Technical Meaning and Meanings Fixed by Law
| Author | Ruth Sullivan |
| Profession | Faculty of Law, University of Ottawa |
| Pages | 62-82 |
CHAP TER 4
TECHNICAL MEANING
AND MEANINGS
FIXED BY L AW
In statutory interpretation the expression “ordinar y meaning” is used
in two overlapping, but disting uishable sense s. In the presumption in
favour of ordinary meaning examined in chapter 3, “ordinary mean-
ing” refers to the meaning that spontaneously comes to mind of an
interpreter when he or she reads a legislative text. In this chapter, “or-
dinary me aning” refers to the popula r, non-technical meaning of a
word or expression contained in a legislative text.
Gen era lly s pea king , it i s pre sume d th at wor ds s hould be g iven t hei r
ordinary, non-technical meaning s ubject to two exceptions. First, when
words are defined in an Act or regulation, or the meaning of legislation
is otherwi se declared by the leg islature, thi s meaning prevails over
the ordinary me aning to the extent of any inconsi stency. Second, some
words or ex pression s have tec hnical as well a s ordina ry mea nings a nd
on occasion it is the technical rather than the ordinary meaning that
the law maker intends to use. Some technical meani ngs are legal, de-
rived from common law, the Civil C ode or from commercial usage.
A. PR ESUM PT IONS A PPLIC A BLE TO
TECHNICAL MEANING
A technical meaning is a meaning understood by a group of speakers
who are engaged in a speciali zed activity. Tech nical meanings are help-
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Technical Mean ings and Meanings Fi xed by Law 63
ful because they permit insiders to refer to aspects of their activ ity in a
precise and functional way. To other insiders, technical meanings are
clear and present little inter pretative challenge; they facilitate accurate,
efficient commu nication. To outsiders, however, such mean ings are ob-
scure and unnatural.
Because technica l meanings are not familiar to t he average language
user, they do not meet the test for judicial notice.1 They must be proven
through the testimony of expert witnesses. In R. v. Perka,2 for example,
to prove the meaning of “Cannibis sat iva L” in the Narcotic Control Act,
both the Crown and t he defence relied on the testimony of professional
botanists. E xperts may also be relied on to establish that a term does
not have a technical meaning w ithin a given specialization.3
It is important to distinguish technica l meanings from technical
terms. Technical terms are words or expressions that have a technical
meaning only. In such cases, the p ossibility of ambiguity between tech-
nical and ordinar y meaning ca nnot arise and there i s no need for a
presumption. A court determines t he meaning of technical ter ms by
receiving relevant exper t evidence and making a finding of fact.4
A more difficult problem arises when legislation contains words
that have both a technical and an ordinary meaning. In such cases, a
court must decide which meaning should preva il. In addition to the
usual techniques for resolv ing ambiguity, such as purposive and con-
sequential analysis, the courts draw on two special rules. The first is
a presumption in favour of the ordinar y, non-technical meaning of
words. The other is a presumption in favour of the meani ng that would
be understood by the audience to which the legislat ion is addressed,
given the matter dealt with. Where leg islation is addressed to the pub-
lic at large, these presumpt ions complement one another, but where
legislation is addres sed to a speciali zed audience they may be at odds.
The presumption in favour of ordinary, non-technical meani ng
was applied by the Supreme Court of Canad a in Pfizer Co. v. Deput y
Minister of National Revenue (Customs & Excise).5 The issue in the case
was whether the drug impor ted by the appellant wa s a “derivative” of
tetracycline wit hin the meaning of the Customs Tariff Act. The ordinary
meaning of “derivative,” established th rough judicial notice, was “drugs
1 For an explanation of judic ial notice, see Chapter 3.
2 [1984] 2 S.C.R. 232.
3 See, for example, Canadian Pacific Ltd. v. Canada, [1994] F.C.J. No. 933 (C.A.).
4 The ordinary or tech nical meaning of a word or ex pression is a matter of fact;
whether that mea ning has been adopted by t he legislature is a matter of l aw.
5 [1977] 1 S.C.R. 456.
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