The Entire Context
| Author | Ruth Sullivan |
| Profession | Faculty of Law, University of Ottawa |
| Pages | 128-163 |
CHAP TER 8
THE ENTIRE CONTEXT
A. INTRODUCTION
As Driedger’s modern principle tells us,1 to achieve a sound interpreta-
tion of a legislative text, the words to be i nterpreted must be read in
their entire context. More precisely, they must be read not only in their
immediate context,2 so as to determine their ordinary me aning, but also
in a larger context that may include the Act as a whole, other legisla-
tion, the legal system as a whole, and the soci al conditions in which the
legislation operates. It is necessary to look at this larger context for two
reasons. The first is to deter mine whether a provision is ambiguous. As
McLachlin C.J. asserts in Montreal (City) v. 2952-1366 Québec Inc.:
Words that appear clear a nd unambiguous may i n fact prove to be
ambiguous once placed in the ir context. The possibil ity of the con-
text reveali ng a latent ambiguit y … is a logical res ult of the modern
approach to interpretat ion.3
1 For an account of Driedger ’s modern principle, see Chapter 2.
2 The immediate cont ext consists of as much of the t ext surrounding the word s
to be interprete d as is needed to make sens e of those words. Usually the i m-
mediate context c onsists of the section in wh ich the words appear. For further
discus sion, see Chapter 3, Sections B & C.
at paras. 44–45.
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The Entire Context 129
The second reason is to establish which interpretation of an ambigu-
ous provision should be adopted. An interpret ation that accords with
the features of this larger context is preferred over one that does not.
Coherence with the context suggests t hat a proposed interpretation is
appropriate, whereas inconsistency or disharmony suggests that there
is a problem.
It is obvious that in practice courts cannot scrutinize the entire
context of a legislative provision, including the entire Act, the entire
statute book, the legal context, and relevant external conditions. Of
necessity, courts work with particular features of this larger context,
features that are brought to its attention and appea r to offer insight into
legislat ive intention.
The type of analysis in which a court engages depends on the ty pe
of context it is looking at. When a court looks at the words to be inter-
preted in light of the entire Act or the entire statute book, it s analysis is
largely literary. Literary analysis treats the statute as a distinct literary
genre and the statute book as the oe uvre of a single author — the legisla-
ture. It uses textua l analysis techniques, similar to t hose used by schol-
ars to explore the meaning of a poem or a play by a particular author.
These techniques assume that the text has been w ritten with care, t hat
each word has a specific function to perform, and that the parts all fit
together harmoniously to form a coherent whole.4 They also assume
that the Act (or part of the Act, or several Acts together)5 is an action
plan designed to implement a part icular mix of objects. The challenge
for the interpreter here is to identify the objects to be implemented,
understand the scheme designed to implement them, and determine
how the provision to be interpreted fit s into the overall scheme.6
When courts look at the larger legal system to which a st atute con-
tributes, its analysis is legal. The purpose of legal analysis is to identify
the established and emergi ng legal norms that a legislature has in m ind
when devising legislation and interpreters would have in mind when
interpreting it. Legal norm s are values or ways of proceeding t hat are
accepted as important in a legal s ystem and therefore to be observed as
a matter of course. Most legal norms are grounded in t he entrenched
4 These technique s are examined in deta il in Chapter 9.
5 Some major Acts (for example, t he Criminal Code) contain multiple schemes, and
sometimes a numb er of Acts (for example, the Broadca sting Act and the Radio-
communications Act or the Pr ivacy Act and the Access to Information Act) operate
together to regul ate a matter or problem. Statutes th at relate to the same matter
or problem are known a s statutes in pari materia.
6 For a detailed account of pur posive and scheme analys is, see Section B(4), below
in this chapter.
STATUTORY INTERPRETATION130
constitution, in international law, or in common law, but such norms
can also emerge from recurr ing themes in the relevant statute book or
in the legislation of juri sdictions with a similar legal sy stem.
Within each Canadian juris diction, there are four distinct sources
of law: the Constit ution, legi slation, com mon law, and inter nation al
law. There is presumed harmony among these severa l sources of law:
legislation is presumed to comply with constitutional law and with
Canada’s obligations at international law; legislation is presumed to
preser ve rather than cha nge the common law. Even though in pr inciple
these sources of law form an integ rated “system,” they don’t form a
single text. Statutes (and regulations) issue from a different “author”
than the entrenched constitution, international law, or the common
law. This creates a potential for conflict, which is re solved through
paramountcy rules: in the event of conflict, the entrenched constitution
trumps legislation, but legi slation t rumps i nternat ional and common
law. Ideally, however, the norms emerging from these source s work
together to help infer legislative intent and guide interpretive as well as
administ rative discretion.
The final context in which legislat ion is examined is the so-called
external context. This consists first of all of the original setting in which
legislation was enacted — it s social, cultura l, economic, and political
background. Here judicial an alysis depends not on law, but on know-
ledge of the world. Courts assume that legi slatures are well informed
about the conditions existing when legislation is enacted and t hat this
information is reflected in t he preparation and drafting of statutes and
regulations. This same i nformation is then used by interpreters to draw
inferences about the likely meaning and purpose of the tex t.7
The other aspect of external context, which is not always formally
recognized by the cour t, is the operational context — t he social, eco-
nomic, political, and inst itutional context in which the legislation
operates over time. Canadian courts began to e xplicitly address the
operational context in the course of inter preting and applying the
Charter. In dealing with Charter cases, it is well established that the
meaning of protected rights and freedoms can only be understood in
the context of current realit ies, that the courts must respond to chan-
ging conditions. When it comes to interpreting ordinary legi slation,
however, there is disagreement about the proper judici al role. Many
judges insist that their sole task in interpretation is to discover and
7 The externa l context can be establishe d through legislative hi story materials:
see Chapter 14, Section B. Often , however, it is established through jud icial
notice.
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