Retroactive Legislation

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-22
CLNP Page ID:	1797
Page Categories:	[Legal Principles]
Citation:	Retroactive Legislation, CLNP 1797, <4Y>, retrieved on 2024-11-22
Editor:	Sharvey
Last Updated:	2021/12/30

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R. v. Finta, 1994 CanLII 129 (SCC), [1994] 1 SCR 701

The impugned sections do not violate ss. 7 and 11(g) of the Charter because of any allegedly retrospective character. The rules created by the Charter of the International Military Tribunal and applied by the Nuremberg Trial represented "a new law". The rule against retroactive legislation is a principle of justice. A retroactive law providing individual punishment for acts which were illegal though not criminal at the time they were committed, however, is an exception to the rule against ex post facto laws. Individual criminal responsibility represents certainly a higher degree of justice than collective responsibility. Since the internationally illegal acts for which individual criminal responsibility has been established were also morally the most objectionable and the persons who committed them were certainly aware of their immoral character, the retroactivity of the law applied to them cannot be considered as incompatible with justice. Justice required the punishment of those committing such acts in spite of the fact that under positive law they were not punishable at the time they were performed. It follows that it was appropriate that the acts were made punishable with retroactive force.

Pro-Man Construction v. DeBow, 1998 ABQB 17 (CanLII)

[55] An early discussion of the law of retrospectivity of statutes is contained in Upper Canada College v. Smith (1920), 1920 CanLII 8 (SCC), 61 S.C.R. 413. There is recognized an inherent injustice in construing statutes retroactively to affect parties whose behaviour was based upon the law at the time they acted, not upon the future law of which they could not have known. Thus, statutes (and regulations) are generally presumed not to be retroactive in their effects.

[56] This general rule has exceptions.

[57] Firstly, if the legislature clearly indicates the statute to be retroactive, it is retroactive.

[58] Secondly, the presumption of non-retroactivity does not apply to statutes that are merely procedural in nature and which do not affect substantive rights.

[59] Finally, a rather nebulous exception exists for statutes whose object is to remedy some evil for the protection of the public: Acme (Village) School District No. 2296 v. Steele Smith, 1932 CanLII 40 (SCC), [1933] S.C.R. 47, in which a statute requiring an inspector's approval before a teacher could be given notice of termination was held to be retroactive.

[60] Courts, however, should apply this third exception sparingly in my view, as all statutes can be construed as remedial to some extent. Examples of this proposition can be found in Snider v. Smith et al (1988), 1988 ABCA 384 (CanLII), 55 D.L.R. (4th) 211 (Alta. C.A.), and D.D.S. v. R.H. (1993), 1993 ABCA 146 (CanLII), 141 A.R. 44 at para. 8 (Alta.C.A.).

[61] Further applications of these general legal principles are found in Gustavson Drilling (1964) Ltd. v. Canada (Minister of National Revenue), 1975 CanLII 4 (SCC), [1977] 1 S.C.R. 271; Martin v. Perrie, 1986 CanLII 73 (SCC), [1986] 1 S.C.R. 41; and Angus v. Sun Alliance Insurance Company, 1988 CanLII 5 (SCC), [1988] 2 S.C.R. 256.