Reliance on Extrinsic Aids

• Author: Ruth Sullivan
• Pages: 259-284

259

CH AP TER 16

RELIANCE ON

EXTRINSIC AIDS

A. INTRODUC TION

Courts increasingly rely on materials tradit ionally called “extrinsic

aids” when interpreting legislat ion. There is no exact def‌inition of this

term. Historical ly, it referred to anything outside the legislative text

of which judicial notice could not be taken. Some extr insic aids were

considered inadmis sible; others could be looked at only if the text itsel f

was ambiguous. Over the past century, the courts have moved from a

reluctance to look at extrinsic aid s to a well-established acceptance of

these materials.1 However, the rules governing their admissibility and

use are not as clear as one might w ish. Not all extri nsic aids are 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 extrinsic aids would include the following:

1) Legislative history — materials gene rated in the course of enacting bills

or making regulations: Anything that is prepared to facilitate the

passage of legislation forms pa rt of its legislative history. This in-

cludes any material brought to the attention of the legislature dur-

ing the enactment of a bill, regardle ss of source, as well as materials

prepared by the government for public consumption. In the case of

regulations, legislat ive history consists of materi als considered by

1 See, for example, Cana da (Canadian Human Rights Commission) v Canad a (Attor-

ney General), 2011 SCC 53 at para 47ff.

STATUT ORY INTER PRETAT ION260

the executive branch or prepared by it to justif y and explain pro-

posed regulations.

2) Model legisla tion: In preparing new en actments, a legislature some-

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

Law Conference of Canada or law reform commissions. Often the

legislature draws on stat utes from other jurisdictions facing si milar

problems. These legislative models may be adopted in whole or in

part, with minor or major changes. Formerly, Canadian d rafters tend-

ed to model bills on British statute law. More recently, particularly

in the commercial area, Canadian legislation is more likely to follow

American examples. Occasionally, legislation is based on European

or Commonwealth law or international l aw instruments. Both the

model legislation itself and caselaw interpreting it may be relied on.

3) Legislative evolution — the previous and subseque nt versions of the

provision to be interpreted: The previous and subsequent versions

of a provision form its legislative evolution, beginning with the

f‌irst enactment followed by subsequent amendments to f‌in al repeal.

Each version is compared with the one th at preceded or followed

it, and any changes are noted and cla ssif‌ied as either stylistic or

substantive. While previous legi slative history is admis sible, the

admissibility of subsequent legislative history is more doubtful.

4) International agreements: International treaties and conventions

that have been signed and ratif‌ied by Canada may or may not have

been implemented by the relevant jurisd iction, federal or provin-

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

enacted to give domestic effect to an intern ational agreement, the

agreement to be implemented is considered an extrinsic aid that

may be relied on in interpretation.

5) The opinion of other interpreters: The opinion of other courts and tri-

bunals concerning t he meaning or purpose of a legislat ive text has

always been an important aid to statutory interpretation. Although

caselaw is not norma lly labelled “extrinsic,” it is obviously external

to the text to be interpreted. This category also includes the opin-

ion of legal scholars and of government departments and agencies,

along with the practice of off‌icials who administer the law.

B. LEGISLATIVE HISTORY

1) Legislative History Def‌ined

The materials th at may be included in the legislative history of stat-

utes have not been identif‌ied with precision. The concept appears to