Original Meaning

• Author: Ruth Sullivan
• Pages: 114-125

114

CHA PTER 7

OR IGINA L M E A NING

A. THE ORIGINAL ME ANING RULE

It is generally assumed th at the meaning of a legislative text i s stable.

Unless there is a rea son to suppose that the meaning h as changed, the

current understandi ng of legislation is assumed not to differ from the

understanding th at would have prevailed when the legislation was f‌irst

enacted. However, when this assumption is challenged, the courts must

decide whether to insist on the origin al meaning of the legislation, which

is the meaning t he enacting legislature would have had in m ind, or to

adopt the current meaning, which is the meaning relied on by those

whose conduct or interests are currently governed by t he legislation.

In responding to thi s problem, Canadian courts orig inally distin-

guished b etween ordin ary legislation, which (in principle) is easily

amended,1 and constitutional tex ts, which are not. In the interpreta-

tion of ordinary legi slation, on the one hand, the original meaning r ule

prevailed. It assumes th at the meaning of legislation is f‌i xed when the

legislation is f‌irst enacte d, and, once f‌ixed, nothing short of amendment

or repeal can change it. In the interpretation of the Charter and other

constitutional documents, on the other h and, the courts adopted and

continue to adopt a “dynamic” or “organic” approach. Under this ap-

1 In fact, it is often ver y diff‌icult to get amendment s on the legislative agenda,

which tends to be cont rolled by short-term political con siderations.