1. Look at nature of the communication problem and state the interpretive issues, which words give rise to the problem and how each side will argue. There is a contravention of s. XX if… a. to assess whether X has contravened s. XX the court must determine A. In order to find A, we must first determine B. To find out if B is in place look at C. If C and B then A and there is a contrav’n. b. No clear answer therefore we must look at … 2. Look at the preliminaries a. Driedger (Rizzo 4-33) – consult chart i. Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of parliament. b. BCIA i. s. 8 fair, large, liberal interp as to be remedial (expansive rather than technical eg. Rizzo protecting vuln group), goes to the leg’n purpose, strongest for benefit conferring legislation ii. s. 2 (1) BCIA applies unless you can show contrary intention 3. Temporal Issues a. Coming into force – royal assent v. force of law b. Changes to legislation i. Expiration – treated as repealed ii. Amendment – substantive v. declaratory 1. Safe to assume that it means a change s.8 though s. 37(2) says all declaratory 2. Declaratory test  ambig in initial prov’n  stat sol'n = what courts would have found (not subst ∆) iii. Repeal (ss. 35 & 36) 1. Residual effects of repealed legislation subject to s. 2(1) contrary intent iv. Repeal and Replace (s. 36) 1. Relationship between the dead and the newly created c. Temporal operation and application of legislation i. Sullivan steps (6-13) before determining which if any of the three situations apply, as both sides would argue them; leg intent will bolster or counter these substantially 1. Retroactivity (v. rare in real life)  strong presumption against leg applying this way, less so if benefit to citizen  Gustavson (want retro for tax), MacKenzie (widow, wants retro $) 2. Accrued (enjoying benefit), accruing (Scott, inevitably enjoy benefit) statutory rights  medium presump against impinging on, favours fairness = justific’n for rule 3. Vested rights at common law (Gustavson re: tax)  weak presumption against impinging on (see details in chart) 4. Challenging validity of Delegated Legislation (oldman river = regs v. directives) a. Does it meet formal reg’n standards? is it a reg under BCRA, has it come into force, etc? b. Constitutionality c. Implied constitutional limitation: (Henry VIII clause in legislation allowing regs to trump leg’n) only valid if expressly allowed in enabling clause (otherwise unconstit) i. Gray (emerg), Weddell (non-emerg) parl allowed it to pass, no constit prob 1. Counter = constitutionally wrong by implication, executive overriding leg’v d. *Non-constit’l grounds – goes beyond enabling prov’n (express or implicit), not suff’ly tied to Act i. Fed’d Anti-Poverty – broad enabling statute effectively narrowed by CRT, balanced by purpose of legislation – benefit for poverty and v. what was contemplated by legislature 5. Common counters a. Policy issues and absurdity balanced by judges not reading in and overstepping bounds b. Contrary intent – very argumentative Appendix: BCIA s. 8 Every act is construed as remedial, addressed at a prob, should be given a fair, large and liberal interp’n s. 37(2) Can’t assume a change in the law because of a repeal and replacement. Counter to s.8 s. 2(1) - Contrary Intent BCIA applies to all leg’n adopted any time absent contrary intent (retroactive!) s. 1 = application of the BCIA – definitions Act, Enact, Enactment s. 2(3) preserves common law rules of SI unless inconsistent with the BCIA s. 5 legislatures may lay the groundwork for leg’n before actually has the force of law s. 7 – tense – read legislation as though it is always speaking, interpret in a way that allows it to be applicable to today, for today’s world - eg. “dangerous weapons” and “in writing” ss. 22, 23 = powers - minister can hire, then subordinates do the other stuff - if minister can declare another person down the line (except contrary intent) o 23(5) where a minister is authorized to make regs, it must actually be minister, except by demonstrated contrary intent s. 25 (5) Computation of time exclude the first day, include the last  unless magic words like “clear, not less than, or at least” » excl first+last (= 1 extra)  unless last possible day = holiday/Sunday » add an extra day  unless last day of that month not 30th for eg. in Feb, done on 28th s. 25 (6) s. 28 (2) gender specific terms include both genders and corporations

Repeals – Zombie stuff - Contrary intent o s. 35 (1)(a) – repeal doesn’t revive old law, common law, CRT takes a fresh look in theory o s. 35 (1)(b) – positive right repealed doesn’t become illegal o s. 35 (1)(c) – doesn’t affect vested rights, the obligations created by the legislation survives o s. 35 (1)(d) – offences - if discovered you committed an offence after repeal they can prosecute you, but usually won’t o s. 35(1)(e) – if procedure or remedy started, can continue under dead legislation, unless legislation says “stop proceedings” (contrary intent), s. 35(2) confirms this

Repeal and Replace (relationship between the dead and the newly created) o s. 36(1)(a) – person appointed under former legislation continues (until formally reappointed under new act) o s. 36(1)(b) – proceedings must be continued but consistently with new legislation where there is a difference, if possible o s. 36(1)(c) – use new procedures (formal steps) to the extent possible in enforcing fines or penalties o s. 36(1)(d) – a new reduced penalty can apply in ongoing proceeding, if the accused will be penalized after the R&R o s. 36(1)(e) – regulations under the old act will continue under the new as long as consistent with the new statute’s provisions. Continue in force until regs specifically repealed. s. 36(1)(f) – referential incorporation. Where repealed act was referred to by other statutes, those will now refer to replacement (unless no new applic prov’n » repealed prov’n becomes unrepealed as needed by other statute) s. 41 (1) powers to make regs are limited to being consistent with parent statute s. 44 Referential incorporation = dragging stuff from other legislation into current legislation - fairly typical, used for procedural matters, eventually definition would be added when legislature amends o amend – ambulatory s. 32 o repeal – old definition remains (resuscitates one tiny piece of Act) s.36(1)(f) o repeal and replace – new definition = moved over = ambulatory s.36(1)(f) o [s. 32 and 36 (1)(f)]

Sullivan Magic 1) Is it in force, usually looking at a specific provision rather than its context (for retro) 2) What facts/conditions of legislation that have effect are at issue (what is the trigger)?  Time when all aspects of situation are in place? 3) Situate the facts in time, when did the relevant facts begin and end relative to the legislation? 4) At date of coming into force (1), were relevant facts . Complete » applying law would have retroactive effect . Yet to come » law would have no application at all . Ongoing » law would have immediate application therefore is not problematic unless interfering with vested or accrued, acquired, incurred, accruing rights 5) Would applying the leg to the relevant facts interfere with vested or a/a/a rights? 6) Is the presumption against such application rebutted through statutory interpretation?

If there’s an interference and nothing (in an SI sense) to indicate that the presumption shouldn’t work » then retroactive law shouldn’t apply

Charter restrictions on retroactivity: s.11(g)(k) - no crim retro applic’n for charge or sentencing s. 7 fundamental justice