Interpreting Legislative Amendments

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2021. (Rev. # 85823)

General Principles

See also: List of Legislative Amendments
Presumption of Intention

Amendments are presumed to be made for an "intelligent purpose" such as "clarifying or correcting a mistake in the enactment or change in the law."[1]

Retroactive and Retrospective Laws

A "retroactive" law is an amendment that changes the interpretation of the law as it would have been applied prior to the existence of the amendment.[2] A "retrospective" law is an amendment that applies only from the date of enactment but changes the legal effect of events occurring prior to the enactment.[3]

  1. R v AA, 2015 ONCA 558 (CanLII), 327 CCC (3d) 377, per Watt JA, at para 69 ("when a statute is amended by the legislature, we presume that the amendment was made for an intelligible purpose, such as clarifying or correcting a mistake in the enactment or change in the law: ... . Section 45(2) of the Interpretation Act, ... makes it clear that an amendment is not deemed to involve a declaration that the pre-amendment law was or was considered by Parliament to be different from the post-amendment law.")
    Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (LexisNexis, 2008), at p. 579
    see also s. 45(2) of the Interpretation Act
  2. e.g. R v RS, 2019 ONCA 906 (CanLII), OJ No 5773, per Doherty JA, at paras 21 and 25 ("Retroactive laws refer to legislation that deems the law to have been something different than it actually was as of a date that precedes the enactment of the law. Truly retroactive laws are rare and commonly target a specific situation with language aimed at addressing a very specific problem.")
  3. RS, ibid., at paras 23, 26 ("Retrospective laws operate only from the date of enactment, but change the legal effects, on a going forward basis, of events that occurred before the enactment.")

Application of Previous Laws

Amendments generally only have retrospective effect in exceptional circumstances. As there is a presumption against retrospectivity where a vested or substantive right is affected.[1]

Presumption of Prospectivity

Where an amendment interferes with substantive rights, there is a rebuttable presumption that it applies prospectively only.[2]

Constitutional rights

Where an amendment to legislation affects a constitutional right, it generally means that the legislation will not be retrospective.[3] This is preferred over the older method of looking at whether the legislation is "procedural" or "substantive."[4]

Substantive Law Amendments

Where there has been an amendment to substantive law, only the law as it existed on the dates of the offence will govern at a trial occurring after the date of the amendment.[5]

Procedural Amendments

New legislation that is "designed to govern only the manner in which rights are asserted or enforced" is procedural and "does not affect the substance of those rights." The act then would apply to both "pending and future cases."[6]

Effect of Amendment on Available Defences

An amendment that has an effect on the content or existence of an available defence suggests is an indicator that it affects substantive rights, and so is not retrospective.[7]

Such an amendment of a substantive right will be retrospective only where there is "clear legislative intent" that the new provision applies retrospectively.[8]

  1. R v Dineley, 2012 SCC 58 (CanLII), [2012] 3 SCR 272
  2. R v RS, 2019 ONCA 906 (CanLII), OJ No 5773, per Doherty JA, at para 27
  3. Dineley, ibid.
  4. Dineley, ibid.
  5. R v Zhu, 2019 ABPC 74 (CanLII), per Cummings J
    R v KRJ, 2016 SCC 31 (CanLII), 337 CCC (3d) 285, per Karakatsanis J
    R v Clarke, 2014 SCC 28 (CanLII), per Abella J
    Dinely, supra
  6. Dineley, ibid., at para 10
  7. Dineley, ibid. - removal of Carter defence creates presumption against retrospectivity
  8. R v Singh, 2016 ONSC 3739 (CanLII), 131 WCB (2d) 140, at para 44
    Dineley, supra, at para 10

Effect of Increased Penalties

An increase in a maximum penalty is a "clear indication to sentencing courts of the seriousness which the criminal conduct addressed by the changes is viewed by contemporary society."[1] The increase should be respected by sentencing judges by imposing higher sentences than before.[2]

There is some concern that the increase of minimum penalties should not be read into "too much."[3]

  1. R v Richardson, [2006] EWCA Crim 3186(*no CanLII links) , at para 4
  2. R v Friesen, 2020 SCC 9 (CanLII), 391 CCC (3d) 309, per Wagner CJ and Rowe J, at para 100 ("To respect Parliament’s decision to increase maximum sentences, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences. ... Parliament’s view of the increased gravity of the offence as reflected in the increase in maximum sentences should be reflected in [translation] “toughened sanctions” ... Sentencing judges and appellate courts need to give effect to Parliament’s clear and repeated signals to increase sentences imposed for these offences.")
  3. R v WE, 2010 NLCA 4 (CanLII), (2010) 251 CCC (3d) 213
    see also Maximum and Minimum Sentences

Effect on Previous Ongoing Proceedings

Where the law is changed in a manner that is procedural in nature, it applies to all matters regardless of the offence date. A change in the law that removes or adds a right will only apply to offences that post-date the amendment.[1]

It is "not generally in the public interest to delay trials simply on the basis that a pending action in the higher courts might have some effect on the trial."[2]

  1. R v Wildman, 1984 CanLII 82 (SCC), [1984] 2 SCR 311
    See also: R v Bickford, 1989 CanLII 7238 (ON CA), 51 CCC (3d) 181
  2. R v Baker, 1994 CanLII 4153 (NSCA), [1994] NSJ 135 (NSCA)

Effect of Repealing Law

Effect of repeal

43. Where an enactment is repealed in whole or in part, the repeal does not

(a) revive any enactment or anything not in force or existing at the time when the repeal takes effect,
(b) affect the previous operation of the enactment so repealed or anything duly done or suffered thereunder,
(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed,
(d) affect any offence committed against or contravention of the provisions of the enactment so repealed, or any punishment, penalty or forfeiture incurred under the enactment so repealed, or
(e) affect any investigation, legal proceeding or remedy in respect of any right, privilege, obligation or liability referred to in paragraph (c) or in respect of any punishment, penalty or forfeiture referred to in paragraph (d),

and an investigation, legal proceeding or remedy as described in paragraph (e) may be instituted, continued or enforced, and the punishment, penalty or forfeiture may be imposed as if the enactment had not been so repealed.
R.S., c. I-23, s. 35.

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Note up: 43

Repeal and substitution

44. Where an enactment, in this section called the “former enactment”, is repealed and another enactment, in this section called the “new enactment”, is substituted therefor,

(a) every person acting under the former enactment shall continue to act, as if appointed under the new enactment, until another person is appointed in the stead of that person;
(b) every bond and security given by a person appointed under the former enactment remains in force, and all books, papers, forms and things made or used under the former enactment shall continue to be used as before the repeal in so far as they are consistent with the new enactment;
(c) every proceeding taken under the former enactment shall be taken up and continued under and in conformity with the new enactment in so far as it may be done consistently with the new enactment;
(d) the procedure established by the new enactment shall be followed as far as it can be adapted thereto
(i) in the recovery or enforcement of fines, penalties and forfeitures imposed under the former enactment,
(ii) in the enforcement of rights, existing or accruing under the former enactment, and
(iii) in a proceeding in relation to matters that have happened before the repeal;
(e) when any punishment, penalty or forfeiture is reduced or mitigated by the new enactment, the punishment, penalty or forfeiture if imposed or adjudged after the repeal shall be reduced or mitigated accordingly;
(f) except to the extent that the provisions of the new enactment are not in substance the same as those of the former enactment, the new enactment shall not be held to operate as new law, but shall be construed and have effect as a consolidation and as declaratory of the law as contained in the former enactment;
(g) all regulations made under the repealed enactment remain in force and are deemed to have been made under the new enactment, in so far as they are not inconsistent with the new enactment, until they are repealed or others made in their stead; and
(h) any reference in an unrepealed enactment to the former enactment shall, with respect to a subsequent transaction, matter or thing, be read and construed as a reference to the provisions of the new enactment relating to the same subject-matter as the former enactment, but where there are no provisions in the new enactment relating to the same subject-matter, the former enactment shall be read as unrepealed in so far as is necessary to maintain or give effect to the unrepealed enactment.

R.S., c. I-23, s. 36.

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Note up: 44

The reference to "incurred" has the same meaning as "to render oneself liable to", "to bring upon oneself", or to be "subject to."[1]

Repeal of Offences

It appears that there is an ability to continue a prosecution for an offence that was repealed in law, so long as the conduct making up the offence was completed before the amendment and the time limitations have been complied with.[2]

  1. R v Allan, 1979 CanLII 3025 (ON CA), 45 CCC (2d) 524, at pp. 529-30
    Smith (Committee of) v Wawanesa Mutual Insurance Co., 1998 CanLII 18861 (ON SC), 168 DLR (4th) 750, per Campbell J
  2. see Re Yat Tung Tse and College of Physicians and Surgeons of Ontario, 1978 CanLII 1646 (ON SC), 18 OR (2d) 546Template:OerONSC
    R v Coles, 1969 CanLII 367 (ON CA), [1970] 1 OR 570, 9 DLR (3d) 65, [1970] 2 CCC 340