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Crim 135 - lecture 2

The Judicial Role and Statutory Interpretation

  • Understanding the Judicial Role: Judges are central to the justice system, resolving disputes and delivering justice as expected by the system. Their role is deeply tied to the Canadian Constitution.

Historical Context: Formation of the Canadian Constitution

  • Timeline of Legal Progression: The Constitution's formation involved a progression of statutory laws introduced by colonial authorities. This legal structure was central to asserting control over the land now known as Canada, using a British colonial approach of written laws.
  • Failure to Recognize Indigenous Governance: British colonial authorities unfortunately failed to recognize and unfortunately still fail to recognize functioning Indigenous governance systems already in place.
  • Canada in 1867: By 1867, British colonial authorities had established sufficient authority to formalize their government and control. They sought to unite various established communities across the land into a nation.
  • Uniting Provinces and Territories: The map of Canada as we know it today evolved over time. Provinces and territories joined separately, with Nunavut being the newest in 1999.
  • Promises to Provinces: To entice provinces to join, promises of territorial lines and legislative power were made. This led to a federalist approach to governance.
  • Federalist Approach: This system established two levels of government: a national government and provincial/territorial governments. This allows for unity on matters of national importance and individuality/autonomy on others.
    • Examples of Provincial Powers: Provinces like British Columbia can regulate areas such as housing laws and the administration of healthcare differently. Quebec, for instance, has unique laws to protect the French language.
  • Constitutional Supremacy: The Constitution, crafted by critical figures (like the 'Fathers of Confederation'), became the supreme law.

Foundations of Law

  • Domestic vs. International Law: The focus here is on domestic law within Canada.
  • Public Law vs. Private Law: These are two fundamental categories of law.
    • Public Law: Involves the government as a party in a dispute, acting vis-à-vis citizens (e.g., constitutional law, criminal law). The Charter of Rights and Freedoms only applies in public law matters. If the government violates Charter rights, a claim can be made.
    • Private Law: Involves two opposing private parties, with the government overseeing the justice system but not being a party in the dispute (e.g., family law, contract law, property law). The Charter does not apply in private law disputes.
  • Procedural vs. Substantive Laws: All laws are either procedural (how legal processes work) or substantive (what the law is).
  • Legal Positivism vs. Natural Law: A positivist view states that a law is valid if it has gone through the proper legislative process. Natural law perspectives argue that a law's validity should also be evaluated based on its moral character and content.

Hierarchy of Law and Judicial Power

  • Constitutional Supremacy: The Constitution is supreme. Lawmakers (politicians) are meant to create laws that respect the Constitution. Judges are below lawmakers in this hierarchy.
  • Judicial Review: Courts can only override lawmaking power if that exercise of power was unconstitutional.
    • Example: The example of last week's decision indicated the courts' power to strike down unconstitutional legislation.
  • Rules of Statutory Interpretation: When exercising their power, courts follow rules of statutory interpretation. These rules are crucial for understanding how judges make decisions.

Sources of Law

  • Primary Sources (Actual Law): In the British colonial legal system, there are only two primary sources:
    • Statutes: Laws enacted by legislatures (e.g., a bill once it becomes an act).
    • Case Law: Judicial decisions that interpret statutes and establish legal precedents.
  • Secondary Sources (Informative, Not Actual Law): These provide information and help understand the law but are not the law itself (e.g., textbooks, journal articles, media articles).
  • Customary Law or Convention (Secondary Source): These are unwritten rules or practices that, while not legally binding in the same way as statutes or case law, hold significant power in how the law operates and are often followed due to political or societal expectations.
    • Example: The Patriation Plan and the Gang of Eight: During Pierre Trudeau's efforts to modernize and patriate the Constitution (early 1980s), he faced resistance from eight provinces (the 'Gang of Eight') who feared the Charter's constraints on provincial authority and the lack of a provincial veto power.
      • Trudeau considered unilaterally amending the Constitution.
      • The Gang of Eight submitted a reference question to the Supreme Court of Canada: "Can he unilaterally amend the constitution?"
      • Supreme Court's Response: The Court ruled that while it would not be illegal (as no specific law prohibited it), it would violate a clear custom and convention requiring substantial approval and cooperation from provinces before amending the Constitution. This was a politically risky move.
      • Night of the Long Knives: Eventually, seven of the eight provinces (excluding Quebec under René Lévesque) agreed to Trudeau's constitutional proposal. Lévesque famously refused to sign on behalf of Quebec, creating lasting political implications.
      • Significance: This case illustrates that conventions, though not codified law, have significant influence and power. The example of Donald Trump refusing to accept election results highlights how the violation of such conventions can lead to political instability.

Legislative Challenges and the Need for Interpretation Rules

  • Ambiguity in Law Drafting: Laws are challenging to write. Being too specific can exclude unforeseen situations, while being too general can make their confines unclear.
  • Judicial Role: Judges resolve disputes by applying statutes to specific facts. When ambiguity exists, they need rules to guide their interpretation to adhere to the legislature's intent, not their personal views.
  • Example: Definition of a 'Weapon': The Criminal Code defines a weapon as "anything used or intended to be for use in causing death or injury to persons, whether designed for that purpose or not, or anything used or intended for use for the purpose of threatening or intimidating any person."
    • Is a brick a weapon? Yes, depending on its use or intended use.
  • Example: Definition of 'Theft': The Criminal Code defines theft as taking property "with intent" to deprive the owner. The word "intent" is crucial.
    • If one mistakenly takes a laptop (no intent), it's not theft.
    • If one later forms the intent to keep it, then theft occurs at that point.
    • Judges must be skilled in reading the law and understanding the legislator's intent behind specific words.

Specific Rules of Statutory Interpretation

Judges are required to apply these rules to resolve questions of law, especially when ambiguity arises.

  • Rule 1: Expressio unius est exclusio alterius (Expression of one is the exclusion of the other):
    • Meaning: The express mention of one thing implies the exclusion of others.
    • Example: A law applying to "houses, outbuildings, apartments, and condominiums" would likely not apply to owners of land without buildings, as only specific types of properties are listed.
  • Rule 2: Noscitur a sociis (Limited Class Rule):
    • Meaning: A general word followed by specific words is to be defined by the context of those specific words.
    • Example: A statute requiring a license to operate "any vehicle, wagon, carriage, or automobile" would not extend to an e-bike, as the specific words imply a class of primarily motor-driven conveyances (or older wheeled conveyances), limiting the scope of "any vehicle." The judge must explain why their decision aligns with legislative intent.
  • Three Stapled Rules (Judicial Discretion in Application):
    • Plain Meaning Rule: If the language is clear and unambiguous, judges should apply the literal meaning of the words. This is often the starting point.
    • Golden Rule: If the plain meaning leads to an absurd or unjust result, judges may depart from it to avoid such an outcome.
    • Mischief Rule: Judges should consider the "mischief" or problem the legislature intended to address when enacting the law, interpreting the statute to suppress the mischief and advance the remedy.

Case Examples of Statutory Interpretation in Practice

  • The Persons Case (Edwards v. Canada (Attorney General), 1930):
    • Context: The British North America Act specified that "persons" could become members of the Senate. The Famous Five challenged whether "person" included women.
    • Interpretation: The Privy Council (the final court of appeal at the time) ruled that women were indeed "persons," overturning earlier Canadian decisions.
    • Rule Applied: Likely the Plain Meaning Rule, as a dictionary definition of "person" includes both men and women. If the Mischief Rule (intent of 1867 legislators) had been strictly applied, a different conclusion might have been reached, as the original drafters probably only envisioned men in the Senate.
      • Judicial Discretion: This case illustrates how judges can have room to bring in their own views or contemporary understandings, even when seemingly applying a rule.
  • Bowring v. Scott (Scottish Historical Case):
    • Context: Scott was transporting sheep for Bowring. A law required animals on ships to be in pens to prevent the spread of contagious diseases. Scott had no pens, a storm washed sheep overboard, and Bowring lost property and sued.
    • Interpretation: The court decided Bowring could not rely on the law to sue Scott for property loss.
    • Rule Applied: The Mischief Rule. The legislative intent behind requiring pens was to prevent disease, not to protect against property loss due to storms. The court limited the law's application to its intended purpose.

Conclusion: Judicial Constraint and Discretion

  • Judges are purposely constrained in their decision-making by rules of statutory interpretation, forcing them to justify their decisions and align with legislative intent.
  • However, despite these rules, judges still possess a broad scope of authority and discretion. The ambiguity inherent in language and law allows them to bring their own interpretations to complex legal questions (e.g., defining "cruel and unusual punishment"), as complete clarity in law is often unattainable.