Introduction to Statute Law

• Author: Ruth Sullivan
• Profession: Faculty of Law, University of Ottawa
• Pages: 5-28

5

CHAP TER 1

INTRODUCTION

TO STATUTE LAW

A. T YPES OF L EGISL A TION

In law, a document that is capable of producing legal effects is called

an “instr ument.” Instruments having the status of legislat ion may be

made by a legislature or by a person or body to which the legislature

has delegated a law-making authority. Instruments made by a legi sla-

ture are called “statutes,” “Acts,” or “enactments.” Instruments made

by persons or bodies act ing under delegated authority have a variety of

labels, including “statutory i nstruments”; “delegated,” “subordinate,”

or “executive leg islation”; “regulations”; “orders in council”; “rule s”;

and sometime s “guideli nes.”1 Legislative instr uments produced by mu-

nicipalities are called “ordinances” or “by-laws.”

1) Statutes

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

really are “acts” of the legislature; they are the mean s by which the

legislature adds to, changes, or declares the law. Statutes state what the

1 More often guideli nes are considered a form of “quasi-leg islation,” which has no

binding legal e ffect.

STATUTORY INTERPRETATION6

legislature has decided the law should be withi n its “jurisd iction” or

area of competence.2

The statements or provisions set out in legislat ion are law in the

sense that they h ave the power to bind or empower the “subjects” of the

legislature —th at is, the persons over whom the legislature has author-

ity. Although historically in Europe legi slative authority was exerci sed

by mon archs by vir tue of di vine r ight, i n modern West ern dem ocraci es

it is conferred on legislatures by a constitution. The Constitution of

Canada confers sovereign law-making power on both the federal and

the provincial leg islatures, subject to certain limitations.3

The federal legislature, consist ing of the House of Commons, the

Senate, and the Governor General representing the Queen, is called

the “Parliament of Ca nada.” It enacts statute s applicable throughout

the whole of Canada with respect to federal “matters.”4 The provincial

legislatures, consi sting of a representative assembly and the Lieuten-

ant Governor representing the Queen, enact statutes applicable wit hin

the provinces w ith respect to provi ncial matters.5 The juri sdiction of

territorial leg islatures, which i s more or less analogous to provinci al

jurisdiction, is conferred by federal statute rather t han the Constitution

Act, 1867. The enactments of all legislatures are subject to the Canadian

Charter of Rights and Freedoms. Any attempt to curtail a Char ter-pro-

tected right or freedom may be struck down by the courts unless it can

be justif‌ied as re asonable in a free and democ ratic society.6

Acting within the limits imposed by the Constitution of Canada,

Parliament and the provincial legislature s may exercise their powers

in whatever way they see f‌it. That is wh at it means to be sovereign. The

political decision-making engaged in by elected members of the legis-

lature involves formulating the goals and norms of the community, an

2 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 Brit ish Columbia Press, 1989).

3 The Constitution of Ca nada is def‌ined in s. 52 of the Constitution Act, 1982, be-

ing Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

4 These are the mat ters or subjects over which the Parli ament of Canada is given

law-makin g authority by ss. 91–106 of the Constitution Act, 1867 (U.K.), 30 & 31

Vict., c. 3 [Constitution Act, 1867].

5 These are matter s over which the legislatures of t he provinces are assig ned law-

making auth ority by ss. 92–105 of the Constitution Act, 1867.

6 Section 1 of the Char ter reads: “The Canadian Char ter of Rights and Freedoms

guarantees the rights and freedoms set out in it subject only to such reasonable

limits pre scribed by law as can be de monstrably justif‌ied in a free a nd demo-

cratic society.” Canadian Charter of Rights a nd Freedoms, Part I of the Const itu-

tion Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.