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Torkin Manes LegalWatch
Sep 21, 2020

How do Canadian Courts Determine a Statute’s Purpose? The Role of “Soft Law”

By Marco P. Falco
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One of the key factors a Court has to take into account when interpreting legislation is the Act’s purpose. 

But how is that purpose ascertained? While Legislative debates in the form of Hansard may provide some guidance, those debates are often haphazard or do not exist at all. In these cases, where does the Court turn?

A recent decision of the Ontario Superior Court, Blackwell v. Genier, 2020 ONSC 1170, illustrates the role government policies, brochures and pronouncements, also known as “soft law”, play in glossing Legislative intent.

A War on the Waters

Blackwell involved a dispute between owners of recreational properties along Silver Lake in Cochrane, Ontario.

The applicants owned five parcels of land along most of the lakebed. 

Over the years, there was an oral agreement between the neighbours that mutual access would be allowed throughout the lake. The use of motorized vehicles on the lake, however, would be limited to protect the lake’s integrity.

When the respondents purchased a property along Silver Lake, they began to use jet skis on it. The applicants protested. A dispute arose.

In 2019, the Government of Canada enacted a new Canadian Navigable Waters Act, R.S.C. 1985, c.N-22 (the “Act”). One of the apparent purposes of the Act was to protect the recreational use of “navigable waters” in Canada and prevent attempts to interfere with that right. Included in the Act was a new definition of “navigable water”.

When the dispute between the applicants and respondents could not be resolved, the applicants sought an injunction to prevent the respondents from trespassing on their part of Silver Lake.

The applicants argued that the definition of “navigable waters” in the Act expanded the bodies of water over which Canada had supervision, but did not establish a right to navigate waters at common law. 

The respondents countered that the definition of “navigable waters” in the Act was expressly altered and that it expanded the common law definition. According to the respondents, the Government intended to protect the recreational use of all navigable waters in Canada and to prevent others from interfering with that right.

The issue the Court had to decide was whether the definition of “navigable water” was the one that applied in this case. The Court held that it did.

Divining a Statute’s Purpose

The Court’s analysis of the Act in Blackwell was based on the standard “purposive” approach to statutory interpretation cited in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, quoting Elmer Driedger, Construction of Statutes, 2nd ed. (Toronto:  Butterworths, 1983): 

The words of a statute are to be read in their entire context, grammatical and ordinary sense, harmoniously with the scheme of the Act, its object, and the intention of Parliament.  

The three-stage approach to statutory interpretation is as follows:

The purposive approach require[s] the judge to first consider the ordinary meaning of the word or words being interpreted;  next, the context in which the words are found and the purpose of the legislation; and then, whether the proposed interpretation produced a just and reasonable result.

To determine Parliamentary intention with respect to the Act in this case, the Court, in engaging the three-part test above, turned to various “soft law” documents published by the Government of Canada prior to and after the Act’s enactment. 

The Court relied on:

  • a Government of Canada document, updated in August, 2017, entitled “Open, accessible and transparent processes”. This document indicated that Transport Canada intended to “clarify the criteria used for the aqueous highway test to determine whether water is navigable”;
  • a Government of Canada handbook, “The Canadian Navigable Waters Act”, modified in February, 2018, which suggested that the new Act would “restore lost protection so that recreational boaters can continue to travel Canada’s vast network of…lakes…for years to come”. The purpose of the Act would be to protect the public right of navigation on all navigable waters in Canada”;
  • a Government of Canada document, “Protecting Canada’s navigable waters”, last modified in February, 2018, which provided that the new Act would modify the navigability test from the common law test to a new, more comprehensive definition of “navigable water”; and
  • a Government of Canada document, dated November 19, 2019, “Works on navigable waters in Canada” which provided that the public’s right to travel on navigable waters in Canada applied to all waters that the public “may use for travel or transport”.

Applying the theme of these “soft law” documents, i.e. that the Act intended to expand the definition of “navigable water” at common law, the Court concluded that the Act could very well be used in cases where a party was seeking to “affect, restrict or interfere” with a person’s right to navigate water. 

The Court held:

Having read the [Act], having compared it to the previous legislation…and having considered the various documents published by the Government of Canada regarding the [Act], I find that the intention of Parliament in enacting the [Act] is clear. Parliament intended to protect the navigation rights of Canadians on more bodies of water by adopting a new and more comprehensive definition of “navigable water”.

The Use of “Soft Law” to Determine Legislative Intent:  Is it a Problem?

There is nothing new to the Court’s approach in Blackwell. Like many before it, the Court relied on “soft law” to understand the legislative meaning and purpose of the new Act.

Reliance on “soft law”, however, is not a panacea for the problems associated with statutory interpretation. 

While the result in Blackwell is more than reasonable, interpreting a statute in accordance with government publications, which may or may not be published by those who enacted the legislation itself, may not be the best way to determine legislative purpose. 

After all, government publications are ever-changing, immune from Legislative debate, and may only reflect a statutory purpose at one particular moment in time. They are likely written by bureaucrats, not legislators, and may or may not reflect social norms at the time of publication. 

Without being subject to legislative scrutiny, they are arguably an untested source of Parliamentary intent. Moreover, “soft law” documents may not account for subsequent revisions and changes to the statute resulting from the Legislative process itself. They may be frozen in time. In this sense, they may not be entirely reliable.

Because Blackwell concerned the meaning of “navigable waters” in a statute, nothing more than property rights was at stake. But one could envision scenarios where the use of “soft law” to interpret human rights legislation, criminal law or quasi-constitutional statutes could have serious implications.

This is not to suggest that an outright ban on “soft law” publications as an aid to statutory interpretation is necessary. To the contrary, they proved extremely helpful in Blackwell

Rather, in applying the purposive approach to statutory interpretation, Canadian Courts should be cautious about the disadvantages of relying exclusively on “soft law”. Legislative intent must be assessed as a whole, using the scheme of the Act, other relevant legislation, Hansard, and of course, the language of the statute itself.