Textual Analysis

• Author: Ruth Sullivan
• Pages: 129-157

129

CHA PTER 8

TEXTUAL ANALYSIS

A. TECHNIQUES USED IN TEXTUAL ANALYSIS

When a person reads a text, t he 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 te st their initial impres sion by exam-

ining the text more self-consciously — by identifyi ng the conventions

and assumptions relied on and spelling out the reasoning that justif‌ies

their i ntuitive outcome.

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

dinary conventions of la nguage and common sense but also on the

presumptions about legislative drafting described in Ch apter 2:

• The legislature has f‌lawles s linguistic competence and encyclopedic

knowledge.

• It has intel ligible 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 d irect, 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 t he ordinary

conventions of language. Insofar as t hey are shared by both dra fter and

audience, they facilitate clear and accur ate communication.

STATUT ORY INTER PRETATION130

The f‌irst step in textual analysis is to determine the g rammatical str uc-

ture of the legislative sentence by identif ying the elements of subject,

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

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

step is to see what inferences can b e 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 t hemes, and for variations in wording, pattern s, 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 R v Vol an te 1 offers a good illustration of this approach. The accused

in Vola nt e 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 ca fé at least once a week to ensure that the machine s

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

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

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

Every one commits an of fence who

. . .

(b) imports, m akes, buys, sells, rent s, leases, hire s or keeps, ex-

hibits, employs or knowin gly allows to be kept, exhibited or

employed in any place under his cont rol any device or appar-

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

a pool, or any machine or dev ice for gambling or betting.

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

scribes the fact s 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 ne commits an of‌fence who performs a prohibited ac t

The grammatical st ructure of the modify ing clause is as follows:

1 (1993), 14 OR (3d) 682 (C A) [Vo lan te]. 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.