1
BCIA:.............................................................................................................................................. 2
DRIEDGER: MODERN PRINCIPLE OF CONTEXTUAL CONSTRUCTION ................... 2
CONTEXTUAL ISSUES: .................................................................................................................... 2
GRAMMATICAL AND ORDINARY SENSE........................................................................................ 3
SCHEME OF ACT ............................................................................................................................. 3
OBJECT OF ACT/INTENTION OF PARLIAMENT ............................................................................. 3
ABSURDITY: .................................................................................................................................... 3
COMPONENTS OF LEGISLATION:........................................................................................ 4
INSTITUTIONAL FRAMEWORK ............................................................................................ 6
RUTH SULLIVAN – THE PLAIN MEANING RULE AND OTHER WAYS TO CHEAT
AT S.I.............................................................................................................................................. 7
STATUTORY PRINCIPLES AND PRESUMPTIONS ............................................................. 8
AMBIGUITY ..................................................................................................................................... 8
INTERPRETATION ACT ................................................................................................................... 8
COMMON LAW PRINCIPLES AND PRESUMPTIONS ....................................................... 9
CONFLICT BETWEEN ENACTMENTS ............................................................................................. 9
PRINCIPLE OF ASSOCIATED MEANING ......................................................................................... 9
EJUSDEM GENERIS ......................................................................................................................... 9
RULE OF EFFECTIVITY .................................................................................................................. 9
EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS ............................................................................. 10
UNIFORMITY OF EXPRESSION ..................................................................................................... 10
PRESUMPTION RELATING TO TERRITORIAL APPLICATION ..................................................... 10
INDIVIDUAL RIGHTS .................................................................................................................... 10
PROPERTY LAW ........................................................................................................................... 10
CRIMINAL LAW ............................................................................................................................ 11
TEMPORAL ISSUES ................................................................................................................. 11
COMING INTO FORCE .................................................................................................................. 11
REPEAL ......................................................................................................................................... 12
REPEAL AND REPLACEMENT....................................................................................................... 13
TEMPORAL OPERATION AND APPLICATION OF LEGISLATION................................................... 13
SUBORDINATE LEGISLATION ............................................................................................. 13
2
BCIA:
s. 8: Legislation “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”
-Expansive rather than technical (see Rizzo: protect vulnerable group)
-Informed by legislative purpose; strongest for benefit-conferring legisl.
s. 2(1): BCIA applies unless there is a clear intention to the contrary
Driedger: modern principle of contextual construction
“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.”
Contextual Issues:









Economic & social realities (Canada 3000)
Other statutes, reg. schemes (Canada 3000)
o Horizontal coherence
o Legislature speaks w/ a single voice
o Presumption: legislation coheres w/ other leg. from same legislature (i.e.
in terms of word/phrase meanings)
o Internal coherence
o An act must be coherent within itself
o Columbia River
o Presumption of “harmony, coherence and consistency” with other statutes
dealing w/ same subject matter (Ulybel)
o Vertical coherence
o Constitution trumps everything
o Subordinate legislation must be consistent w/ enabling statute
o Federal over provincial legislation
o Human rights over general legislation
o Sharpe  where ambiguity arises, interpret to agree w/ constitution
o Bell ExpressVu
Area-specific legal principles (Merk – “up the ladder”; Sharpe – child
pornography)
Entire act: purpose, object
See Components of a
Specific section
Statute
Policy considerations
Legiszlative history
o Transitional (Merk, Rizzo)
Changes to wording
o Re SFU and District of Burnaby  change in wording changed meaning
in law (legislative intent)
o BCIA s. 37(2)  change in wording doesn’t presumptively = change in
meaning of law
Possible reference documents in order of weight (Firearms Reference):
o Briefing notes (strongest)
3
o
o
o
o
Alternative draft versions of bill
House committee reports
Hansard (Sharpe)  frail evidence (Rizzo, Merk)
Press releases (weakest)
Grammatical and Ordinary Sense





Words in legislation are presumed to be used in their usual or ordinary sense,
absent clear intention to the contrary
o Ontario Mushroom; Shaklee – “meal test” for definition of food
Plain meaning approach (McIntosh majority)  a secondary principle
o “Where the language of the statute is plain and admits of only one
meaning, the task of interpretation does not arise.”
o “As a general rule, interpretation should not add to the terms of the law”
But plain meaning won’t always be the sensible interpretation
o Particularly when the legislation is intended for a specific group, not the
average person (Canada 3000, Shaklee)
Dictionaries  use with caution (McIntosh dissent, Shaklee, Riddell)
o Useful in Committee for the Commonwealth of Canada
Bilingual versions (Canada 3000, Medovarski)
o Side with narrower meaning; legislative intent
o Equally authentic, equally authoritative, equally binding
o Neither has primacy over the other (Canada 3000) – Shared meaning
Scheme of Act
o Underlying connections b/w all the specific sections
 Is a contentious term included in one section and not in another?
(McIntosh; Ontario Mushroom)
o Remedial (Benefit-conferring)
 Broad, generous interpretation (Rizzo)
 Ambiguity should be resolved in favour of claimant (Rizzo; Merk)
o Penal
 Strict construction & application to favour the ∆. (McIntosh)
o Regulatory (Merk)  broad purposive approach
Object of Act/Intention of Parliament
o Look to the problem the statute was enacted to correct (Heydon)
o Can have multiple objectives
o Look to purpose statement, title
o Remedial – BCIA s. 8 (Rizzo, Merk)
Absurdity:

McIntosh (per Majority):
o If the language is clear and unambiguous, the plain meaning should be
adopted no matter how harsh or absurd the result
4



o Parliament has the right to legislate illogically
Can be countered by reading in/down (Sharpe)
Common sense (Canada 3000, Riddell)
4 Grounds enumerated in Rizzo (Coté) (previous expectation: total insanity)
o Ridiculous or frivolous consequences
o Extremely unreasonable or inequitable
o Illogical or incoherent
o Incompatible w/ other provisions, or w/ object of legislature
Definitions
- “Means”: exhaustive
- “Includes”: non-exhaustive (except in Canada 3000 – clear intent to contrary)
- BCIA s. 29: Must/shall = imperative; may = permissive
Components of Legislation:
Title
- Considered part of an act, useful for interpretation (BCIA s. 9)
- Lane
- Committee for the Commonwealth of Canada v. Canada
Purpose Section
- Binding statements, but tend to be broad
- Part of the statute – no mention in BCIA b/c assumed to be binding
- Signals legislative intent; much more reliable than Hansard or preamble
- R. v. T. (V.) (Young Offenders)
- National Farmers Union v. Potato Marketing Council (PEI)
Preamble
- May indicate purpose of legislation or mischief to be addressed (BCIA s. 9)
- Re: Anti-Inflation Act
- Not determinative, but indicative
-Tendency toward vagueness, show goals that are not necessarily accomplished in
the legislation
Marginal Notes
-BC legislature doesn’t use marginal notes, but Parliament does
Headings
-BCIA s. 11: Headings are technically not part of legislation, but they tend to be
read as part of it anyway
-Lohnes  as part of whole argument, heading supports decision
-Basaraba
-Wigglesworth  Charter headings aren’t officially part, but have greater weight
than headings in other legislation
5
-Wigglesworth: Influence of headings depends on:
a) degree of ambiguity or obscurity of the section
b) length and complexity of the provision
c) homogeneity of provision under the heading
d) generic terminology in the heading
e) presence of system of headings
f) terminology in the heading v. substance of provision
Punctuation
-Helps with meaning
-Not binding (Jaagusta)
Schedules
-Part of statute, but Act itself takes precedence in case of conflict
Bilingual Statutes
-Merk
-Medovarski: Test
-Shared meaning?
-Consistency of this meaning w/ Parliamentary intent?
-Generally: take narrower meaning, barring intent to contrary
6
Institutional Framework
What it does
Legislative Branch
Executive Branch
Judicial Branch
Makes law
Administers and
implements law
Interprets and applies
law
Monarch
Monarch
Monarch
Governor
Lieutenant
General
General
Roles
G.G.
L.G
P.M.
Premier
C.A.
Parliament
Cabinet
Senate
Legislature
S.C.C.
Cabinet
Provincial Military
Federal
Bureaucracy
HoC
(House of Commons)
Accountability
Electors
Legislature
(Principle of
Responsible
Government)
Power
Limited By
Constitution s.91, 92
Constitution/Delegation
Constitution/Legislature
Delegated Authority
- exercises power
conferred to it by the
legislature
Separation of Power
Democratic
government
Principles
Parliamentary
Supremacy (less force
now; replaced by
Constitutional Supre.)
Royal Prerogative
- power from the
monarch
- fairly limited
Internal
(Appeal Process)
Judicial Independence
7
Ruth Sullivan – The Plain Meaning Rule and Other Ways to
Cheat at S.I
Two assumptions:
1. Plain meaning exists in legislative texts
2. Legislatures have intentions when they enact legislation
Advantages
Judicial
Tricks
Plain Meaning Rule
Legislative Intent
 certainty – safe to trust law as it is
 separation of power – adheres to
written
legislature
 formal equality – plain meaning is
 supports positivist view – law is
the same for everyone
what legislature enacts
 neutral proxy for strict construction
 text selection – choose which text to  presumed that the context in which
be interpreted
the law was enacted is the same as
the context it now operates in
 Co-Text – can affect meaning of a
(Brooks)
text or how “plain” it is by shrinking
or expanding the co-text
 original meaning rule is relied on to
justify the outcome
 Shifting Meaning – plain meaning
may mean:
 distinguish drafting error from
- dictionary
legislative intent
- literal or facial
 doctrine of presumed intent –
- intended
presumes that legislature is
- audience-based
reasonable and wants to avoid
- applied
absurdity and injustice
 If the judge declares the meaning
Brooks:
plain then it must be
 legislature may not have read the
 Texts do not contain meaning;
bill
meaning must be inferred by readers
 conflicting intentions among MPs
 when the apparent meaning of a text
 impossible to verify intention
produces an unacceptable result,
judges are free to abandon the plain
 intention is not voted
meaning rule
onillegitimate
 difficult to construct the past w/o
present influence
8
Statutory Principles and Presumptions
Ambiguity




Bell ExpressVu
o Must be a genuine ambiguity, otherwise interpretive principles don’t apply
o Mere disagreement b/w courts or doctrinal writers on the interpretation of
a provision isn’t necessarily sufficient
o If unambiguous: Parliament can enact legislation inconsistent w/
constitution (b/c of Parliamentary supremacy & s. 33)
Must be “real” – reasonably capable of more than one meaning
Must consider “entire context”
Arises only when two or more plausible readings exist, each equally in
accordance with the intention of the statute
Interpretation Act
A. Tense  BCIA s. 8
- “always speaking”
- adapt to new circumstances unforeseen at time of enactment
B. Singular/plural interchangeable  BCIA s. 28(3)
C. Definitions apply to
- Entire statute and all regulations under it  BCIA s. 12,13
- All grammatical forms of a word  BCIA s. 28(4)
D. Gender  BCIA s.28(2)
- Pronouns include both genders, corporations
E. Referential Incorporation
- Pulling provisions of secondary statute into primary statute
- Secondary statute applies with necessary changes  BCIA s.44
- Repeal & replacement of secondary statute is ambulatory: primary statute also
changes  BCIA s.36(1)(f)
 Can always argue “contrary intention” to reject application of ambulatory rule and
keep original wording
- Upon repeal of secondary statute, old meaning survives
F. Powers
- Appointment of public officers  BCIA s.22
- Delegation of powers  BCIA s.23
G. Computation of Time Periods BCIA s.25
- Exclude 1st day, include last day
e.g. Sept 1 + 21 days = Sept 22
- “Clear, at least, not less than”  exclude both 1st & last day
e.g. = Sept 23
9
- Holidays usually included
 May be excluded if appropriate; e.g. contract for road project
- If expiration day falls on holiday  moves to next day that is not a holiday
H. Calculating Age
- Age is reached at start of anniversary of birth date
Common Law Principles and Presumptions
(Statutes supersede common law principles)
Conflict Between Enactments



As opposed to overlapping – two pieces of legislation that deal w/ same subject
matter are not necessarily problematic
Conflicts arise when compliance with one would mean breach of the other, etc.
o Can be negated if there is a paramountcy provision or priority clause  no
conflict b/c legislature has decided which will prevail (uncommon)
Where there is conflict, specific typically trumps general (Levis v. Fraternite de
Policiers)
Principle of Associated Meaning
 Noscitur a soccis – meaning of a term is revealed by associated terms
 Presumption toward narrower meaning
 McDiarmid Lumber – “removes, conceals or disposes”  active requirements,
passive behaviour exempted from offence
Ejusdem Generis

A General phrase will take its meaning from the specific words preceding/around
it  narrows the meaning of the general phrase (basket clause)
 Ascertain a class that connects the members of the list
 Exceptions:
o Legislators may include a list of words that all mean the same thing
o If the specific terms exhaust the class of terms, then ‘other x’ must mean
something else
 Rascal Trucking (pile of soil counts as an ‘erection’, not as an ‘other matter or
thing’, which referred to watercourses)
Rule of Effectivity



Presumption against tautology
Words used must have meaning
McDiarmid – “it is presumed that the legislature avoids superfluous or
meaningless words, that it does not pointlessly repeat itself or speak in vain”
 Riddell – ‘smuggle’ distinguished from ‘clandestine’ in act, therefore smuggling
must not require an element of clandestine behaviour
10
Expressio Unius Est Exclusio Alterius



Principle: If legislation says one thing and doesn’t include another that would
logically go with it, the other thing can be assumed to be excluded
Practice: should be used with great caution
Exceptions: (Children’s Aid Society)
o Express mention used by legislature to emphasize a word, or out of
excessive caution
o Express reference necessary/appropriate in one context but not another
o In some contexts not excluding a word is enough to assume inclusion
Uniformity of Expression


Words are deemed to have the same meaning throughout a statute
Exception: Sharpe
o Person normally means a human being, but in one instance in Sharpe it
includes an imaginary person
Presumption Relating to Territorial Application


Canadian law applies to Canada
Issues arise in defining Canadian waters
o Out to 12 nautical miles, not beyond (fishing = 200)
 Application of Canadian law to things that happen outside of Canada
o Presumption: federal law only applies to acts committed in Canada
o Exception: some laws have extra-territorial reach
 i.e. those against attempts to overthrow the gov’t, sex tourism, etc.
 Canada is more reluctant than the US to enact internationally applicable
legislation
o Don’t want to encourage more/broader US laws of this kind
 Application of Charter abroad…is complicated
Individual Rights
 Narrow perspective, protect individual rights (Bell ExpressVu)
Property Law



Strictly construe legislation that limits a person’s property rights (i.e. in favour of
property owner
Land use planning
Expropriation
o No property right under constitution
o Legislation must be extremely clear
o No technical req’mt for compensation, but assumed
11
Criminal Law


Penal consequences – ambiguity used to be strictly construed in favour of the
accused
o McIntosh Majority (plain meaning plays into strict construction)
o Now shifting to the minority pos’n in McIntosh
Hasselwander
o Narrow meaning of “capable” does not further the goal of the law –
protection of the public
o Intent is irrelevant – statutory interpretation is often well beyond evidence
Temporal Issues
Coming Into Force




Two Ways:
o By Royal Assent
 Applies when the bill is silent  BCIA s.3(2)
o By proclamation of the Governor in Council or Lieutenant-Governor in
Council (as specified in bill)
Once a statute is enacted, it may be referred to for interpretation purposes, even if
it has not yet commenced.
Commences: beginning of the day of CIF
Ceases to have effect: end of the day of repeal
12
Repeal
o Expiration – treated as repealed, per BCIA s. 4(4)
o No “Revival”  BCIA s. 35(1)(a)
o Presumption: common law rule/previous statute before Act is not revived
o However, court may still choose to revive it
o Lawful Acts Not Affected  BCIA s. 35(1)(b)
o Cannot challenge lawful action taken under the act
o Repeal doesn’t retroactively affect the operation of an enactment
o Protection For “Accrued or Accruing Rights”  BCIA s. 35(1)(c)
o Does not necessarily affect right or obligation acquired, accrued, accruing
or incurred under the act
o Accrued: already enjoying benefit
o Accruing: Scott
o More than a ‘mere’ right – must have taken ownership in some way
o Right must be inevitably flowing
o Process must have begun before repeal
o Presumption against interference, but with clear intent legislature can
revoke these rights
o Offences  BCIA s. 35(1)(d)
o Offences committed prior to repeal may still be prosecuted
o However, Crown usually elects not to proceed with the charge
o Proceedings  BCIA s. 35(1)(e) & s. 35(2)
o Investigation, proceeding or remedy for vested rights or offence under the
statute may be initiated, continued, or enforced after its repeal
o References to repealed legislation  BCIA s. 35(1)(f)
o A reference in an unrepealed enactment to a repealed piece of legislation
is read as a reference to the new form of the legislation (“the new
enactment relating to the same subject matter”, if one exists)
o If there is no new form, such references are read as thought the legislation
had not been repealed, “so far as is necessary to give effect to the
unrepealed enactment”
13
Repeal and Replacement






Personnel  BCIA s. 36(1)(a)
o Appointments continue under new act
Proceedings  BCIA s. 36(1)(b)
o Continued in conformity with new act
Procedures  BCIA s. 36(1)(c)
o Conform with new act
Mitigated Penalty  BCIA s. 36(1)(d)
o If punishment varies between time of commission of offence and time of
sentencing, the lesser punishment applies (also 11(i) of Charter)
o Cannot be found guilty of an offence if not an offence at time of occurrence
(11(g) of Charter)
Regulation  BCIA s. 36(1)(e)
o Continue in force under the new act so long as it is consistent with the new
provisions
Referential Incorporation  BCIA s. 36(1)(f)
o Reference to former act replaced by reference to new act
o No corresponding provision  former definition continues
Temporal operation and application of legislation


Temp. Operation – The period during which the legislation is legally effective.
Temp. Application – Time range of situations to which legislation may appropriately
be applied.
 e.g. “Any person who is convicted of a criminal offence is ineligible to be called to
the Bar.” Does the legislation apply to someone who was convicted before the
enactment of this law?
 Retroactivity
 Law applies as of a time prior to enactment
 Strong presumption against legislation applying retroactively (unless legislative
intent to contrary)
 Charter s. 11(g): a person can’t be punished for an act that wasn’t criminal at the
time of the act.
Subordinate Legislation
General



Has force of law
Is co-equal to statute from which it is derived
o Subordinate refers to the source of the legislation, not its legal weight –
regulations must be authorized by an act
Results from a delegation of power
o Statute delegates to GG/LG in council, or a cabinet minister, etc., who
creates the subordinate legislation
14
Validity of Subordinate Legislation






BCIA s. 1: Regulation means anything enacted…
o A) “In execution of a power conferred under an Act”
o B) “By or under the authority of the Lieutenant Governor in Council”
Implied constitutional limitation: regulations are only valid if expressly allowed in
enabling clause
Policy documents are not binding
o Can be authoritative, since they indicate how gov’t will exercise
o Ministerial instructions, guidelines, circulars, manuals, etc.…not binding
Regulations vs. directives (Oldman River)
o Someone must be empowered to make regulations (LG, GG, Minister)
o BCIA s. 41(1)(a) powers to make regulations are limited to being
consistent with parent statute
o Enabling Clause/Provision
 Explicit limitations in wording (Oldman River: “minister
may…establish guidelines”)
 Regulation power may be limited by context and purpose of
enabling Act (Anti-Poverty)
o Look to legislative intent (Oldman River – Parliament intended a binding
regulatory scheme)
Regulation may be invalid if there is a conflict between express language of
enabling clause and a regulation under it
Henry VIII clause: regulations can sometimes trump legislation
o Legally permissible – legislature may appeal own authority at any time
(Gray)
o Need express intent to delegate such authority (Waddell)