Presumed Application: Time, Territory, and the Crown

• Author: Ruth Sullivan
• Pages: 341-378

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CHAPTER 20

PRESUMED APPLICATION:

TIME, TERRITORY, AND

THE CROWN

A. INTRODUCTION

A number of presumptions of legislative intent deal with the tempo-

ral, territorial, and personal application of legislation. The function of

these presumptions is to prevent legislation from being applied in cir-

cumstances where, for one reason or another, its application would be

inappropriate. Consider, for example, a provision that says “any person

who does x is liable to y.” On its face, this provision applies to everyone

who does x, regardless of who the person is and regardless of when or

where they acted. However, for policy reasons, many potential applica-

tions must be excluded as unacceptable, including

• retroactive or retrospective applications or applications that inter-

fere with vested rights

• extraterritor ial applications

• applications to governmental bodies (to Canadian governments or

foreign states)1

Like all rules based on policy considerations, these application rules

take the form of presumptions that are rebutted by demonstrating a

contrary legislative intent.

The presumptions dealing with the extraterritorial application of leg-

islation and its application to the Crown are relatively straightforward.

1 Crown immun ity is dealt with below, but sovereign i mmunity is not.

STATUTORY INTER PRETATION342

However, the presumptions dealing with the temporal application of

legislation are complex and diff‌icult to apply. For this reason, they are

dealt with at length in this chapter.

B. TEMPORAL APPLICATION OF LEGISLATION

1) Overview

Legislation applies in relation to facts. One dimension of these facts is

when they occur. As a general rule, legislation applies to facts from the

moment it comes into force until it is repealed or otherwise ceases to

have effect. Thus, it is critical to determine whether the facts of a given

case occurred during the period when the legislation was in force.

The common law governing the temporal application of legislation

is composed of a number of presumptions that hinge on some complex

and not altogether clear concepts, notably, “retroactivity,” “retrospec-

tivity,” and “vested rights.” These concepts are discussed below, but the

main presumptions that use them are as follows:

• It is strongly presumed that the legislature does not intend its law to

apply retroactively.

• It is presumed that the legislature does not intend its law to apply

retrospectively.

• It is presumed that the legisl ature does not intend its law to interfere

with vested rights.

• The presumption against retrospective application does not apply to

purely procedural law, to law that is purely benef‌icial, or to law that

is designed to protect the public.

• There is no presumption against the immediate application of legis-

lation. Concerns arising from such applications are generally cov-

ered by the presumption against interference with vested rights.

• Legislation that simply declares the law may be applied retroactively.

Arguably, such applications are not really retroactive since from the

perspective of the law maker, the law has not changed; it has simply

been re-enacted in clearer or more explicit terms.

These rules are partially codif‌ied in the federal and provincial Inter-

pretation Acts. Sections 43 and 44 of the federal Act provide:

43. Where an enactment is repealed in whole or in part, the repeal

does not

(a) revive any enactment or anything not in force or existing at

the time when the repe al takes effect,

Presumed Appl ication: Time, Territory, and the Crown343

(b) affect the previous operation of the enactment so repealed or

anything duly done or suffered thereunder,

(c) affect any right, privilege, obligation or liability acquired, ac-

crued, accrui ng or incurred under the enactment so repe aled,

(d) affect any offence committed against or contravention of the

provisions of the enactment so repealed, or any punishment,

penalty or forfeiture incurred under the enactment so re-

pealed, or

(e) affect any investig ation, legal proceeding or remedy in respect

of any right, privilege, obligation or liability referred to in

paragraph (c) or in respect of any punishment, penalty or for-

feiture referred to in pa ragraph (d),

and an investigation, legal proceeding or remedy as described in

paragraph (e) may be instituted, continued or enforced, and the pun-

ishment, penalty or forfeiture may be imposed as if the enactment

had not been so repealed.

44. Where an enactment, in this section called the “former enact-

ment”, is repealed and another enactment, in this section called the

“new enactment”, is substituted therefor,

(a) every person acting under the former enactment shall con-

tinue to act, as if appointed under the new enactment, until

another person is appointed in the stead of that per son;

(b) every bond and security given by a person appointed under

the former enactment rem ains in force, and all books, papers,

forms and things made or used under the former enactment

shall continue to be us ed as before the repeal in so far as t hey

are consistent wit h the new enactment;

(c) every proceeding taken under the former enactment shall be

taken up and continued under and in conformity with the

new enactment in so far as it may be done consistently with

the new enactment;

(d) the procedure established by the new enactment shall be fol-

lowed as far as it can be adapted thereto

(i) in the recovery or enforcement of f‌ines, penalties and for-

feitures imposed under the former enactment,

(ii) in the enforcement of rights, existing or accruing under

the former enactment, a nd

(iii) in a proceeding in rel ation to matters that have happened

before the repeal;

(e) when any punishment, penalty or forfeiture is reduced or

mitigated by the new enactment, the punishment, penalty or