Textual Analysis

• Author: Ruth Sullivan
• Profession: Faculty of Law, University of Ottawa
• Pages: 164-193

CHAP TER 9

TEXTUAL ANALYSIS

A. ASSUMPTIONS UNDERLYING TEXTUAL

ANALYSIS

The meaning of a legislative text i s determined by analy zing the words

to be interpreted in context. Words are analyzed i n their immediate

context by focusing on the spec if‌ic provision in which t he words ap-

pear and attempting to underst and the reasons why the leg islature has

chosen this combination of words, this structure, this punctuation, and

so on. Words are also analyzed in l arger contexts by comparing t he

wording of the provision to be inter preted with the wording of provi-

sions elsewhere in the same or other Acts a nd by considering the role

of the provision in the scheme to which it belongs.1

In both type s of analysis the interpreter depends on a number of as-

sumptions about the knowledge and competence of the legislature, it s

use of language, and its f‌idelit y to the conventions of legislative str uc-

ture and style. Some of these assumptions are ack nowledged and dis-

cussed by the court s. Others are rarely mentioned but are nonetheless

implicit in judicial reasoning.

1 For discuss ion of the larger context in which word s are analyzed, includ ing the

Act as a whole, the statute b ook as a whole, and the legislation of other ju risdic-

tions, see Chapt er 8.

164

Textual Analysis 165

The assumptions relied on by courts i n analyzing legislative texts

paint an ideali zed picture of the legislature and its work, one that is

often belied by the f‌inished product. Given the pressures of the job

and the limitations of language, drafters of legislation are unlikely to

achieve anything l ike the complete knowledge or perfect clarity and

consistency that is attributed to them by the conventions.2 Neverthe-

less, these are t he virtues to which they aspire, and t he courts frequent-

ly invoke them in analyzing legislative texts.

1) Linguistic Competence

It is assumed that t he legislature is an accomplished user of language

and has fully m astered the linguistic conventions through which me an-

ing is communicated to an audience. Like t he courts themselve s, the

legislature understands the impact of context on meani ng, the signif‌i-

cance of word choice and word order; it appreciates the nuances of

sophisticated lang uage use.

It is also assumed t hat the legislature is a careful user of lang uage,

that it says what it means e xactly and therefore means exactly what it ha s

said. Its texts are scrutinized, analyzed, and often much revised before

the f‌inal version is enacted into law. During this dr afting process, par-

ticular attention is paid to the ways that mean ing is controlled through

• the use of one word rather than another;

• the arrangement of words w ithin a structure;

• th e conju nction of word s with simi lar me aning s or di ffere nt leve ls of

generality with in a structure;

• the creation of parallel structures and other distinct patterns of ex-

pression; and

• departure from establi shed patterns.

This high level of attention to linguistic detail is meant to minim ize

inadvertence and mist akes so that the f‌inal text captures the desired

meaning.

2) Drafting Competence

It is assu med that t he legisl ature is a n accomplished d rafter of legisla-

tion. This assumption implie s, f‌irst of all, that the legislature is able

to devise effective legislative schemes and to formulate directives and

2 See, for example, Canada (Attorney Gene ral) v. Savard, [19 96] Y.J. No. 4 at paras.

35–38 (C.A.).