Statutory Interpretation

• Author: Vern Krishna
• Profession: Professor of Common Law, University of Ottawa Barrister at Law
• Pages: 32-47

32

CHA PTER 2

STATUTORY

INTERPRETATION

“The diff‌iculties of so- called interpretation ar ise when the Legislature

has had no mean ing at all; when the question which i s raised on the

statute never occurre d to it; when what the judges have to do is, not

to determine what t he legislature did mean on a p oint which was

present to its mind, b ut to guess what it would have intended on a

point not present to its mind , if the point had been pres ent.”1

A. INT RODUC TION

In this chapter, we set out the rules of the road in inter preting tax law.

Tax interpretation is not static; it evolves, particularly in the context of

provisions designed to control ta x avoidance, as we shift from literal to

purposive construction.

The primary pur pose of statutory interpretation is to un lock legis-

lative intent. In addition to the ordinar y rules, constitutional traditions

also play an important role in the interpretation of tax law. Tax legis-

lation is the product of elected legislatures. The lang uage of the Act

ref‌lects the constitutional w ill of the people through its elected repre-

sentatives. Thus, interpretation of tax law requires careful attent ion to

1 John Chipman Gray, Nature and Sources of th e Law: Statutes, 2d ed (New York:

Macmillan, 1921).

Statutory Inte rpretation 33

the words of the statute. There is a lesser role for judicial rulem aking in

tax law, than there is, for example, in const itutional law.2

B. THE

INTERPR ETATION ACT

The construction of the Act is a question of law. Section 12 of the Inter-

pretation Act state s:3

Every enactment i s deemed remedial, and sha ll be given such fair,

large and libera l construction and inter pretation as best en sures the

attainment of its object s.

Thus, we must interpret tax law in such a fai r and liberal manner

as best ensures the attainment of its purpose as articulated in the st at-

ute. The tension is in interpreting statutory language as express ed by

Parliament according to the context and purpose (often unarticulated)

of provisions.

C. GENER AL PRINCIPLES

The general principle of modern statutory construction is to interpret

statutes in context, in harmony and within the scheme of the legi sla-

tion. Dr Driedger, in the second edition of his work, Construction of

Statutes, stated the pr inciple as follows:4

Today there is only one principle or approach, na mely, the words of an

Act are to be read in the ir entire context and in t heir grammatic al and

ordinary s ense harmoniously w ith the scheme of the Act, the object of

2 See Stewart v Canada, 2002 SCC 46 [Stewart]; Lu dco Enterprises Ltd v Cana da,

2001 SCC 62 [Ludco].

3 Interpretation Act, RSC 1985, c. I-21, as amended. Section 3 re ads:

(1) Every provision of this Act appl ies, unless a contrar y intention appears,

to every enact ment, whether enacted before or afte r the commencement

of this Act.

(2) The provisions of this Act apply to t he interpretation of this Act .

(3) Nothing in this Act exclude s the application to an enactment of a r ule of

construct ion applicable to that enactment and n ot inconsistent with thi s

Act.

4 Elmer A Driedger, Construction of Statutes, 2d ed (Toronto: Butterworths, 1983)

at 87. See also Canada v Antosko, [1994] 2 SCR 312 at paras 24–25, 29 & 30 [An-

tosko].