preferred?
2. Does the legislature intend a broad or narrow meaning of a word?
f. What is the nature of the discretion that is delegated?
g. Do any of these principles apply?
i. Associated Words: general word takes its meaning from the preceding
specific words with which it is associated by words “and”/“or” (Principle
of noscitur a sociis)
ii. Limited Class: the general phrase takes its meaning from the preceding
specific words or phrases ( ejusdem generis) [“all kinds of merchandise”,
means “all kinds of merchandise, of the same sort” ]
iii. Implied Exclusion: A general word or phrase takes its meaning from the
words that surround it. The express mention of one thing excludes all oth-
ers by necessary implication ( expressio unius, exclusio alterius )
h. Finally, do any other common law presumptions apply?
B. “The Object of the Act”
a. This requires a purposive approach.
b. Is your reading of the words read harmoniously with the purpose of the act?
C. “The Intention of Parliament”
a. Also requires a purposive approach, but you need to incorporate the mischief
rule.
b. Mischief Rule, applied: Does your reading of the words “suppress the mischief
the statute was designed to resolve?”
c. Is your reading of the words consistent with the s.12 of the Fed (but all have this
provision) Interpretation Act provision that directs interpreters to give every en-
actment a “fair, large, and liberal interpretation that best achieves is objects”?
d. Does your reading of the words avoid absurdity?
i. Does it make irrational distinctions?
ii. Is it irrational, contradictory, or product anomalous effects?
iii. Does it defeat the purpose of the legislation?
iv. Does it undermine the efficient application of the legislation?
v. Does it violate important norms of justice or fairness?
Modern Principle:
The words of an Act are to be read:
1) in their entire context,
2) in their grammatical and ordinary sense
3) harmoniously with:
a. the scheme of the Act,
b. the object of the Act,
c. and the intention of Parliament. ( Rizzo Shoes )
