F. Statutory Interpretation (Step 5)
| Author | Ted Tjaden |
| Profession | National Director of Knowledge Management McMillan LLP |
| Pages | 82-89 |
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Finding and updating legislation are important skills. Equally important is understanding what the legislation says, and knowing the rules and principles that courts use to interpret legislation. Some people take for granted that legislation means what it says and is the law. What is not always appreciated, however, is the interplay between legislatures and courts and the role that judges can play in interpreting legislation - legislation may not always mean what it says: if it is unconstitutional, it can be struck down, and if it is ambiguous, there are special rules to guide how the legislation should be interpreted. What follows next is Step 5 of the Legislative Research Checklist - understanding the basic principles of statutory interpretation and how these principles can affect legal research. Readers wanting more in-depth treatment should consult any of the leading textbooks on statutory interpretation set out at the end of this chapter.
A useful starting point in legal research on statutory interpretation is to find cases in which courts have interpreted particular sections of statutes or regulations. There are two basic ways to find such cases:
· The traditional method is to use print-based services such as Carswell’s Canada Statute Citations or tables called "Statutes Judicially Considered" found in the back of indexes to print case law reporters.
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These services list statutes (and sometimes regulations and court rules) alphabetically by jurisdiction providing citations to cases that have considered particular sections of the legislation. Print and looseleaf annotated states are also another way of identifying cases that have considered particular sections of a statute.
Figure 3.5
Screenshot Showing the Results of KEYCITING s. 11 of B.C.’s Evidence Act on Westlaw Canada
[SEE ATTACHED PDF]
· A more modern technique is to use online citators since they are usually more current than print or looseleaf services. Two of the more comprehensive online legislative citators are QUICKCITE Statute Citator (LEXISNEXIS Quicklaw) and KEYCITE (Westlaw Canada), the latter being a modified version of Carswell’s print Canadian Statute Citations. Simply put, both services allow you to indicate a particular section of a statute and then to check which cases have considered that section. On LEXISNEXIS Quicklaw, you simply type in the name of the Act and section number and the system generates a list of cases (and their treatment) that have considered the section (their scope of coverage is currently for Canadian court decisions since 1992 and 2005 for Québec). On Westlaw Canada, by way of comparison, there is a "citing references" link for federal and provincial statutes (and court rules). For example, if viewing section 16 of the Criminal Code on Westlaw Canada, it is possible to click on the "citing references" link to generate a list of all of the cases that have cited, discussed, mentioned, or applied that section, as decided by Carswell’s editors
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(see Figure 3.5 for a screenshot of Westlaw Canada’s KEYCITE statute citator). CANLII is also developing a "noteup" feature that allows you to check for cases on CANLII that have considered particular statutes or regulations. Aside from online citators, another technique is to search on the keywords in or a phrase from the statutory section you are researching and to search across all available jurisdictions to see if courts from different jurisdictions have considered the specific (or similar) language.
As discussed above, it is important to remember when looking for cases that have considered a particular section of a statute that predecessor versions of the section may have had different section numbers in the past. It is therefore usually necessary, before looking for cases, to first trace the section historically to its origin to confirm the prior section numbers.
Those who conduct legal research regularly should bookmark copies of the federal and applicable provincial Interpretation Act for easy reference.27The contents of these Acts are relatively uniform across all jurisdictions. Topics covered by this legislation include how legislation is to be interpreted, the effect of amendments and repeals, rules of construction, and the calculation of time. These interpretation statutes also define important terms that apply to all legislation across the jurisdiction, definitions such as the meaning of "holiday." An example regarding one of the calculations of time in section 27(2) of the federal Interpretation Act28is as follows:
Where there is a reference to a number of days, not expressed to be clear days, between two events, in calculating that number of days the day on which the first event happens is excluded and...
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