Extrinsic Aids

• Author: Ruth Sullivan
• Profession: Faculty of Law, University of Ottawa
• Pages: 279-302

279

CHAP TER 14

EXTR INSIC AIDS

A. I NTRODUC TION

Courts sometimes rely on materials called “extrinsic aids” when in-

terpreting legislat ion. There is no exact def‌inition of this ex pression.

Historically, it referred to anyt hing outside the legislative text of which

judicial notice could not be taken. Some ext rinsic aids were considered

inadmissible; others could be looked at only if the text itself was am-

biguous. Over the past centur y, the courts have moved from a reluc-

tance to look at extrin sic aids to ever-increasing acceptance of these

materials. However, the rules govern ing their admissibility and use are

not as clear as one might wish. Not all ext rinsic aids a re treated the

same way, and it is not always clear whether a given aid may be relied

on in the absence of ambiguity.

Most lists of extr insic aids would include the following:

1. Legislative history—materia ls generated in the course of enacting

bills or making reg ulations: Anythi ng that is prepared to facili-

tate the passage of legi slation forms part of its legislative history.

This includes any material brought to the attention of the legi sla-

ture during the enact ment of a bill, regardless of source, as well

as materials prepared by the government for public consumption.

In the case of regul ations, legislative hi story consists of materials

considered by the executive branch or prepared by it to justify and

explain proposed regulations.

STATUTORY INTERPRETATION280

2. Model legislation: In preparing new enact ments, a legislature some-

times relies on model legisl ation created by bodies like the Uniform

Law Conference of Canada or Law Reform Commi ssions. Often the

legislature draw s on statutes from other jurisdictions faci ng similar

problems. These legislative models m ay be adopted in whole or in

part, with mi nor or major changes. Formerly, Canadian drafters

tended to model bills on British st atute law. More recently, particu-

larly in the commercial are a, Canadian leg islation is more likely

to follow Americ an exa mples. Occa sionally, legislation is b ased on

European or Commonwealh law or international law instruments.

Both the model legislation itse lf and case law interpreting it may be

relied on in interpretation.

3. Legi slative evolution—the previous and subsequent versions of

the provision to be interpreted: The previous and subsequent ver-

sions of a provision form its legi slative evolution, beginning w ith

the f‌irst enactment followed by subsequent re-en actments and

amendments to f‌inal repe al. Each version is compared with the one

that preceded it, noting any changes a nd classifying them as either

stylistic or subst antive.

4. International agreements: International treaties and conventions

that have been signed a nd ratif‌ied by Canada may or may not have

been implemented by the relevant juri sdiction, federal or provi n-

cial, so as to make them part of domestic law. When legislation is

enacted to give domestic effect to an international agreement, the

agreement to be implemented is considered an extrinsic aid th at

may be relied on in interpretation.

5. The opinion of other interpreters: The opinion of other courts and

tribunals concerning the meani ng or purpose of a legislative text

has always been an i mportant aid to statutory interpretion. Al-

though case law is not normally labelled “extrinsic,” it is obviously

external to the tex t to be interpreted. This category also includes the

opinion of legal scholars and of government department s and agen-

cies, along with the pract ice of off‌icials who administer the law.

B. LEGISLATIVE HISTORY

1) Legislative History Def‌ined

The materials that may be included in the legislative h istory of an en-

actment have not been identif‌ied with preci sion. The concept appears

to embrace everything connected to the preparation and pas sage of