3.06.2010

free counters

The most comprehensive coverage on the construction of Statutes. It includes parts of statutes,Extrinsic-Aids,Intrinsic aids, Reading down, Amendments,Repeals,codifications,Quasi-Judicial agencies,Non-obstante clause,Mandatory/Declatory provisions,Tax ,Beneficial, Criminal,Fiscal Statute's Interpretation and sub-ordinate legislations.Besides it contains the Rules of Interpretation and the Role of Judiciary.Citations are in abundance.



Tuesday, June 22, 2010

Meaning of Context as a whole

 Context

A provision must be read in context, while bearing in mind all the relevant interpretation factors. That is what I now intend to do, having regard to (1) the immediate context, that is, the provision itself; (2) the broader context, that is, the chapter in which the provision is found; and (3) the general context, that is, the statute as a whole.

Immediate Context: Noscitur A Sociis

This is a well-known rule of interpretation: a term or expression cannot be interpreted without taking surrounding terms into account. The meaning of a term is revealed by its association with other terms: it is known by its associates (noscitur a sociis). This general principle is most often applied in interpreting terms that are part of a list. In the case at bar, the provision contained such a list of associated terms:

     56.(1) . . . the word "tribunal" includes [1] a coroner, [2] a fire investigation commissioner, [3] an inquiry commission, and [4] any person or agency exercising quasi-judicial functions.

Four terms are associated here: coroner, fire investigation commissioner, inquiry commission and the "quasi-judicial" group.  To begin with, what do these four terms have in common? All four may apply to "matters of penal significance"; this idea is common to the four terms. Next, I note that two of the four terms, the inquiry commission and the "quasi-judicial" group, have a broader denotation: they may apply to the "non-penal" sphere as well as to "matters of penal significance". According to the noscitur a sociis interpretation principle, terms in a list may have a broader or narrower denotation. In the case at bar, the denotation of the list should be limited to the concept common to all the terms: that of "matters of penal significance".

If it were agreed that two of the four terms -- and the "quasi-judicial" group in particular -- could apply to the "non-penal" sphere, that would disregard the denotation of the other two terms and thus fail to take account of the noscitur a sociis rule. The meanings of these four associated terms would then be inconsistent in light of the noscitur a sociis rule and therefore logically, semantically and grammatically inconsistent. The interpretation would be based on unrationalized impressions. In my view, the four terms must, on the contrary, be defined so that they have the same denotation: that of "matters of penal significance". This denotative definition is coherent and complies with the noscitur a sociis rule.

I believe it would be helpful at this point to make two methodological clarifications. First, a distinction must be drawn between a denotative definition (denotation or extension) and a connotative definition (connotation, intension or comprehension). The connotative definition of a quasi-judicial agency was stated in Minister of National Revenue v. Coopers & Lybrand, [1979] 1 S.C.R. 495, at pp. 504-5; there is nothing in this appeal that conflicts with that definition; in fact, the connotative definition of the term "quasi-judicial agency" set out in Coopers & Lybrand underlies this appeal.  However, the denotative definition of the same term can vary in each individual case, depending on the wording of the legislative provisions in which the term is found. That is the situation in this appeal.

In the circumstances of the instant case, the denotation of the term "quasi-judicial" is limited by the surrounding terms, in accordance with the noscitur a sociis rule. Of course, it is easy to see that, in other situations in which different wordings are used, the denotation of the same term could be entirely different even though the connotative definition never changes (with respect to connotation and denotation, see, inter alia, Driedger on the Construction of Statutes, supra, at pp. 142 et seq.; see also generally I. Copi and C. Cohen, Introduction to Logic (8th ed. 1990), at pp. 142-43 and 480 et seq.).


Broader Context: Provisions of Chapter III of Part I of the Charter

Having made these methodological clarifications, I will now return to an informed interpretation of the provisions under consideration in their broader context. The following is a summary of one of the principles of contextual interpretation drawn from Driedger on the Construction of Statutes, supra, at pp. 247-48:

 In adopting a contextual approach, the courts focus on any provision or series of provisions that in their opinion is capable of shedding light on the interpretive problem at hand. Looking to other provisions is useful because courts make certain assumptions about the way legislation is drafted. . . .

 In some cases the courts focus on a particular provision or series of provisions found elsewhere in the Act. . . . The court's reasoning here is based on the presumption of orderly and economical arrangement. It would be contrary to the principles of sound drafting for a drafter to place a provision dealing with both commercial and non-commercial activities in the midst of a series of provisions dealing with commercial activities only. [Emphasis added.]

The rule of interpretation is as follows: if a provision that deals with both field A and field non-A is placed in a series of provisions dealing only with field A, this is contrary to the principles of sound legislative drafting. This rule of interpretation applies directly to the situation in the case at bar.

Section 23 is part of Chapter III of Part I of the Charter, which sets out "Judicial Rights", including all guarantees of a penal or criminal nature: imprisonment, search and seizure, arrest, habeas corpus, presumption of innocence, etc. An interpretation of the term "quasi-judicial" that covered both "matters of penal significance" and "non-penal" matters would, according to the above rule, be contrary to the principles of sound drafting, since there is no reference to the "non-penal" sphere in Chapter III of Part I of the Charter. Such an interpretation, contrary to the principles of sound legislative drafting, would be strained.

 On the other hand, if the term "quasi-judicial" is defined so that its denotation is limited to the "matters of penal significance" category, then the interpretation is perfectly consistent with the principles of sound legislative drafting: it is no longer a strained interpretation and the definition becomes compatible with the part of the statute in which the term is found.

 An informed interpretation of the provisions in either their immediate or broader context leads to the same result as far as the definition of the term "quasi-judicial" is concerned. That brings me to an interpretation of the provisions in their general context.

Context of the Statute as a Whole


 The principles applicable to the interpretation of statutes as a whole have been summarized as follows:

  [T]he elementary rule must be observed that no one should profess to understand any part of a statute or of any other document before he had read the whole of it. Until he has done so he is not entitled to say that it or any part of it is clear and unambiguous. [Attorney-General v. Prince Ernest Augustus of Hanover, [1957] A.C. 436 (H.L.), at p. 463.]

 [T]he office of a good expositor of an Act of Parliament is to make construction on all the parts together, and not of one part only by itself ; nemo enim aliquam partem recte intelligere possit, antequam totum iterum atque iterum perlegerit . . . and so before this time have other statutes been expounded by the ancient Judges and sages of the law. [Lincoln College's Case (1595), 3 Co. Rep. 58b, 76 E.R. 764, at p. 767.] [Emphasis added.]

The nemo enim aliquam partem recte intelligere possit, antequam totum iterum atque iterum perlegerit rule literally means: no one can understand a part before reading and rereading the whole in full. This rule has been part of the common law for over 400 years and has been codified in Quebec, as far as contracts are concerned, by art. 1427 of the Civil Code of Québec, S.Q. 1991, c. 64 (formerly art. 1018 of the Civil Code of Lower Canada). It is thus necessary to read and reread the entire statute in full before deciding how the term in question should be defined. If necessary in order to properly understand the scheme of the statute, the regulations made thereunder must also be read and reread. The justification behind the nemo intelligere possit antequam iterum perlegerit rule is as follows. It must be assumed that the statute is coherent. The principle of internal statutory coherence has been recognized by the common law since the 17th century: Chamberlain's Case (1611), Lane 117, 145 E.R. 346, at p. 347 (Tanfield J.):
”. . . the meaning of an act of parliament ought to be expounded by an examination of the intention of the makers thereof, collected out of all the causes thes therein, so that there be no repugnancy, but a concordancy in all the parts thereof. . . . [Emphasis added.]

…that the modern expression of the internal coherence principle, which has been part of our law since it was reformulated by Lord Atkinson in City of Victoria v. Bishop of Vancouver Island, [1921] 2 A.C. 384 (P.C.), at p. 388, was adopted again by this Court in The King v. Assessors of the Town of Sunny Brae, [1952] 2 S.C.R. 76, at p. 97:

  In my opinion, the construction of a statute which produces such anomalies is contrary to well settled canons of construction. A statute is to be construed, if at all possible, "so that there may be no repugnancy or inconsistency between its portions or members". . . . [Emphasis added.]

 According to Driedger on the Construction of Statutes, supra, at p. 176, the presumption of internal statutory coherence is virtually irrebuttable:

 It is presumed that the provisions of legislation are meant to work together, both logically and teleologically, as parts of a functioning whole. The parts are presumed to fit together logically to form a rational, internally consistent framework.
-

Legislative Evolution

Legislative history may be used to interpret a statute because prior enactments may throw some light on the intention of the legislature in repealing, amending, replacing or adding to it.
This interpretation principle is based on the presumption that changes to legislation are intended to effect a substantive change in the law. In analysing changes in the terms used in statute law, the Ontario Court of Appeal has noted the importance of this presumption: "[t]he amendment must have had some purpose and significance" (Re Peralta and The Queen in right of Ontario (1985), 49 O.R. (2d) 705, at p. 716; affirmed by Peralta v. Ontario, [1988] 2 S.C.R. 1045).
External Context

The legislature is presumed to be competent and to have knowledge of all the legislation and case law in existence at the time a statute is enacted: [The Queen v. Inhabitants of Watford (1846), 9 Q.B. 626, 115 E.R. 1413, at p. 1417 (per Lord Denman C.J.).] This presumption was expressed as follows by Driedger on the Construction of Statutes, supra, at pp. 156-57:
The legislature is presumed to know all that is necessary to produce rational and effective legislation. This presumption is very far-reaching. It credits the legislature with the vast body of knowledge of which judicial notice may be taken as well as anything contained in briefs or reports tabled with legislation. The legislature is presumed to have a mastery of existing law, both common law and statute law, as well as the case law interpreting statutes. It is also presumed to have knowledge of practical affairs. . . .

     Logically, the substance of what the legislature is presumed to know must be knowledge that was available to it at the time the legislation was enacted. [Emphasis added.]

 1948 - Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71, art. 10:
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any
criminal charge against him. [Emphasis added.]

1950 - European Convention on Human Rights, 213 U.N.T.S. 221, art. 6(1):
     In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. [Emphasis added.]

1960 - Canadian Bill of Rights, S.C. 1960, c. 44, s. 2(e) and (f):
  . . . no law of Canada shall be construed or applied so as to
     . . .
     (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;
     (f) deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause; [Emphasis added.]

 1966 - International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, art. 14(1):
     All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. . . . [Emphasis added.]
 1975 - Charter of Human Rights and Freedoms, S.Q. 1975, c. 6, s. 23:

 Every person has a right to a full and equal, public and fair hearing by an independent and impartial tribunal, for the determination of his rights and obligations or of the merits of any charge brought against him.

The wording of s. 23 of the Charter therefore appears to be a sort of digest of the wording of the Universal Declaration of Human Rights. The legislature removed a number of terms from that wording, including "criminal"; a priori, it might be thought that this is an indication that the legislature intended the provision to apply to both "penal" and "civil" matters. However, it is necessary to look further and read all the provisions that existed when the Charter was enacted.

 The other three provisions very clearly distinguish applicability in "civil" matters from applicability in "criminal" matters. This distinction is made explicitly in these provisions through the use of the "in . . . civil . . . or . . . criminal" structure in the European Convention of Human Rights and the "in . . . criminal . . . or . . . suit at law" structure in the International Covenant on Civil and Political Rights, and through the clear separation into two different paragraphs in the Canadian Bill of Rights. All of these provisions existed when the Charter was enacted and it must be assumed that the legislature had full knowledge of them.

It seems that Parliament intended the two subsections [2(e) and (f) of the Canadian Bill of Rights] to cover civil and criminal hearings respectively. Subsection (e) uses terms which are usually applicable to standards used by courts to supervise administrative agencies which are required to hold hearings. Subsection (f) on the other hand, refers specifically to a hearing where a person is "charged with a criminal offence". [Emphasis added.]

No comments:

Post a Comment

Post a Comment