Unformatted text preview: Public Law I October 5, 2007 • Rules of statutory interpretation • Legal Presumptions in judicial decision making • Peace Order and Good Government (I) – Russell v. the Queen – Local Prohibition Case – Board of Commerce – TEC v Snider Rules of Statutory Interpretation (1) n Why are rules needed? n Intent of legislature n “reasonable person” test n 1.Plain meaning rule n 2.“golden rule”: avoid absurdity & inconsistency n 3.What was the mischief & remedy? n n n 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 Rules of Statutory Interpretation (2) n More Aids: n International conventions & – Context in statute treaties (sometimes) – Other similar statutes – Legislative history n Preamble (but not • Minimal weight. W hy? n Books on rules of interpretation, & legal dictionaries n French & English text marginal notes) Presumptions n n n n n 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 n n Against ousting jurisdiction of courts For crown immunity (now mostly replaced by statutes allowing suits against crown) n n n n Every word is deliberate Specific given precedence over general More recent > older Leg. did not intend drafting error (cts can correct) Doctrine of Stare Decisis • Stare decisis: a rigid form of the doctrine of precedent. • Decision of the Court = ratio decidendi which forms the precedent that needs to be followed. • Ways around stare decisis: – Distinguish – Ratio is really obiter – Per incuriam – Emphasize different majority opinion – ignore Stare Decisis continued • Hierarchy of courts determining application of stare decisis • SCC can choose not to follow precedent. Ont CA: policy: follow • What if conflicting precedents? What Does Court Look For in Constitutional Cases Involving Division of Powers? Is the challenged law intra or ultra vires the authority of the government which enacted it? Can the law unambiguously be assigned to one or other heading in Sections 91, 92, 93, 94 or 95 of the BNA (the socalled cubbyhole doctrine) What is the pith and substance of the law? purpose? effect? is it colourable? Does it have more than one aspect? If so what is the dominant aspect? Can it have a dual aspect? Federal supremacy in cases of conflict Presumption of Constitutionality and Remedies • In division of powers case court presumes impugned legislation is constitutional—burden of proof lies with challenger. • Remedies for laws that are ultra vires – Declare whole law unconstitutional and of no force and effect – Severance (more likely in Charter cases) – Reading Down Russell v. The Queen, 1882 • Impugned legislation: Canada Temperance Act, 1878 – ¼ of electors in a “county or city” may petition for a plebiscite on prohibition. • Fredericton went dry • Charles Russell: Fredericton pub • “cubby hole” doctrine – Is subjectmatter 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” owner, convicted • Previous SCC decision: City of Fr. v. Queen: intra vires under T&C (912) • JCPC decision: Sir Montague Smith. • Russell’s lawyer: delegation argument – Parliament can’t delegate its powers. JCPC says no delegation involved • • • • • – 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 Citizens Insurance Co v Parsons, 1881 Citizens Insurance Co. v. Parsons, 1881 • Impugned: Ontario Fire Insurance Policy Act. • Fire in Parsons’ warehouse. Parsons wanted insurance payment – Ins Co: you didn’t observe the fine print. – Parsons: the fine print didn’t conform to the Act. – Ins Co: The act is ultra vires Ontario. • Sir Montague Smith discusses how s. 91 & 92 overlap. JCPC will interpret the BNA Act as an ordinary statute. Smith Invokes presumption that specific takes precedence over general. “Property & Civil Rights” more specific than “Trade & Commerce”. – “cubby hole” doctrine. S. 92(13)? Yes. Also S. 91(2) T&C? No. Feds can incorp. Co’s with national objective, but doesn’t prevent provinces from regulating intraprovincial transactions – Three aspects of T&C: international, interprovincial and general. – He doesn’t define these categories. Left for later cases. 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 strict test obeyed • “double aspect” doctrine: a • legislative subjectmatter 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. Board of Commerce & Combines & Fair Practices Acts (1922) • Impugned legislation: fed anti profiteering & antihoarding 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 peacetime • Cubbyhole: 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) TEC vSnider (1925) Toronto Electric Commission v. Snider • 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 electrical company • Does subjectmatter 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” ...
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- Winter '10
- Government, STATUTORY INTERPRETATION, POGG, Local Prohibition Case, Sir Montague Smith, Impugned legislation