Lecture notes - Presumptions - interpretation PDF

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Presumptions Introduction Statutory constructions is inextricably involved with jurisprudential phenomenon, putatively designated as the presumption of interpretation. Presumptions are Common law guidelines & principles employed to assist the courts.  Hahlo & Kahn presumptions apply “where uncertainty prevails after invocation of the objective primary and secondary rules of construction.

 Cross-certain presumptions are of general application  But Driedger when explaining the role and function of presumption –

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“These are firmly incorporated in our jurisprudence and should always be kept in mind in construing statutes…..and not only to those that are found to be defective. Every statute involves language, a legislative scheme, and a declared and presumed intention of Parliament.”

Du Plessis presents 3 possibilities 1. Presumptions are tertiary or ‘last resort” sources. 2. Presumptions always qualify the provisions of a statue 3. “the presumptions are the ABCs as well as the XYZs’ of statutory interpretation and that interpretation should therefore ‘both begin and end with …..presumptions’”

Devenish-third view has been adopted •

Presumptions of general application –

These presumptions apply although there is no question of linguistic ambiguity in the statutory wording.

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Promotion of brevity

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Fundamental principles governing the civil liberties and relationship between the organs of the government

Rebuttable by only express word Pearce : presumptions are recognizable principles that the Parliament is expected to respect. ???-Legal, linguistic and jurisprudential indications PI shed light on the nature of the interpretative process as well as the symbolic relationship which exists between common law and statute law The presumption of interpretation are dynamic jurisprudential phenomenon that have evolved and continue to evolve out of judicial interpretation, they do not therefore constitute to a numerous clausis but, as Du Plessiss comment, they serve as basic guidelines through out the process of interpretation.

Cross •

Presumptions of general application 

These presumptions apply although there is no question of linguistic ambiguity in the statutory wording.

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Promotion of brevity

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Fundamental principles governing the civil liberties and relationship between the organs of the government

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Rebuttable by only express words

Presumptions for use in doubtful cases Generally legislation is presumed not to: –

Operate retrospectively

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Bind the Crown

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Have extraterritorial effect

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Violate rules of international law

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Alter common law doctrines / invade common law rights

THE LEGISLATURE DOES NOT INTEND TO ALTER THE EXISTING LAW MORE THAN IS NECESSARY...