The External Context

• Author: Ruth Sullivan
• Pages: 205-211

205

CHA PTER 12

THE EXTERNAL CONTEXT

The external context of legislat ion refers to its factual and ideological

setting, a setting th at includes the historical, social, political, cultural,

and economic conditions in which legislation is enacted and in which it

operates after enactment. The conditions at the t ime of enactment can be

a basis for inferri ng original legislat ive intent. The conditions in which

legislation operates from time to t ime can assist in dy namic interpreta-

tion. In the law of evidence, informat ion about external context is referred

to as “legislative facts” because it is t he sort of information a legislature

requires to make sound policy choices a nd to create effective schemes.

A. PROOF OF EXTERNA L CONTEXT

The facts comprising external context may be brought to the attention

of a court through formal or informal judicial notice, through expert

testimony, through so-called Brandeis br iefs (explained below), and

through legislative history materials. 1

In formal judicial notice the court e xpressly indicates that it is tak ing

into account certain facts t hat are presumed to be true. Bec ause they are

so well-established, ev idence verifying their truth is unnecess ary.2 In

1 For discuss ion of legislative facts, soci al facts, and judicial notic e, see R v Spence,

[2005] 3 SCR 458.

2 The rules govern ing formal judicial notic e are explained in Chapte r 4.