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Monday, May 31, 2010

Presumption against Retrospective Operation: Exception

There is a common law presumption that legislative enactments do not operate retroactively.   There is also, however, an exception to that presumption when the enactments are merely procedural or evidentiary in nature
These principles are articulated in many cases, such as R. v. Bickford, [1989] O.J. No. 835 at paragraph 9:
As a matter of fundamental principle, a statute is not to be construed as having a retrospective operation unless such a construction is made evident by its terms or arises by necessary implication. However, the presumption against retrospective construction has no application to enactments which relate only to procedural or evidentiary matters.
8.  Similarly, in R. v. Engum [2002] B.C.J. No. 161, the British Columbia Supreme Court stated at paragraph 55:
One principle which is fundamental to our legal system is the general rule of statutory interpretation against retroactive interference with vested rights. A significant exception to this principle is that generally it does not apply to procedure or evidence. These principles are deeply rooted in our legal system.
9.  The law, therefore, states that if an enactment is solely procedural, it may be applied retroactively.  However, if an enactment contains substantive elements, the fundamental principle against retroactivity applies.
10.  For example, in Bickford, the Ontario Court of Appeal held that the amendment to "corroborating evidence" was merely procedural and evidentiary, and therefore operated retroactively.  In that case, the Canada Evidence Act was amended to allow a child victim to testify without the need for corroborating evidence.  The court in Bickford cited Dixie v. Royal Columbian Hospital [1941] 2 D.L.R. 138, which was adopted by the British Columbia Court of Appeal in R. v. Firkins, (1977) 37 C.C.C. (2d) 227:
In my view, the following relevant principles emerge as established by the weight of authority: unless the language used plainly manifests in express terms or by clear implication a contrary intention - (a) a statute divesting vested rights is to be construed as prospective, (b) astatute, merely procedural, is to be construed as retrospective, (c) a statute which, while procedural in its character, affects vested rights adversely is to be construed as prospective.

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