Law 104 – LLP
Final Exam Outline
ZS
Dec. 6, 2012
Table of Contents
Principles of Our System ................................................................................................................1
Approach to Fact Pattern ...............................................................................................................4
Driedger’s Modern Approach .......................................................................................................5
BCIA Summary.................................................................................................................................................... 10
Problems with Meaning ................................................................................................................ 11
Issues with Driedger’s Approach ............................................................................................ 12
Ruth Sullivan, “The Plain Meaning Rule and Other Ways to Cheat at Statutory
Interpretation” ................................................................................................................................................... 12
Stephane Beaulac and Pierre-Andre Côté, “Driedger’s ‘Modern Principle’ at the Supreme
Court of Canada: Interpretation, Justification, Legitimization” ....................................................... 15
Temporal Issues – Sullivan’s Methodology........................................................................ 17
What are the temporality rules and their underlying values? ......................................................... 18
Vertical Coherence and Charter Values Debates .......................................................... 19
Issues with SL/AI............................................................................................................................... 20
Cases ......................................................................................................................................................... 21
Principles of Our System
Responsible Government – P.M. & Cabinet require the confidence of the House of
Commons; part of the “living constitution”
 defeat on important legislation (i.e. budget, government spending) or a motion
of no confidence (by opposition party) = less of right to govern
 party discipline – MPs of a party generally vote as a block
 rights of the legislature – scrutinize, debate, vote on proposed polices, question
the government, demand explanations, etc.
 corresponding obligations of government – provide opportunities for scrutiny,
account for its action before Parliament; standing orders = codification of
these rights & obligations; rules that govern
parliamentary procedure
Ministerial Responsibility = obligation of a cabinet minister to explain/defend
policies carried out in their name
 constitutional law & parliamentary tradition
 S. 54, CA, 1867 – gives exclusive right of cabinet to introduce measures re:
raising/spending public revenue
 requirement that legislation must originate in the elected House of Commons
 combines strong executive authority & democratic accountability
 MPs (particularly Ministers) must remain directly accountable for policy &
major decisions (power of which is often passed to unelected officials)
Parliamentary Supremacy – Parliament’s authority is superior to that of all other
institutions of government
1


courts will not second guess Parliament’s right to pass any law – they are the
embodiment of “popular will”
federal and provincial governments are supreme as long as they act within the
spheres of constitutional authority (federalism)
Constitutional Supremacy – has replaced Parliamentary Supremacy (unless no
Charter or other constitutionally protected right is at issue and division of powers is
respected)
 Charter – applies to both federal & provincial governments and all matters
under their authority
 S. 52(1) CA 1982 - “The Constitution of Canada is the supreme law of Canada,
and any law that is inconsistent with the provisions of the Constitution is, to
the extent of the inconsistency, of no force or effect.”
Judicial Independence – judges are to be free from any and all interference in
their decision making
 role of the judiciary is largely based on constitutional convention and statute
law
Separation of Powers – guarantees the special role of the judiciary to interpret the
law and the meaning of the Constitution when disputes arise
 relies on cultural norms, statute law & constitutional conventions (more than
constitutional law)
 S. 24 (C.A. 1982) – enforcement of the Charter shall be through the courts
(check on the powers of Parliament/legislatures)
Legislative Process
Stage 1 - Creation of Legislative Policy
 Policy Development – usually by ministry responsible for administration •
information gathering/assessment
• planning context – budgets, strategic plans,
ministry service plans
 Request for Legislation (RFL) – formal cabinet submission
• established by the
Cabinet Operations Office
• analyzes the problem; proposes solution/potential
impacts
 Policy Review Document (Three Column Document) – high-level policy overview of
the proposal (primary audience - Cabinet committees) • describes current
legislative situation • describes proposed change
• provide’s reasons for the
change
 Drafting Instructions – details of the scheme
 Treasury Board Staff & Legislative Counsel Comments – attached to RFL when
submitted to Cabinet
• anticipated financial impact • drafting considerations
 Ministry Solicitor – RFL prepared in consultation with appropriate ministry
solicitor • knowledgable of ministry business & legal issues • advise re: legal
process, legal analysis, policy intentions
 RFL Approval Process – signed by Deputy Minister; submitted to Cabinet for
review & approval; review by Cabinet operations; meeting between Minister &
House Leader; meeting between House Leader & Cabinet – determine how to
proceed/ prioritization of drafting process
2
 Government Caucus Committee (GCC) Review – either ‘Natural Resources &
Economy’ or ‘Social Development’
• make policy recommendations; may require
modifications
Stage 2 – Drafting the Legislation
 Drafting Team – ministry’s instructing officer, ministry solicitor, assigned
Legislative Counsel
 Instructing Officers – aka ‘policy analysts’; link between the sponsoring ministry
and the legislative drafter
 Ministry Solicitor – brings significant expertise (see above)
 Legislative Counsel – assigned drafter transforms policy into legislative form; must
balance government’s goals with need to maintain coherent/consistent legislation;
applies the technical skills of statutory interpretation to help ensure that if the
legislation goes to adjudication the interpretation will reflect the desired policy;
assisted by legislative editors, publications staff (Office of Legislative Counsel)
 Final Policy Review – may return to GCC to review new policy issues, etc.
 Final Review of Draft Legislation – Certificate of Readiness signed by sponsoring
minister/delegate; Legislative Counsel provides draft to Cabinet Operations;
sponsoring minister provides briefing note & section notes to Cabinet Operations
; draft is reviewed by Legislative Review Committee (Cabinet ministers & MLAs)
 Bill Preparation – Office of Legislative Counsel prepares final Bill form; signed by
Premier & L.G.; printed by Queen’s Printer; coordination of First Reading by
Government House Leader in consultation with Premier’s Office & sponsoring
minister
 Special Budget Legislation Process – for proposals to be introduced with annual
Budget
• initiated by Minister of Finance
• reviewed & finalized by Treasury
Board Staff
• provide drafting instructions to Legislative Counsel with no RFL
•
draft is reviewed by ministry staff, Cabinet Operations, Legislative Counsel
Stage 3 - Enactment of a Law
 Types of Bills
o Public – propose changes to the general law of the Province
o Government Bills – implement government policy; drafted by Legislative
Counsel (Bill 2-200)
o Member’s Bills – prepared by/for individual MLA (usually Opposition);
no assistance from Legislative Counsel; constitutional restrictions (Bill
M 201-400)
o Private – limited in their application to particular individuals or
organizations; provide additional power/benefits or relieve them from
application of the general law • come to Legislative Assembly through a
petition process under Standing Orders; proceed through special
committee process (Bill Pr 401...)
 Government Bills & Legislative Process
o First Reading – minister makes very brief general statement of intent;
presentation only
o Second Reading – debate of the general intent (not specifics of sections)
o Committee Stage – “Committee of the Whole” (full Assembly without
Speaker); section-by-section debate; concludes with vote on Bill’s title
3
each section is subject to separate debate & vote
House Amendments can be proposed; certain amendments may
be rules out of order
o Report Bill – legislative “track changes”; shows accepted amendments
using revision marking conventions
o Third Reading – vote resulting in recommittal (returned to Committee
stage) or Royal Assent
o Royal Assent – when a Bill becomes part of law; given by the LG/GG 
Third Reading form becomes the statute
o Commencement – legal effect begins when the Act “comes into force”;
specified in last section of an Act
 date of Royal Assent (Interpretation Act) unless otherwise
indicted
 may be retroactive
 Bill 1 – Special Case
o An Act to Ensure the Supremacy of Parliament
o introduce by the AG at the start of each Legislative Assembly
o does not proceed past First Reading
o purpose: to perpetuate the established right of Parliament, through its
elected representatives, to sit and act without leave from the Crown
(p. 1-42)


Approach to Fact Pattern
Issue – address ancillary issues too and why they are ancillary (give both long and
short forms of the relevant act; also explain why something is the issue, and why
other provisions are not at issue)
Rules – prewritten Driedger Approach and Interpretation Acts
Analysis
Conclusion – mini-conclusions and give decision
It has been established in case law that the preferred approach in statutory
interpretation today is Driedger’s modern approach, which calls for a liberal
interpretation of wordings where the text, context, and a number of other factors are
considered and balanced in deciphering legislative intent (Rizzo; Merk). Specifically,
the Driedger approach states that,
(Rizzo, ¶21)
The modern approach is supplementary to the British Columbia Interpretation Act
(BCIA). Importantly, s.8 of the BCIA stipulates that all acts are to be read in a
remedial way and s.2 stipulates that the BCIA applies to all BC acts unless a
contrary intention is present. Accordingly, this analysis will use Driedger’s approach
to interpret the statute at hand.
4
Driedger’s Modern Approach
 text of the provision
o grammatical and ordinary meaning – reasonable person test (Shaklee) + BCIA
s.7 “always speaking”
 dictionary meaning (Shaklee – rejected dictionary in favour of reasonable
person; Riddell)
 technical meaning (CHRC)
o shared meaning
o plausible meaning
o punctuation – weak, not to be given much weight (Jaagusta; Popoff)
o BCIA s.1 or 29 defs.  statute def. (BCIA s.12 – apply to whole Act) 
dictionary def.  ordinary meaning
 scheme analysis/internal coherence (Rizzo)
o schedules (Houde v Quebec Catholic School Commission)
o bilingual/bijural (Medovarski) – 2 step methodology
1) look for a shared, common meaning  the result is often to get to a narrower
meaning
2) investigate through Driedger approach whether the common, shared meaning
accords with legislative intent
a. if it does  the meaning is correct
b. if it does not  the meaning is whatever does accord with legislative
intent
c. the problem is that presumably to get to the shared meaning, you have
to apply Driedger, and then apply Driedger again to confirm whether the
meaning holds
d. what if there is no clear interpretation of one language?
i. where you have a clear meaning in both, go for the shared
meaning
ii. where both are unclear, still go for the shared meaning
iii. when one is clear and one is ambiguous, go for the clear meaning
 vertical coherence
o the hierarchy
 constitution
 international treaty* (Baker – in this case the international treaty was not
implemented into domestic law, and the dissent had an issue with this)
 federal human rights code/Bill of Rights
 federal act
 federal regulation (and other subordinate legislation)
 provincial human rights code/documents
 provincial act
 provincial regulation (and other subordinate legislation)
 common law
o presumption of interpretation in line with Charter (Sharpe; Bell ExpressVu)
 horizontal coherence, especially where pari materia (Bell ExpressVu) (Columbia
River & Property Protection Society – showed that the presumption can be
rebutted)
 avoiding conflicts between enactments
5




o express indicators – legislature telling us which is to prevail
o implied indicators (Fraternite de Policiers)
1) timing – later enactment is preferred over earlier; look for the timing of the
specific provision, not the entire act; general reconsolidation/revision of statute
is not going to count for this rule
2) specificity – specific preferred over general
a. specificity trumps timing
purpose/object1 (Merk)
o preambles (Re Anti-Inflation Act) – BCIA s.9
 but preambles should be given less weight than the actual provisions ( La
Forest J. in McVey v United States of America)
o purpose statements (LeBlanc)
 weight given to a purpose statement depends on a number of considerations:
how specific and coherent it is, what directives are given by the legislature
respecting their use, whether there are other indicators of legislative purpose
(R v T (V))
 purpose statements are likely to carry less weight than substantive
provisions (National Farmers Union)
o titles, both long and short (Lane, Ex p Gould; Committee for the Commonwealth
of Canada) – BCIA s.9
consequential (Merk)
o public policy
o avoid of absurd/anomalous results
o cross-jurisdictional2
expert opinion3
o previous cases (majority and dissenting)
o expert testimonies (Shaklee) – to be given less weight
history, legislative history (don’t give substantive weight, Reference re: Firearms
Act) and legislative evolution4 (Merk)
o general history (Canada 3000)  counter to general history can be the “always
speaking” clause in BCIA s.7
o Hansard (Rizzo)
o House Committee Reports
o failed bills (CHRC)
o alternative drafts of the bill
o headings and marginal notes (Lohnes; Basaraba; Wigglesworth) – headings
more weight, especially since BCIA s.11 expressly says marginal notes are
not part of the enactment
o legislative evolution/subsequent amendments or previous versions (Re SFU)5 –
counter to this is BCIA s.37 (not every change is substantive)
Distinguish between the purpose of the overall act and the purpose of the specific provision. Also note that there
may be multiple purposes for the overall act stated in the purpose statement section.
2 This is related to good public policy.
3 Mentioned in Shaklee but ordinary meaning deemed more important and thus argument using expert opinion
was overruled.
4 Legislative evolution is officially approved/assented versions of the statute. Legislative history covers a much
broader scope.
1
6
 special conventions
o presumption of Crown immunity – at common law, the Crown was presumed to
be immune from the scope of its own legislation, and now most interpretation
acts have codified the common law  BCIA actually makes the Crown subject to
its own legislation
o presumption against extra-territoriality – the right to establish extra-territorial
legislation is restricted to Parliament (Statute of Westminster, 1931)
o presumption relating to special subject areas
1) individual rights
a. personal liberty, security or well-being
b. freedom of commerce
c. access to the courts
d. rights of natural justice (procedural fairness)
i. everyone should be treated fairly at a procedural level before a
government decision is taken against you – right to be heard
ii. in criminal law, everyone has a right to procedural fairness –
how much of that procedure fairness can be applied elsewhere?
2) property rights (main at issue in land rights cases) – presumption that
courts should not read the legislation at taking property rights away
a. municipal zoning bylaws
b. expropriation – no duty to compensate taking of land at common law
i. legislatively, governments have bound themselves to
compensate
ii. now, government is not just interested in taking land for
development, but regulating what’s underneath the land for
resources – there are those that argue we should get
compensated for that “taking”
3) criminal law – even in the criminal law, penal presumption is very low level
(and should not be used in non-criminal contexts) (McLachlin in McIntosh;
Hasselwander); 2 reasons for this presumption
a. serious consequences of a criminal conviction for liberty of person
b. need to give all citizens “fair notice” of what is and is not criminal
4) human right statutes – not only do human rights legislation trump ordinary
statutes, the way we read these statutes must be especially broad (Jubran)
5) taxation statutes – in recent years, there is more judicial emphasis on the
textual elements of the statute (grammatical and ordinary meaning) – again
somewhat favouring taxpayers (Imperial Oil Ltd)
6) municipal law – giving municipalities flexibility in their legislation  given
a broad interpretation (United Taxi Drivers’ Fellowship of Southern Alberta)
o penal provisions/presumption in favour of the accused (McIntosh – Lamer J.;
Merk6)
o rule of effectivity
Note that Re SFU argued previous versions showing one intent did not contribute to showing legislative intent;
rather, the fact that what was previous included is now excluded means that legislature intended to exclude the
point at issue.
6 In Merk it was stated that the penal provisions is limited to criminal law, and even then it is not a strong
argument.
5
7
 presumption against tautology (CHRC; Riddell) – counter against this is
“scattergun approach” in basket clause-like provisions
 presumption of uniformity of expression (Schwartz)
o maxims of interpretation
 principle of associated meaning (McDiarmid Lumber)
 limited class rule (basket clause rule) – be wary with applying this rule as
there is a threshold to be met before this rule can be used; must have lowest
common denominator (Rascal Trucking)
 implied exclusion rule – note that the implied exclusion rule is probably the
weakest of the 3 maxims because sometimes things are added “out of
excessive caution) (Children’s Aid)
 specialist opinions
o executive/administrator’s opinions (CHRC)
o academic texts like Sullivan and Coté (Merk)
 importance of quasi-constitutional acts, like human rights acts (CHRC; Jubran)
 temporal operation and application (immediate, retrospective, retroactive, and
prospective)7 – see ss.35 & 36 of BCIA
o temporal operation = period during which the rules embodied in legislation are
legally effective
o temporal application = range of facts to which legislation may appropriately be
applied
o underlying values
 fairness
 rule of law
 protection of (property) rights
o sources = Interpretation Acts; home statute’s transitional provisions, if any;
common law
o presumption against retroactivity  the strongest presumption (MacKenzie)
 exceptions
 beneficial legislation
 legislation designed to protect public
 legislation that is purely procedural (does not affect substantive rights in
any way)
 immediate application (important to distinguish between completed fact
and facts in progress)
Note that SCC will not apply Charter retroactively or retrospectively because it undermines Charter values
since it can be rebutted.
7
8
o presumption against restrospectivity (presumption against retrospectivity is
weak – no one has the right to the status quo law today because the law
changes – MacKenzie)
o presumption against interference with vested rights (Scott)
 to determine whether presumption is rebutted, courts balance several factors
1) degree of unfairness
2) importance of the policies implemented by the new legislation
3) impact that limiting or delaying its application would have
4) any textual or other evidence of legislature’s intent
o dates of commencement
o transitional rules (expiration [BCIA, s.4(4) statute has lapsed/no longer has any
practical significance], amendment, replacement, repeal [BCIA ss. 35 & 36])
o types of changes: substantive changes  s.37(2) of IA must thus be read as
saying don’t assume that every change is a substantive change; house-keeping;
declaratory
o preference of interpretation to be in harmony with the common law  if
legislature wanted to change decades-long common law principle, it would have
been clear on it (this is why the rebuttal to the presumptions needs to be clear,
whether express or implied)
 subordinate legislation – ability to delegate powers (Hodge) (different from
administrative instrument, which is implicitly authorized – Maple Lodge Farms)
o enabling clauses must be there (De Guzman)
o must read enabling clause within context of parent Act, not just the clause itself
(Federated Anti-Poverty)
o types of subordinate legislation
1) regulations – 2 possible meanings  BCIA, s. 36(1)(e) and BCRA
a. in a very wide sense, it includes all the instruments arising out of the
exercise of an Administration’s regulation-making power
b. in its narrow sense, the word “regulation” means a particular type of
instrument, the scope of which is usually very wide, and which affects a
very large number of persons
2) orders – generally of a more limited scope than a regulation; it usually affects a
rather small number of persons
3) decrees – used exclusively in Quebec, decrees are very specific in nature, in that
they are the instrument by which the province defines working conditions
applicable to employees and employers
4) rules – typically used in relation to rules of procedure that apply in courts or
tribunals and that dictate the procedures that must be followed in law suits,
appeals or administrative proceedings
5) tariffs – quantitative and numerical norms used in regulating some field of the
country’s economic activity
6) by-laws – rules or norms adopted by corporations to provide a framework for
their members or to govern their affairs (most often made by municipal
corporations)
7) letters patent – type of legal instrument that can be used by an authority (such
as a Minister or the Lieutenant Governor in Council) to create a corporation
and authorize it to engage in particular activities
9
Law 104: Law, Legislation and Policy
BCIA
Summary
G. Morgan (Crane, Fall 2011) | Page 6 |
BC I nterpretation Act Provisions
Section
Provisions (BCI A)
Interpretation Act (BC) S.2(1)
Every provision of this Act applies to every enactment, whether enacted before or after the
commencement of this Act, unless a contrary intention appears in this Act or in the
enactment.
(1) Every enactment must be construed as always speaking.
(2) If a provision in an enactment is expressed in the present tense, the provision applies to
the circumstances as they arise.
Every enactment must be construed as being remedial, and must be given such fair, large
and liberal construction and interpretation as best ensures the attainment of its objects.
The title and preamble of an enactment are part of it and are intended to assist in explaining
its meaning and object.
Definitions or interpretation provisions in an enactment, unless the contrary intention
appears in the enactment, apply to the whole enactment including the section containing a
definition or interpretation provision.
Calculation of time or age
(4) “clear” and “at least” and “not less than” = first and last days excluded.
(5) if these modifiers are not used, then first day is excluded and last day is included
(2) Gender specific terms include both genders and include corporations.
(4) If a word or expression is defined in an enactment, other parts of speech and
grammatical forms of the same word or expression have corresponding meanings.
(1) The repeal of all or part of an enactment, or the repeal of an enactment and the
substitution for it of another enactment, or the amendment of an enactment must not be
construed to be or to involve either a declaration that the enactment was or was considered
by the Legislature or other body or person who enacted it to have been previously in force, or
a declaration about the previous state of the law.
(2) The amendment of an enactment must not be construed to be or to involve a declaration
that the law under the enactment prior to the amendment was or was considered by the
Legislature or other body or person who enacted it to have been different from the law under
the enactment as amended.
(3) An amendment, consolidation, re-enactment or revision of an enactment must not be
construed to be or to involve an adoption of the construction that has by judicial decision or
otherwise been placed on the language used in the enactment or on similar language.
Interpretation Act (BC) S.7
Interpretation Act (BC) S.8
Interpretation Act (BC) S.9
Interpretation Act (BC) S.12
Interpretation Act (BC) S.25
Interpretation Act (BC) S.28
Interpretation Act (BC) S.37
BCIA s. 11 – no marginal notes
BC I ss.
nterpretation
Act Definitionsrules
(S.29)
BCIA
35 & 36 – repeal/replace
“corporation”
means an incorporated association, company, society, municipality or other incorporated body,
s.35(1) – repeal where and however incorporated, and includes a corporation sole other than Her Majesty or the
Governor
(a) repeal does Lieutenant
not mean
for common law to step in – no revival of the common
“deliver”
with
reference
to a notice or other document, includes mail to or leave with a person, or deposit in a
law
person's mail box or receptacle at the person's residence or place of business
(b) does not affect
the
previous
operation
the enactment
orconvey, bequeath,
“dispose”
means
to transfer
by any
method and of
includes
assign, give, sell,repealed
grant, charge,
anything underdevise,
it lease, divest, release and agree to do any of those things
“government
agent”
appointed
under the Public
ServiceA ctaccruing,
as a government
agent
(c) have
to showmeans
thata person
a right
was acquired,
accrued,
or incurred
“herein”
used in a section or part of an enactment must be construed as referring to the whole enactment
under the enactment
basically
if you
and not to
that
section or part
only had a right yesterday, you shouldn’t
lose it today Sunday, Christmas Day, Good Friday, Easter Monday, Canada Day, Victoria Day, British Columbia
“holiday”
Day,
Labour Day, Remembrance
Day,
December 26, and a day set by Parliament
BCIA s.41 – deals with
subordinate
legislation
– New
has Year’s
forceDay,
of law
or the Legislature
BCIA
“may”s. 44 – referential
is toincorporation
be construed as permissive and empowering
“must”
“now”
“obligation”
“person”
is to be construed as an imperative
must be construed as referring to the time of commencement of the enactment containing the word
includes a duty and a liability
, and the personal or other legal representatives of a person to whom the context can apply
includes a corporation, partnership or party according to law
10
(3) An amendment, consolidation, re-enactment or revision of an enactment must not be
construed to be or to involve an adoption of the construction that has by judicial decision or
otherwise been placed on the language used in the enactment or on similar language.
BC I nterpretation Act Definitions (S.29)
“corporation”
“deliver”
“dispose”
“government agent”
“herein”
“holiday”
“may”
“must”
“now”
“obligation”
“person”
means an incorporated association, company, society, municipality or other incorporated body,
where and however incorporated, and includes a corporation sole other than Her Majesty or the
Lieutenant Governor
with reference to a notice or other document, includes mail to or leave with a person, or deposit in a
person's mail box or receptacle at the person's residence or place of business
means to transfer by any method and includes assign, give, sell, grant, charge, convey, bequeath,
devise, lease, divest, release and agree to do any of those things
means a person appointed under the PublicServiceAct as a government agent
used in a section or part of an enactment must be construed as referring to the whole enactment
and not to that section or part only
Sunday, Christmas Day, Good Friday, Easter Monday, Canada Day, Victoria Day, British Columbia
Day, Labour Day, Remembrance Day, New Year’s Day, December 26, and a day set by Parliament
or the Legislature
is to be construed as permissive and empowering
is to be construed as an imperative
must be construed as referring to the time of commencement of the enactment containing the word
includes a duty and a liability
, and the personal or other legal representatives of a person to whom the context can apply
includes a corporation, partnership or party according to law
*be careful of repeal/replace/amendments – see if definitions survive in the new Act
Problems with Meaning




Ambiguity:
o Equivocation: two different meanings, or more – “perhaps the most serious
disease of language is ambiguity in the traditional sense of equivocation”
 Residence can mean two different things, etc.
o Syntactic ambiguities: Unclear within the context which terms are
modified by an included word or phrase
o Contextual ambiguities: Caused not by communication itself but by other
factors, for example, the communication may contradict or be incompatible
with another communication
o Source of ambiguity may be the different cultural practices of subcommunities within the audience – diversity of experience
o Communication breakdown may also occur where the speaker/writer
assumes that the audience uses words and phrases in a way that differs
from that used by the speaker/writer – co-ordination problems
o Temporal gap: may occur between the moment at which the communication
is “sent” and the moment at which it is received – between the two
moments new circumstances may have arisen
Elliptical Communications:
o Speakers/writers make assumptions about their audience and omit
mention in their communications of factors that should be taken for
granted, assuming that the gap will be filled
Improper bivalence:
o Speakers/writers may assume that the subject matter may be analysed
according to bivalent criteria (true/false) while the experience of the
audience may be one of gradations on a spectrum
Over-inclusiveness:
11



o Classification used by a rule-maker may be too broad to achieve his or her
aims
Under-Inclusiveness:
o Classification used by a rule-maker may be insufficiently general to allow
for achievement of his or her aims
Vagueness:
o A rule-maker may use general terms assuming that the audience will use
particular criteria to render them more specific – assumption may not be
well-grounded
Miscommunication: A speaker may misspeak; a writer may unintentionally omit
or include a word or phrase; a speaker/writer may misuse a word or phrase
Issues with Driedger’s Approach
Ruth Sullivan, “The Plain Meaning Rule and Other Ways to Cheat at Statutory
Interpretation”
Introduction – doctrines of statutory interpretation do not fully or accurately reflect
what judges must do to resolve interpretation disputes, but they do generate a
reassuring rhetoric
Basic Assumptions
 2 key assumptions – 1) at least some of the time the meaning of the text is “plain”
and not susceptible of doubt and 2) legislatures have intentions when they enact
legislation and these intentions are knowable by courts
 these assumptions tell us that interpretation is rooted in something definite – the
text – and this idea supports the view of rule of law, which is prized in Canada 
so even though these assumptions are attacked, any attack must proceed with care
The Plain Meaning Rule – if the meaning of a legislative text is plain, the court may
not interpret it but simply apply it as written; the court may resort to the rules and
technique of interpretation only if the text is ambiguous
Advantages of the Plain Meaning Rule
 #1 – in theory, it creates a zone of certainty in that the courts will not trick you at
the last minute by using some unsuspected implications in the interpretation – the
law is certain and gives fair notice to everyone
 #2 – supports formal equality since the plain meaning is the same for everyone
and this ensures that the law will be applied the same way for everyone, to the
same effect
 #3 – it can be used as an apparently neutral proxy for strict construction  it is no
coincidence that the plain meaning rule is applied most persistently and
enthusiastically to fiscal legislation, with penal legislation running a close second
Fidelity to Legislative Intent
 many judges prefer focusing on the intention of the legislature
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 legislative intent is discovered generally through inference – and to draw inference
of this sort even competent speakers must rely on a wide range of contextual
factors
 even if a text has a clear meaning, the intentionalist judge would still be obliged to
consider other factors – intentionalism gives top priority to the meaning a statute
was intended to have
 “Intentionalism further assumes that the speaker is aware of the context in which
the audience will carry out its interpretation and ensures accurate communication
by anticipating the inferences the audience will draw when reading different
combinations of words in that context”
 doctrine of fidelity to legislative intent has 3 more corollary doctrines
o original meaning rule
o doctrine of presumed intent
o distinction between interpretation and amendment
Advantages of Fidelity to Legislative Intent
 explains the role of courts in interpretation without challenging popular
conceptions of democracy
 supports the positivist view of law – law is one thing and not-law is something else
entirely and we can easily tell the two apart
o what legislature enacts is law
o legal values, preferred policies, judicial assumptions are not law
The Promise of Certainty – upon enactment, the law is fixed once and for all  even
when the meaning is not plains, judges are constrained by the fixed intention of the
legislature
The Reality
 judges “cheat”  judges “take their own answer…and try to pass it off as someone
else’s”
 this is a form of misrepresentation
 when judges invoke the PMR, they deny responsibility for the outcome by saying
the text made them do it
 when judges invoke the doctrine of legislative intent, they transfer responsibility
to the legislature
 these doctrines discourage judges from discussing the real basis for outcomes in
statutory interpretation disputes
 the reason why judges apply these doctrines is for reassuring rhetoric – they
provide credible resolutions to interpretation disputes without upsetting anyone
How to Interpret a Text When Pretending Not To
 PMR Trick #1 – artful text selection
o the first step in applying the PMR is to identify the text to be interpreted 
this sometimes involves choosing between alternative texts which favour
different outcomes and when this happens, the outcome of the dispute cannot
really be blamed on the meaning of the text since it actually depends (at least
in part) on the initial choice of text
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o this suggests that there may be more to reading a text than proponents of the
PMR would acknowledge
PMR Trick #2 – elastic co-text
o how much co-text one considers affects the outcome of the interpretation, yet
there is no rule governing how much co-text to include and it is much at the
discretion of judges
o the PMR cannot provide certainty if the co-text is manipulated in this way
PMR Trick #3 – the shifting meaning game
o the courts have many different ways to refer to “meaning” – literal meaning,
common meaning, ordinary meaning, dictionary meaning etc.
o when judges use the expression “plain meaning” they could be referring to any
of the above
o because the same vague terminology of “plain meaning” is applied
indiscriminately to all the different possibilities, the choices being made are not
apparent
PMR Trick #4 – it must be plain to you if it’s plain to me
o the distinction between plain and ambiguous requires judges to determine
whether a text can plausibly bear more than one meaning, but what is
“plausible”?
o sometimes both the majority and dissenting will reach different conclusions
based on the PMR, but clearly only one interpretation can be “plain”
o judges do not try to explain why they think one interpretation is “plausible”
PMR Trick #5 – the inherent meaning illusion
o the PMR is based on the fundamental proposition that once a text is written, it
“contains” a meaning that does not change, but remains stable regardless of the
context in which the text is read and regardless of who reads it
o but the context cannot be fixed
o readers across time will ultimately bring a different contextual background to
the text, which means they may ultimately interpret the “plain text” differently
PMR Trick #6 – abandoning ship  PMR requires that judges apply it unless
there is ambiguity, but case show that judges sometimes abandon this rule when
the interpretive outcome is just not acceptable (although they try to do it
discretely)
PMR Trick #7 – courts may rely on non-textual evidence to support the plain
meaning interpretation, but cannot use it to contradict or vary the plain meaning
of the text
How to be Faithful to the Legislature Without Giving Up your Freedom
 FLI Trick #1 – presume that nothing worth mentioning has changed
o the context in which a statute was enacted may bear little resemblance to the
context in which it is being interpreted
o this problem is avoided in practice by presuming that nothing has changed, and
the burden of proving a change falls on the person alleging it
o this approach allows the courts to carry out the work of adapting ageing
statutes to changing circumstances without having to give up the advantages of
a fixed legislative intent – except the presumed absence of change is not true
 FLI Trick #2 – more meaning games
o on occasion the original meaning rule is expressly invoked and relied on
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o but sometimes the “original meaning” refers to the original connotation, and
sometimes to the original denotation – picking between the two can have
consequences to how a statute is interpreted
 FLI Trick #3 – distinguish sloppy drafting from legislative error
o sometimes when there are errors in the statute, the judges can choose to
attribute it to the legislature or to the drafter
o if it is the drafter’s fault, the courts can, in effect, change the wording into what
the legislature really intended
o but if it is the legislature’s fault, then FLI requires that the courts do nothing
 FLI Trick #4 – presume that legislature wants what you want
o Driedger’s modern approach – for him, judges do not make or even interpret
laws, they construct it
o
o but this implies that the intention of Parliament is deemed to include
everything the courts care to impute to Parliament, so long as it does not
contradict what Parliament actually said
o why did Driedger do this? he had no choice  sometimes the courts really
cannot find legislative intent from evidence or even from non-binding evidence
like Hansard – so sometimes the court has no choice but to make something up
What Should Be Done?
 we should acknowledge that legislative text and intentions are incomplete sources
of law and we should focus on what we can reasonably demand from our
interpreters
 the democratic illusion – our elected representatives are not the only sources of
law, bureaucrats, administrators, technicians, international conventions are all
sources of law not coming from our elected representatives
 democracy is better defined as government in accordance with a constitution of
which an elected legislature is one of several necessary institutions  it is not the
only part of democracy
 the resolution of interpretation is itself highly democratic – the subject is allowed
to make arguments and participate directly in the law-making process
 we must reject the idea that if courts are not bound by some doctrine then they can
do whatever they like – they are still bound by legal values and they need to
justify their decisions in a legally acceptable way (legal norms)
Stephane Beaulac and Pierre-Andre Côté, “Driedger’s ‘Modern Principle’ at the
Supreme Court of Canada: Interpretation, Justification, Legitimization”
 first use of the modern principle in 1984 in Stubart Investments Ltd. v. The Queen
 Sullivan wrote 3rd edition of Driedger’s book which changed the “modern principle”
to the “modern rule”
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 Driedger’s quote is used in all areas of law
 BC is the province that by far uses the method most, with Quebec being last
 the “modern principle” has been utilized by the courts to fulfill a rhetorical
function – to explain and justify in objective terms the interpretative decision
o a secondary and less used function is to provide an outline of methods that
guide judges in the construction of statutes (it is argued that Driedger intended
the latter but the SCC has given higher importance for the former function)
 his quote is overwhelmingly used to justify interpretative decisions in an attempt
to legitimize the courts role – courts want to appear neutral and merely voice the
intent of Parliament
o evidence of this intent is seen when courts use Driedger’s wordings in the 2nd
edition instead of Sullivan’s in the 3rd, even though Sullivan’s expressed the
contemporary methodology in a way which reflects the current practice much
better  the 2nd edition is favoured by the SCC because it is more convenient in
terms of legitimizing judicial decisions
 the court’s conception reflects the traditional view – that the one and only
objective of legislative interpretation is to ascertain the legislative will
 Sullivan writes that the interpreter should be mindful of the consequences of the
proposed interpretation and suggest that the question of whether or not a given
interpretation produces a just and reasonable outcome is as legitimate as asking
the collective mind of Parliament
 1984 marks the beginning of an era of apparent judicial restraint, as if it wanted
to downplay the importance of the policy-making role it has to assume
 some problems with form
o words have been taken out of their context, and this distorts their meaning
 ex. “modern principle” by itself seems to suggest that it corresponds to
contemporary notions of interpretation, but it actually only modern in
relative to the other rules Driedger refers to, which hare the Mischief Rule,
the Literal Rule, and the Golden Rule
 ex. “there is only one principle or approach” by itself suggests that the
“modern principle” says all that needs to be said about the appropriate
approach to interpretation, but Driedger only meant that there is one
approach instead of 3 approaches (listed above) and it does not follow that
this approach encompasses all that needs to be said
o the wording is repetitive and wrongly places the intention of Parliament on the
same plane as the meaning of words, the scheme, the object  the latter are all
means by which such an intent is determined
o also, the criteria listed is do not all have to be met, they are only factors that
need to be considered
 some problems with the substance
o this formulation places greater emphasis on the idea that the meaning of the
act does not result solely from the usual meaning of the words, but it is difficult
to reconcile such a statement with those found in other decisions of the SCC
which use the PMR
o the “modern principle” provides a gross over-simplification of the complex
process of interpretation  while the central role of this construct is statutory
interpretation, fidelity to intent is very far from being the one and only value
involved in determining the meaning of statutes
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a lot of the times, interpretation relies on considerations of fairness,
predictability and stability of law, previous decisions, authorities, and policy
considerations
 principles of a “fair, large and liberal construction” or a “strict construction”
are ignored in the quote
o fundamental flaw of the approach is that it is centered on a theory that
presumes interpretation is about finding something that is “already there”
 although this approach is actually outdated, it remains because
o it is a suitable interpretation strategy for the simpler cases
 but the theory is much less useful in hard cases  ex. where law is
ambiguous or vague, under/over-inclusive, where there are circumstances
not anticipated (such as in Harvard College – dealing with genetic
engineering even when the Patent Act was written in 1869  the real
reason for interpretation was for policy, but the judgment made it look as if
it was based on legislative intent)
o allows judges to seem like there are merely mirroring the will of the elected
assembly
 at most Driedger’s approach is a good starting point

Temporal Issues – Sullivan’s Methodology
I. identify CIF date
II. issue identification – what triggers the law’s application?
III.situate facts on timeline
IV. ask whether factual elements are
A. complete  retroactive or retrospective
1. presumption will apply unless
a. rebutted, or
b. if retrospective presumption at issue, law is procedural, benefitconferring, or designed to protect the public
i. benefits-conferring ≠ benefits for everyone, and no burden 
remember the goal of everything in statutory interpretation is
legislative intent, and legislature is free to choose to redistribute
wealth/services to benefit one group at the net expense of others
ii. protect the public is a narrow exception
2. if rebutted, vested rights presumption may apply
a. if vested right, is it rebutted?
B. ongoing  law is immediate and is unproblematic
1. but vested rights presumption may apply
a. is there aright at issue?
b. has it vested/accrued or is it accruing? (Drikanian)
i. tangible and concrete?
ii. sufficiently constituted?
 is result inevitable? have all conditions precedent been satisfied?
(Scott) – for a right to be accruing, it is a high threshold
 consider degree of surprise and unfairness
2. if vested right, is it rebutted?
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C. not yet started  law is immediate and is unproblematic
1. but vested rights presumption may apply (both statutory and vested rights)
2. if vested right, is it rebutted?
a. degree of fairness
b. degree of surprise
c. whether either unfairness or surprise is necessary for law to achieve its
goal? (need to think of competing interests and balance them)
d. remember that
i. presumption against retroactivity is strong, but other presumptions
are weak
ii. rebuttal may be express or implied
 statute may expressly indicate that the law is to have retroactive
effect = clear rebuttal to presumption against retroactive effect
 implicit presumption – using statutory interpretation methods to
discern whether legislature intends to rebut the presumption
V. note that vested right presumption, retroactive/retrospective presumption are not
mutually exclusive  you can try all of them
What are the temporality rules and their underlying values?
I. introduction: temporality rules refer to rules about immediate, retrospective,
retroactive, and prospective application of the law
A. prospective and immediate application are not sources of controversy because
the underlying temporal values of fairness, ruled of law, and protection of
rights are not at issue
B. retrospective application somewhat engages these values, and retroactive
application is the most controversial
II. the value of fairness
A. one reason why retroactive and retrospective application is frowned upon is
because it is unfair for people to be responsible for laws they did not know
about, or laws that were not in existence at the time
B. not only is the law unfair for the person for whom it applies to, it might be
unfair for others as well
1. ex. McKenzie – court decided that it would be inappropriate for the
legislative act at issue to be applied retroactive because it would be unfair
for the appellant to reap the benefits of what others contributed in the
pensions fund
C. difficult to trust laws that change retrospectively; can’t change behaviour in
time
III.rule of law  certainty; predictability; reliance; stability; security; rationality;
formal equality
A. another underlying value of temporal rules is rule of law – the idea that people
should know the rules by which they are governed
B. for ex. – it would not be right for legislature to enact a law today stipulating
that all taxpayers who handed in their tax forms in late will receive a $1000
penalty for each month past the due date, applicable from 2005 onwards 
immediate application would not be an issue because people today would know
of the law and would be able to prepare to hand in their forms on time this
year, but those who handed in their forms late in 2005 to 2011 would argue
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that this enactment violates the rule of law because they did not know in 20052011 about this law, and that if they had known about it they would have
made an effort to hand in their tax forms on time
IV. protection of rights
A. the issue of protection of rights may arise if the application of the law is
immediate or prospective
B. Scott is a good example of why protection of rights issues may come up
1. in that case, the doctor had taken many steps towards getting his name
back into the registrar, like filling in the application and depositing money
with his lawyer, who kept it in a trust fund while negotiations with the
university were occurring
2. the doctor, in other words, was very close to getting his name back into the
registrar, and would have done so if legislature had not enacted a new law
4 days before the application was completed and 15 days before it was
submitted
3. it would seem unfair to force the doctor to follow the new law, in which he
would have to take steps similar to what a newly graduated medical
student would need to take, to get his name back into the registrar – a
much more onerous process
4. the court decided that he had an accruing right and that he should not have
to follow the new law
C. the Scott case therefore demonstrates that there are some rights that
legislature may want to protect from immediate or prospective application of
laws
Vertical Coherence and Charter Values Debates
I. the Charter values debate: when you are interpreting ordinary legislation,
vertical coherence tells us we need to align that ordinary legislation to the
Charter
A. what does that mean methodologically? – 2 options
1. every step of the Driedger analysis must favour Charter values 
ex. CCC (1991), Sharpe (2001), Tse (2012)  applying the Charter
2. at the end of the analysis, if there is still ambiguity, then favour the
interpretation most in line with Charter values  ex. Bell ExpressVu
(2002), Gamboc (2010)  consulting the Charter
B. these methods engage institutional roles very deeply
1. Bell ExpressVu and Gamboc says not to do option 1 because otherwise,
courts will be stepping on the institutional roles of legislature/Parliament
 if we always favour the Charter, we never allow the possibility that the
legislature intended to go against the Charter (what would be the point of
learning the test for constitutional validity?) – Bell ExpressVu
a. legislature would never be read as violating the Charter
C. s.1 of the Charter recognizes that legislature/parliament might want to violate
Charter provisions, and under certain circumstances it can do so
1. Justice Iacobucci wants to endorse option 2 (Bell ExpressVu)
a. option 1 upsets the balance of institutional roles
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b. although the court favours the growth of the common law with the
Charter, the court should not do the same thing with statutory
interpretation if it is to respect the legislative branch
i. so holding common law to Charter values at every step is ok
ii. but doing the same to statutes is upsetting institutional roles
c. para. 65 – option 1 never allows an outcome that says government
violated the Charter  this a problem because the court is not giving
legislature the ability to violate the Charter and then justify the
violation under s.1 of the Charter
i. constitutional framework for validity testing is made redundant and
legislature’s ability to justify its actions is lost
ii. the counter to this argument is: is this such a severe lost?
 comes down to a personal preference
d. para. 66 – Iacobucci thinks option 1 would pose a severe problem
D. Iacobucci also says that if courts go with option 1, it is going to give incentive
to legislatures to add wording of why something can be Charter-justified in the
act – and then courts will have to interpret the justification  this is just too
much tedious work
II. applying non-domestically implemented international law: Baker – applies
Convention of Rights of Child to interpret Immigration Act
A. this is also an institutional problem
B. the dissent: the Convention of Rights of Child was not implemented in
Canadian domestic law
1. i.e. not domestic law
2. the institutional role problem – the judiciary invoking unimplemented
international treaty that the Canadian government has chosen not to
implement
a. executive branch signs treaty
b. Parliament implements the treaty
c. here, the court applied a executive signed but not Parliament-approved
treaty
C. Justice L’heureux-Dubé says that the fact that Canada has brought in the
Convention on the Rights of the Child – makes the decision that interests of
the children must be demonstrated in the reasoning on humanitarian and
compassionate grounds for deciding immigration decisions
D. institutional roles
1. signed treaties must be enshrined into Canadian law  after a treaty is
signed, it needs to be debated in Parliament if it is to be brought into
domestic law
2. Justice Iacobucci (dissent) is concerned that the judiciary branch is going to
an unimplemented law in Canada – proper balance of institutional roles is
not being respected
Issues with SL/AI
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Pros of more SL
1) primary legislation cannot set out everything
– too much time – need to work quickly in the
interest of public  legislators should devote
time to principles
2) legislature and they are not experts – expert
opinion needed to know how law will
practically work
3) primary legislation needs to be accessible,
practical and manageable – cannot be
bombarded with too much detail
4) sometimes do not know how law will play out
until it is in effect – leave to SL to work
things out later; need for flexibility
5) Parliament/Legislature should only be
working out most important stuff – the
skeleton of the law
6) the diminution of the power of Parliament in
an era of strong executive government
Cons of more SL
1) why are wartime practices becoming the norm?
2) SL do not receive same legislature and media
scrutiny – no 3 readings, no debate – where is
the democracy?
3) checks against Canadian Bill of Rights and
Charter, but checks depend upon commitment
from executive to make them work  no
reason to believe there are any subordinate
legislation committees in the country with
enough profile to draw attention to
excesses/misuses re: regulations and other
instruments
4) not all SL have procedural requirements like
regulations do (BCRA only covers regulations)
– rule of law concern, how can we be governed
by rules we do not know of?  G20 and PWPA
Act example – i.e. concerns with accessibility
5) easy to put SL in place, yet takes long time to
challenge it on constitutional grounds  unfair
6) whether or not the subordinate legislation gets
published is up to discretion of registrar
Pros of more AI
1) even SL cannot spell out everything
2) ensures uniformity of application  helps
rule of law
3) directors need some flexibility to function
4) Parliament/Legislature should not spend time
hammering out the tiny functional details of
our laws
5) after setting out the skeleton of the law,
allowing flexibility for directors to make AI
allows for local conditions – adaptability
Cons of more AI
1) no procedural requirements at all – no
democracy
2) does not even need enabling clause – if you
cannot connect the policy to the law, there is
no way to have the policy to go through
judicial review – no rule of law (Baker)  it is
extremely difficult to challenge AI
3) ensure the transparency of decision-making
practice and policy
4) may have people making decisions that do not
fully consider human rights/Charter/fairness
issues  Baker – junior administrative
worker took the case lightly, did not think
about the kids etc. – there are policies
governing what these junior workers
Cases
R. v. McIntosh (1995 SCC)
Facts: Basile Hudson was stabbed to death by the respondent; the respondent originally approached the deceased with
a knife, and thus, ‘provoked’ the altercation
Issue: Whether section 34(2) is a defense to those who murdered a person and provoked the altercation?
Lamer J:
 “Golden Rule of literal construction”: PMR
 S.34(2) is clear, and in isolation, is clearly available to an initial aggressor
 penal provisions  Marcotte v. Deputy Attorney General for Canada (1976)(SCC): “if real ambiguities are
found, or doubts of substance arise, in the construction and application of a statute affecting the liberty of a
subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to
be enforced”; where two interpretations of a provision which affects the liberty of a subject are available, one of
which is more favourable to an accused, then the court should adopt this favourable interpretation
 “The fact that a provision gives rise to absurd results is not, in my opinion, sufficient to declare it ambiguous and
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then embark upon a broad-ranging interpretive analysis” – the “reading in” element is an illegitimate exercise
because it is the legislature who is supposed to write the law, and judges merely interpret – judges should not add
words that are not present in the statute
 rule of law approach – Lamer wants certainty, rule of law means laws have to be clear for how can we obey the
law if it is not clear
McLachlin J. (La Forest, L’Heureux-Dube, and Gonthier JJ dissenting):
 “No modern court would consider it appropriate to adopt that meaning, however “plain”, without first going
through the work interpretation”
 absurdity that an accused whose conduct is the more serious has the broader defence
 Parliament can legislate illogically if it so desire, but the courts must impute a rational intent to Parliament
 absurd result of interpretation would allow a person who wished to kill another and escape punishment to
deliberately provoke an attack so that he might respond with a death blow
 penal principle –only should be used when there is REAL AMBIGUITY  no real ambiguity in this section
 legislative history shows there was drafting error
Re Rizzo & Rizzo Shoes (1998 SCC)
Facts: Company was forced into bankruptcy by creditors
Issue: Appeal by the former employees of a now bankrupt employer from an order disallowing their claims for
termination pay
Principle
 Driedger: “the words of an Act are to be read in their entire context and in their grammatical and
ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of
Parliament.”
 S.10 of the Interpretation Act: Every act “shall be deemed to be remedial” and directs that every act shall
“receive such fair, large and liberal construction and interpretation as will be ensure the attainment of the object
of the Act according to its true intent, meaning and spirit”
 para. 24-26: looks at other cases to look at purpose of this act  purpose is to protect employees
 para. 27-29: absurdity – that junior employees will have termination and severance pay and yet senior employees
get hit with the bankruptcy problem  it is arbitrary, so it is not a good interpretation
 para.30-32: legislative history – the transition provision would be meaningless if it did not mean to include
bankrupt employers (the transition provision has a 6 month exemption to say that those who went bankrupt 6
months before the act do not have to follow s.40a, so they do not have to pay employees)
 para. 34-35: Hansard – should not rely heavily, but courts do look at it
 para. 36: principle of benefits conferring legislation (related to the object of the legislation)  the judge uses
scheme analysis
 Section 17 of the Interpretation Act: “[t]he repeal or amendment of an Act shall be deemed not to be or to
involve any declaration as to the previous state of the law”
Merk v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771
(2005 SCC) (CJ Mclachlin) (3-38)
Facts: Merk inquired internally about another employee who was over-charging the company for expense and was
fired as a result of her inquiry
Issue: Whether “lawful authority” refers to a private employer (i.e., private authority)
Principle

purpose/goal of the act – about loyalty vs. public interest/responsibility to report fraudulent behaviour  going
up the ladder does not blow the situation out of proportion and thus is staying loyal to the firm, and it also
protects public interest because wrongdoing is being addressed

grammatical and ordinary meaning – favours a definition of “lawful authority” that includes private authority

scheme analysis – the act is essentially employee protection legislation (here the court is not clearly delineating
the difference between the purpose analysis and scheme analysis  this is more appropriate as purpose analysis)

public policy considerations (picking the interpretation that leads to good public policy) – cross-jurisdictional
comparison  looking at other country’s or other province’s acts/statutes to support analysis; type of
consequential reasoning

avoiding absurd/anomalous results – does not make sense that the person who choose to blow the situation out of
proportions and goes to an outside authority gets more protection

legislative history – everything that was a form of the law is legislative evolution – supports including up the
ladder approach  remember to distinguish legislative history from legislative evolution
CHRC v. Canada (AG) (2011 SCC)
Facts: Mowat filed a human rights complaint and the Tribunal awarded her compensation for suffering and also
awarded her legal cost
Issue: does s.53(2)(c) or (d) in the CHRA give Tribunals the authority to award legal costs?
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LeBel and Cromwell JJ.::
 presumption against tautology – repetitions of words is not an accident and serves a purpose  “that the person
compensate the victim…for any expenses incurred by the victim as a result of the discriminatory practice”
appears twice to show specificity as to when the victim is to be compensated and for what
 technical meaning/legal jargon – “costs” is a legal term of art
 legislative history – Parliament is aware of the legal meaning of the term “costs” and purposely left it out
 Commissioner’s opinion/executive’s opinion – history of Commission’s arguments/actions show that they know
what the legal meaning of “costs” is
 parallel jurisdiction – other legislation in other provinces/territories show that the word “costs” is used
consistently when the intention is to confer the authority to award legal costs, and so if Parliament wanted to add
the power award costs, it would have explicitly done so
 human rights statutes are quasi-constitutional (above the other regular statutes) and should be given a broad
interpretation, but this consideration cannot trump everything
R. v. Lane, Ex p. Gould (1937 NBSC App. Div)
Facts: argued that the Act invaded the Province of criminal law and that the title was evidence of this intended
infringement.
Issue: Is the Act unconstitutional? – whether provincial law forbidding the ownership of slot machines is criminal law
Principle: titles are part of the act
Committee for the Commonwealth of Canada v. Canada (1991 SCC)
Facts: respondents engaging in handling out information in a bid to recruit new members; were asked to stopped by
RCMP because political activities were prohibited under ss.7(a) and 7(b) of the Government Airport Concession
Operations Regulations
Issue: does ss.7(a) and 7(b) of the Government Airport Concession Operations Regulations prohibit political
activities?
Principle: both short and long title can be used to discern purpose of statute
Re Anti-Inflation Act (1976 SCC)
Facts: SCC decided the question of whether or not the Anti-Inflation Act fell within the Parliament of Canada.
Considerable reference to the statute’s preamble was made, among other things. Specifically the court had to
determine if the Act governing inflation fell under Parliament’s auspices to legislate matters of “serious national
concern” under the “POGG” power of Canada as found in the Constitution Act.
Issue: If Act fell under Parliament’s auspices to legislate matters of serious national concern.
Principle: The validity of the Act does not fall or stand on the preamble, but it does provide a base for assessing the
gravity of the circumstances which called forth the legislation.  legitimate source of contextual approach to
determine legislative intent: s. 9 of BCIA and s. 13 of federal statute states that preambles should be included in
the interpretative approach
R v Lohnes (1992 SCR)
Facts: Mr. P was given to collecting equipment on his premises and running motors which made loud noises, this
bugged L, it disturbed him so much that on two occasions a year apart he went onto the veranda of his house and
shouted obscenities at Mr. P. On the second occasion, L concluded his oration with the assertion that he would shoot
Mr. P if he had a gun. L convicted that his conduct in itself constituted a disturbance within s. 175(1)(a) of the Code
and it was also found that Mr. P was disturbed by the impugned conduct.
Issue: what constitutes a public disturbance under s. 175(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46?
Principle: headings and preambles may be used in interpreting ambiguous statutes
R v Basaraba (1975 Man. QB)
Facts: Basaraba charged with compelling people to transfer land and that the people had a lawful right to abstain from
doing so; heading preceding s.381 of CC says “Breach of Contract, Intimidation and Discrimination Against Trade
Unionists”
Issue: does s.381 only apply to trade unionists?
Principle: marginal notes cannot be used in interpretation, but headings may be used sometimes and only when there
is a doubtful expression in the provision
R v Wigglesworth (1987 SCC)
Facts: Kerr brought into the RCMP for a breathalyzer test where he met the appellant. Appellant started questioning
Kerr. After 3-4 slaps, Kerr admitted that he was driving. Suffered injuries as a result of the assault. The respondent
has admitted that the appellant committed a common assault as defined in the Code. Charged under both the Code and
the RCMP Act.
Issue: whether the appellant had been “charged with an offence” within the meaning of s.11 (Charter goes against
double jeopardy – cannot be charged for same offence twice)? (sub-issue); whether the appellant’s conviction of a
“major service offence” under the Royal Canadian Mounted Police Act, R.S.C. 1970, c. R-9, precludes subsequent
proceedings under the Criminal Code for the same misconduct (main issue)?
Principle: marginal notes are weaker in importance compared to headings (at least in the Charter), but they
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nonetheless must be considered, keeping in mind that the extent of their influence will depend on the case; headings
are above marginal notes
R v Jaagusta (1974 BC Prov. Ct.)
Facts: A peace officer stopped the vehicle driven by the accused and told the accused he was searching for prohibited
drugs under authority of the Narcotics Control Act…After searching the vehicle, he attempted to search the person
who reacted by pushing the peace officer away. At trial, officer admitted he had no grounds to believe the accused had
any prohibited drugs.
Issue: does a peace officer need a reasonable belief that the person possesses drugs to search only in a dwelling-house
or in other areas as well?
Principle: historically, not much attention was paid to punctuation, and even in the modern day where punctuation
may matter, if the result of the reading is absurd/bad policy, then the punctuation-focused reading must be discarded
R v Popoff (1985 BC Co. Ct.)
Facts: punctuation in the timing of breath samples taking said 2112:50 etc.; Popoff said the punctuation should be
21:12:50 etc.
Principle: punctuation is given little attention in statutory interpretation
Medovarski v. Canada (2005 SCC)
Facts: 2 kinds of stays: automatic stays and actively ordered stays; if the phrase “granted a stay” indicates both kinds
of stays, the appellants’ right to appeal is preserved; if it indicates only actively ordered stays, the appellants’ right to
appeal is removed
Issue: whether s.196, a transitional provision of the Immigration and Refugee Protection Act, SC 2001 removes the
right to appeal an order for removal to the Immigration Appeal Division (IAD), in the case of persons deemed
inadmissible for serious criminality
Principle: steps to bilingual interpretation
1) determine whether to not there is a discordance and if so whether there is a common meaning between the
two versions; where one version is broader than the other, the common meaning would favour the more
restricted meaning  the common meaning is the version that is plain and not ambiguous; if neither is
ambiguous, or if they both are, the common meaning is normally the narrower version
2) determine if the common meaning is consistent with Parliament’s intent
Shaklee v. Canada (1995)(FCJ)(4-1)
Facts: So any goods that are considered to be “food” are exempt from tax.
Issue: Whether certain vitamin, mineral and fiber products marketed and sold by Shaklee are exempt from taxation
under the Excise Tax Act being food for consumption? Whether the goods in issue are food?
Principle: creation of meal test; dictionaries are of limited usefulness in statutory interpretation  judges may
consult dictionaries to determine a word’s ordinary meaning, however, a dictionary definition may not be
determinative
Regina v. Riddell et al (1973 Que. C.A.)
Facts: The accused drove a road grater through a border crossing in broad daylight.. They were acquitted because “it
was difficult to conclude that the R tried to escape the attention or the eventual pursuit of the customs officers and that
the essential element in support of the charge of smuggling, the dissimulation, the clandestine or secretive nature of
the act cannot, according to the evidence, be found to exist. Trial judge was of the opinion that snuggling does not
occur when it is not clandestine.
Issue: Does smuggling include situations in which it is not clandestine?
Principle: rule of effectivity: using dictionaries to discover the normal, everyday meaning of words is an acceptable
method of interpretation, but there are certain reservations
McDiarmid Lumber v. Gold’s Lake First Nation (2006 SCC)
Facts: at issue is the scope of ss.89 and 90 of the Indian Act; these provisions, designed to prevent the erosion of
property belonging to Indians, confer immunity from seizure for creditors
Issue: are Indians protected by seizure of band funds under the ss.89 and 90?
Principle: principle of associated meaning and presumption against tautology
 if “agreement” is interpreted broadly to cover all types of agreements, then the word “treaty” has no role to
play – so this supports the view that “agreement” in s.90(1)(b) should be read more narrowly as
supplementing “treaty”
Nanaimo (City) v. Rascal Trucking Ltd (2001 SCC)
Facts: Rascal leased a parcel of land located within Nanaimo from Kismet Enterprises Inc.; Nanaimo wanted to
remove the soil dumped by Rascal and declared it a nuisance pursuant to s.936, which declares constructed/erected
things and watercourses as “nuisances”
Issue: does soil count as a nuisance according to s.936 of the Municipal Act?
Principle: limited class rule
 limited class rule applies so that “or other matter or things” refer to the two classes of nuisance outlined
before it – constructed or erected things, and watercourses
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
if it was meant to include everything, then there would be no point in putting such specific phrases before “or
other matter or things”
 however, soil can be seen as falling within “constructed or erected things”  it would be absurd that a
building can be seen as a erected thing but the soil used to build it cannot
CR et al v. Children’s Aid Society of Hamilton et al (70 R 3d 618)
Facts: regarding s.4(7) of the Family Law Rules
Issue: Does the fact that subrule 4(7) confers rights of a party on a Children’s Lawyer, but says nothing about
responsibilities, mean that the Children's Lawyer is to have no responsibilities under the Family Law Rules?
Principle: legislative silence does not always mean the excluded thing is unimportant
 the starting point of this discussion is the presumption that legislative is silent for a reason
 but the maxim expression unius est exclusion alterius is a dangerous maxim to follow and much depends on
the context
 the reasons for courts not wanting to “read in” are 1) may be unclear whether the legislative silence is
deliberate 2) courts have limited powers to correct under-inclusiveness
 but silence does not necessarily mean the excluded matters are unimportant, it could alternatively mean
1) legislature may have wished to emphasize the importance of the matters mentioned or, out of excessive
caution to ensure that the mentioned matters are not overlooked  the mention of some matters does not
mean that others should be excluded
2) express reference may be necessary or appropriate in one context, but not in another
3) sometimes, it is more accurate to say that because something was not specifically excluded, it may be
deemed to be included
Re Simon Fraser University and District of Burnaby (1968 BCCA)
Facts: SFU leasing out land. Few Acts referred to in the case say property vested in a University is exempt from tax
under certain acts and says that this property is the kind that is disposed of by lease to an affiliated college.The leases
in this case aren’t affiliated colleges. Burnaby argues that that by referring to affiliated colleges the Legislature
intended to exclude any other properties leased to others.
Issue: are the leased businesses exempt from paying taxes under s.40 of the Universities Act?
Principle: legislative evolution – changes in legislative language imply change in legislative intent
Reference re: Firearms Act (2000 SCC)
Facts: in 1995, Parliament enacted the Firearms Act, to require that holders of all firearms obtain licenses and
register their guns. In 1996, province of Alberta challenged Parliament’s power to pass the gun control reference.
Federal government assets that the gun control law falls under its criminal law power s. 91(27), and under its general
power to legislate for POGG. Alberta says that the law falls under its power over property and civil rights.
Issue: Whether or not Parliament has the constitutional authority to enact the law?
Principle: legislative history may be used as long as it is not given undue weight
Columbia River and Property Protection Society and East Kootenay Environmental Society v. British Columbia
(Ministry of Environment, Lands and Parks) (1996 BCEA – administrative tribunal)
Facts: Lake Windemere Resorts received approval to make changes in and about a stream i.e. to fill in a swamp on its
property. The specific issue was whether either society had standing to appeal the issuance of the approval. So Board
considered two provisions. LW says neither society fits within the classes of people allowed to object to an appeal nor
thus neither society has standing to appeal the issuance of the approval as confirmed by the Deputy Comptroller.
Maintains that the statute must be interpreted in a manner that is consistent with the statutory scheme and maintains
that the statutory scheme under the Water Act is one which only confers a right to object on particular classes of
persons, namely those referenced in s. 9 of the Act and s. 3 of the Regulation.
Issue: is the right to appeal extended to anyone?
Principle: horizontal coherence may not be used as an argument when legislature purposely makes the wording
in one act different from another – if the words are different, it must be presumed that legislature intended the
words to have different meanings/effects
 internal coherence argument: the categories listed should be read into the word “approval” vs. if no
qualifying words in “approval” then it should be read broadly
 to interpret the Water Act in a manner that allows a boarder class of persons to object to approvals seems
inconsistent
 absurdity argument – absurd that anyone would be allowed for approvals when the licensing is more
restrictive (and license is the more formal type of permit)
 difference in wording between statutes are presumed to reflect differences in the intended meaning/effect
 so that s.38 and s.7 do not employ the broad languages seen in other statutes (Waste Management Act and
Pesticides Act) because legislature did not intend for a broad class of individuals to have standing to appeal
under the Water Act
R. v. Ulybel Enterprises Ltd. (2002 SCC)
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Principle: important to apply the principles for harmonizing different statutes in each case; the law in one will
inevitably exert and influence on the law in the other
Bell ExpressVu Limited Partnership v. Rex (2002 SCC)
Principle: the important role that context must inevitably play in statutory interpretation supports the need for
harmony across statutes dealing with the same matter
General Commentary: One problematic issue regarding horizontal coherence concerns references to enactments of a
different legislature. While the rationale of a “single speaker” is not applicable, there may be nonetheless be
compelling arguments in favour of consistent interpretation of legislation from different jurisdiction.
Levis (City) v. Fraternite de Policiers (2007 SCC)
Facts: criminal conduct by municipal police officers in QB and whether those conduct should be sanctioned by the
law governing police or by municipal law; Belleau is facing the situation where one statute would allow him to
maintain his employment with the appellant municipality if he can show specific circumstances while the other would
not
Issue: are the PA and the CTA in conflict? which one should prevail?
Principle: enactments that come after and that are special/specific take precedent over earlier and general enactments
Committee for Commonwealth of Canada v Canada (1991 SCC)
Principle: courts will not interpret legislation that makes it open to more than one interpretation so as to make it
inconsistent with the Charter; the courts will prefer the interpretation which confirms that the provision is
constitutional at the time of its application
R. v. Sharpe (2001 SCC)
Principle: If a legislative provision can be read both in a way that is constitutional and in a way that is not, the former
reading should be adopted (Slaight Communications). As well that this approach is the presumption that
Parliament intended to enact legislation in conformity with the Charter.
Bell ExpressVu (2002 SCC)
Principle: the Charter values principle should be only used where there is genuine ambiguity; a blanket presumption
of Charter consistency could sometimes frustrate true legislative intent; moreover, if statutory meanings are made
congruent with the Charter even in the absence of ambiguity, then it would never be possible to apply, rather than
simply consult, the values of the Charter  the more powerful purpose of the Charter is testing constitutional validity
R. v. Gamboc (2010 SCC)
Facts: relevant issue was whether “customer information” under the Electric Utilities Act, which granted legislative
authority for the disclosure of customer information to investigative authorities, included information relating to
patterns of electrical consumption; the accused argued that the Act, read in accordance with Charter values, would
prevent Enmax, the electrical provider, from collecting such information to assist a police investigation
Principle: Gamboc, Rodgers, Bell Express Vu, Sharpe all emphasize that Charter values should only be adverted to
where the legislation is still open to multiple interpretations after having applied the entire modern contextual
approach
Baker v. Canada (Minister of Citizenship and Immigration) (1992 SCC)
Facts: Regulations made pursuant to s. 114(2) of the Immigration Act, empower the Minister to facilitate the
admission to Canada of a person where the Minister is satisfied, owing to humanitarian and compassionate
considerations, that admission should be facilitated or an exemption from the regulations made under the Act granted.
Appellant ordered deported in 1992, after it was determined that she had worked illegally in Canada and had
overstayed her visitor’s visa. Applied for permanent residence in Canada upon humanitarian and compassionate
grounds. Decision came back as insufficient humanitarian and compassionate grounds to warrant processing of her
application. Letter had no reasons for the decision. See Immigration Act s. 114(2) and regulations 2.1. See also
international treaties on interests of children.
Issue: should the act be read in accordance with values stipulated in the Convention on the Rights of Children?
Principle: vertical coherence when subject matter is HR – interpret values underlying Acts in accordance with
international conventions, but international conventions are not binding
Reasons – L’heureux-Dubé J:
 the objectives of the Act is consistent with a large and liberal interpretation that places a high value on
keeping citizens and permanent residents together with their close relatives who are already in Canada
 Convention on the Rights of the Child – support the need to value in the interest of the child
Reasons – Iacobucci J (dissent):
 international conventions not binding and to abide by them would be undermining the Canadian system
 international conventions are of no force or effect within Canada until such time as its provision have been
incorporated into domestic law by way of implementing legislation
R. v. Hasselwander (1993 SCC)
Facts: Mini-Uzi submachine gun and prohibited weapon
Issue: does the submachine gun count as a “prohibited weapon” under the CC? is a submachine gun “capable of firing
bullets in rapid succession during one pressure of trigger”?
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Principle: penal presumption has subsidiary role
North Vancouver School District No. 44 v. Jubran (2005 BCCA)
Facts: high school student was being bullied and discriminated
Issue: must a person who complains of discriminatory harassment on the basis of sexual orientation actually be
homosexual or perceived by his harassers to be a homosexual under the Human Rights Code?
Principle: Human Rights Legislation has quasi-constitutional status and should be given a very broad, purposive
reading.
 it is inappropriate to rely solely on the strictly grammatical analysis, particularly where legislation of quasiconstitutional nature is involved
 SCC has also said that the scope of human rights legislation is not unlimited and the words of the statute
cannot be ignored
 purposes of the Code are “to promote and foster human dignity and equality, to prevent discrimination
prohibited by the Code, and to identify and eliminate persistent patterns of inequality associated with
discrimination prohibited by the Code. One of its purposes is also to provide a means of redress for those
persons who are discriminated against contrary to the Code” (para. 36)
Gustavson Drilling (1964) Ltd. v. M.N.R. (1977 SCC)
Principle: presumption against interference with vested rights only apply in some cases, because in most there is
obviously an intention to interfere with rights, such as in tax law
MacKenzie v British Columbia (Commissioner of Teacher’s Pensions) (1992 BCCA)
Facts: Guy picked single life guaranteed pension plan, this left his wife without any entitlement to his pension
benefits once he had lived for more than 10 years beyond the date on which he made the decision. She sought
application for 60% of husband’s superannuation allowance and arrears accumulated since his death. Appellant says
when the provision 38 is read together with s. 34 of the Interpretation Act, which requires an amendment to be
construed as part of the enactment it amends, it is clear that the legislature intended the amendment to have retroactive
application.
Issue: Whether a 1988 amendment to the Pension Act, should be given retroactive, retrospective or prospective
application.
Principle: cannot read too much into retroactive language when it is clear that it is a transitional provision
 s.38 of the Act requires retroactivity only to the extent necessary to give effect to its provisions, and if the
amendment were to be given retroactive effect it would render the Act dysfunctional rather than enhance the
effectiveness of its provisions
 it would be wrong to read into s. 38 of the Pension (Teachers) Act more than its legislative antecedent would
justify
 argument of appellant rejected because it sought to read too much into the retroactive language of what was
obviously a transitional provision in a new statute, and because, if applied in the manner suggested, s. 34 of
the Interpretation Act would have the effect of repealing the rule which presumes against the retroactive
application of statutory amendments
 it would not be fair for appellant to reap benefits of what others contribute to in the fund
Scott v. College of Physicians and Surgeons of Saskatchewan (1992 Sask CA)
Facts: not responsive to college of physicians and surgeons and didn’t pay his fee so his name was struck from the
register (s. 24 of the Medical Act). September 11 gives unsworn application, Sep 29 he deposits money with lawyer
(trust account) – active step of intending to do something with that, lawyer and college lawyers negotiate. Oct 10 –
application is submitted to registrar office meanwhile the amendment came into force on Sep 25 th – 4 days before the
application was completed and 15 days before it was submitted.
Issue: has Dr. rights accrued or accruing?
Principle: there is a high threshold for s.35(1)(c) – to show that the individual has an acquired/accrued right 
test for accruing/acquiring right – was the outcome inevitable so that the individual deserves the right? did the
individual do everything in his ability to reach the outcome?
Re Friends of the Oldman River Society and the Queen in right of Alberta et al (1992 SCC)
Facts: s. 6 of the Department of the Environment Act RSBC, empowered by the Minister for the purposes of carrying
out his duties relating to environmental quality, by order, with the approval of the Governor in Council, to establish
guidelines for use by federal departments, agencies and regulatory bodies in carrying out their duties, functions and
powers. Pursuant to this provision the Environmental Assessment and Review Process Guidelines Order was
established.
Issue: is the Guidelines Order authorized by s.6 of the Department of the Environment Act? does “guidelines” in s.6
empower the enactment of subordinate legislation, or only administrative directives?
Principle: enabling clauses must be interpreted by looking to the whole of the statute, and not purely in isolation
Between Josephine Soliven De Guzman, appellant, and The Minister of Citizenship and Immigration, respondent
(2005 FCJ)
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Facts: Came to Canada and said the only dependent she has is her daughter. 8 years later, she applied to sponsor the
admission to Canada of her two sons as members of the family class. They were refused visas under a paragraph in
the Immigration and Refugee Protection Regulations on the ground that they were not members of the family class
because they had not been examined for immigration purposes when G applied to come to Canada. She says that the
paragraph is invalid on three grounds: 1) not authorized by relevant enabling statute of the Immigration and Refugee
Protection Act 2) violating parents’ rights under s. 7 of the Charter 3) regulation is inconsistent with international
human rights instruments to which Canada is a signatory, and which protect the right of families to live together and
the best interests of children. There was an amendment that would have been beneficial for her but it was not applied
retroactively
Issue: Is the paragraph invalid?
Principle: if something is characterized as “framework legislation,” then it is a signal that legislature intended broad
powers to fill in the details, and therefore it is difficult to argue the subordinate legislation is invalid
Federated Anti-Poverty Groups of BC v. BC (Minister of Social Services) (1996 BCSC)
Facts: Regulation imposed by Order in Council that established a 90 day residency qualification for any person
seeking income assistance under the Act. Petitioner says regulation is void and of no effect on grounds such as 1) void
b/c it is ultra vires the Act which it purports to be from 2) void b/c contrary to charter sections. 3) Beyond the powers
of the Lieutenant Governor delegated by GAIN 4) inconsistent with statutory purposes of GAIN 5) discriminatory and
unauthorized by GAIN 6) repugnant to the provisions of earlier Provincial legislation, namely the Human Rights Act.
Issue: Is the regulation valid?
Principle: must read enabling clause within context of whole primary legislation, so what appears to confer broad
delegated powers may in fact have more limitations; province/feds can legislate against Charter if they wish to do so,
but not through subordinate legislation
 The purpose of GAIN, while they include the relief of poverty, neglect or suffering, also include the
execution of that purpose within the budgetary allowance to be provided by the legislature from time to time
and the establishment of the Minister’s discretionary powers to achieve it. But even subject to this, all people
resident within the province who suffers from poverty in the same defined degree are to receive its benefit.
 Exceptions are created by the legislature; nothing in the Act suggests that residents of the Province who
qualify for income assistance are to be dealt with differently as between members of the same income or
asset class.
 On its face – the regulation says – prescribing rules for eligibility of individuals or classes of individuals for
income assistance or social service (on its face it doesn’t say anything about waiting 90 days)
 At first glance it might look that regulation meets what the enabling clause means but reading the whole act
in context nothing in the context of the ACT enables eligibility to be accorded in any of those ways (reading
down S. 26(2)(d).
Waddell v. Governor in Council (1983 BCSC)
Issue: whether or not parliament can validly delegate power to amend the provisions of the parent statute to a
subordinate agency? Whether courts could adopt a different approach to Henry VII clause in peacetime?
Principle: the institutional debate is one thing – but doctrinally Parliament can make Henry VIII clauses 
Parliament can do this, but whether or not Parliament should is another question
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