Introduction to Statute Law

• Author: Ruth Sullivan
• Pages: 3-28

3

CHA PTER 1

INTRODUCTION TO

STATU T E L AW

A. T YPES OF LEGISL ATION

The legal system of each Canadian jurisdiction establishes rights, obli-

gations, and prohibitions that have legal effect in that courts will en-

force them. Legal systems consist of various components including

legislation, the common law, civil codes, and a wide var iety of legal

instruments.1

Legislation is made by legislatures2 or by persons or bodies to which

the legislature ha s delegated law-making authority. Legislation made

by a legislature is referred to as “statutes,” “Acts,” or “enactments.” In-

struments made by per sons or bodies acting under delegated authority

have a great variety of labels, including “statutory instr uments”; “dele-

gated,” “subordinate,” or “executive” legislation; “regulations”; “orders

in council”; “rules”; and sometimes “guidelines.”3 Legislation produced

by municipalities or First Nations band councils is called “ordinances”

or “bylaws.”

1 A legal instr ument is a text, such as a wi ll made by an individual or a n order

made by a court, t hat is capable of producing legal ef fects.

2 In this tex t, references to a legislatur e or the legislature include Parl iament.

3 More often guideline s are considered a form of “quasi-leg islation,” which has no

binding legal e ffect. Quasi-legislat ion is discussed later i n this chapter.

STATUT ORY INTER PRETATION4

1) S tat ute s

Statutes are appropriately called “Acts” or “enactments” because they real-

ly are acts of a legislature;4 they are the means by which the legislature

changes or declares t he law within its juri sdiction or area of competence.

The sweep of modern statute law is extremely broad. Statutes are used to

regulate potentially h armful activit ies, subsidize desirable ones, rai se rev-

enue, establish legal entities and institutions, distribute benef‌it s, clarify

or codify exist ing law, and more. Some statutes have a largely symbolic

purpose, such as those that establish days to honour a person or event.

The provisions of an Act are law in the sen se that they have the power

to bind or empower the subjects of the legislature, the per sons over whom

the legislature ha s authority. Although historically in Europe legislative

authority was exercised by mona rchs by virtue of divine right, in moder n

Western democracies it is conferred on legislat ures by a constitution. The

Constitution of Canada confers sovereign l aw-making power on both t he

federal and the provincial leg islatures, subject to certain limitations.5

The Parliament of Canada, consisting of the House of Commons,

the Senate, and the Governor General repres enting the Queen, enacts

statutes applicable throughout the whole of Canada with res pect to fed-

eral matters.6 The provincial legislature s, consisting of a representative

assembly and the Lieutenant Governor representing the Queen, enact

statutes applicable within t he provinces with respect to provincial mat-

ters.7 The jurisdiction of territoria l legislatures, which is more or less

analogous to provincial jurisdiction, is conferred by federal statute rath-

er than the Constitut ion Act, 1867. The enactments of all legislatures a re

subject to the entrenched Constitution of Canada, i ncluding the provi-

sions in the Constitution Act, 1867 dividing juris diction betwe en Parlia-

ment and the provincial legislatures and the Canadian Charter of Rights

and Freedoms. Any attempt to deal with a matter outside the juri sdic-

tion of the enacting legislature, if challenged, may be str uck down by

4 For an interesti ng analysis of legislat ion in terms of the speech act t heory de-

veloped by Austin, S earle, and others, see Freder ick Bowers, Linguistic Aspects of

Legislative Ex pression (Vancouver: University of Briti sh Columbia Press, 1989).

5 Section 52 of the Constitution Act, 1982, being Schedu le B to the Canada Act

1982 (UK), 1982, c 11, identif‌ies legi slative texts included in t he Constitution of

Canada. It is not , however, exhaustive: see Reference re ss 5 an d 6 of the Supreme

Court Act, 2 014 SCC 21.

6 These are the matters or subje cts over which the Parliament of Ca nada is given

law-making aut hority by ss 91–106 of the Constitution Act, 1867 (UK), 30 & 31

Vict, c 3.

7 These are matte rs over which the legislature s of the provinces are ass igned

law-making aut hority by ss 92–105 of the Constitution Act, 1867, ibid.