Textual Analysis

• Author: Ruth Sullivan
• Pages: 129-157

129

CHAPTER 8

TEXTUAL ANALYSIS

A. TECHNIQUES USED IN TEXTUAL ANALYSIS

When a person reads a text, the process of meaning formation is large-

ly intuitive and unconscious: as a text is read, an idea of its meaning

comes spontaneously to mind. Through textual analysis, however, in-

terpreters can explore, ref‌ine, and test their initial impres sion by exam-

ining the text more self-consciously — by identifying the conventions

and assumptions relied on and spelling out the reasoning that justif‌ies

their intuitive outcome.

In analyzing legislative texts, interpreters draw not only on the or-

dinary conventions of language and common sense but also on the

presumptions about legislative drafting described in Chapter 2:

• The legislature has f‌lawless linguistic competence and encyclopedic

knowledge.

• It has intelligible goals and a rational plan for achieving them.

• Its choice of words, word order, and structure and its sequencing of

material are ca reful and orderly, wit h an accurate appreciation of the

impact on meaning.

• It uses a direct, straightforward style, avoiding rhetorical devices

and relying on f‌ixed patterns and pattern variations.

• Ever y feature of the text is there for a reason and has its own work to do.

These drafting conventions operate in a manner similar to the ordinary

conventions of language. Insofar as they are shared by both drafter and

audience, they facilitate clear and accurate communication.

STATUTORY INTER PRETATION130

The f‌irst step in textual analysis is to determine the grammatical struc-

ture of the legislative sentence by identifying the elements of subject,

verb, object, and complement and by noting the relation of the modi-

fying words, phrases, and clauses to these basic elements. The next

step is to see what inferences can be drawn about the meaning of the

sentence, having regard to the conventions of dra fting described above.

Here the interpreter looks for parallel str uctures and other patterns, for

recurring themes, and for variations in wording, patterns, and themes.

Above all, the interpreter asks “why” questions: why this choice of

word? this combination of words? this arrangement?

A Criminal Code provision analyzed by Ontario’s Court of Appeal

in RvVolante1offers a good illustration of this approach. The accused

in Volante owned si x gambling machines, which he put in a café owned

and operated by someone else. His contact wit h the machines consisted

of visiting the café at least once a week to ensure that the machines

were in working order and to pick up his portion of the proceeds. The

issue was whether in so doing he “kept” the machines contrary to sec-

tion 202(1)(b) of the Criminal Code:

Every one commits an offence who

. . .

(b) imports, makes, buys, sells, rents, leases, hires or keeps, ex-

hibits, employs or knowingly allows to be kept, exhibited or

employed in any place under his control any device or appar-

atus for the purpos e of recording or registering bets or sel ling

a pool, or any machine or device for gambling or betting.

Like all legislative sentences, this is a complete sentence; it de-

scribes the facts to which it is applicable, followed by a description of

the legal consequences attaching to those facts. The grammatical struc-

ture of the sentence is as follows:

(subject) (verb) (object) (clause modifying “every one”)

Every o necommits an of‌fencewho performs a prohibited ac t

The grammatical structure of the modifying clause is as follows:

1 (1993), 14 OR (3d) 682 (C A) [Volante]. For other examples, s ee Sun Indalex Fi-

nance, LLC v United Steelworkers, 2013 SCC 6 at para 153; Monsan to Canada Inc

v Ontario (Superin tendent of Financial Ser vices), 200 4 SCC 54 at para 27ff; Barrie

Public Utilities v Canad ian Cable Television Assn, [2003] 1 SCR 476 at para 22ff.