Statutory Interpretation: Purview of the Judiciary

October 2, 2007

General approaches..

Plain meaning vs golden rule “Four corners” vs extrinsic aids

(eg legislative history/evol Textualists v. intentionists v.

normativists

Types of Interpretation Issues

Disputed meaning Static v dynamic Non application, or “reading down” Gaps

Finding the Preferred Meaning

1. Ordinary Meaning 2. Technical Meaning 3. Shared Meaning Analysis 4. Original Meaning 5. Plausible Meaning

Presumptions about Drafting

Straightforward expression Uniform Expression No tautology/redundancy Internal coherence Expressio unio est exclusio alterius Noscitur a sociis Limited class, read down The Legislature would have said X

Rules Based on Drafting Conventions

Eg “may” vs “shall” “In accordance with ‘prescribed’ Numbers, subsections Rely on shared meaning, understanding of

prose by the drafters and readers of the text

Rules that Introduce Values: Strict and Liberal Construction

Presumptions of Legislative Intent Re:

1. Compliance with Charter, aboriginal rights, international agreements

2. Where legislation interferes with individual rights, strict construction(penal)

3. Where benevolent purpose, liberal construction (remedial)

Rules to Permit Changes to Text

Where obvious drafting error “Strained” interpretation to avoid absurd

consequences Where interpretation would violate

important fundamental principle

De Witts and Attorney General for British Columbia

Horse Racing Rules and Regulations

No objection allowed on age or sex

Statutory def’ns “horse” “age” but not sex

Ordinary Meaning vs. Technical Meaning

Sex interpreted with technical meaning..Why?

R. v. Daoust

462.31(1) Every one commits an offence who uses, transfers the possession of, sends or delivers to any person or place, transports, transmits, alters, disposes of or otherwise deals with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds, knowing or believing that all or a part of that property or those proceeds was obtained or derived directly or indirectly as a result of

(a) The commission in Canada of an enterprise crime offence or a designated substance offence; or

(b) An act or omission anywhere that, if it had occurred in Canada, would have constituted an enterprise crime offence or a designated substance offence

Interpretation

No actus reus.

No transfer

What does this mean?

Why not?

What rules are invoked?

R. v. Chartrand

Section 281Every one who, not being the parent, guardian or

person having the lawful care or charge of a person under the age of fourteen years, unlawfully takes, entices away, conceals, detains, receives or harbors that person with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that person, of the possession of that person, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years

Issue

What is the issue? What rules/approaches are invoked?

Conflicting Interpretations

You are counsel (groups of 4)who wishes to appeal the outcome.

licorice -- De Witt smarties– Daoust other sugary thing –Chartrand1. Develop an alternative interpretation of the provision

at issue.2. Specify clearly the approach/rules on which you rely.3. Develop an argument as to why your approach is

preferable