Extrinsic Aids to Statutory Interpretation: Other Sources
| Author | Susan Barker, Erica Anderson |
| Pages | 112-148 |
112
chapter six
Extrinsic Aids to Statutory Interpretation:
Other Sources
A. THE USE OF EXTRINSIC AIDS IN THE COURTS
It should be noted that the intent of a government is not the same as
legislative intent, but as Suivan notes in the Construction of Statutes,
government policy is oen the impulse and the author of legislation.1 In
2012, Magyar noted that Canadian lawyers are looking beyond Hansard
to locate additional resources to them to help support their argument.2
However, Hansard is used to buress the credibility of other extrinsic
resources, as the courts give more weight to the government policy
materials if they are specicay mentioned in the Hansard debates on
a particular bi.
In the 2008 Supreme Court of Canada decision, Tele-Mobile Co v
Ontario,3 Tele-Mobile wanted an exemption under the Criminal Code that
would result in compensation for the company for their eorts to pro-
duce data and documents to aid criminal investigations. Tele- Mobile
claimed that producing data to aid police investigation constituted
undue hardship and they argued that they should be compensated for
this work to produce the documents for the investigative process.
1 Ruth Suivan, Suivan on the Construction of Statutes, 5th ed (Markham, ON: Lexis-
Nexis Canada, 2008) at 614.
2 John James Magyar, “Evolution of Hansard Use at the Supreme Court of Canada: A
Comparative Study in Statutory Interpretation” (2012) 33:3 Statute Law Review 363.
Chapter Six: Extrinsic Aids to Statutory Interpretation: Other Sources 113
During this case, the Court reviewed years of government and
telecommunications industry consultation, including Department
of Justice discussion papers, consultation documents, a news release,
and a summary of submissions to a parliamentary commiee, to shed
light on the circumstances surrounding the claimed undue hardship
of producing documentation in order to aid police investigations.
Examining the history of government interaction with the telecom-
munications industry through these documents, the Court noted
that the ongoing conversation between government and the telecom
industry indicated that the government was aware of the compensa-
tion issues, so the Court concluded that the silence in the legislation
regarding exemption and compensation for telecommunications
companies was intentional.
B. EXTRINSIC AIDS TO STATUTORY INTERPRETATION
OTHER SOURCES: GOVERNMENT POLICY PAPERS
ere are many techniques and documents that governments employ
to state their policy or view on an issue. e issues under consider-
ation could be anything that touches citizens’ lives including crime,
trac, business, agriculture, health, etcetera. Policy papers vary from
a broad overview of a topic, such as a report on health care reform, to
the specic, such as a press release on sh farming methods. Docu-
ments that explain a government’s policy could go by many dierent
names. Common types of documents that describe a government’s
policy and/or reasons for that policy include white papers, green
papers, policy papers, consultation documents, studies, sessional
papers, press releases, backgrounders, ministerial speeches, pamph-
lets, annual reports, business brieng books, estimates, and other
things. is denition should not be limited to particular documents
because over time dierent governments choose to express their
policy in dierent types of documents.
Policy papers are generay not ocial legislative documents pro-
duced through the legislative process, but they may become part of
the process by being tabled in the House as sessional papers for dis-
cussion or submied to parliamentary commiees as evidence.
114 Researching Legislative Intent
1) White Papers
e term “white paper” comes from Britain, when government policy
papers that were too sma to be bound with a hard, blue cover, which
large government reports were issued in, were bound in white.4 Today
in Canada the term white paper is commonly used for ocial docu-
ments presented by ministers that explain the government’s policy
on an issue. While white papers may be approved by Cabinet and
tabled in the House, they may also be subject to further changes.5 Now
there appears to be less concern with the colour of the document but
the characteristics of these policy documents remain. ey contain a
report or document or language explaining the government’s policy
position on a particular issue.
White papers have long been admissible as evidence of legislative
intent, even as far back as 1975 when Laskin CJ used the federal gov-
ernment’s white paper, “Aack on Ination,” to assist in determining
the intent of the 1975Anti-Ination Act:6
In order to determine whether the legislation here in question was
enacted to combat such an emergency, it is necessary to examine
the legislation itself, but in so doing I think it not only permis-
sible but essential to give consideration to the material which Par-
liament had before it at the time when the statute was enacted for
the purpose of disclosing the circumstances which prompted its
enactment. e most concrete source of this information is, in my
opinion, the White Paper tabled in the House by the Minister of
Finance and made a part of the case which was submied on behalf
of the Aorney General of Canada.7
4 Parliament of Canada, “White Papers: Introduction,” online: PARLINFO
hps://web.archive.org/web/20151216094241/www.parl.gc.ca/Parlinfo/pages/
WhitePapers.aspx.
5 See various denitions of white papers at Parliament of Canada, “White Papers,
Appendix,” online: PARLINFO hps://web.archive.org/web/20151216152750/
www.parl.gc.ca/ParlInfo/Pages/WhitePapersAppendix.aspx.
6 Anti-Ination Act, SC 1974–75–76, c 75.
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