Statutory Interpretation

Question 1

What are the two main things courts do

Answer 1

1. They determine the exact nature and scope of the constitutional limits by interpreting the written Constitution and sometimes by discerning unwritten constitutional principles by which the legislature must abide
2. They decide whether a given statute has exceeded the constitutional limits determined through interpretation

Question 2

What are the two interpretative approaches

Answer 2

Static approaches and dynamic approaches

Question 3

Define the static approach to statutory interpretation

Answer 3

These approaches are animated by the belief that interpretation should be firmly constrained by the original intent legislators had in mind at the time of enactment, both for the constitution and for the statutes

Question 4

What are some examples of static approaches to statutory interpretation

Answer 4

The plain, original or literal meaning approaches
Original intent

Question 5

What are disadvantages to the static approach in statutory interpretation

Answer 5

They lack transparency
They may inappropriately exclude relevant and legitimate post-enactment considerations

Question 6

Describe the dynamic approach to statutory interpretation

Answer 6

It understands the context in which we interpret legal language as “elastic” so that the context can broaden and stretch to include historical change, political culture, application to current problems and multifaceted arguments

Question 7

What is an example of the dynamic approach to statutory interpretation

Answer 7

The living tree doctrine

Question 8

What is the modern approach to statutory interpretation

Answer 8

Today there is only one approach, namely, the words of an act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the act, the object of the act, and the intention of parliament

Question 9

What are the three dimensions of the modern approach

Answer 9

1. Textual meaning
2. legislative intent
3. Compliance with established norms

Question 10

Describe the textual meaning within the modern approach to statutory interpretation

Answer 10

The content of a reader’s memory constitutes the most important context in which a text is read and influences in particular his or her impression of ordinary meaning

Question 11

Describe the legislative intent of the modern approach to statutory interpretation

Answer 11

In the case of legislation, the law-maker wants to communicate the law that it intended to enact because the law, as set out in the successive provisions of a statute or regulation, is the means chosen by the law-maker to achieve a set of desired goals

Question 12

What are the four established legal norms in respect to the intention of parliament

Answer 12

1. The expressed intention - the intention expressed by the enacted words
2. The implied intention - the intention that may legitimately be implied from the enacted words
3. The presumed intention - the intention that the courts will in the absence of any indication to the contrary, impute to parliament
4. The declared intention - the intention that parliament itself has said may be or must be or must not be imputed to it

Question 13

What happens when the text of legislation is ambiguous, vague or incomplete

Answer 13

If the legislation is bilingual, the interpreter must address both language versions

Question 14

What is the static and dynamic approach to evolving contexts in legislation

Answer 14

Static: the interpreter claims that the text should be interpreted as it would have been when the text was first enacted
Dynamic: text should be interpreted in light of current understanding of language and social conditions

Question 15

What are the three main sources of interpretation law that guides the modern approach

Answer 15

1, Interpretation acts
2. Interpretation rules in individual statutes and regulations
3. Common law

Question 16

Individual acts and regulations on interpretation often contain what

Answer 16

Definitions- tell interpreters how particular words used in the legislation are to be understood
Application section - indicate the scope of the legislation in terms of space, time, persons affected, and subject matter
Preambles and purpose statements - indicate the reasons for the new legislation
Commencement and transitional provision - when the legislation will come into force and how it will apply to situations in progress

Question 17

What are the two forms of guidance for the modern approach to interpretation

Answer 17

1. legal sources of interpretation law
2. Common law presumptions

Question 18

What are some common law presumptions used to determine legislative intent under the modern approach

Answer 18

1. legislation that interferes with individual rights or freedoms is considered “penal” and attracts a “strict” construction
2. Legislation that cures mischief or confers benefits is considered “remedial” and attracts a “liberal” construction
3. General principles are applied as fully as their wording permits, while exceptions and qualifications are strictly interpreted
4. If doubts or ambiguities arise, they are resolved in favour of the person seeking the benefit of the statute

Question 19

What are the five common law presumptions used to determine legislative intent

Answer 19

1. legislative purpose
2. legislative scheme
3. Coherence in the statutory scheme
4. Presumption against retroactive application, interference with vested rights
5. presumption against absurdity

Question 20

What are four extrinsic aids to statutory interpretation

Answer 20

1. legislative source
2. legislative history
3. legislative evolution (successive amendments)
4. Expert opinion (precedent, administrative opinion, scholarly legal publication)

Question 21

What are the name of the six rules about meaning in statutory interpretation

Answer 21

1. Plain meaning
2. Ordinary meaning
3. Technical meaning
4. shared meaning
5. original meaning
6. Plausible meaning

Question 22

Define the rule of plain meaning

Answer 22

The textualist approach that presumed only a single, unambiguous and literal meaning exists

Question 23

Define the rule of ordinary meaning

Answer 23

The meaning that spontaneously comes to the mind of a competent reader upon reading a legislative text

Question 24

Define the rule of technical meaning

Answer 24

When legislation deals with a specialised subject and uses language that people governed by the legislation would understand in a specialised way, that specialised understanding is preferred over ordinary usage

Question 25

Define the rule of shared meaning

Answer 25

Meaning that is shared by both versions is presumed to be the intended meaning. the narrower version represents the shared meaning and should prevail unless there is evidence that the legislature intended the broader meaning

Question 26

Define the rule of Original meaning

Answer 26

The text is applied as it would have been when the legislation was first enacted. The text is applied in light of circumstances and assumptions existing at the time of application

Question 27

Define the rule of Plausible meaning

Answer 27

If the ordinary meaning of a text is rejected to give effect to the actual or presumed intentions of the legislature, the meaning adopted must be one that the text is capable of bearing

Question 28

What are four presumptions about legislative drafting

Answer 28

1. Straightforward expression - legislature chooses the clearest, simplest and most direct way of stating its meaning
2. Uniform expression - legislature uses the same words and techniques to express the same meaning
3. No superfluous words - every word is there for a reason
4. Internal coherence - all provisions of a legislative text fit together and work together coherently

Question 29

What is the leading case on statutory interpretation and explain

Answer 29

Re Rizzo and Rizzo Shoes Ltd [1998] 1 SCR 27
Claim was made regarding the termination of employees through bankruptcy and whether they are entitled severance payment
The court held that the use of legislative history to determine intention was appropriate

Question 30

What is reading down versus reading in

Answer 30

Reading down refers to accepting an interpretation of a provision that is narrower ins cope than the ordinary meaning of the text would support
When a court reads in, it expands the scope of a legislative provision or fills a gap in a legislative scheme

Question 31

What occurs when a provision is read down and what are the reasons for doing so

Answer 31

Words of limitation or qualification are added to the text for one of the following reasons:
- the court is giving effect to limitation of qualifications that are implicit in the text or the scheme of the legislation
- the court is refusing to apply the legislation to situations that are outside the mischief the legislation was meant to address
- the court is relying on a presumption of legislative intent

Question 32

What are the advantages of the plain meaning rule

Answer 32

It creates a zone of certainty
It supports formal equality
it can be used as an apparently neutral proxy for strict construction

Question 33

Fidelity to legislative intent supports what view of law

Answer 33

The positivist view of law
Positivism tells us that law is one thing and not-law is something else entirely and we can tell them apart by applying a simple rule of recognition