Public Law I
October 7 2005
• Rules of statutory interpretation
• Legal Presumptions in judicial decisionmaking
• Peace Order and Good Government (I)
– Russel v. the Queen
– Local Prohibition Case
– Board of Commerce
– TEC v Snider
• Review for Midterm Exam Oct. 14
Rules of Statutory Interpretation (1)
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Why are rules
needed?
Intent of legislature
“reasonable person”
test
1.Plain meaning rule
2.“golden rule”: avoid
absurdity & inconsistency
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3.What was the
mischief & remedy?
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Specific words help
explain general ones
nearby
Express inclusion of
some items implies
exclusion of items not
mentioned
Aids:
– Interpretation statutes
– Definition sections of
statutes
Rules of Statutory Interpretation (2)
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More Aids:
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International
conventions &
– Context in statute
treaties (sometimes)
– Other similar statutes
– Legislative history
 Preamble (but not
• Minimal weight.
marginal notes)
Why?
 Headings (except in
 Books on rules of
Ontario – excluded
interpretation, & legal
dictionaries
by statute)
 French & English
text
Presumptions
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Criminal law: in favour
of accused
Taxation law: in favour
of taxpayer
Against alteration of
common law
Mens rea (guilty mind),
unless express absolute
liability
Against retroactivity
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Against ousting
jurisdiction of courts
For crown immunity (now
mostly replaced by statutes
allowing suits against crown)
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Every word is deliberate
 Specific given
precedence over
general
 More recent > older
 Leg. did not intend
drafting error (cts can
correct)
Russell v. The Queen, 1882
• Impugned legislation: Canada
Temperance Act, 1878
– Certiorari; rule nisi
– ¼ of electors in a “county or
city” may petition for a
plebiscite on prohibition.
• Fredericton went dry
• Charles Russell: Fredericton pub
owner, convicted
• Previous SCC decision: City of
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Fr. v. Queen: intra vires under
T&C (91-2)
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JCPC decision: Sir Montague Smith.
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• Russell’s lawyer:
delegation
argument – Parliament can’t delegate
its powers. Legislation says GG “may”
…
“cubby hole” doctrine
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Is subject-matter of impugned
legislation in s.92? If so, is it also in
91?
If not in s. 92, it must be in s. 91
Russell’s lawyer: argued legis.
Falls in s. 92: 9, 13 or 16
“pith and substance”
– Smith: Nearly anything could fall
under 92(13); what is p&s?
Central subject matter is public order &
safety, not T&C
Not local because of local option.
(analogy: health orders)
Therefore, not under s.92.
No comment on SCC’s decision in
Fredericton re s. 91(2), but seems to
emphasize POGG
Gap (residual) branch of POGG
Local Prohibition Case, 1896
• Impugned: Ont’s Local
Prohibition Act (1890)
– Townships, towns, villages (&
cities)
– Appeal from SCC ref
• Lord Watson
• Feds (under POGG) can trench
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on s.92 only if incidental to a legit
fed purpose
– otherwise, all of s.92 falls in s.
91.
– s.94 issue (unify common law
in anglophone provs)
Ontario argued that legis. falls
under 92(8): (municipalities).
Watson: not a convincing
argument
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Pith & sub: vice of intemperance
at local level
92(16): (local) yes.
92(13): no; the law prohibits rather
than regulates
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if conflict: fed. law is paramount
conflict of laws: no conflict if
strictest obeyed
“double aspect” doctrine: a
legislative subject-matter can fall
under s. 91 for one purpose, and s. 92
for another.
National dimension or national
concern doctrine hinted at: a subject
matter can become a matter of
national concern and then feds can
regulate under POGG.
Board of Commerce & Combines &
Fair Practices Acts (1922)
• Impugned legislation: fed antiprofiteering & anti-hoarding
legis. after WW I (1919)
• Board stated case to SCC re
Ottawa clothing stores
• Appeal from SCC: Duff (BC)
vs. Anglin (judges evenly
divided)
• Viscount Haldane for JCPC
• Pith & substance: combines &
hoarding in peace-time
• Cubby-hole: 92(13)
• S. 91 too?:
– Crim power? No – not like incest
(important decision for those
writing about criminal power in
writing assignment)
– T&C: no; T&C is supplemental to
other federal powers
– POGG? Only in “highly
exceptional circumstances”
[emergency doctrine] (see p. 66)
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Ultra vires
3 aspects of POGG: national
concern (obiter in Local
Prohibition), emergency (B of C),
residual (Russell)
TEC v Snider (1925)
• Impugned legislation: federal
Industrial Disputes
Investigation Act
• Viscount Haldane wrote for
JCPC
• Haldane says labour
legislation clearly falls under s.
92(13)
• In this case, the procedure is
applied to a municipal
transportation agency (TEC,
forerunner of TTC, 1923)
• Does subject-matter also fall
under POGG, fed criminal
power, or 91(2) (T&C)?
Haldane – no.
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POGG can be used as residual, or
emergency power. Here, can’t be
residual because 92(13) applies.
As well, there’s no emergency.
Rule of interpretation: specific
takes precedence over general.
See Haldane’s discussion of
specific words, p. 76.
How can this decision be squared
with Russell v. Queen? Haldane:
there must have been an
emergency in 1878:
– “…evil of intemperance [was]
one so great” that parliament
intervened to “protect the
nation from disaster”