Climate of Change - The law is always speaking

Share Adjust Comment Print

Did you know that laws put into place by provincial legislatures and the Canadian Parliament are interpreted by judges as ‘always speaking’? Do you know what that means, or why it might be important?  If a law is always speaking, how might it affect you?

According to section 10 of the Canada Interpretation Act: “The law shall be considered as always speaking, and where a matter or thing is expressed in the present tense, it shall be applied to the circumstances as they arise, so that effect may be given to the enactment according to its true spirit, intent and meaning.” Section 9 of the Alberta Interpretation Act, provides that: “An enactment shall be construed as always speaking and shall be applied to circumstances as they arise.” “Construed” is just a fancy word that means to interpret.

What this means, then, is that words or expressions in old laws that are still ‘on the books’ that were deliberately chosen by past governments to regulate certain aberrant behaviours will continue to be used to regulate those behaviours today.  Even if our social norms and knowledge and understanding of those particular words have changed over time, in a dispute over what the words mean the courts will interpret the words to give effect to the spirit and intent of the government that first made the rule.

Did you know that every law enacted in this country actually has an object, and “true spirit, intent and meaning?” Who would have thought? Or, have you ever considered that judges across Canada routinely analyze and interpret words and provisions in laws and regulations to understand the spirit and intent of Parliament or a legislature at the time a particular law was put in place?

According to Elmer A. Driedger’s famous Modern Principle of Statutory Interpretation that has been affirmed repeatedly by the Supreme Court of Canada:  “Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”

Laws put in place in the 19th century reflecting the spirit and intent of governments back then still exist today– for example, the prohibition against piracy in the Criminal Code of Canada. But, what is a modern day pirate?  How would a judge determine when a person intended to commit the crime of piracy? I am sure images pop into your head of the one-legged pirate with the feathered hat and the parrot!  If a word or a provision such as “a pirate” is required to be interpreted by a judge to settle a modern day dispute about piracy, the judge will try to determine the spirit, intent and meaning of Parliament at the time when the piracy ban was first enacted.

In this climate of rapid societal change and human adaption to events that were unknown in the 1800s, why should the spirit or intent of a law that was enacted in the 1800s even matter in July 2019?   For example, back then Canadians lived primarily in the country and few had even been to sea. Now masses of people like you and I live in cities located on the coast, and we work day and night on computers that help us in rapid knowledge transfer and connect us to folks all around the globe. In the 1800s, computers were not even part of the collective imagination and no-one could have envisioned online piracy.  But, pirates who boarded and took over commercial ships and stole merchandise in transit on the high seas were big threats to Canadian society back then.  Now, many of us live in fear of Internet Pirates who may want to steal our data, identities. and even our thoughts.

The law is always speaking, even when sometimes the law that regulates and controls our behaviour in 2019 may seem silly. For example, it wasn’t until 2018 that the indictable offense of challenging a person to a duel was repealed from the Criminal Code of Canada.

So what is a duel, and if you are charged with challenging a person to a duel, what is the behaviour or result of that behaviour that government was trying to prevent back when the provision was enacted?  Was it the imminent and certain loss of life that occurred when duelling occurred among the upper classes of society to save face or settle a grievous insult?  Or, did parliament enact this law to protect innocent women and children from becoming wards of the state, and communities from loss of community elders and economic leaders? What was the spirit and intent of that law in the first place? The Criminal Code already included the crime of murder with intent to kill.

The Criminal Code also still includes provisions whereby it is a summary offence to swear, sing, or be drunk in a ‘public place,’ especially if you are a loud singer or swearing when you stagger around disturbing the peace with a cohort of more than three pals.  In such a case, you and your three disorderly accomplices may actually constitute an ‘unlawful assembly’ that could threaten to become “tumultuous” and escalate into a riot!! Thereupon, a justice, peace officer, sheriff or even the mayor may read you the Riot Act: “Her Majesty the Queen charges and commands all persons being assembled immediately to disperse and peaceably to depart to their habitations or to their lawful business on the pain of being guilty of an offence for which, on conviction, they may be sentenced to imprisonment for life. GOD SAVE THE QUEEN.” I am not sure why the Queen of England would need God to save her from a riot in Cochrane, but the law is what it is.

In many of our communities, there are bylaws prohibiting swearing or spitting in public places.  But what constitutes swearing, and why would a local government care if a person swears in public?  For example, is OMG that is posted everywhere on Facebook swearing, and is Facebook a public place? I understand why we should not spit in public places because saliva carries so many germs, but was the bylaw enacted before chewing tobacco became a thing of the past?  Was the ban on spitting enacted to protect human health, or to prevent unsightly sidewalks from gobs of yellow spit? What about runners and cyclists who regularly spit during rigorous physical exertion?  Were runners and cyclists even envisioned when spitting in public places was banned? Can they still be fined if they are “caught” spitting on the run?

Our laws reflect who we are as a people, where we have come from and how we have evolved and adapted over time.  So how does the rule of statutory interpretation that the law is always speaking, as enshrined in Canada’s and Alberta’s Interpretation Act, reflect the climate of change in which we live? How does this rule help us settle our disputes in real time when words used in the 1800s and 1900s have completely different meanings today?