Interpreting Legislation (week 11)
Beaulac and Cote identified two major flaws of the modern principle? What are they?
1. Form 2. Substance Fundamental problem with the 'Modern Principle' - Focus on the intention of Parliament and the determination of something that is 'already there'
What are the two internal aids to statutory interpretation?
1. Statutory direction 2. Grammatical rules of construction
What are the 3 rules of statutory Interpretation?
1. The 'literal or plain meaning' of rule 2. The 'golden rule' 3. The 'mischief rule'
Which of the following best demonstrates the use of grammatical rules of construction for statutory interpretation? A) Re Rizzo & Rizzo Shoes Ltd B) REference re Firearms Act C) Christie v. York Corp D) R. V. Dudley & Stephens E) None of the above
A) Re Rizzo & Rizzo shoes Ltd.
What rules of statutory interpretation apply?
Any or all can apply. Kind of takes the objectivity out of the judges, if they have a choice to use stat interpretation as they wish. The idea is that they choose what appears to be just.
Understanding a specific word based on the words used with it is which grammatical rule of construction? A) Ejusdem generis B) Noscitur a sociis C) Ultra vires D) Expression unis, expressio alterius E) Stare decisis
B) Noscitur a sociis
So why do courts still use modern principle over all else?
Beaulac and Cote argue - The principle is useful - It serves the courts, as it separates the person of the judge from the process of judging and statutory interpretation = "Rule of law, not rule of men" (Morton) Fairly suitable interpreting strategy for simple cases. This approach expedites the work of the courts. Serves the courts, because in effect it allows the courts a wide latitude in terms of how it attribute its interpretation of law. If its simply about what Government wanted, than this allows the courts, in reaching a decision of a part of interpretation, to state that it isn't the JUDGES interpretation of the statue but it is what Parliament wanted.
Stephane Beaulac and Pierre-Andre Cote state that: "The truth of the matter is that the fundamental flaw with the '______________________________________' is the theory of interpretation on which it is grounded, a theory centred around the original intention of Parliament" A) Golden Rule B) Legal system C) Modern Principle D) Mischief Rule E) Liberal Principle
C. Modern Principle
Statutory interpretation as a ____________ between the courts and legislators
Dialogue
If a judge were to follow the ordinary or plain meaning of a statue's words, except when doing so would result in absurdity, the judge would be following which rule of statutory interpretation? A) The 'literal or plain meaning' rule B) The rule of thumb C) The 'mischief rule' D) The 'Common sense' rule E) The 'golden rule'
E. The golden rule
Define Ejusdem generis rule? Is it considered an internal or external aid to statutory interpretation?
Ejusdem generis rule: "of the same kind or class" Where words in a statue describes a class of objects that are followed by general words, the words should be interpreted to be of the same type or class of the words that follow them. Piece of legislation that determine what can enter a park—> So what are other vehicles? Ex. Park, scooters, skateboard, bike or other vehicles = toys (recreational devices). Wheelchairs would not be classed in that text. Wheelchair is not a toy. Internal aid to statutory interpretation - grammatical rules of construction
Define expressio unis, expressio alterius. Is it considered an internal or external aid to statutory interpretation?
Expressio unis, expressio alterius: "to express one thing is to exclude another" Assumes that the specific words were a deliberate choice made at the expense of other terms Direct opposite of the first rule. So if statute state, "no vehicle, bicycle, skateboards, scooters can enter this park" The term vehicle will be interpreted consistent with the words that appear with it. So, here the term vehicle could be defined by reference again to a broader category of vehicles which are essentially toys, so it would mean that a wheelchair for ex, might be able to enter the park. BUT were assuming here, that Parliament meant specifically to exclude those types of vehicles, so were assuming everything that ISN'T those vehicles is free to enter the park. Internal aid to statutory interpretation - grammatical rules of construction.
What is Grammatical rules of construction?
Focus on the context of words used in a statue - Ejusdem generis rule - Noscitur a sociis - Expressio unis, expressio alterius
Define why form is one of the flaws of the modern principle
Form - Ordinary sense; scheme of act; object of act are simply factors to be CONSIDERED, not goals/criterias - places 'intention of Parliament' on same level as the first 3 criteria If a court reaches a decision about a correct interpretation of a piece of legislation and they don't speak to each of those 3 criteria's (ordinary sense, scheme of act, object of act) it doesn't render their interpretation wrong or incomplete. Simply factors to be considered not criteria's to be met. Determining the intention of parliament, it's only one of the goals of statutory interpretation, its not something you're trying to consider, its what you're actually TRYING to FIGURE OUT.
What is the dialogue principle?
In Canadian constitutional law, the dialogue principle is an approach to the interpretation of the Canadian Charter of Rights and Freedoms where judicial review of legislation is said to be part of a "dialogue" between the legislatures and the courts. It specifically involves governments drafting legislation in response to court rulings and courts acknowledging the effort if the new legislation is challenged.
Who said this: One does not progress far into legal life without learning that there is no single right and accurate way of reading one case, or of reading a bunch of cases.
Llewellyn - Statutory interpretation can happen in a similar way that the courts interpret precedence - Make the law do what you want it to do. - in order for statue to make sense, there needs to be assumption at base that there was a reason / purpose for why legislation was passed. - Falls on the courts to determine what parliament wanted out of the legislation. The rules of interpretation should facilitate with the intention of parliament.
Fill in the blanks: Stephane Beaulac and Pierre-Andre Cote state that: "The truth of the matter is that the fundamental flaw with the '___________________________________' is the theory of interpretation on which it is grounded, a theory centred around the original intention of Parliament" A) Golden rule B) Legal system C) Modern principle D) Mischief rule E) Liberal principle
Modern principle
R. v. Mills
Nature of the process of statutory interpretation. On going dialogue between parliament and the courts and legislatures. This relationships is very much a dialogue, and that dialogue is absolutely essential to the democratic process. The courts can consider a wide range of factors in statutory interpretation the rules and the principles of statutory interpretation can cut a number of different ways. The courts have a fair amount of space, in terms of how they choose to interpret legislation. Fundamentally, what the courts do, is the courts can essentially check the work of parliament. The dialogical piece of parliament and court relationship is one in which the Courts will review and oversee the work of parliament, making sure that jurisdictional considering are respected, charter issues are considered and respected, making sure that parliament is doing its job in a technically correct way but that legislation, rules, law pass when they are interpreted and implemented into society, that it is done in a way that respects the community, larger social policy issues, that impact whether a law functions in a just and appropriate manner. Legislatures, review the work of the courts. Fill the void, revise the statute, correct the error the courts found. Courts review parliament, parliament responds to and reviews the work that the courts does. There's a dialogue that takes place between parliament and courts. There's a partnership, not always an agreeable partnership, but a partnership that comprises the biggest law making body in the country. Judges way of interpreting legislation is a quasi way of making law, although they don't have the authority to make it. Check and balances between the two. - The work of the legislatures is reviewed by the courts and the work do the courts in its decisions can be reacted to by the legislature in the passing of new legislation. - This dialogue between and accountability of each breaches have the effect of enhancing the democratic process, not denying it (Mills)
Understanding a specific word based on the words used with it is which grammatical rule of construction? A) ejusdem generis B) Noscitur a sociis C) Ultra vires D) Expression unis, expressio alterius E) Stare decisis
Noscitur a sociis
Define Noscitur a sociis? Is it considered an internal or external aid to statutory interpretation?
Noscitur a sociis: "it is known by its associates" A specific word can be understood by the words used with it statue that deals with motor vehicles, and accessing a park, and we find that in another section of that statute it says that "All motor vehicles which includes cars, trucks, motorcycles, must be licensed to enter this park. So what is a motor vehicle? Parliament included cars, truck, motorcycle, so if we wanted someone to enter a park in a motorized wheelchair, that person may be excluded, from meeting a license to enter the park. Because, parliament laid out motorized vehicles must be licensed in order to enter the park, so a motorized wheelchair may require a license or it may not. Wheelchair that is not motorized, would presumably not require a license. Internal aid to statutory interpretation - grammatical rules of construction
Which of the following best demonstrates the use of grammatical rules of construction for statutory interpretation? A) Re Rizzo & Rizzo Shoes Ltd. B) Reference re Firearms Act C) Christie v. York Corp D) R. V. Dudley and Stephens E) None of the above
Re Rizzo & Rizzo Shoes Ltd.
What is Statutory direction?
Statues will contain sections intended to assist the courts in interpreting a statue (e.g., definition sections)
Rizzo shoes
Statutory interpretation cannot be limited simply to a focus on determining the intention of parliament. That is only ONE piece of it. But it's only ONE piece of what the courts are expected to do. Consistent with what beaulac and cote suggest in their article of modern principle, modern principle is the traditional approach dressed up differently. Those traditional approach to statutory interpretation (literal plain meaning rule, golden rule, mischief rule) have been pulled together into 1 principle. Company gone bankrupt, should they still be paying their workers benefits? - Look at wording of who gets benefit.
Define why substance is one of the flaws of the modern principle
Substance - Principle oversimplifies statutory interpretation - Determination of Parliament's intention is only ONE goal of statutory interpretation - Courts regularly consider a range of factors and pursue a variety of goals in interpreting statutes Modern principle looks at 4 mechanism through which statutory interpretation can be achieved. 1. Entire context 2. Grammatical and ordinary sense of words 3. Scheme of the act 4. Object of the act These are the specific factors that the modern principle articulates are essential to statutory interpretation. Reality is that the courts consider a WIDE range of factors in addition to those. For example, presumption of legislative intent, parliament may have been working towards a particular goal, books of authority, research, cases, principles of fair and liberal interpretation, policy considerations (courts regularly consider how their decision will impact society) The modern principle only looks at a very small portion of what courts look at and should look at when interpreting legislation.
How do the courts interpret the law today?
The Modern Principle
If a judge were to follow the ordinary or plain meaning of a statue's words, except when doing so would result in absurdity, the judge would be following which rule of statutory interpretation? A) The 'literal or plain meaning rule' B) The Rule of thumb C) the 'mischief rule' D) The 'common sense' rule E) The 'golden rule'
The golden rule
What is the Modern Principle?
The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the act, and the intention of Parliament. - The three rules are embedded in the modern principles 1. Plain literal meaning 2. Golden rule 3. Mischeif rule
What are the external aids to statutory interpretation?
These include reference sources judges may use to assists them to interpret a statue Examples - Dictionary - Words or phrases reference sets - Interpretation acts - Other case - Hansard
Is there a human component to judging?
Yes, the rules around statutory interpretation and precedent allows for a subjective account on the judge to weigh in. Although, those rules try to mitigate that, it isn't possible.
What is the 'mischief rule'?
permits courts to examine Parliament's objective or purpose in enacting a statute with regard to the 'mischief' or problem the statute was intended to address, and interpret the statute consist with that objective What was it that parliament was trying to do? What was the mischief parliament was trying to remedy?
What is the 'literal or plain meaning' rule?
• Requires the judge to examine only the words of the statute itself and consider their ordinary or plain meaning LOOK at the words. Don't think about why the law was passed, but just look at wording. • Court is asked to assume that Parliament simply 'meant what they said', even if the plain wording leads to an 'absurdity' *similar to Llewellyn's loose view of precedence* It is not the courts job to contradict a piece of law, it's the courts job to provide clarification of the law and support parliament.
What is the 'golden rule'?
● States that the 'plain or literal meaning' of the statute should be followed unless doing so would lead to an absurdity ● Slightly modifies the literal or plain meaning rule ● Permits modification of the grammatical or ordinary sense of the words to avoid the absurdity, but no further Stepping outside of the "dictionary" meaning in order to avoid absurd judgments that might impact lower courts.
