What’s a stake in statutory interpretation? - PowerPoint Presentation

Slide1

What’s a stake in statutory interpretation?

Limits of judicial power

Parliamentary supremacy

Democratic governance

Rule of LawSlide2

Statutory Interpretation

Three sources of statutory interpretation law:

Common law principles

Interpretation Acts

i

nterpretation rules within individual statutes and regulationsSlide3

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

, 1974Slide4

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 wordsSlide5

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’)

c

ompliance with established rules (i.e. legislature knows what it is doing)

Common law, international law, Constitution, quasi-constitutional legislationSlide6

Statutory Interpretation Rules and Maxims

Words are used consistently in a statutory text

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

generisSlide7

Some Useful Presumptions

Parliament is presumed not to interfere with fundamental rights

Presumption against retrospective operation

Presumption that penal provisions are strictly construed

Presumption that re-enactment constitutes approval of interpretation Slide8

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 legislation? Slide9

Result?

The answer to both questions was ‘no’

The analysis presents a challenge to both ‘plain reading’ and ‘purposive interpretation’ ideas Slide10

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.Slide11

The challenge of purposive interpretation

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 law

…Slide12

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. Slide13

The challenge of literal interpretation

How to fit ss. 5 and 6 together?

Two ways to ask the question:

Can a

former

advocate of the Quebec bar of at least 10 years standing be appointed to the Court?

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?)Slide14

Regarding Constitutionalization

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 provisionSlide15

Statutory interpretation devices in the judgment

Plain meaning

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