Statutory Interpretation - Public Law

PART V: STATUTORY INTEPRETATION

• The first challenge includes applying broad principles to facts (sometimes the statute is old and it’s difficult to apply to new situations)

• Words may hold different contexts

• There is an interplay as between the judiciary and the legislature (the judiciary gives a spin of expression of will from Parliament or the legislature)

• A strict interpretation gives more power to the legislature – if there is more ambiguity, the shift of power goes to the judiciary (Ex. The Charter)

Examples of Cases in which Statutory Interpretation was/is crucial:

1. Reference Re Remuneration Act, s. 100 of CA 1867: Parliament will interpret the salary of judges, but the salaries ought to be decided by way of a commission (contortionist view of statutory interpretation)

2. Vriend Case (s. 15 of Charter): interpreted s. 15 to include sexual orientation given that it is analogous to characteristics like gender/religion (the list is not exhaustive)

3. Ontario Human Rights Code (s. 45.9(1)): if a settlement of an application made under s. 34 or s.35 is agreed to in writing and signed by the parties, the settlement is binding on the parties.

Ways to Interpret Statutes

1. By way of principles

• can be sets of guidelines

• without guidelines, the interpretation can be subjective (even with principles, the answer can be advocacy drive)

2. Reverse approach

• Think of the answer you want out of interpretation and pull it out of the statute by looking for principles that support your conclusion

Principles of Statutory Interpretation

• Derive from statutes and common law

• In most jurisdictions, there is an Interpretation Act that allows for a specific type of interpretation

• Federally, we have the Interpretation Act which speaks of:

  • French and English statutes having equal value that gives meaning to both (and in the civil/common law context)

• The statutes are aids to interpretation as well (Ex. Through definitions)

• Original source from common law to interpret statutes comes from doctrine (scholarly or academic work)

  • This doctrine can be included in jurisprudence

• Common law is key to interpreting statutes – earlier forms rely on strict interpretations

• Today’s approach is the modern versus principle approach

• Much of interpretation depends on advocacy by lawyers

Modern Approach

• look at the grammatical and ordinary sense of the word

• read word in its entire context in such a way that it is harmonious with the scheme of the act (object of the act and intention of Parliament)

• ex. When the SCC looked to the term disability in a case where someone had an anomaly in his back and the City chose not to hire him because the anomaly was considered a disability. The question was: Does a disability include a condition for which there are no symptoms? The court ruled that interpretation includes asymptomatic conditions

  • Sullivan notes that if a competent reader were reading the word, the first impression is that which the text bears as the only meaning seen initially.

Principle Approach (Scheme and Objective of the Act)

• court will look to the objective of the legislation by reading the preamble to the legislation, Hansard, policy speeches, minutes from committee, etc.

• where no statement that is extrinsically clear is present, the courts try to presume or imply what the intention was

• courts will look to French and English version of statute, and perhaps legislative history to look for any amendments or changes)

ex. Reading of disability into the Charter, Edwards case

Supplementary Reading: The Plain Meaning Rule and Other Ways to Cheat on Statutory Interpretation (Ruth Sullivan)

Plain Meaning Rule: meaning inheres in legislative text and at least some times it is plain (clear, certain and not susceptible of doubt) and court should apply it as such

Doctrine of Fidelity to Legislative Intent: Legislatures have intentions when they enact legislation and these intentions are knowable by courts when called on to interpret

Sullivan argues that these assumptions are misleading and can force courts to rely on tricks that disguise the important role played by discretion in statutory interpretation. Courts’ reliance on tricks is a form of cheating. Cheating refers to a form of misrepresentation when the courts look to a rule and say that they cannot operate otherwise because the rule is defined. These rules discourage judges from probing and discussing real basis for outcomes of interpretation. They likely continue to do this so that they do not disappoint the political realm.

Purpose: techniques used in statutory interpretation make choice look like “choicelessness’, discretion like constraint and judges like the intention of the legislature. Legislative intent is meaningful and has an important role in statutory interpretation.

Problems with plain meaning rule:

• presupposes first impression meaning and post interpretation meaning (that which comes from interpretation in reliance on factors like purpose of text, legislative history, etc.)

• although the court is looking at plain meaning, they are also looking for non textual evidence of legislative intent to support plain meaning (offers support to plain meaning either way)

Advantages:

• supports formal equality

• makes for certainty

• can be used as neutral proxy for strict construction

Problems with Intentionalist Approach

• assumes speaker and audience are operating in a shared context; it assumes that the speaker is aware of the context that will be interpreted by its audience

• can fall in line with original/plain meaning rule (intentions fall in line with meaning)

• intent is a fact waiting to be discovered

Advantages

• explains role of courts in interpretation without challenging our popular conceptions of democracy

• application of intent does not engage in political choice

• supports positivist view of law: that which is at play in legislature is...