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| [[Category:Legal Principles]]
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| ===[http://www.canlii.org/t/72t Thomas Albert Cromwell, Siena Anstis and Thomas Touchie, Revisiting The Role of Presumptions of Legislative Intent in Statutory Interpretation]===
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| (Page 297):
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| ::Our proposal seeks to provide a uniform methodology for the use of substantive presumptions by incorporating them into the contextual analysis mandated by the modern approach set out in Re Rizzo & Rizzo Shoes Ltd, [1998] 1 SCR 27, 154 DLR (4th) 193. Rejecting the language of “presumptions” and rules of “strict” or “liberal” construction, it argues in favour of interpretation that relies on a transparent discussion of all relevant sources of statutory meaning (including textual and contextual sources, such as the values underlying substantive presumptions) and against a reflexive or mechanical application of substantive presumptions.
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| (Page 299)
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| ::In Canada, two legal developments require us to fundamentally reassess the role of substantive presumptions in statutory interpretation. 5 The first development is the constitutional entrenchment of fundamental rights in the Constitution Act of 1982, coupled with the fact that these rights and freedoms may be limited where such a need may be demonstrably justified in a free and democratic society. 6 This development diminishes the importance of—and perhaps undermines the legitimacy of—using judicially created presumptions of intent as a sort of quasi-constitutional protection against legislative and executive excesses. Why, it may be asked, should the democratically entrenched set of rights and freedoms require supplemental protection by rules of construction? This question forms part of a normative critique of presumptions of legislative intent, which considers whether courts are justified in using presumptions as interpretive tools. In addition to constitutional considerations, this critique questions the validity of the underlying justification for substantive presumptions, namely by asking whether the values represented by the presumptions can truly be assumed to be in the legislature’s mind at the time of drafting. Finally, this critique inquires as to whether presumptions are simply discretionary tools for judges to produce certain policy outcomes when they so desire. 7
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| (Page 300)
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| ::The second development is the unequivocal adoption of the “modern approach” in Canadian statutory interpretation. 8 This approach mandates that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” 9 In their current use, however, substantive presumptions of intent are not always congruent with this approach; applied as mandatory rules, for example, they may be used to defeat the results of this fully contextual approach. This issue forms part of the methodological critique of presumptions, which asks when and how presumptions of legislative intent should be used by the judiciary as well as how substantive presumptions relate to other approaches to statutory interpretation. 10
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Latest revision as of 14:33, 24 June 2020
