1. Public Law I October 7 2005 Rules of statutory interpretation Legal Presumptions in judicial decision- making 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

2. Rules of Statutory Interpretation (1) Why are rules needed? Intent of legislature “reasonable person” test 1.Plain meaning rule 2.“golden rule”: avoid absurdity & inconsistency 3.What was the mischief & remedy? 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

3. Rules of Statutory Interpretation (2) More Aids: –Context in statute –Other similar statutes –Legislative history Minimal weight. Why? Books on rules of interpretation, & legal dictionaries French & English text International conventions & treaties (sometimes) Preamble (but not marginal notes) Headings (except in Ontario – excluded by statute)

4. Presumptions 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 Against ousting jurisdiction of courts For crown immunity (now mostly replaced by statutes allowing suits against crown) Every word is deliberate Specific given precedence over general More recent > older Leg. did not intend drafting error (cts can correct)

5. 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 Fr. v. Queen: intra vires under T&C (91-2) JCPC decision: Sir Montague Smith. Russell’s lawyer: delegation argument – Parliament can’t delegate its powers. Legislation says GG “may” … “cubby hole” doctrine –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

6. 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 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 Pith & sub: vice of intemperance at local level 92(16): (local) yes. 92(13): no; the law prohibits rather than regulates 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.

7. Board of Commerce & Combines & Fair Practices Acts (1922) Impugned legislation: fed anti- profiteering & 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) Ultra vires 3 aspects of POGG: national concern (obiter in Local Prohibition), emergency (B of C), residual (Russell)

8. 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. 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”