Plausible Interpretation, Mistakes, and Gaps

AuthorRuth Sullivan
Pages287-306
287
CH A PTE R 17
PL AUSIBLE
INTERPRETATION,
MISTAKES, AND GAPS
A. THE PLAUSIBLE MEA NING RULE
Under the modern principle, the ordinar y meaning of a legislative
text must be read harmoniously with the scheme and purpose of the
Act and the intention of the legislature. However, when the ordinary
meaning of the text support s one interpretation while the purpose or
other evidence of intention supports a different inter pretation, it is not
self-evident how harmony is to be ach ieved. The plausible meaning
rule is an effort to address that issue by putting an outer limit on the
extent to which ordinary meaning may be adjusted to accommodate
aspects of the larger context.
The rule is often expressed in shorthand form. For example, in Can-
ada (Information Commissioner) v Canada (Minister of National Defence),
Charron J wrote, “The Court cannot disregard the actual words chosen
by Parliament and rewrite t he legislation to accord with its own view
of how the legislative purpose could be better promoted.”1 In Saulnier v
Royal Bank of Canada, Binnie J wrote, “We cannot wish away the statu-
tory language however much practical sen se is ref‌lected in the result
reached by the courts below.”2 The following passage from the judg ment
of Lamer CJ in R v McIntosh explains the thinking underlying the rule:
1 2011 SCC 25 at para 40. See also Re: Sou nd v Motion Picture Theatre Associati ons
of Canada, 2012 SCC 38 at para 33.
2 2008 SCC 58 at para 15. See a lso Bernadelli v Ontar io Housing Corp, [1979] 1
SCR 275 at 284.
STATUT ORY INTERPR ETATION288
[T]he contextual approach a llows the courts to depart from the com-
mon grammatic al meaning of words where this i s required by a par-
ticular context , but it does not generally mandate the courts to r ead
words into a statutory prov ision. It is only when words are “reason-
ably capable of beari ng” a particular meani ng that they may be in-
terpreted contextu ally . . . . The Crown is asking this Cour t to read
words into s. 34(2) which are simply not there. In my view, to do so
would be tantamount to ame nding s. 34(2), which is a legislative and
not a judicial function.3
Similar lang uage is found in R v Hinchey, where L’Heureux-Dubé J
wrote:
[T]he effect of [my colleague’s interpretation] is to add an ad ditional
physical and mental e lement to the provision. I would note that this
element is not a feature of Parlia ment’s drafting, but was read into the
section by my colleague.4
. . .
I repeat that judges should not attempt to rew rite a statute under
the guise of inter preting it.5
The notion that courts must determine whether a proposed in-
terpretation is one that a text i s reasonably capable of bearing is also
found in one of the leading cases on statutory interpretation Bell Ex-
pressVu Limited Partnership v Rex, where the Supreme Court of Canada
offered the following def‌inition of ambiguity: “What, then, in law is an
ambiguity? To answer, an ambiguity must be ‘real’ . . . . The words of
the provision must be ‘reason ably capable of more than one meaning.’”6
The plausible meaning rule is meant to express an important lim-
itation on judicial interpretation. Court s are not free to disregard the
meaning of the legislative text. Judicial interpretations must be plaus-
ible from a linguistic point of view, however implausible they may be
from the point of view of sound policy or other considerations. This ap-
pears to place an import ant constraint on judicial interpretation. How-
ever, the practice does not always live up to the appearance.
5 Ibid at 1151.
6 [2002] 2 SCR 559 at para 29. [Citations omitted.] For critici sm of this passage,
see Chapter 14, Section A.

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