ZS

Stating the Overall Approach – Prewritten Introduction .............................................1
General Principles of Statutory Interpretation ..................................................................2
Rules of Statutory Interpretation – List ...................................................................................2
BCIA Summary ........................................................................................................................................3
Rules of Statutory Interpretation – Details ............................................................................5
Appendix A: Ratios ................................................................................................................................8
Appendix B: Case Briefs .....................................................................................................................9
R v McIntosh .............................................................................................................................................................. 9
Re Rizzo & Rizzo Shoes ........................................................................................................................................ 10
Merk v International Association of Bridge, Structural, ornamental and Reinforcing Iron
Workers, Local 771 ............................................................................................................................................... 11
Canada (Canadian Human Rights Commission) v Canada (AG) ............................................................ 12
R v Lane, Ex p Gould .............................................................................................................................................. 13
Committee for the Commonwealth of Canada v Canada .......................................................................... 14
Re Anti-Inflation Act ............................................................................................................................................. 15
R v Lohnes ................................................................................................................................................................ 15
R v Basaraba .......................................................................................................................................................... 16
R v Wigglesworth .................................................................................................................................................. 16
R v Popoff ................................................................................................................................................................. 17
Medovarski v Canada ........................................................................................................................................... 18
Shaklee Canada Inc v Canada ........................................................................................................................... 19
Regina v Riddell et al ........................................................................................................................................... 20
Issue – address ancillary issues too and why they are ancillary (give both long and short forms of the relevant act)
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 also uses relevant provisions in the Interpretation Act (federal or provision, depending on the statute). Importantly, s.8 of the British Columbia
Interpretation Act stipulates that all acts are to be read in a remedial way and s.2 stipulates that the BCIA applies to all BC acts. Accordingly, this analysis will use
Driedger’s approach to interpret the statute at hand.
1

I.
the common law developed a high premium on the values of liberty and property
A.
liberty and property should not be infringed upon easily by government  assumption is that if something infringes on property and liberty, it must not be the legislature’s intention
II.
creates a binary of interpretive principal
A.
penal – liberty at risk  connected to strict interpretation
1.
looking at plain meaning of words, staying close to the text
B.
remedial  remedial interpretation
1.
generous and liberal interpretations – going beyond the text to context, sources, other parts of statute etc. to interpret
 PMR/golden rule/rule of literal construction (McIntosh – Lamer J.)
 no reading in (McIntosh – Lamer J)
 rule of law approach (McIntosh – Lamer J)
 Driedger’s Modern Approach (Rizzo) – all the components are listed below
 text of the provision o grammatical and ordinary meaning (Merk)
 dictionary meaning (Shaklee; Riddell)
 technical meaning (CHRC) o shared meaning o plausible meaning o punctuation (Jaagusta; Popoff) o Interpretation Act def.  statute def.  dictionary def.  ordinary meaning
 scheme analysis (Rizzo) o schedules o bilingual/bijural (Medovarski) o basket clause (Rascal Trucking)
 purpose/object 1 (Merk) o preambles (Re Anti-Inflation Act) o purpose statements (LeBlanc) o titles (Lane, Ex p Gould)
 consequential (Merk for all 3 below) o public policy o avoid of absurd/anomalous results o cross-jurisdictional 2
 expert opinion 3 o previous cases (majority and dissenting) o expert testimonies
 legislative history and legislative evolution 4 (Merk)
1 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.
2

o Hansard (Rizzo) o House Committee Reports o failed bills (CHRC) o alternative drafts of the bill o headings and marginal notes (McIntosh; Lohnes ; Wigglesworth) o subsequent amendments
 special conventions o penal provisions/presumption in favour of the accused (McIntosh – Lamer J.;
Merk 5 ) o rule of effectivity
 presumption against tautology (CHRC; Riddell) o limited class rule – for “basket clause” provisions (Rascal Trucking Ltd)
 executive/administrator’s opinions (CHRC)
 importance of quasi-constitutional acts, like human rights acts (CHRC)
 Interpretation Act, federal and provincial (Rizzo)
Law 104: Law, Legislation and Policy G. Morgan (Crane, Fall 2011) | Page 6 |
BC I nterpretation Act Provisions
Section
Interpretation Act (BC) S.2(1)
Interpretation Act (BC) S.7
Interpretation Act (BC) S.8
Interpretation Act (BC) S.9
Interpretation Act (BC) S.12
Provisions (BCI A)
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.
Interpretation Act (BC) S.25
Interpretation Act (BC) S.28
Interpretation Act (BC) S.37
BC I nterpretation Act
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.
Definitions (S.29)
4
5 broader scope.
“dispose” means an incorporated association, company, society, municipality or other incorporated body,
In Merk it was stated that the penal provisions is limited to criminal law, and even then it is not a strong
“deliver”
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
“government agent”
“herein” 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
3 means a person appointed under the Public Service Act 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
“holiday”
“may”
“must”
“now”
“obligation”
“person”
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

Interpretation Act (BC) S.2(1)
Every provision of this Act
, whether enacted before or after the commencement of this Act, unless a
appears in this Act or in the enactment.
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
(1) Every enactment must be construed as
.
(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
, and must be given such
and interpretation as best ensures the attainment of its objects.
The
and
of an enactment are part of it and are intended to assist in explaining its meaning and object.
or
provisions in an enactment, unless the contrary intention appears in the 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
.
(5) if these modifiers are not used, then first day is
and last day is
(2)
include both genders and include corporations.
(4) If a word or expression is defined in an enactment,
have corresponding meanings.
(1) The
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
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
,
,
or
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.
“corporation”
“deliver”
“may”
“must”
“now”
“obligation” 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
“dispose” 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
“government agent” means a person appointed under the Public Service Act as a government agent
“herein” used in a section or part of an enactment must be construed as
“holiday” 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
and
is to be construed as an
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
according to law
“prescribed”
“record”
“shall” means prescribed by regulation includes books, documents, maps, drawings, photographs, letters, vouchers, papers and any other thing on which information is recorded or stored by any means whether graphic, electronic, mechanical or otherwise is to be construed as imperative
“words”
Other words defined in includes figures, punctuation marks, and typographical, monetary and mathematical symbols
S.29
“acquire” | “affidavit” or “oath” | “bank” or “chartered bank” | “barrister” or “solicitor” or “barrister and solicitor” | “British Columbia land surveyor” | “Cascade Mountains” | “commencement” | “commercial paper” | “consolidated revenue fund” or “consolidate revenue”
“correctional centre” | “county” | “Court of Appeal” | “credit union” |“Criminal Code” | “Deputy Provincial Secretary” | “electoral district” | “Executive Council” | “Gazette” | “government” | “Governor”, “Governor of Canada” or “Governor General”| “Governor in
Council” or “Governor General in Council” | “Great Seal” | “Her Majesty” | “insurance company” | “justice” | “land” | “land title legislation” | “lawyer” |“Legislative Assembly” |“Legislature” | “Lieutenant Governor” |“Lieutenant Governor in Council” |“mail” |
“medical practitioner” |“mentally disordered person” or “mentally ill person” or “person with a mental disorder” | “minister” | “minor” |
“month” | “municipality” | “newspaper” | “peace officer” | “personal representative” |“proclamation” |“professional engineer” |
“property” | “Province” | “province”| “Provincial Court” |“Provincial Treasurer” or “Treasurer” |“Railway Belt” | “regional district” |
“registered mail” |“registrar” | “Registrar of Companies” | “Registrar of Titles” | “right” | “Rules of Court” | “rural area” | “savings institution” | “school district” | “security” | “Supreme Court” | “sureties” | “Surveyor General” | “trust company” | “will” | “writing”,
“written” | “year” | “youth custody centre” |
4
Ambiguity
Contextual
Ambiguity
A word or phrase that has two different meanings and is used without clarification of which meaning is intended
A word or phrase is not ambiguous in itself, but because of contextual factors (e.g. contradiction or incompatibility with another word or phrase in the legislation)
Diversity in experience
The use words or phrases within a profession in a different way from lay people and/or other professions.
Elliptical
Communications
Miscommunication
The drafter makes assumptions that gaps will be filled or factors will be taken for granted, and therefore omits clarifying information in the legislation.
Improper Bivalance An assumption that the subject matter can be analysed as bivalent (true/false) while the experience of the audience may be one of gradation.
A writer may unintentionally omit or include a word or phrase.
New Circumstances Circumstances that were not contemplated at the time the word or phrase was used.
Over-Inclusiveness The classification in the legislation may be too broad to achieve its aims. It may be unclear whether the rule should apply where the aims would not be promoted or would be jeopardized.
Syntactic Ambiguity It is unclear within the context which terms are modified by an included word or phrase.
Under-Inclusiveness
Vagueness
The classification in the legislation may be insufficiently general to allow for the achievement of aims.
A general term is used under the assumption that the audience will use particular criteria to render them more specific.

I.
the tradition restrictive approach
A.
Plain Meaning Rule (PMR/golden rule/rule of literal construction) – looking at plain meaning of words is enough, no need to look outside the text of the provision (McIntosh – Lamer J.)
1.
ruled in court later that PMR is incomplete (Rizzo)
B.
no reading in – do not add words into the statute since that is the role of the legislature (McIntosh – Lamer J.)
C.
rule of law approach – rule of law means laws have to be clear for how can we obey the law if it is not clear (McIntosh – Lamer J)
II.
Driedger’s Modern Approach 6 (Rizzo)  objective is determining legislative intent
A.
text of the provision/statute
1.
grammatical and ordinary meaning – including dictionary, technical meaning etc. (Merk) a.
ordinary meaning rule
– adopt the meaning the legislation had at the time it was first enacted; this prevail over unnatural meanings and technical meanings  asks “what would the reasonable person think of the provision?” i.
but when dealing with technical subject, ordinary meaning gives way to technical meaning ii.
in the absence of a statutory definition, dictionaries may be referred to, but in practice dictionaries should not be given too much weight as dictionary definitions do not take into account the specific context in which the word is used (Shaklee; Riddell) iii.
if a particular statute can be seen as addressing a particular group, the reasonable person becomes a person in that group b.
shared meaning rule
– when dealing with bilingual legislation i.
principle of complementarity – federal legislation is supplemented by civil law in Quebec and common law in the rest of Canada c.
plausible meaning rule
– the interpretation adopted must be one that the language of the text can plausibly bear d.
punctuation
– usually not given weight (Jaagusta; Popoff)
2.
scheme analysis – looking at other parts of the contested statute (Rizzo) a.
note that scheme analysis is not the same as co-text; co-text = words immediately surrounding the contested word(s) b.
schedules
– a statute may contain a schedule or appendix located at the end of the document which generally will be used to “house” forms or other administrative details which would otherwise “clutter up” the statute i.
schedules are clearly part of the statute, but there is a tendency to accord them less weight than the actual text where there is conflict  ex. SCC in Houde v Quebec Catholic School Commission, [1978] 1 SCR
937 where minority relied on the schedule but a majority relied on a provision instead
6 Note that strict, liberal, and penal principles are types of interpretations, not the methods used in various approaches.
5

c.
bilingual statutes
(Medovarski) i.
constitutional requirement for bilingual enactment means there are 2 official versions of all legislation in the federal realm, both equally authoritative and binding d.
bijural
legislation e.
basket clause
(Rascal Trucking) i.
where the words are narrowed by commonality when in a list
B.
purpose/object – the “mischief” that legislature/Parliament wanted to address
(Merk)
1.
long and short titles
– usually relevant to define purposes (Lane, Ex p Gould) a.
title is considered to be a part of the statute and hence a legitimate reference for interpretative purposes  s.9 of BCIA
2.
preambles
– shows the debate that may have proceeded or motivated legislature/parliament to enact/regulate in a specific area (Re Anti-Inflation
Act) a.
s.9 of BCIA and s.13 of the federal provides that the preamble may be used for interpretation purpose b.
in most cases, they are inserted for strategic purposes  to publicize or to lay the groundwork for subsequent arguments over interpretation c.
but courts have frequently been reluctant to give great weight to preambles  specific provisions more important than preamble i.
also, preambles sometimes serve symbolic purposes and do not really get to stating the actual purpose d.
primary professional function of preambles is an articulation of the mischief of the legislation e.
secondary is to provide guidance on statutory interpretation
3.
purpose statements 7 – provision set out in the body of legislation that declares the principles or policies the legislation is meant to implement or the objectives it is meant to achieve and is usually found at beginning of an Act; purpose statements are binding and part of the law (LeBlanc v LeBlanc 8 ) a.
are part of what is enacted into law, unlike preambles 9 b.
not only are we interested in the overall purpose of the statute, but also the specific purpose of the contested provision c.
the 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 d.
purpose statements that are more clear may be given more weight (but specific provisions always are given more weight than the purpose statement because the provisions are more detailed and specific)
C.
consequentialist reasoning
1.
public policy
(Merk)
2.
cross-jurisdictional comparison/parallel jurisdiction
(Merk)
3.
avoidance of absurd/anomalous results
(Merk)
D.
expert opinions (from previous judges, arbitrators, interveners etc.)
7 Note that sometimes what purpose statements say and what the act actually does is different.
8 This case was not part of the syllabus, so it is not in the appendix of case briefs.
9 Whether or not preambles are a part of the enacted statute depends on the case.
6

E.
legislative history ( Merk) and legislative evolution
1.
legislation evolution = previous versions of the act
2.
Hansard
(Rizzo) = verbatism of the debate preceding the statute
3.
headings and marginal notes
(McIntosh; Lohnes) a.
s.11 (1) of BCIA and s.14 of the Canada Interpretation Act stipulates that marginal notes and headings are not part of the enactment and are added for convenience of reference only
4.
subsequent amendments
– this can go both ways  some do not use subsequent amendments because it is prohibited by the Interpretation Act, but some arguments may use it to show that there was some error or confusion in the original version of the amended statute
F.
special conventions (of law)
1.
rule of effectivity
– assumption that every rule in the provision/statute is there for a reason a.
presumption against tautology
– redundant words are there for a reason
(CHRC)
2.
associated words
rule
3.
limited class
rule
4.
consistent expression
rule
5.
implied exclusion
rule
G.
executive opinion/administrative decision-maker’s opinions (CHRC)
H.
importance of quasi-constitutional acts , like human rights statutes (CHRC)
1.
“…a liberal and purposive interpretation cannot supplant a textual and contextual analysis simply in order to give effect to a policy decision different from the one made by Parliament” – (CHRC, ¶62)
III.
Interpretation Act (Rizzo) – part of the modern approach  British Columbia
Interpretation Act, or BCIA, for BC and Interpretation Act (Canada) for federal
A.
remedial provisions – s.8 in BC; s.12 in federal = all acts are to be read in a remedial way
B.
if inconsistent, Interpretation Act trumps common law
C.
s.7 (BC) – “always speaking”  presumption that legislative words are to be interpreted according to the meaning prevailing at the time of reading – so the meaning and scope of a statute will thus change over time
D.
singular/plural
1.
BCIA s. 28(3) and Interpretation Act (Canada) s.33(2) provide that the singular may include the plural and vice versa, depending on the context
E.
definitions and interpretation acts
1.
definitions apply to the entire statute  ss. 12 and 13 of BCIA and ss.15 and
16 in the federal version stipulate that definitions will apply to the entire statute and to all regulations made under the authority of that statute, unless a contrary intention appears
2.
alternate grammatical forms  a statutory definition of a word applies to all of its grammatical forms (s.28(4) of BCIA and s.33(3) of Interpretation Act
(Canada))
3.
interpretation act definitions  s.29 of the BCIA contains a number of definitions that are applicable to all BC statutes, subject to finding a contrary intention as allowed for by BCIA s.2(1) (s.35 in federal version)
7

F.
gender – gender specific terms include both genders and include corporations
(BCIA s.28(2) and Interpretation Act (Canada) s.33(1))
G.
s.13 (BC) – coherence between primary and subordinate legislation
H.
referential incorporation – the drafting technique of “pulling” the provisions of one statute into another  incorporation by reference results in a “cleaner”,
“primary” statute
1.
ambulatory – if the secondary provision is changed through an amendment and the old definition is repealed and replaced if
I.
calculating age – s.25(8) of BCIA provides that “a person reaches a particular age expressed in years at the start of the relevant anniversary of his or her date of birth” (same effect given by s.30 of the Interpretation Act federal version)
J.
time related definitions – BCIA s.29 and federal s.35
K.
powers – Interpretation Acts typically set out ancillary powers that may be exercised by public officers designated under a statute
1.
appointment of public officers – BCIA s.22 and federal s.24
2.
delegation of powers – BCIA s.23 (but does not apply where a Minister is authorized under a statute to make regulations) and federal s.24(2)
(similarly does not apply under s.24(3) of federal version
McIntosh : PMR over liberal approach
Rizzo : the modern approach is the preferred approach
Merk : affirmation of modern approach
CHRC : affirmation of modern approach
Lane : historically could not see title as part of the act
Committee for Commonwealth of Canada : both short and long title can be used to discern purpose of statute
Re Anti-Inflation Act : preamble is useful, but not conclusive
Lohnes : headings and preambles may be used in interpreting ambiguous statutes
Basaraba : marginal notes cannot be used in interpretation, but headings may be used sometimes and only when there is a doubtful expression in the provision
Wigglesworth : marginal notes are weaker in importance compared to headings, but still may be considered
Popoff : punctuation is given little attention in statutory interpretation
Medovarski : steps to bilingual interpretation
1) determine whether to not there is a discordance a.
if discordance, determine whether there is a common meaning between the two versions b.
where one version is broader than the other, the common meaning would favour the more restricted meaning
2) determine if the common meaning is consistent with Parliament’s intent
Shaklee : Parliament is presumed to use words in their ordinary and common meaning and dictionaries have limited use
Riddell : dictionaries are only of limited guidance, legislative intent should be derived from the text of the statute itself when possible
8

R v McIntosh
[1995] 1 SCR 686
Facts:
 Hudson, who made a living repairing appliances and electronic equipment was stabbed to death by the respondent after respondent gave him equipment to fix and
Hudson worked on the equipment but avoided respondent for many months
 on the day of killing, respondent obtained kitchen knife, words were exchanged,
Hudson pick up a dolly to attack the respondent, and respondent stabbed Hudson to death
Relevant Statutory Provisions (in the Criminal Code):
 34.1 – Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
 35 – Every one who ahs without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm…
 34.2 – Every one who is unlawfully assaulted and who cause death or grievous bodily harm in repelling the assault is justified if (a) he causes it under reasonable apprehension of death or grievous bodily harm…(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
 36 – Provocation includes, for the purposes of section 34 and 35, provocation by blows, words or gestures.
 37.1 and 37.2
Issue:
 Is the self-defence justification in s.34(2) of the Criminal Code available where an accused is an initial aggressor?
Decision: s.34(2) is available to an initial aggressor
Reasons – Lamer C.J.:
 s.34 speaks to those who do not provoke the assault while s.35 speaks to those who have been assaulted unlawfully – none speak to non-provocation, so the issue here is whether the respondent should meet the requirements of s.34 (2) or s.35
 s.34 (2) is clear in isolation – and the “golden rule” is that where no ambiguity arises on the face of a statutory provision, then it’s clear words should be given effect (also called literal rule of construction, or the plain meaning rule)
 “contextual approach” to statutory interpretation  Driedger – “Today there is only one principle or approach, namely, 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…”
9

 “Since the judge’s task is to interpret the statute, not to create it, as a general rule, interpretation should not add to the terms of the law” – Pierre-André Côté in The
Interpretation of Legislation in Canada (¶26)
 presumption in favour of the accused (¶29)
Reasons – McLachlin J. (dissenting)
 looking at language, history, and policy of ss. 34 and 35 shows that s.34 (2) should not apply to initial aggressors
 even when looking at “plain” meaning, one is really looking for the intention of
Parliament
 looking at history of Criminal Code since 1892 shows that “not having provoked the assault” was meant to be applied to both halves of s.34 (this was s.45 back in 1892)
 marginal notes also show this intention
 Driedger – redrafting a provision is acceptable where the following 3 factors are present o a manifest absurdity o a traceable error o an obvious correction
 and all 3 are present in this case
 policy considerations: if s.34(2) is available to an initial aggressor, then that accused may be in a better position to raise self-defence than an initial aggressor whose assault was less serious (since s.34(2) is not available to an initial aggressor who did not “cause death or grievous bodily harm”)  clearly this would be absurd, and so
“Common sense suggests that ss. 34 and 35 set out two situations, each with its corresponding defence”
Re Rizzo & Rizzo Shoes
[1998] 1 SCR 27
Facts:
 company bankrupt and refuses to pay employees termination and severance payments
Relevant Statutory Provisions:
 versions of the Bankruptcy Act and the Employment Standards Act
Issue: does the termination of employment caused by the bankruptcy of an employer give rise to a claim provable in bankruptcy for termination pay and severance pay in accordance with the provisions of the ESA?
Decision: company must pay employees termination and severance pay
Reasons – Iacobucci J.:
 Driedger approach and s.10 of Interpretation Act which provides that 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 best ensure the attainment of the object of the Act according to its true intent, meaning and spirit”
10

 Court of Appeal’s judgment will lead to absurd results since it would mean that those lucky enough to be fired earlier are in a better position, yet common sense tells us that more senior employers have invested more in the company and deserve more from the company
 in 1981 the ESAA introduced the severance pay provision (s.40a) to the ESA and s.2(3) the transition provision was provided  transition provision indicates that the Legislature intended that the termination and severance pay obligations should arise upon an employers’ bankruptcy (if it did not mean this, what would be the point of the transition provision?)
 Hansard evidence also shows intention of legislature  R. v. Morgentaler – Sopinka
J. states that “Provided that the court remains mindful of the limited reliability and weight of Hansard evidence, it should be admitted as relevant to both the background and the purpose of legislation” (¶35)
 ESA can be characterized as a benefits-conferring legislation and it ought to be interpreted in a broad/generous manner
 no arbitrary application of the law
 subsequent changes in legislation play no part in this decision
Merk v International Association of Bridge, Structural, ornamental and Reinforcing
Iron Workers, Local 771
[2005] 3 SCR 425, 2005 SCC 70
Facts:
 2000, Boyer received a Visa credit card for union expense and Merk realized he was double charging expenses
 General President of the International Union of Iron Workers, Hunt, assigned a union investigator, Marr, who reported that in his view the only problem with the double-dipping expense claims was that the by-laws of Local 771 did not specifically prohibit collecting more than once for the same expenses
 following the report, the executives of Local 771 authorized the termination of
Merk’s employment
Relevant Statutory Provisions:
 s.74 of the Labour Standards Act, RSS 1978
Issue: does “lawful authority” under s.74 of the Labour Standards Act include those who exercise authority in both the private and public context?
Decision: yes, “lawful authority” includes those who exercise authority in both contexts
Reasons – Binnie J.:
 plain meaning of the act suggests that it does include both public and private authorities, and a contextual and purposeful reading of s.74 confirms its plain meaning
 s.10 of The Interpretation Act, 1995 says that “[e]very enactment shall be interpreted as being remedial and shall be given the fair, large and liberal construction and interpretation that best ensures the attainment of its objects” –
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and the object of s.74 includes better protection for employees who not only uncover unlawful activity, but who bring this activity to the attention of a lawful authority
 grammatical and ordinary sense: the legislature wanted a workplace free of unlawful activity and did not specify prosecution (by a public figure) was the only or even the preferred method of doing so
 the scheme: the act is essentially employee protection legislation
 public policy: correctness of using the broader approach to interpretation supported in other jurisdictions as well, like in Britain (Employment Rights Act 1996), New
Zealand (Protected Disclosures Act 2000), and Europe (Whistleblower’s Charter,
1999)  cross jurisdictional comparison (or parallel analysis)
 irrational outcomes/avoidance of anomalous results: that an employer can dismiss without fear of prosecution an employee for bringing wrongdoing to its attention internally, but cannot do so if the employee goes to an outside authority is irrational
 legislative history: s.74 should be seen as a part of a broader legislative reform
 penal provision: penal approach of limited value, which was decided in R v Goulis –
“…even with penal statutes, the real intention of the legislature must be sought, and the meaning compatible with its goals applied” (¶33)
 subsequent amendments to s.74 show that “lawful authority” was meant to include
“up the ladder” supervisors, but The Interpretation Act, 1995 stipulates that this fact should not be used to effect the decision of cases prior to the amendment o the recent amendment is just fixing a mistake in the old legislation – it should not be an indication that the older legislation was meant to be exclusive only to public authorities
Reasons – Deschamps J. (dissenting):
 the question is what legislature intended, not whether the legislation should have afforded some protection to its employees o the old legislation was not expansive, that’s why the legislature amended it
 the majority’s interpretation adds to the statute elements that are not there, and amendment is the legislature’s role, not the courts’
Canada (Canadian Human Rights Commission) v Canada (AG)
2011 SCC 53, [2011] 3 SCR 471
Facts:
 Mowat filed a human rights complaint and the Tribunal awarded her compensation for suffering and also awarded her legal costs
 Federal Court upheld Tribunal’s decision
 Federal Court of Appeal held that the Tribunal had no authority to make a costs award
Issue: does s.53(2)(c) or (d) in the CHRA give Tribunals the authority to award legal costs?
Decision: no, they do not give Tribunals the authority to award legal costs
Reasons – LeBel and Cromwell JJ.:
 any authority to reward legal costs must come from either s.53(2)(c) or (d) or the Act
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 role of plain meaning still has some importance in the modern approach to statutory interpretation
 the text o presumption against tautology  Parliament uses no meaningless words: the phrase “that the person compensate the victim…for any expenses incurred by the victim as a result of the discriminatory practice” appears twice – appears twice to show specific conditions where the victim could be compensated  this means that one is not to take a broad understanding of “compensate the victim”
 “It is presumed that the legislature avoids superfluous or meaningless words” o legal jargon: the term “costs” in legal parlance has a well-understood meaning distinct from its normal dictionary definition – it means compensation for legal expenses and services incurred in the course of litigation  “If Parliament intended to confer authority to order costs, it is difficult to understand why it did not use this very familiar and widely used legal term of art to implement that purpose”
 the context o legislative history: previous versions of unenacted/draft bills such as Bill C-72 in
1975 included the word “costs” explicitly, but it was later taken out in the final
Bill-25 that ultimately became the CHRA  this shows that Parliament is aware of the legal meaning of the term “costs” and purposely left it out (the same could be said of the Bill-108 in 1992) – and instead of costs, “Parliament chose an active role of the Commission, which could include litigating on behalf of complaints, instead of cloaking the Tribunal with a broad costs jurisdiction” o the Commission’s understanding of costs authority: the Commission has shown that it understood that the CHRA dos not confer jurisdiction to award costs and has repeated urged Parliament to grant this power  while “the Commission’s views about the limits of its statutory powers are not binding on the court, they may be considered” o parallel provincial and territorial legislation: other legislation in other areas show that the word “costs” is used consistently when the intention is to confer the authority to award legal costs  this reasoning is not binding but does provide a helpful insight
 in all other jurisdictions the awarding of costs is an additional power
 so if Parliament intended to include this as a power, they would have done so
 purpose – CHRA is important and deserves a broad and purposive interpretation, but a purposive interpretation cannot supplant a textual and contextual analysis simply to give effect to a policy decision different from the one intended by
Parliament  Parliament’s intent is the very important
R v Lane, Ex p Gould
[1937] 1 DLR 212 (NC SC App Div)
Facts:
 the Provincial Statute “An Act for the Suppression of Slot Machines and Other
Gambling Devices”
 it was argued that the Act involved criminal law and that the title was evidence for this infringement on federal power
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Issue: is the Act for the Suppression of Slot Machines and Other Gambling Devices unconstitutional because it infringes upon federal powers of criminal law?
Decision: no, it is not unconstitutional because it is not criminal law
Ratio: historically could not see title as part of the act because it was not debated on, but here title is taken account of
Reasons – Baxter CJ:
 in order to prosecute for a criminal offence, it is necessary to have an accused
 there is no possibility that any person can be charged with any offence under this
Act, nor is any punishment specified
 “confiscation” does not necessarily connote crime
Committee for the Commonwealth of Canada v Canada
[1991] 1 SCR 139
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?
Decision: lower court – no, only applies to commercial; SCC – agrees with lower court
Ratio: both short and long title can be used to discern purpose of statute
Reasons – Lamer CJ:
 “business” and “commercial or otherwise” are theoretically wide enough in scope to cover the dissemination of political ideas, but there is evidence that legislature did not intend to make the scope so wide
 absurdity  if the Minister’s authorization was needed for every “business or undertaking” (interpreted widely in scope) occurring within an airport it would be absurd o a counteragument?  rule of effectivity – every word is there for a reason (rule of tautology is part of the rule of effectivity)
 the French version of the regulations also suggest that the regulations refer to commercial activities (¶29)
 the long title: “Regulations Respecting the Control of Commercial and Other
Operations at Government Airports”  here the “other” refers to “operations” and hence is evidence of commercial overtones (¶34)
 the short title: “Government Airport Concessions Operations Regulations”  commercial emphasis given (¶34)
 scheme analysis (¶36) supports the reasoning that the regulation was intended to apply to commercial actions, nothing to indicate that political actions were incorporated
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Re Anti-Inflation Act
[1976] 2 SCR 373
Facts:
 long title: “An Act to provide for the restraint of profit margins, prices, dividends and compensation in Canada”
 preamble: “Whereas the Parliament of Canada recognizes that inflation in Canada at current levels is contrary to the interests of all Canadians…has become a matter of serious national concern; And Whereas…it is necessary to restrain profit margins, prices, dividends and compensation” – trying to justify use of POGG
Issue: is the Anti-Inflation Act within the jurisdiction of Parliament?
Decision: N/A
Ratio: preamble is useful, but not conclusive, in determining constitutionality of a statute
Reasons – Laskin CJ:
 preamble in this case is sufficiently indicative that Parliament was introducing a far-reaching programme prompted by what it views as a national concern
 the validity of the act does not, however, stand or fall on that preamble
 but the preamble is useful for assessing the gravity of the circumstances
R v Lohnes
[1992] 1 SCR 167
Facts:
 the Crimianl Code makes it an offence to cause a disturbance in or near a public place by, inter alia, fighting, screaming, shouting, swearing, singing or using insulting or obscene language
 some of these acts are not criminal offences in it of themselves, but become offences when they disturb the public
 Lohnes lived across the street from Porter and Porter collected equipment and ran motors which made loud noises
 Lohnes on 2 occasions shouted obscenities at Porter and on the second asserted that he would soot Porter if he had a gun
 no evidence that anyone else heard Lohnes’ obscenities
 Lohnes was convicted on the grounds that his conduct in itself constituted a disturbance within s.175(1)(a) of the Criminal Code
Issue: what constitutes a public disturbance under s. 175(1)(a) of the Criminal Code,
R.S.C., 1985, c. C-46?
Decision: “disturbance” under s.175(1)(a) involves more than a mere mental or emotional annoyance or disruption
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Ratio: headings and preambles may be used in interpreting ambiguous statutes
Reasons – McLachlin J:
 there is a spectrum of behaviour that constitute a disturbance and not all of them may be under s.175(1)(a)
 3 reasons why disturbance must be more than mental or emotional annoyance o noun “disturbance” vs. the verb “to disturb”  not everything that disturbs people results in a disturbance and Parliament chose the word with the narrower scope for a reason o context of “disturbance”  why only in public places? because had Parliament sought to protect society from annoyance and anxiety the section would not be confined to the public places o heading that s.175(1)(a) appears under is “Disorderly Conduct” which supports the argument that Parliament had in mind, not the emotional upset or annoyance of people, but disorder and agitation which interfere with the ordinary use of a place
R v Basaraba
[1975] 3 WWR 481 (Man. QB)
Facts:
 Basaraba charged with compelling people to transfer land and that the people had a lawful right to abstain from doing so
 s.381 of Criminal Code
 heading preceding s.381 says “Breach of Contract, Intimidation and Discrimination
Against Trade Unionists”
Issue: does s.381 only apply to trade unionists?
Decision: no, s.381 applies not only to trade unionists
Ratio: marginal notes cannot be used in interpretation, but headings may be used sometimes and only when there is a doubtful expression in the provision
Reasons – Hunt J:
 marginal notes are not to be relied upon in interpreting a statute
 headings may sometimes be used when there is a doubtful expression
 the words in s.381 are not doubtful expressions, they are very clear and they do not refer to trade unionists
R v Wigglesworth
[1987] 2 SCR 541
Facts:
 RCMP officer violent abused the prisoner (Donald Kerr) in forcing an answer out of
Kerr
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 charged twice, first under s.11 of the Charter and then under the RCMP Act s.25
Issue: whether the appellant had been “charged with an offence” within the meaning of s.11? (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)?
Decision: the offence is within the meaning of s.11
Ratio: marginal notes are weaker in importance compared to headings (at least in the
Charter), but they nonetheless must be considered, keeping in mind that the extent of their influence will depend on the case
Reasons – Wilson J:
 some of the rights under s.11 would seem to have no meaning outside the criminal or quasi-criminal context
 marginal note to s.11 supports this interpretation – “Proceedings in criminal and penal matters”
 “It is clear that these headings were systematically and deliberately included as an integral part of the Charter for whatever purpose. At the very minimum, the Court must take them into consideration when engaged in the process of discerning the meaning and application of the provisions of the Charter. The extent of the influence of a heading in this process will depend upon many factors… if, however, it becomes apparent that the section when read as a whole is clear and without ambiguity, the heading will not operate to change that clear and unambiguous meaning.” – Estey J. in Law Society of Upper Canada v Skapinker, [1984] 1 SCR
357
 but one must keep in mind that marginal notes, unlike statutory headings, are not an integral part of the Charter
R v Popoff
(1985), 14 WCB 290 (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.
Issue: N/A Decision: N/A
Ratio: punctuation is given little attention in statutory interpretation
Reasons – McTaggart Co Ct:
 in Medicine Hat v Hawson, Stuart J said “The rule adopted in the courts is, I think, to pay little, if any, attention to punctuation”
Schedules
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 a statute may contain a schedule or appendix located at the end of the document which generally will be used to “house” forms or other administrative details which would otherwise “clutter up” the statute
 schedules are clearly part of the statute, but there is a tendency to accord them less weight than the actual text where there is conflict  ex. SCC in Houde v Quebec
Catholic School Commission, [1978] 1 SCR 937 where minority relied on the schedule but a majority relied on a provision instead
Bilingual Statutes
 the Constitution Act 1867 requires that federal statutes be enacted, printed, or published in both official languages
 the constitutional requirement for bilingual enactment means there are 2 official versions of all legislation in the federal realm, both equally authoritative and binding
 special requirement for consistency and coherence between the two versions, meaning a need for special interpretive approaches
Medovarski v Canada
[2005] 2 SCR 539, 2005 SCC 51
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 w.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
Decision: the more limited English meaning should be adopted, which is in line
Parliament’s intensions  appellants’ right to appeal is removed
Ratio: steps to bilingual interpretation
3) 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
4) determine if the common meaning is consistent with Parliament’s intent
Reasons – McLachlin CJ (for the Court):
 the rule to follow comes from R v Daoust, [2004] 1 SCR 217 and Schreiber v
Canada (AG), [2002] 3 SCR 269
 2 part procedure
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o 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 o determine if the meaning is consistent with Parliament’s intent
 application of the 2 part test o English version of s.196 refers to only actively granted stays while the French refers to both actively granted and automatic ones  the 2 versions are inconsistent, the English version is narrower so adopt the English one  only active granted stays o the narrower interpretation accords with Parliament’s general object of abolishing appeals where a permanent resident has been found inadmissible on the grounds of serious criminality
Shaklee Canada Inc v Canada
[1995] FCJ No 1670
Facts:


Issue: do vitamins, minerals and fibre products count as “food for consumption” under ss. 50(1) and 51(1) of the Excise Tax Act?
Decision: no, they do not count as “food for consumption” and therefore are not exempt from taxes
Ratio: ordinary meaning rules
1) Parliament is presumed to use words in their ordinary and common meaning
2) dictionaries have a limited use
Reasons – Linden J:
 this type of legislation is written for the ordinary person, not for experts
 dictionary definitions, experts’ testimony, and nutritionists’ understandings sound very technical
 by the dictionary definition, “food” could almost be any ingestible substance, barring poison
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 as the trail judge showed, if someone asked for food, it would be odd to offer a plate of vitamins  shows that ordinary sense of “food” excludes vitamins/minerals/fibres
 appellants argue that our understanding of the meaning of food has changed  no evidence of this as vitamins/minerals have labels/wordings that are not used with food o vitamins are taken in “dosages,” not “helpings” o they are “taken” not “eaten” o some say “keep out of reach of children” o some say intended for “therapeutic use”
 legislative history is of little help in this case
Regina v Riddell et al
[1973], 11 CCC (2d) 493 (Que. CA)
Facts: respondents charged with smuggling a road-grader into Canada contrary to s.190(3) of the Customs Act
Issue: does “smuggle” as used in s.190 (3) of the Customs Act include taking something into the country vividly in broad daylight without paying taxes?
Decision: yes, “smuggle” in s.190 (3) includes not only the clandestine definition, but also taking something into the country un-secretively without paying taxes/duties
Ratio: dictionaries are only of limited guidance, legislative intent should be derived from the text of the statute itself when possible
Reasons – Gagnon JA:
 the act does not define “smuggle,” which is the problem
 the French dictionary seems to suggest that smuggling only refers to clandestine actions
 legal dictionaries define “smuggling” as importing/exporting goods without paying taxes, and this definition includes un-secretive activities
 more importantly, s.190(3) of the act in question says “Every one who smuggles or clandestinely introduces into Canada any goods subject to duty…” o why would Legislature use 2 expressions to say the same thing? they would not
(presumption against tautology) and thus the two expressions refer to different things  suggests that both clandestine and un-clandestine actions are covered by the act
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