Most systems of governance have three branches namely the executive branch, the legislature, and the judiciary, which work in tandem each bearing a different, but complimentary function to the other. The legislature, sometimes referred to as the parliamentary system, has the task of formulating and amending laws. The executive’s task is to administer, implement, and enforce laws that the legislature formulates.
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The judiciary’s main functions include interpretation, enforcement, and safeguarding of laws by ensuring that the legislature’s intended purpose in its formulation is upheld. However, in some cases, there is conflict regarding the interpretation of laws by the judiciary and in most cases, the issue of contention lies in the wording in the statutes. This paper is a discussion of these two aspects. It aims at explaining some of the rules of statutory interpretation in Canada with examples of cases that comprise dilemmas in the interpretation of words. It also comprises an analysis and the formation of a conclusion on whether the judiciary appears to grant too much or too little difference to the actions of governments.
Various reasons can explain why the legislature uses vague or plain language in the wording of statutes. One such reason is to create room for the inclusion of different circumstances that are similar even though they bear slight differences in occurrence, but fall under the same topic. Another reason is the creation of room for interpretations that include future circumstances that may be similar in context, but different in actualization.
For instance, the word “market” would now include market places on the Internet that did not exist several decades ago when the drafting of some laws occurred. Since parliaments cannot draft laws that are specific to every aspect in present societies, foresee changes to some aspects in the society in the future, or amend laws every time such changes occur, they ensure that the wording of the statutes is vague enough without being too ambiguous. The judiciary assumes the role of interpreting the wording in statutes to bring out the context of the same and the intention of the legislature with regard to the various situations in which the statute applies.
The courts have the mandate to protect the rights of the accused people as it does for the accusers’ rights. Some of the tools that judges apply in statutory interpretation include case law and other statues that contain similar wording. The main application of case law is the use of judgments that other judges have made in the past in cases with similar facts or issues of contention in support of present judgments. The use of precedents ensures predictability in the application of principles in law.
The use of other statutes applies in support of decisions regarding the context of the contentious wording. One of the cases that best display these aspects is R. v Lachapelle  BCCA 406. The issue in contention was the meaning of the word ‘playground’ as it appears in S.161 of Canada’s Criminal Code, in an order made in November 1997. A trial court had convicted and discharged Mr. Lachapelle on probation for sexual offenses.
The facts of the case were that Mr. Lachapelle had attended a carnival in May 2006 in Gatanmaax town with his elderly aunt, Margaret. The carnival visited the town yearly, thus attracting people of all ages. The carnival consisted of rides, games, and food, which were available at a fee even though entry to the carnival was free of charge. The venue was a large privately owned hayfield, boarded by reserve houses and a forest area leading to a river.
The 1997 probation order prohibited Mr. Lachapelle from attending a public park or public swimming pool area as well as day care centers, school grounds, playgrounds, and community centers where people under the age of fourteen years were present or reasonably expected to be present. An officer at the carnival spotted Mr. Lachapelle standing in a line serving hamburgers and arrested him for violation of the order.
At the trial, the arresting officer testified that there were children at the carnival around the age of ten years who attended without adult supervision. The trial judge noted that even though there was an absence of typical playground equipment, children were playing, running in the open field, and using the rides. In his testimony, Mr. Lachapelle stated that he was of the opinion that since the venue was private property, he was not prohibited from attending with his aunt adding that he had suggested on a change of environment and that they were only there to get some food and go straight home. The judge’s definition of a public park based on the definition in S.161 (1) (a).
The trial judge also referred to the case of R. v Clarks  1 S.C.R 6 in defining the meaning of a ‘public park’. In that case, the judge held that the definition of a ‘public park’ in S.150 of the criminal code was relevant in the determination of the meaning of a ‘public park’. In R. v Clarks’ case, the Crown’s position was to look at part V of the code about sexual offenses and offenses against morals and prevention of such conduct. In its definition, the crown thought that a public place is a place where the public has the right or opportunity to visit and that parliament’s intention was to prohibit offenders from visiting such places and protect access to places where children under the age of 14 years were likely to be present. The judge also stated that the owner of the place was irrelevant.
On the other hand, the defense was of the view that such interpretation of a public place would be too broad as it was in R. v Heywood  3 S.C.R 761. In the Heywood case, the court ruled that the former S. 179(1) was too broad in its definition of public parks and playgrounds and that S. 161 was set in order to remedy this situation. However, the trial court stated that the use of the terms in the Heywood case was correct and that the term ‘playground’ should be used in the description of an outdoor area for the main purpose of children’s play; a definition that was upheld by the appeal court, thus leading to the acquittal of Mr. Lachapelle. The Judges were of the opinion that the carnival’s main purpose was financial gain from the rides, games, and food as opposed to the creation of an area for children to play.
In the case of Austin v Goerz  BCCA 586, the court was clear in establishing the fact that the law’s interpretation is not a matter of convenience, by picking one version when it suits a person and changing to another interpretation when circumstances change. In this case, Mr. Austin, who had been married to Mrs. Austin for thirty years, died intestate, thus leaving behind a widow and Ms. Goerz, with whom he was living for the six years immediate to his death. Although Mr. and Mrs. Austin had separated for the six years that he lived with Ms. Goerz, they had not legally finalized the divorce.
The contentious issue in the case was whether Ms. Goerz qualified for identity as a ‘common law spouse’ under S.1 (b) of the Estate Administration Act R.S.B.C C.122. The appellant, Mrs. Austin, challenged the chamber court’s decision that the respondent met the requirements of a ‘common law spouse’ as per the Act on three grounds. First, Mr. Austin and Ms. Goerz lacked the capacity to marry as he was still married to Mrs. Austin; secondly, there was no financial dependence between the two, and thirdly, the chamber judge had erred in finding that the two intended to enter into a ‘marriage-like relationship’. The court dismissed the appeal and denied Mrs. Austin’s contentions as misguided.
The court was of the view that the two did not need to possess the capacity to marry, as this union was not a statutory marriage. In addition, Mrs. Austin had also referred to the two as living as ‘man and wife’ in her affidavits. The court decided that Ms. Goerz was indeed a ‘common law spouse’ as per the statute.
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Statutory interpretation does not only mean disambiguating terms. Sometimes, it just means an explanation of the wording in statutes and the application of the words used. The court assumes the responsibility of ensuring that there is no misuse of the function of interpreting the law to alter the meanings of words in statutes. An example is the case of Rizzo & Rizzo Shoes Ltd. (Re),  1 S.C R 27. The court explained that the bankruptcy of an employer does not result in the dismissal of the employees resulting in outstanding termination or severance pay as the appellants, the employees, claimed. However, the employees did find alternative means and achieve payment. In conclusion, these cases display consistency in the principles of statutory interpretation, thus creating predictability in decision-making and upholding society’s norms.
Balancing of legislative and judicial decision-making: Canadian Charter of Human Rights and Freedoms
The Canadian Charter of Human Rights and Freedoms contains the rights and freedoms that the state considers as basic and irrevocable for every human being, including the right to life, right to health, and the right to liberty and security of persons. The Charter is important legislation that ensures the safeguarding of the rights and freedoms of every individual equally by the executive, legislature, and judiciary.
However, some scholars have expressed criticism on the viability of the Charter, basing their arguments on its structural formulation. According to the critics, the Charter’s features enable the legislature to limit and modify the Charter guarantees. Critics note that the Charter bears an override clause that enables most holdings of invalidity to be overridden by simply adding a ‘notwithstanding’ clause in the new law (Hogg et al., 2007). Although this aspect has its disadvantages, its advantage is that it allows for easy amendment and incorporation of evolving situations. Most countries borrow from international legislation concerning basic human rights and freedoms, and thus most states have essentially similar rights and freedoms in their versions of the statute.
In most cases, all arms of government enjoy some extent of independence from the others, which allows for objectivity in decision and policy-making.
In Canada, there has been long-standing tension regarding the supremacy of the legislature and judicial ‘activism’ in the context of the Charter of Human Rights and Freedoms. It is worth noting that all arms of government services to provide checks and balances for one another with regard to the exercise of power. Therefore, even though the legislature holds supremacy over the judiciary, it is the role of the judiciary to guard against abuse of power by the legislature in the creation and implementation of laws. However, this aspect does not necessarily mean that the judiciary has the right to infringe the supremacy of the legislature.
A form of balance has to exist between the two bodies in order to ensure the smooth running of governments and maintenance of law and order. This requirement calls for respect for the role that each body plays and some extent of compromise and co-operation between the two bodies. The constitution and the Charter of Human Rights and Freedoms are some of the standard statutes, which ensure that the two organs of government remain true to their objectives for the benefit of the Canadian people. For instance, the legislature cannot pass laws that go against the will of the people embodied in the constitution.
In such a scenario, it would be the duty of the judiciary to analyze the law, bring the issue to the legislature’s attention, and give possible remedies. However, the judiciary would not have the power to override the supremacy of the legislature by amending the error or abolishing such law. The legislature, in respecting the role of the judiciary, would have to amend the law or abolish it for its unconstitutionality.
An example of such a case in Canada (Prime Minister) v Khadr  1 S.C.R 44. The Prime Minister brought the case for appeal, with the issue of contention being a move by the trial judge ordering the government act in a specific manner and infringing on the legislature’s power to exercise discretion on decisions made on the direction by the judiciary. The case involved a young man, Khadr (K), held by the American military at Guantanamo Bay in Cuba for war crimes.
K was a minor when the military arrested and detained him in the facility in 2002. The military charged him in 2004, but the trial was still pending. In 2003, agents from the CSIS and DFIAT agencies, acting on for the Canadian governments, visited K at Guantanamo Bay and conducted an interview. They later shared information gathered from the interview with the American military. Later, in 2004, a DFIAT agent interviewed K again, even though he was aware that the young man had undergone sleep deprivation at the arms of the American authorities, a move that was meant to facilitate less resistance during interrogations. The agent then went ahead and shared the information with the American authorities.
In 2008, the Supreme Court reviewed the policies in effect at Guantanamo Bay and found them to be in contravention with S. 7 of the Charter of Human Rights and Freedoms. Consequently, the court ordered the release of transcripts from the interrogations by the government to K, thus prompting him to ask repeatedly for the Canadian government to seek reparation on his behalf. The Prime Minister announced his decision not to do so, which caused K to apply for judicial consideration to the Federal court of appeal. The court upheld the order and stated that a violation of K’s S.7 right to liberty and security of person arose in 2004 when he underwent interrogation while being sleep deprived.
It further stated that the Canadian government participated in the violation, even though the main perpetrator was the American government and thus the government agents were just as culpable. The appeal judge held that the trial judge had erred in ordering specific action and upheld the Prime Minister’s appeal. The judges expressly noted that the executive possesses the luxury of flexibility and discretion in handling matters relating to foreign relations that fall under its jurisdiction.
However, in the execution of such powers, the executive is not beyond reprieve if the measures it applies contravene the constitution. The court added that the judiciary has a duty to ensure that the power to handle foreign affairs exists and that its manner of execution is in accordance with the constitution. In K’s case, the court noted that the trial judge went beyond the court’s jurisdiction by ordering the government to seek reparation on K’s behalf. In its view, the right measure would have been to declare K’s rights violated and present the executive with the opportunity and discretion to decide on the right measures to take to remedy the violation.
The court agreed that there was a violation of K’s rights, but declared the lower court’s order to have K return to Canada inappropriate. In its view, the correct remedy would be to grant K a declaration that there was an infringement on his rights while leaving the government to act on the matter on its own discretion.
Another case, which underscores the balance between the administration of laws by the executive and the Judiciary in respect to the Charter, is the case of R. v McCrimmon  2 S.C.R 402,where the contentious issue was whether M’s right to counsel under S.10(b) of the Charter had been infringed during an interrogation. The police arrested M concerning assaults he had committed on several women within a two-month period. In accordance with the Charter of Human Rights and Freedoms and procedure required by the state, the police informed M of his right to silence and access to counsel.
Before the interrogation, he requested to have his choice of counsel present. Unfortunately, his counsel of choice was unavailable, but the police offered to have him call duty counsel and he accepted that offer. According to the police, he talked to the council briefly before interrogation and expressed satisfaction with the session. However, a short while into the interrogation, he requested to have his counsel present as a condition for answering any of the interrogator’s questions, a condition that the police denied on the basis that the charter did not stipulate any such directive. M insisted that it was his right under S.10 (b) to have access to counsel during the process.
The trial court was of the opinion that even though S.10(b) provided for the right to counsel, it did not expressly state that such counsel was mandatory during custodial interrogation, a decision that the court also made in by R. v Sinclair  SCC 35 2 SCR 310. During the appeal, M’s argument was that the incriminatory statements he made after denial of counsel were inadmissible as they resulted from an infringement of his right under the Charter.
However, a majority of the Judges disagreed with this view by stating that the police had offered him access to duty counsel prior to the interrogation, in a session that was short, but satisfactory according to him. The police were thus under no further obligation and saw no reason to wait until his counsel of choice was available for the session. Binnie J. explained that the right to have counsel present at an interrogation should not apply as a tactic to delay the process of justice. He stated further that the police have the discretion to allow a person under interrogation access to counsel as many times as possible, depending on their assessment of the circumstances in the interrogation.
Reasonable change in circumstances would have warranted the presence of counsel in the room, but this never happened in M’s case. In addition, M clearly indicated awareness of his rights during the process, and although his request for counsel did not seem to be for the sole purpose of delaying the interrogation process, it negated the need to have counsel present. Further, questioning M on what would have been different during the interrogation in the trial revealed that he was of the opinion that there would not have been any significant variations to the outcome.
However, two judges bore a dissenting opinion regarding the issue of the presence of counsel. LeBel J. and Fish J. were of the opinion that denying an accused person right to counsel resulted in a breach of principles of fundamental justice and S.10 (b) of the Charter of Human rights and freedoms. Therefore, the interrogator and the police were culpable for a human rights violation. LeBel J. noted that M had asked for counsel numerous times during the entire interrogation process, requests that the interrogator continuously ignored.
Further, the interrogator kept asking M questions that he had already indicated no wish to answer through responses such as ‘no comment’ and ‘I need my lawyer’. M was in custody for five hours prior to the interrogation and the constant attempts by the interrogator to get him to confess resulted in incriminating evidence, which in LeBel J.’s opinion, should not be admissible. He added that the intention of the Charter was to provide protection to the accused person without compromising the rights of the accuser. However, in denying M his right to counsel, the court had ripped him of such protection. In his view, the interpretation of the statute should have been broader than and not as strict as the other judges had used it. The court denied M’s appeal.
Every arm of government bears some degree of independence in its operations. However, some circumstances require the arms’ interdependent interaction for the satisfaction of their objectives. An analysis of the roles of the judiciary and the executive has established the importance of the judiciary’s role of statutory interpretation in the execution of parliament’s objectives in-laws. The analysis has also portrayed some of the challenges that courts face in the process of statutory interpretation and the tools and methodology they apply in resolving the challenges. Case analysis has also revealed the importance of the constitution and its elements, such as the application of the Charter for Human Rights and Freedoms.
This paper has revealed some of the contentious issues regarding the Charter including its structural features and its interpretation and application, especially in foreign affairs. This analytical process is important, as its main aim is to create understanding on the interconnectivity of roles between the executive and the judiciary, effects of such interconnectivity on the two bodies, and on the application of the law in Canada as a whole.
Austin v Goerz  BCC 586.
Canada (Prime Minister) v Khadr  SCC 3,  1 S.C.R. 44.
Hogg, P., Thornton, A., & Wright, W. (2007). Charter Dialogue Revisited- Or ‘Much Ado but Metaphors’. Osgoode Hall Law Journal, 45(1), 1-65.
R. v Clarks  1 S.C.R 6.
R. v Heywood  3 S.C.R 761.
R. v Lachapelle  BCCA 406.
R. v McCrimmon  2 S.C.R 402.
R. v Sinclair  SCC 35  2 S.C.R 310.