Context

• Author: John Mark Keyes/Wendy Gordon
• Pages: 113-130

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Context

When people speak to each other, they often share a common under-

standing about the subject of their conversation. is allows them

to speak in an elliptical manner without having to state some of

the details of the subject matter they are discussing. ey can also

clarify their understanding with questions and comments.

Legislation is more limited in terms of the context that can be

relied on when conveying meaning. It also involves a much more

formally constrained form of communication between one group

of people (legislators) and another (those to whom the legislation

applies). Achieving a shared understanding among so many people

is more challenging. ere is also no opportunity for those aected

by the legislation to ask legislators questions to clarify the mean-

ing. As noted above, legislators have no role in the application of

legislation. It must speak for itself. But it nevertheless speaks within

certain contextual features that play an important role in under-

standing and applying it.

Several types of context have a bearing on the interpretation of

legislation. is section considers them under the following headings:

• Immediate Legislative Context

• Broader Legislative Context

DRAFTING, INTERPRETING, AND APPLYING LEGISLATION

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• Other Laws and Legal Principles

• External Context

Immediate Legislative Context

Legislative context consists of things of a legislative nature. It f‌irst

and foremost includes the words surrounding those being inter-

preted as well as other provisions of the same legislation and dele-

gated legislation made under it. Some of these provisions make

statements about the purposes of the legislation and, as noted above,

are relevant to determining what these purposes are. is context

is accessible to everyone who has access to the legislative text and

is reinforced by the maxim that ignorance of the law is no excuse.

Legislative context includes features (also called components)

such as tables of contents, headings, notes, numbering, and punctu-

ation that are published with legislative provisions. ey are added

to help readers understand and apply the legislation and can be very

useful in appreciating the “Act as a whole” (its scheme and struc-

ture) and navigating around it to f‌ind the provisions that apply to

a particular situation. Courts have repeatedly stressed the need to

consider this context.

Together, these provisions and features form the basis for draw-

ing textual inferences or determining legislative purposes, as dis-

cussed above. For example, tautology can arise only when another

provision is found to say the same thing as the one being inter-

preted. By the same token, headings and notes are often framed in

terms of purposes.

Although these provisions and features inf‌luence the interpret-

ation and application of legislation, they do not all have the same

inf‌luence. e provisions of the legislation (including preambles

and titles) have the most inf‌luence because legislators have delib-

erated on and enacted them. Other features, such as headings and

notes, have historically been added by publishers after the legislation

has been enacted. Because they are not “enacted” by the legislators,

they have had less inf‌luence. Procedural rules have also reinforced