Presentation on theme: "What’s a stake in statutory interpretation?"— Presentation transcript:
1 What’s a stake in statutory interpretation? Limits of judicial powerParliamentary supremacyDemocratic governanceRule of Law
2 Statutory Interpretation Three sources of statutory interpretation law:Common law principlesInterpretation Actsinterpretation rules within individual statutes and regulations
3 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
4 What this means….Purposive interpretation has tended to overwhelm everything else, but historic interpretation ideas retain influenceMost 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
5 Understanding the Legislature’s intent Four ways of thinking about intentExpressed intentImplied intentPresumed intentionDeclared intentionSome presumptions about intenta 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
6 Statutory Interpretation Rules and Maxims Words are used consistently in a statutory textThe legislature chooses the most straightforward form of expression possibleThe legislature does not intend absurdityAll words should have a meaningNoscitur a sociisEjusdem generis
7 Some Useful Presumptions Parliament is presumed not to interfere with fundamental rightsPresumption against retrospective operationPresumption that penal provisions are strictly construedPresumption that re-enactment constitutes approval of interpretation
8 Reference Re Supreme Court Act  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?
9 Result? The answer to both questions was ‘no’ The analysis presents a challenge to both ‘plain reading’ and ‘purposive interpretation’ ideas
10 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.
11 The challenge of purposive interpretation Some competing ideas about the purpose of s. 6:To ensure sufficient civil law expertiseA political compromiseA higher standard for Quebec judgesTo ensure the legitimacy of the CourtTo ensure current knowledge of Quebec law…
12 Majority finds a dual purpose  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.
13 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?)
14 Regarding Constitutionalization Majority and dissentients agree that aspects of the Supreme Court Act are constitutionalizedDisagree 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 textThe ‘super-duper’ majority provision
15 Statutory interpretation devices in the judgment Plain meaningBilingual interpretation ruleContextual interpretationConsult historical record, esp HansardLegislative history (amendments)Exclusion by implicationJudges do not make lawEmpty vessel argument rejected