Week 13

Lesson objectives for this week

As previously noted, the drafter operates within a “legal cage” of constraints. These constraints include the ministry’s instructions, the constitution, the Interpretation Act, and the subject of the B Stream Session this week - the rules of statutory construction that guide judges in their search for interpretation.

A drafter must draft with an “eye on the judges”. This means being aware of the factors likely to influence how a judge will construe a statute in the event of opposing claims about how the statute should be interpreted. Although some judicial “rules” of construction (or interpretation) provide contradictory indications about how a statute should be interpreted, appreciation of these interpretative devices will assist the drafter in ensuring that the statute’s true purpose is realized.

Assignments

• Read Manual, Part III, Chapter 11 (pp. 279-302); and Review Chapter 5, pp. 160-162.
• Listen to tape B-11, and do the exercises in Study Guide for Stream B.
• E-mail to your editor and to the course participants:

• a draft of your bill’s provisions (if any) concerning making regulations (i.e. subsidiary legislation), especially, the criteria and procedures for making them,
• if your bill contains any, a draft of the transitional provisions in your bill (see Manual, p. 335), and
• your answers to the Stream B exercises.

• Discuss with your group the implications of the audio-presentations on issues related to drafting within the Constitution and other limits. In particular, consider presumptions about language, penumbral issues, and subsidiary legislation.
• Optional: E-mail to the course participants your comments, questions, or suggestions relating to issues related to drafting within the Constitutions and other limits.