Keith Mack
The concept of applying laws retrospectively is a complex and controversial topic in the legal field, with varying approaches across different jurisdictions. In some cases, laws may be applied retrospectively, meaning they are used to address cases or situations that occurred before the law was enacted. While this practice is generally discouraged, it can occur under specific circumstances, such as when the legislature explicitly intends for retroactive application. The potential for retrospective legislation raises questions of fairness, as individuals should have fair notice of the consequences of their actions under the law. This principle is reflected in various legal instruments, such as the American Convention on Human Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms, which aim to protect individuals from the retroactive application of laws.
| Characteristics | Values |
|---|---|
| Residual rights | Apply under section 7 of the Charter in situations where life, liberty, or security of the person is at stake |
| Common law interpretive presumptions | Against retrospective and retroactive operation of statutes and against interference with vested rights |
| Constitutional restrictions | No general restriction against legislative retrospectivity or retroactivity |
| Purpose | Ensure citizens are able to foresee the consequences of their conduct so as to be given fair notice of what to avoid, and to limit the penal law discretion of the state |
| Applicability | Should not be considered for cases that arose before their passage unless the legislature has declared such intention |
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![An Essay on the Constitutional Prohibitions against Legislation Imparing the Obligation of Contracts and against Retroactive and Ex Post Facto Laws / by Henry Campbell Black 1887 [Leather Bound]](https://m.media-amazon.com/images/I/617DLHXyzlL._AC_UY218_.jpg)
What You'll Learn
Common law interpretive presumptions against retrospectivity
The common law interpretive presumptions against retrospectivity are an important aspect of legal systems in various jurisdictions, including Australia and Canada. These presumptions play a crucial role in safeguarding individuals' rights, freedoms, and immunities from the retroactive application of laws.
In Australia, the common law presumption against retrospectivity is recognised alongside the Principle of Legality. This principle asserts that Parliament does not intend to infringe upon fundamental common law protections, except through clear and unambiguous language. The presumption against retrospectivity ensures that laws are certain, ascertainable, and not arbitrarily changed retrospectively. This presumption is reflected in interpretation Acts across federal, state, and territory jurisdictions, particularly concerning statutory rights.
Australian courts generally adhere to the presumption against retrospectivity, but they also acknowledge the authority of State and Commonwealth Parliaments to enact retrospective laws. To validate such laws, two qualifications must be met: adherence to the Principle of Legality, expressing retrospective intention in clear and unambiguous language, and parliamentary scrutiny to safeguard human rights.
In Canada, the Supreme Court has employed interpretive principles to rule against legislative interpretations that would allow for the retrospective limitation of defences. Section 11(g) of the Charter, for instance, addresses retroactive offences and ensures citizens can foresee the consequences of their actions under the law. Additionally, residual rights under Section 7 of the Charter may apply in situations involving life, liberty, or security of the person. Common law interpretive presumptions against retrospectivity exist but can be overridden by explicit terms of legislation.
The application of common law interpretive presumptions against retrospectivity varies in weight and can be displaced by explicit legislative terms or necessary implications. Nevertheless, they serve as a crucial safeguard against the arbitrary retroactive application of laws, reinforcing the principle that individuals should have fair notice of the legal consequences of their actions.
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Section 11(g) of the Charter and retroactive offences
In general, there is no constitutional restriction on applying the law retrospectively. However, there are certain exceptions and limitations to this rule, which are outlined below.
Section 11(g) of the Charter is a provision that specifically addresses retroactive offences. It has been interpreted by the Supreme Court of Canada to prevent the retrospective limitation of a defence. In R. v. Dineley ([2012] 3 S.C.R. 272), the Court ruled against a legislative interpretation that would have allowed for a retroactive restriction of a defence, relying on interpretive principles of temporal application.
The Federal Court of Appeal has also considered Section 11(g) in cases involving the retroactive insertion of conditions into regulatory statutes. In Front Commun, the Court ruled that retroactive insertion of a condition would violate Section 11(g) if the violation of the regulatory provisions was also made an offence under the statute. This ruling suggests that Section 11(g) does not preclude reliance on evidence from before an offence was established in law, as long as the act or omission for which the conviction is obtained took place when the offence existed.
There is relatively little jurisprudence on Section 11(g), and issues related to retroactive offences requiring examination under this section appear to be less common than those related to temporal application of punishment changes analysed under Sections 11(h) and 11(i). One leading case is R. v. Finta ([1994] 1 S.C.R. 701), where changes to the Criminal Code extending Canadian jurisdiction over war crimes and crimes against humanity were challenged under Section 11(g). The Supreme Court justices were divided on the issue, with three forming the majority judgement.
In addition to Section 11(g), other sections of the Charter, such as Sections 11(h) and 11(i), also address retroactivity. Section 11(i) provides for the lesser punishment if the punishment for an offence has been varied between the time of commission and sentencing. Section 11(h) has been interpreted as restricting retrospective changes to the conditions of the original sanction that increase the punishment received. Residual rights in respect of the retroactive or retrospective application of law may also be protected under Section 7 of the Charter when life, liberty, or security is at stake.
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Retrospective changes to determining inadmissibility
The general consensus is that laws should not be applied retrospectively, as individuals should be able to know the law and order their affairs accordingly. However, there are instances where laws are applied retrospectively, and this has been a topic of discussion in immigration law.
In the context of determining inadmissibility, there have been several cases where retrospective changes have been considered or applied. One such case is Tran v. Canada, where the Supreme Court of Canada addressed the issue of retrospectivity and admissibility. Mr. Tran, a permanent resident, was convicted of an offence with a maximum term of imprisonment of seven years at the time of sentencing. The maximum sentence was later increased to ten years, which is the threshold for inadmissibility for permanent residents. The government argued that Mr. Tran was inadmissible based on the updated maximum sentence when the admissibility report was prepared. The Supreme Court ruled against the government, stating that Mr. Tran could not have known that his actions might lead to deportation when he committed the offence.
In another case, Patel v. Canada, Justice Mosley dealt with retrospective changes to the minimum necessary income requirement for sponsoring parents or grandparents. The income requirement had increased between the time of application and the appeal hearing. Justice Mosley agreed with the Supreme Court of Canada's interpretation, stating that the right to appeal is only "acquired" or "accrued" when the court of appeal makes its judgment.
A similar case, Sran v. Canada (Citizenship and Immigration), considered retrospective changes to the Immigration and Refugee Protection Regulations. The applicant's sponsorship application for permanent residence was received in 2008, but the regulations were amended in 2014 before the application was heard. The question arose as to whether the amended regulations should be applied retroactively.
In Gill v. Canada, Ms. Gill applied to sponsor her spouse, and the law at the time stated that a marriage was eligible for spousal sponsorship if it was genuine or if its primary purpose was not immigration. After she started the appeal process, the law changed to require that a marriage be both genuine and not entered into primarily for immigration purposes. The Immigration Appeal Division applied the new law, and Chief Justice Crampton upheld this decision, acknowledging the troubling outcome.
These cases illustrate the complexities and challenges that arise when determining inadmissibility in the context of retrospective changes to immigration laws and requirements. While there are principles in place to protect individuals, such as the right to foresee the consequences of their actions, the interpretation and application of these principles can vary, leading to uncertainty and potential unintended consequences.
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Retrospective changes to spousal sponsorship applications
The general consensus is that laws should not be applied retrospectively, as this would mean that citizens are unable to foresee the consequences of their actions and plan accordingly. However, there are some situations in which retrospective laws may be applied, particularly in situations where life, liberty, or security are at stake.
In the context of spousal sponsorship applications, retrospective changes can be made to the forms and fees required for the application. For example, if an application is returned due to incompleteness, the applicant must re-submit the most recent version of the forms and ensure that the fees have not changed.
In terms of the specific requirements for spousal sponsorship, there is some uncertainty regarding retrospective changes. In the case of Patel v. Canada, Justice Mosley found that an individual who had applied to sponsor her spouse could be subject to an increased minimum income requirement that was implemented between the time of her application and the time of the appeal hearing. However, in McDoom v. Canada, the Court found that there are no rights that may be retroactively or retrospectively affected by a change in the test applicable to spousal sponsorship applications.
Given the complexity of spousal sponsorship applications and the potential for retrospective changes, it is recommended that applicants seek the assistance of a qualified immigration lawyer to ensure their application is correct and up-to-date.
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The legislature's intention for retrospective laws
The legislature must also justify the necessity of retrospectivity and illustrate a detailed and transparent scrutiny process prior to its adoption. This scrutiny process ensures that those making retrospective laws do so deliberately and are held accountable for them. While most scrutiny occurs within parliament, there are external avenues for review as well.
Retrospective laws should be made sparingly and, if required, with adequate oversight and scrutiny. This is because retrospective laws can potentially affect accrued or accruing rights. For example, in McDoom v. Canada, the Chief Justice distinguished between someone who had done work and was entitled to payment, and an applicant with no more than a hope that their application would be successful.
To ensure the validity of retrospective laws, the legislature may make a law that is in operation for a limited period before the date of the legislation giving retrospectivity. This means that the new retrospective legislation will override the old legislation and be treated as if it had always been in place.
In conclusion, the legislature's intention for retrospective laws must be clearly expressed, justified, and subject to thorough scrutiny to uphold the rights and liabilities of citizens and maintain their confidence in these institutions.
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Frequently asked questions
Retrospective laws are those that come into force retrospectively, i.e. they apply to a period of time that occurred before the law was passed.
Retrospective laws are controversial because they can be seen as unfair, as they change the consequences of an action after it has been taken. This can be seen as a violation of the principle of fair notice, which states that citizens should be able to foresee the consequences of their actions.
Yes, there are often legal and constitutional restrictions on the use of retrospective laws. For example, in Canada, Section 11(g) of the Charter provides protection against retrospective changes to the law that would increase the punishment for an offence.
Generally, laws should not be applied retrospectively to cases that occurred before their passage. However, there may be exceptions if the legislature explicitly states that this is their intention.
Retrospective laws have been used in immigration and sponsorship cases in Canada. For example, in Patel v. Canada, a change in the minimum income requirement for sponsoring parents was applied retrospectively, affecting individuals who had applied before the change.
