Presumed Application: Time, Territory, and the Crown

• Author: Ruth Sullivan
• Pages: 341-378

341

CHA PTER 2 0

PR ESUMED APPLICATION:

TIME, TERRITORY, AND

THE CROWN

A. INTRODUC TION

A number of presumptions of legislative intent deal w ith 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 i s 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 th at inter-

fere with vested rights

• extr aterritor ial applications

• applications to governmental bod ies (to Canadian governments or

foreign states)1

Like all rules b ased on policy considerations, these application rules

take the form of presumptions that are rebutted by demonstrating a

contrar y legislat ive intent.

The presumptions dealing with the extraterritorial application of leg-

islation and its application to the Crown are rel atively straightforwa rd.

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

STATUT ORY 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 t his chapter.

B. TEM POR A L A PPLIC ATION OF LE GISL ATION

1) O v er v i ew

Legislation applies in relat ion to facts. One dimension of these facts i s

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

moment it comes into force until it is repealed or otherwise ceases to

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

case occurred dur ing 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 t hat 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 t hat

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 par tially codif‌ied in t he federal and provincial Inter-

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

43. Where an en actment is repealed in whole or in pa rt, the repeal

does not

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

the time when the repe al takes effect,

Presumed Appl ication: Time, Territory, and the Crown 343

(b) affect the previous op eration of the enactment so repe aled or

anything du ly done or suffered thereunder,

(c) affect any right, pr ivilege, obligation or liabil ity acquired, ac-

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

(d) affect any offence committed against or contr avention of the

provisions of the en actment so repealed, or any pun ishment,

penalty or forfeiture i ncurred under the enact ment so re-

pealed, or

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

of any right, priv ilege, obligation or liability refer red to in

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

feiture referred to in pa ragraph (d),

and an investigat ion, legal proceeding or remedy as de scribed in

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

ishment, penalt y or forfeiture may be imposed a s if the enactment

had not been so repea led.

44. Where an e nactment, in this s ection called the “former e nact-

ment”, is repealed and another enactme nt, in this section c alled the

“new enactment”, is substituted therefor,

(a) every person acti ng under the former enactment sha ll con-

tinue to act, as if appointe d under the new enactment, unti l

another person is appoi nted in the stead of that per son;

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

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

forms and thi ngs made or used under the former en actment

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 procee ding taken under the for mer enactment shall be

taken up and continued under a nd in conformity wit h the

new enactment in so fa r as it may be done consistently w ith

the new enactment;

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

lowed as far as it can b e adapted thereto

(i) in t he recovery or enforcement of f‌ines, pena lties and for-

feitures imposed u nder the former enactment,

(ii) in the enforcement of right s, existing or accr uing 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, p enalty or forfeiture is reduced or

mitigated by the new en actment, the punishment, p enalty or