The PDF Presentation

What’s a stake in statutory
 Limits
of judicial power
 Parliamentary supremacy
 Democratic governance
 Rule of Law
Statutory Interpretation
 Three
sources of statutory interpretation
Common law principles
Interpretation Acts
interpretation rules within individual statutes
and regulations
The modern principle
‘Today there is only one principle or approach,
namely, the words of an Act are to be read in
their entire context, in their grammatical and
ordinary sense harmoniously with the scheme of
the Act, the object of the Act, and the intention
of Parliament.
Driedger, 1974
What this means….
Purposive interpretation has tended to
overwhelm everything else, but historic
interpretation ideas retain influence
Most importantly clear legislative drafting will
be assumed to express legislative intent. The
inquiry can often stop at this point.
A significant number of interpretation disputes
are not just about the meaning of words
Understanding the
Legislature’s intent
Four ways of thinking about intent
Expressed intent
Implied intent
Presumed intention
Declared intention
Some presumptions about intent
a statute is coherent (‘entire context’)
compliance with established rules (i.e.
legislature knows what it is doing)
Common law, international law, Constitution,
quasi-constitutional legislation
Statutory Interpretation Rules
and Maxims
 Words
are used consistently in a statutory
 The legislature chooses the most
straightforward form of expression possible
 The legislature does not intend absurdity
 All words should have a meaning
 Noscitur a sociis
 Ejusdem generis
Some Useful Presumptions
 Parliament
is presumed not to interfere
with fundamental rights
 Presumption against retrospective
 Presumption that penal provisions are
strictly construed
 Presumption that re-enactment
constitutes approval of interpretation
Reference Re Supreme Court
Act [2014] 1 SCR 433
A classic statutory interpretation
dilemma involving provisions of a
statute that had not previously
been judicially considered.
Two questions went to the Court:
Can a judge from the Federal
Court of Appeal be appointed
as a Quebec rep?
Can the Supreme Court Act
be amended by ordinary
The answer to both
questions was ‘no’
The analysis presents
a challenge to both
‘plain reading’ and
interpretation’ ideas
Supreme Court Act 1875 –
as amended
5. Any person may be appointed a judge who is
or has been a judge of a superior court of a
province or a barrister or advocate of at least
ten years standing at the bar of a province.
6. At least three of the judges shall be
appointed from among the judges of the Court
of Appeal or of the Superior Court of the
Province of Quebec or from among the
advocates of that Province.
The challenge of purposive
Some competing ideas about the purpose
of s. 6:
- To ensure sufficient civil law expertise
- A political compromise
- A higher standard for Quebec judges
- To ensure the legitimacy of the Court
- To ensure current knowledge of Quebec
- …
Majority finds a dual purpose
[49] The purpose of s. 6 is to ensure not only civil
law training and experience on the Court, but
also to ensure that Quebec’s distinct legal
traditions and social values are represented on
the Court, there- by enhancing the confidence
of the people of Que- bec in the Supreme
Court as the final arbiter of their rights. Put
differently, s. 6 protects both the functioning and
the legitimacy of the Supreme Court as a
general court of appeal for Canada.
The challenge of literal
How to fit ss. 5 and 6 together?
Two ways to ask the question:
1. Can a former advocate of the Quebec
bar of at least 10 years standing be
appointed to the Court?
2. Is it appropriate to add the temporal
dimension of s 5 to s 6 when interpreting
it? (Or: Is s 6 a stand alone provision?)
Majority and dissentients agree
that aspects of the Supreme
Court Act are constitutionalized
Disagree on precise meaning of
‘composition of the court’
Constitutionalization is the result
of the evolution of the place of
the Court in our system of
government (i.e.
constitutionalism), not a product
of 1982 text
The ‘super-duper’ majority
Statutory interpretation
devices in the judgment
 Plain
 Bilingual interpretation rule
 Contextual interpretation
 Consult historical record, esp Hansard
 Legislative history (amendments)
 Exclusion by implication
 Judges do not make law
 Empty vessel argument rejected

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